Climate policy: Germany’s highest civil court clarifies the boundaries between legislative discretion and judicial intervention

On 23 March 2026, the German Federal Court of Justice (Bundesgerichtshof, BGH) dismissed civil claims seeking to force two major car manufacturers into an early phase-out of combustion engines (No. VI ZR 334/23 and VI ZR 365/23). The judgment marks an important milestone for climate litigation in Germany and provides key guidance on the limits of judicial intervention in climate policy.

The car manufacturer decision of the BGH: Climate protection is primarily the legislature's responsibility

In the recent BGH case, the claimants—executive directors of a German NGO—essentially argued that there is a legal obligation of two car manufacturers to cease placing combustion-engine vehicles on the market. The claim was based on the argument that selling combustion-engine vehicles would inevitably compel the State to adopt restrictive climate legislation, thereby curtailing personal freedoms through an anticipatory effect on their general right of personality (the general right of personality is a fundamental right under German law protecting personal autonomy and self-determination).

The BGH rejected this reasoning, holding that such a chain of causation was insufficient to establish a cognizable pre-emptive interference with the claimants' rights capable of grounding a claim for preventive injunctive relief.

In essence, the BGH based its decision on the following reasoning:

1. The legislator is responsible for the impairment, not private players such as car manufacturers:

The claim for preventive injunctive relief brought before the BGH required an impairment of fundamental rights. The BGH held that the responsibility for any future impairment of fundamental rights of affected parties through radical climate protection legislation lies primarily with the legislator. It is the legislator who makes the decision to enact the restrictive climate protection legislation. A private company that merely contributes to the circumstances making such legislation necessary does not infringe the plaintiffs’ fundamental rights. Crucially, the BGH emphasized that the national CO2 budget established under the German Climate Protection Act has not been broken down into binding sub-budgets for individual sectors, let alone for individual companies or consumers, and that doing so would itself be a matter for the parliamentary legislator.

2. A civil court is not competent to bridge alleged legislative gaps:

The BGH emphasized that balancing climate protection against competing economic interests requires complex allocation decisions that can only be appropriately undertaken through the legislative process, not through civil litigation proceedings between private parties:

The Court stressed that the legislature's broad discretion in choosing the operational and political means to combat climate change is also recognized by the European Court of Human Rights. It is therefore not the role of the courts to derive from the open formulation of Article 20a of the German Basic Law quantifiable limits on global warming or corresponding emission quantities or reduction targets.

3. Compliance with specific risk-targeted regulations precludes broader duty of care claims:

The BGH acknowledges that compliance with laws and regulations does not per se exclude civil liability. However, where (i) the legislator has enacted a specific regulatory regime designed to address the very risk at issue—as is the case with the EU Passenger Car Emissions Regulation, which expressly pursues the targets of the Paris Climate Agreement and imposes graduated limits on the marketing of combustion-engine vehicles—and (ii) the circumstances of the individual case do not call for additional measures, a private party that fully complies with those requirements cannot be held responsible for having breached its duty of care.

4. Subsidiary claims invoking carbon neutrality or Paris temperature goals lacked specificity:

The BGH dismissed these subsidiary claims as inadmissible for lack of sufficient specificity (Bestimmtheit). Those claims sought to require the car manufacturers to refrain from any conduct incompatible with achieving net greenhouse-gas neutrality by 2045/2050, or to limit the marketing of combustion-engine vehicles in line with the Paris Agreement’s goal of keeping global temperature rise well below 2°C. The BGH held that reaching such global objectives—corresponding to the national climate protection goal as a whole—depends on numerous factors and may not be achieved even without any conduct by the defendants. For the same reasons, the BGH found no legal basis to compel the defendant to prepare and implement a plan for the progressive reduction of greenhouse-gas emissions caused by the marketing of combustion-engine vehicles.

Consistency of the BGH judgment with the Constitutional Court's jurisprudence

The BGH's reasoning is consistent with the landmark decision of the Constitutional Court of 24 March 2021, which the BGH itself cites multiple times.

Back in 2021, the Constitutional Court confirmed that the German state bears a constitutional duty to protect its citizens against the dangers of climate change and may not deplete the available carbon budget so rapidly that future generations face disproportionate restrictions on their fundamental rights. Critically, the Constitutional Court left the specifics of implementation—emission budgets, reduction pathways, and policy instruments—to the legislator.

The Constitutional Court’s ruling, in turn, is fully in line with later case law from international courts: for example, in KlimaSeniorinnen v. Switzerland (2024), the European Court of Human Rights held that States have a positive duty to protect their citizens from the adverse effects of climate change. Another example is the Fliegenschnee and others v. Austria (2025) case: while noting that general principles regarding admissibility concerning climate change claims are set out in the KlimaSeniorinnen judgment, it found that Article 8 of the European Convention on Human Rights could not be read to guarantee a right to a specific measure by a particular State body under regulations applying to a specific area.

Additionally, German administrative courts—such as the Federal Administrative Court (Bundesverwaltungsgericht) in its decision of 29 January 2026 on the Climate Protection Programme 2023 adopted by the Federal Government (Bundesregierung)—also follow that approach and oblige state authorities to take concrete measures that protect the climate.

As the BGH has now made clear, it does not follow that comparable obligations extend to private actors: the German legislature retains both the responsibility and the exclusive authority to determine how constitutional climate obligations are to be implemented with respect to private actors.

The interplay with the OLG Hamm decision (RWE/Peru)

Despite their differences, the decision of the BGH shares an important common thread with the Lliuya v. RWE ruling issued by the OLG Hamm on 28 May 2025: both courts were confronted with the question whether a claim could succeed based on the risk of future harm, rather than harm that had already occurred. In the OLG Hamm case, the claim failed in particular on the facts – the risk was too remote. At the BGH, the obstacle was not factual but principled: regulatory responsibility for climate change lies with the state, effectively shielding companies that operate within the bounds of specific, risk-targeted legislation from private liability for climate harm. For businesses, this means that regulatory compliance may shield against claims seeking to compel specific corporate conduct.

Whether private companies may nonetheless be held liable to implement protective measures or to pay damages due to their past contribution to climate change remains far from settled. Such claims would raise complex and as yet unresolved legal questions (including causation, quantification of harm, etc.). A more recent case currently pending before the Regional Court of Heidelberg (Landgericht Heidelberg, LG Heidelberg), in which claimants seek damages from RWE and Heidelberg Materials for losses they attribute to the 2022 floods, will be a further test case in this regard.

German jurisprudence in comparison with the Shell ruling

In November 2024, The Hague Court of Appeal issued its widely discussed decision in Milieudefensie v. Shell. Relying on the broad duty of care standard in Dutch tort law, interpreted in light of international soft law, The Hague Court of Appeal ruled there is a general obligation on Shell's part to reduce CO2 emissions. It declined, however, to impose a specific reduction target, citing the absence of scientific consensus on company-level benchmarks. The Hague Court of Appeal held that, in the absence of a sufficient scientific basis, a civil court cannot impose specific emission reduction targets on an individual company. The BGH went a step further by recognizing that it is primarily the responsibility of the legislature—not the judiciary—to set the direction for climate policy, and private individuals cannot use civil litigation to compel companies to adopt specific conduct that those individuals consider more climate-friendly. 

The Dutch cassation proceedings are currently pending, with a hearing scheduled for 22 May 2026 and a ruling expected in autumn 2026 at the earliest.

Conclusion

By grounding its analysis within the framework established by the Constitutional Court and acknowledging that businesses cannot be held responsible for having breached their broader duty of care when they comply with specific risk-targeted regulations, the latest BGH ruling marks an important milestone in the field of climate litigation.