ESG-related legal disputes are increasingly being used as a tool to influence climate policy and corporate strategies. Alongside cases concerning greenwashing, reporting obligations or capital market disclosures, strategic climate litigation is repeatedly coming to the fore. Such actions seek far-reaching injunctions or claims for compliance, usually against large industrial companies.
A particularly prominent example
of strategic civil climate litigation is the case brought by Deutsche Umwelthilfe (DUH) against Bayerische Motoren Werke AG and Mercedes-Benz AG. These cases did not concern “traditional” greenwashing or disclosure issues, but instead an attempt to achieve an early ‘phase-out of combustion engines’ through a claim for injunctive relief and thus to strongly intervene with the business models by means of ESG litigation.
Core argument and starting point of the injunctive relief claims
The DUH sought to impose a civil law obligation on the manufacturers to cease placing new passenger cars with combustion engines on the market by November 2030 at the latest, and to measure the CO2 emissions of vehicles placed on the market against a ‘CO2 residual budget’ by 2030. The action was brought by three managing directors of the DUH, based on so-called quasi-negatory claim for an injunction by way of analogy from Section 1004(1) sentence 2, Section 823(1) of the German Civil Code (BGB) in conjunction with Article 2(1) and Article 1(1) of the German Basic Law (GG). The core argument: the emissions attributable to the companies would force the future legislator to adopt particularly severe climate protection measures which then in turn would unreasonably restrict the plaintiffs’ civil liberties. Following defeats before the Regional Courts and the Higher Regional Courts of Munich and Stuttgart, the Sixth Civil Senate of the Federal Court of Justice has now dismissed the appeals (Federal Court of Justice, judgments of 23 March 2026 – VI ZR 334/23 and VI ZR 365/23).
Key considerations
The decisions set out important guidelines for strategic ESG and climate litigation:
- No ‘prospective effect’ of climate laws under Section 1004 of the German Civil Code (BGB): The courts have already ruled out the existence of a sufficiently specific threat to the general right of personality. It remains unclear what climate protection measures the legislature will adopt in future, when they will come into force, and to what extent they will affect individuals. The criteria developed by the Federal Constitutional Court in its climate ruling regarding the ‘anticipatory’ burden of future infringements on freedom are not transferable to the civil law claim for an injunction; a merely theoretical possibility of future legislation is not sufficient.
- Liability for interference and specific emissions contributions: At the level of attribution, the courts reject the notion that manufacturers have the status of interferers. A person is only considered an interferer if they intentionally and adequately cause an impairment and are capable of preventing it. The alleged restrictions on freedom result, if at all, from future legislative acts over which the companies have no influence. An extension of the concept of a ‘interferer’ solely on account of climate issues is not warranted; attributing legal responsibility for future climate legislation to the defendant manufacturers is not possible without exceeding the limits of permissible judicial development of the law.
- No individual residual CO2 budget and primacy of the legislature: Neither Section 906 of the German Civil Code (BGB) nor Article 20a of the German Basic Law (GG) or EU law allow for the derivation of additional duties of abstention that can be separated from the public law framework. Compliance with EU passenger car emission standards and the Climate Protection Act is regarded as a strong indication of legality. Article 20a of the Basic Law addresses the legislature, not private companies directly. The Federal Court of Justice rejects the idea of deriving an individual residual CO2 budget for individual companies from international and national climate targets, on the basis of which a claim for injunctive relief could be founded: the distribution of remaining emission allowances is a political allocation decision, not a matter for civil courts to regulate on a case-by-case basis.
Conclusion: No right to injunctive relief
The Federal Court of Justice has therefore ruled out the possibility of a civil law claim that assigns a specific CO2 budget to individual car manufacturers and using this to impose a ban on internal combustion engines from a certain date. For companies, this means that strategic climate litigation aimed at imposing comprehensive transformation requirements on individual market participants is currently subject to significant legal restrictions.
Strategic litigation as a risk?
Within the broader picture of ESG litigation, the DUH lawsuits nevertheless demonstrate that the focus in the climate sector is increasingly shifting towards larger companies. Fundamental structural decisions on climate policy – such as an early ban on combustion engines – remain the preserve of the parliamentary legislature and cannot therefore be initiated or enforced ‘through the back door’ by means of civil disputes. At the same time, even the most recent decisions, given the media attention they have received, demonstrate that such proceedings are always underpinned by a strategic element: despite ‘failure on the merits’, such proceedings can also be used as means to achieve goals extending beyond the litigation itself thereby creating a significant risk of its own for the respective defendants. It remains to be seen whether the Federal Court of Justice has completely eliminated such risk by comprehensively addressing the aforementioned legal thresholds, which the lower courts will also use as a guide in future. According to press reports, the DUH is considering an appeal to the Federal Constitutional Court. Furthermore, previous ESG proceedings have shown that plaintiffs are developing new lines of argument that could then enable appeals to be brought in future.
Furthermore, ESG remains a cross-cutting issue of systematic compliance. It is crucial to comply with regulatory requirements and to structure ESG-related processes and communication in such a way that they can withstand judicial scrutiny: with regard to the aspect of duty of care, the Federal Court of Justice has indeed ruled that compliance with public law requirements alone does not preclude the assumption of a breach of civil law duty of care. However, provided that no special circumstances arise in the individual case, it is precisely this compliance with statutory requirements that serves as the decisive benchmark for determining whether or not the party responsible for ensuring public safety can be held liable.
Against this background, the Federal Court of Justice’s most recent decisions therefore do not constitute a comprehensive all-clear for businesses.
