Is the German Law of Torts prepared for climate disruption?, by P Semmelmayer

With the case of Lliuya v RWE AG, the question of the extent to which climate change and tort law are “compatible” has also reached Germany. In the following, I want to take up this question – which I have recently examined in detail – and address it specifically with regard to private companies and current developments.

For lack of a comprehensive environmental code in Germany, there is also no comprehensive liability system for environmental damage or even for damage caused by climate change. Therefore, the codified, rigid, general German tort law has to be applied. Germany’s general tort provision is section 823 BGB (Civil Code). Section 823 (1) BGB states that “a person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this”.

The restriction to the conclusively listed legal interests in this section (life, body, etc.) means that – in contrast to the Common Law’s very similar tort of negligence – section 823 (1) BGB does not cover pure financial losses, like loss of turnover or misinvestment. Also, pure environmental harm is not a legal interest. What section 823 (1) BGB covers is, for instance, property or possession that is damaged by the result of climate change.

A violation of these interests – an act of infringement – can be seen in a company (actively) emitting greenhouse gases. How this ultimately translates into the violation of legal interests by climate change is a question of causation. Furthermore, an omission can be seen in a failure to maintain certain codified climate standards. Whether, beyond that, there is a duty of care that can be violated, is questionable, yet possible. Per definition, owing to a duty of care, the emitter has to ensure that dangers arising from an opened hazardous source (such as a plant emitting greenhouse gases) do not materialise. In determining this duty of care, therefore, numerous circumstances can play a role in each individual case (policy-setting, quantity of emissions, fundamental rights, international standards and (climate) reports). The extent to which the sector-specific contribution plays a role, is now determined by law as will be shown below. Whether a duty of care exists towards everyone is unclear in the global context of climate change. Nevertheless, in the case of huge corporations with immense greenhouse gas emissions and a market power that can hardly be controlled by states, the question arises as to why there should not be such a duty of care if the emissions have a global impact. A “giant institution” such as the state itself is, by the way, at times ascribed such a duty of care towards every citizen or towards future generations in civil law legal systems (see e.g. State of the Netherlands v Urgenda Foundation). How comprehensive a duty of care can be and how it can be violated by huge corporations is recently shown by the case of Milieudefensie and others against Royal Dutch Shell (also in the Netherlands).

Connected to this issue is the question of unlawfulness of the act of infringement (see section 823 (1) BGB). What effect does it have, when a company acts according to environmental/climate regulations or an official permit that allows the company to emit a certain amount of greenhouse gases? This question is similar to the issue of “statutory defence” in Common Law. As with the question of duty of care, however, there can be duties that go beyond a permit and might lead to the permitted act of emitting a certain amount of greenhouse gases to still be unlawful.

Rather problematic and quite illustrative in this context are the recently established emission budgets set forth in section 4 Bundes-Klimaschutzgesetz (Federal Climate Protection Act). Complying with the partly quite strictly set, sector specific emission budget, leads to the emitting greenhouse gases being “permissible” and thus arguably lawful. Yet even the Bundes-Klimaschutzgesetz or compliance with the standards of this Act alone cannot be the be-all and end-all, and compliance with the emission budgets permitted under the Bundes-Klimaschutzgesetz (broken down to the market participants, e.g.) alone cannot lead to automatic compliance with the corporate duty of care or to acting lawfully. This is shown by the fact that the Bundesverfassungsgericht (Federal Constitutional Court) ruled in 2021 that the Act was insufficient to counter climate change and therefore unconstitutional in parts.

Another obstacle is causation. German civil law applies a two-fold test for causation. A distinction is made between the question of causal relationship in the logical or scientific sense between the action and the loss and the further question of whether it is justifiable to hold the person who has caused the loss responsible (accountability). Causation in the logical or scientifical sense is judged according to the conditio-sine-qua-non formula, which corresponds to the “but for test” in Common Law. Accountability essentially establishes an evaluative prerequisite, according to which, for instance, caused harm does not have to be completely unpredictable. On the basis of numerous academic studies and reports (also in attribution science), a linear causal link between emissions and effects of climate change is increasingly easy to comprehend. In the context of causation, even the Bundesverfassungsgericht now talks about “sufficiently reliable indications pointing to the possibility of serious or irreversible impairments”. That there are countless other contributors to climate change does not change this finding, since causation includes cumulative causation. With regard to accountability, the scenario of climate chance is certainly not completely unpredictable. Furthermore, at least huge corporations like energy companies cannot plead that they are not accountable because a single corporation’s emissions is too small a share of global emissions to cause a discernible difference. Additionally, there is no legal rule for conflating the liability of major emitters for consequences of climate change with a de facto “collective non-responsibility” of the countless minor emitters.

Finally, also in the context of causation, emission budgets must be mentioned. In countries that practice a Common Law legal system, those budgets have been said to provide a convenient tool for framing climate litigation and establishing causal links and therefore counter-arguing that individual emissions are de minimus or vanishingly small. That is because the total emission budget means the quantification of the total (that is cumulative) amount of greenhouse gases that can be emitted to hold the rise in mean global temperatures to a particular level. As the German legislator now also relies on “annual mitigation targets […] set by stipulating emission budgets” in the Bundes-Klimaschutzgesetz, it is not only expressing which sectors are allowed to emit what amount of greenhouse gases (Annex 1 and 2 to the Bundes-Klimaschutzgesetz) and thus to what extent they are causally involved in climate change, but also that all emitters are cumulatively causative.

Ultimately, the increasingly strong public perception of climate change leads to the fact that it is no longer easy to claim that there is no awareness of fault and that neither intentional nor negligent action was taken with regard to emissions. Finally in this context, it must be mentioned that German tort law also provides for strict liability. The focus here is on the UmwHG (Environmental Liability Act). Sections 1 and 2 UmwHG state that if an environmental impact caused by a facility causes a person’s death, injury to her body or damage to her health or property, the operator of the facility has an obligation to compensate the injured person for the resulting damage. The term ‘facility’ includes several greenhouse gas emitting companies like combustion installations for the use of coal. Furthermore, the UmwHG has the advantage that there is no need for the conduct to be unlawful. Naturally, the issue of fault does not arise in the case of strict liability either. Furthermore, in terms of causation, section 6 UmwHG states that, if a facility is likely to cause the damage that occurred on the basis of the given facts of the individual case, it is presumed that the damage was caused by that facility. For these reasons, the UmwHG appears to be promising in climate litigation. However, it is unclear, whether the UmwHG is applicable to cases of climate change, as its wording is ambiguous in a way that the Act seems to want to cover only certain environmental causes. A court has not yet ruled on this.

With regard to the legal consequences, punitive damages are not possible under German law. First and foremost, therefore, the remedy in climate action is compensation for damages or (prohibitory) injunctions. Under German law, it is also possible to have a claim for protection even in the case of a concrete threat of impairment of property, i.e. even before the damaging event has materialised (section 1004 (1) BGB). This claim can also be directed at a certain monetary amount that is paid to avert the impending threat. This is also what the claimant in the case of Lliuya v RWE AG is (justifiably) counting on.

As can be seen, there are certainly several obstacles for German courts when they have to apply tort law in private law cases about climate disruptions. However, these obstacles still seem surmountable for the courts, even if the legislator does not take action by adapting tort law. The future will tell how far the courts are willing to go.

Posted by Philipp Semmelmayer, LL.M. (Auckland)

Suggested citation: P Semmelmayer, ‘Is the German Law of Torts prepared for climate disruption?’, BACL, available at https://british-association-comparative-law.org/?p=4566