In brief
After nearly 10 years of litigation, the Higher Regional Court of Hamm in Germany decided against Saúl Luciano Lliuya, the Peruvian farmer who – supported by the NGO Germanwatch – had sued the German energy company RWE AG for injunctive relief and damages. Allegedly, RWE’s carbon dioxide emissions had contributed to the global climate change and thereby contributed to the glacier melt in the Andes mountains where Lliuya’s property is located. The glacier melt increased the risk of flooding for Lliuya’s home.
The case Lliuya vs. RWE took place in the public eye and was followed by NGOs, companies and law firms alike. The overarching question was: can individual companies with high emissions be held liable for their contributions to the global climate change? The answer of the Higher Regional Court of Hamm: yes, they can! It was only in this particular case that the court came to the conclusion that there was no immediate risk to Lliuya’s property.
While RWE says that the NGO’s attempt to create a precedent for holding individual companies liable for the effects of climate change worldwide has failed, climate activists call the decision a “successful failure”. The decision has paved the way for future climate lawsuits in Germany.
Key takeaways
- The case has a signal effect like no other climate lawsuit. It is the only lawsuit worldwide on corporate liability for climate risks that has made it to the hearing of evidence. And it is for the first time in history, that a high court has ruled that large emitters can – in theory – be held responsible for the consequences of their greenhouse gas emissions.
- Emission-intensive companies therefore cannot breathe a sigh of relief. The court emphasized that a causal chain between carbon dioxide emissions and a specific climate change effect may be established. It dismissed this particular claim only because it did not consider the very last link in the causal chain proven, namely the question to what extent Lliuya’s property is at risk of flooding. But the search for other potential plaintiffs who are more immediately at risk to suffer from climate change effects has probably already begun. Further lawsuits against German companies could therefore follow very soon.
- If future plaintiffs prevailed with climate claims against a German company for the negative consequences of climate change caused anywhere in the world, this would have unforeseeable consequences for Germany as an industrial location. Companies should be prepared by not only minimizing their ecological footprint but also by controlling and documenting their efforts to a reduce the negative effects of climate change in the long run.
In more detail
Saúl Luciano Lliuya filed his lawsuit against RWE AG in November 2015. He based his action on a claim for injunctive relief pursuant to Section 1004 para. 1 sentence 2 German Civil Code. According to this, the owner can demand that the interferer cease “imminent interference” with the owner’s property. And pursuant to case law of the German Federal Court of Justice, the owner may not only claim injunctive relief but also reimbursement of costs from the interferer if the interferer does not do what is necessary to prevent the disturbance.
Lliuya argued that, due to RWE’s contributions to the greenhouse gas emissions, the measures to protect his property from flooding were partially the responsibility of RWE. Therefore, Lliuya claimed reimbursement pursuant to Sections 677 et seqq. German Civil Code (reimbursement from management without mandate) and Sections 812 para. 1 sentence 1 alternative 2, 818 para. 2 German Civil Code (encroachment condition). While the costs to protect Lliuya’s property from flooding would amount around EUR 3.5 million, the value of the reimbursement claim against RWE amounted to EUR 17,000 “only” because this corresponded to RWE’s share of global carbon dioxide emissions.
Court of first instance dismissed the claim as partially inadmissible and in any case unfounded
In 2016, the court of first instance, the Regional Court of Essen, dismissed the action arguing that the individual effects of climate change cannot be traced back to certain emitters. It cannot be determined whether RWE’s carbon dioxide emissions have driven climate change, which in turn caused the glacier above Lliuya’s property to melt, which in turn created a risk of flooding of Lliuya’s property. RWE argued that it has always operated its plants in accordance with applicable public laws and that it would be contradictory if it was now held liable for such action pursuant to civil law rules.
Appellate court overruled court of first instance regarding the admissibility of the claim
In 2017, Lliuya filed an appeal to the Higher Regional Court of Hamm. To everyone’s surprise, the appellate court did not immediately dismiss the claim but found that (i) a claim under Section 1004 German Civil Code may exist even if the interferer acted within public law provisions and (ii) a causal chain from RWE’s emissions to the risk to Lliuya’s property may be established.
Expert assessment to determine causal chain from RWE’s emissions to risks to plaintiff’s property
To further assess the risks to Lliuya’s property, the court appointed two experts, a geoscientist and a professor for Alpine natural hazards. In parallel, Lliuya commissioned his own expert, a geotechnical engineer and permafrost expert.
The two court-appointed experts came to the conclusion that the probability of a flood wave emanating from the glacial lake hitting Lliuya’s house in the next 30 years was at just one percent. And even if a flood wave did occur, Lliuya’s property would be flooded to a maximum height of 20 centimeters only which would not affect the structure of the building, said the geoscientist.
The counter-expert commissioned by Lliuya criticized that the court-appointed experts had not sufficiently taken climate change consequences into account in their calculations. In particular, the rock strength is decreasing due to permafrost warming. This “climate factor” increased the probability of a tidal wave to 10 or even 20 percent.
Appellate court dismissed claim due to lack of immediate risk to plaintiff’s property
On 28 May 2025, the Higher Regional Court of Hamm rendered its decision. It followed the two court-appointed experts ruling that there was no immediate risk to Lliuya’s property. In particular, unlike argued by Lliuya’s expert, it did not consider it necessary to include a “climate factor”. Since one link was already missing, the court did not have to take into account the other links of the causal chain, in particular whether and to what extent RWE’s emissions in Germany and elsewhere specifically contributed to the glacier melt in the Andes mountains on the other side of the world. This marked the end to Lliuya’s case. Under German law, the court of appeal decides whether it admits a potential appeal on points of law. Such appeal on points of law is only to be admitted if the legal matter is of fundamental significance or if the further development of the law or the interests in ensuring uniform adjudication require a decision to be handed by the appellate court on points of law. In the case at hand, this appellate court would have been the German Federal Court of Justice. However, the Higher Regional Court of Hamm decided against such legal significance. The German Federal Court of Justice will therefore not have the chance to rule on a climate change case against a company.
