The Higher Regional Court Hamm dismissed a Peruvian farmer’s claim against a large international energy group for damages related to climate change but acknowledged in an obiter dictum that such claims may be legally possible under German law. The court recognized in an obiter dictum that even small but not negligible contributions to global emissions could establish liability regardless of the lawfulness of the emitter’s actions. While the obiter dictum is not binding, the decision is being discussed as a milestone in German climate litigation, though its broader impact remains uncertain.
The appellate judgment of the Higher Regional Court (Oberlandesgericht) Hamm (herein, the Court) of 28 May 2025 (I–5U 15/17) is discussed as a milestone in German environmental litigation as it allegedly paves the way for successful compensation claims under German law against greenhouse gas emitters. A closer look at the decision, however, shows that its relevance for future cases may be much more limited.
The plaintiff, a Peruvian farmer who was supported by a German NGO, claimed monetary compensation from RWE AG, a large international energy group, for precautionary measures. He argued that measures must be taken to protect his house and property against the impending risk of a flood because of a melting glacier located near to his home, which allegedly is caused by global greenhouse gas emissions to which the defendant contributed by about 0.4% globally.
The plaintiff further argued that the negative consequences of greenhouse gas emissions have been known for many years without the defendant appropriately reacting by reducing its emissions and as such the defendant should be liable for the caused consequences.
The defendant argued that there is no legal basis for individual liability for the consequences of global climate change, which is a phenomenon beyond the control of individuals. Further, the defendant argued that (1) its individual emissions are far too low to have an impact on climate and there is no evidence that its emissions caused the glacial melting and (2) its plants are operated in accordance with applicable law and in line with all necessary state permits. Therefore, the plaintiff must tolerate the emissions as long as they remain within the approved thresholds.
The Court assumed jurisdiction for this case because the defendant did not contest the jurisdiction in the first instance. Since both parties relied on German legal provisions throughout the proceedings, the court concluded that the parties agreed on the application of German law.
The court of first instance dismissed the complaint because it did not see sufficient evidence that the individual emissions of the defendant caused the alleged damages. It argued that the risk for the plaintiff’s property would remain unchanged without the defendant’s emissions and the individual contribution of the defendant to global greenhouse gas emissions is too low to have a significant impact on global climate change.
The Court as appellate court dismissed the claim for a different reason. It decided that the plaintiff was not able to show a specific and imminent threat to his property that would justify a compensation claim. Rather, the taking of evidence in Peru showed that the risk of the glacial melting causing damage to the plaintiff’s property was relatively low.
While the Court rejected the compensation claim, the plaintiff and the supporting NGO consider the decision a success due to a comprehensive obiter dictum in which the court discussed that compensation claims for similar cases under German law could be well founded if causal damage was proven.
First, the Court agreed that the domicile of the plaintiff in Peru does not prevent the plaintiff from filing compensation claims under the German Civil Code because German law does not require an existing legal relationship, such as the relationship among neighbors, between the parties to raise such claims. Rather, the German Civil Code provides comprehensive legal protection of property.
Second, the Court agreed that the emissions of the defendant contributed to the risk to the plaintiff’s property. In this respect, the Court argued that it is irrelevant that the relevant plants were operated by subsidiaries of the defendant as the defendant can be held liable for actions of its subsidiaries.
Third, the Court considered the emissions of the defendant as a causal contribution to global climate change that caused the risk of a glacial melt. According to the Court, global industrial emissions are a significant reason for global climate change. Despite the location of the relevant plants in Europe, the defendant has to be considered a relevant polluter in this case because of the global effects of emissions on world climate. The Court further differentiated between substantial and non-substantial contributions and considered the defendant’s emissions as substantial on a global scale.
The Court continued that for establishing the defendant’s liability it is irrelevant whether the defendant acted lawfully. As the risk to the plaintiff’s property is caused by the defendant’s actions, which directly caused the relevant risk, German law provides a defense claim for the plaintiff.
Consequently, the fact that the defendant acted in accordance with applicable law and within the scope of its permits does not exclude private compensation claims. The Court did not confirm a duty of the plaintiff to tolerate the emissions. It argued that German law establishes such duties to tolerate only in specific legal relationships such as neighbor relations, and no such relation existed in this case.
Formally, the Court’s obiter dictum has no legal relevance and is not binding on the parties. Nevertheless, it may affect pending and future climate litigation in Germany and potentially the EU. Other courts in future cases are not bound by the Court’s reasoning and it should be expected that German courts will make a separate and independent assessment. Therefore, it remains to be seen whether the view of the Higher Regional Court Hamm becomes the prevailing opinion in German jurisprudence.
Many of the court’s arguments that were heavily disputed before the decision will remain disputed in its wake. In particular, the obvious conflict between the behavior of the defendant who acted in accordance with applicable laws and permits and the question of compensation for the plaintiff whose property is at risk because of humanmade climate change does not seem to be satisfactorily solved by holding a private company liable. Rather, the Court’s decision seems to show that the legal consequences of climate change cannot be solved on a case-by-case basis by courts, but rather require a solution at the state and political level to establish legal certainty.
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