The phenomenon of climate change litigation continues to spread (see ADVANT FAQs on Climate Change Litigation | ADVANT Beiten for basic information on this and the current LSE report on the continuing trend Global trends in climate change litigation: 2025 snapshot - Grantham Research Institute on climate change and the environment). In addition to states, companies - and sometimes even their managing directors and shareholders - are increasingly coming under scrutiny. Only recently, Italy’s Supreme Court of Cassation has ruled that Iatlian civil courts can hear climate-related tort claims against a private energy major (ENI) and its public shareholders (the Ministry of Economy & Finance and Cassa Depositi e Prestiti) (see the blog post Italian Supreme Court Opens the Door to Climate Litigation Against Corporates | ADVANT Nctm). But are companies really liable for damage caused by climate change?
In Germany at least, there are still no legally binding court rulings on the liability of companies for damage caused by climate change that could be generalised. And, to date at least, this issue is also separate from the new sustainability laws (LkSG, CSRD, CS3D, Deforestation Regulation, Ecodesign Regulation, etc.). Rather, the question still needs to be clarified: Can CO₂ emitters be held liable for climate damage under general civil law principles? It is even more unclear what consequences such liability on the part of the company would have for the liability of board members and supervisory board members or managing directors, and to what extent there would be cover for this under the relevant liability insurance policies.
One prominent example is the case brought by Peruvian farmer Saúl Luciano Lliuya against RWE. After almost ten years, the Hamm Higher Regional Court dismissed the case at second instance in May 2025. Media reports emphasised that the court considered the fundamental responsibility of large CO₂ emitters for the consequences of climate change to be obvious. However, the lawsuit failed in the end due to the circumstances of the individual case.
The dismissal of the action can thus not be generalised. On the contrary, the Hamm Higher Regional Court's decision is also not a blueprint for new climate lawsuits. A closer look reveals that the Higher Regional Court of Hamm has left central questions unanswered and has taken legal positions that even create new uncertainties. Hence, there can be no question of clarifying the question of liability. Details on this can be found in my (German language) article: "Tidal wave ahead? What Lliuya vs. RWE means for CO₂ emissions, liability and D&O, corporate liability and human rights violations" (ZIP 2025, p. 2218 et seq.).
Essential questions regarding liability and coverage thus remain unresolved. This applies not only to Germany but also to other legal systems. This is also relevant for German companies (and vice versa) because in cross-border situations such as climate change, the first question that arises is: Which national law is applicable at all? In the RWE case, the Higher Regional Court of Hamm applied German law because the parties were in agreement on this and there was thus a binding choice of law. However, this will not be the case in every instance.
A case in Switzerland raises similar questions: Residents of the Indonesian island of Pari are suing the Swiss cement company Holcim. They hold Holcim responsible for rising sea levels and the resulting threat to their livelihoods. The plaintiffs are demanding from Holcim:
As with the lawsuit against RWE, NGOs are also supporting the plaintiffs here and attracting media attention. According to German broadcasting news platform „Tagesschau“, Holcim referred to the competence of the legislator in a statement when asked by the German news agency dpa: "In our opinion, who is allowed to emit how much CO₂ is a competence of the legislator and not a question for a civil court." This assessment is probably based on the following key question.
The Indonesian islanders point out that, according to the "Carbon Majors" database, Holcim is one of the largest historical CO2 emitters in the world. The Peruvian farmer Lliuya also pointed out that RWE is one of the largest historical CO2 emitters worldwide. However, compared to RWE, Holcim is likely to have caused lower CO2 emissions due to its industry and is therefore further down the "ranking list" of "carbon majors". This leads to the interesting question: At what point is a company (jointly) liable for the consequences of climate change due to its CO2 emissions? Does it only include the top 10, the top 100, or even more major CO2 emitters? The only thing that seems to be clear is that liability ‘from everyone against everyone’ cannot be reasonable in any way. The Higher Hamm Regional Court has also clearly rejected such liability for every small or large CO2 emitter. However, the Hamm Higher Regional Court has not defined a precise threshold at which such liability should be considered.
The actual reason for this is that general civil law apparently does not provide any clear guidance on where such a liability threshold should ultimately be set. The historical legislator did not think about climate change (which was not even known at the time) and its consequences and the resulting question of liability. In our abstract legal system, this does not fundamentally prevent us from subjecting circumstances that were not apparent in the past to legal assessment. However, the phenomenon of climate change and its consequences is so special that there are obviously no other constellations that can in fact be compared with it. The usual legal toolbox thus reaches its limits here.
And this is precisely where we come full circle to Holcim's press statement. After all, if it is not possible to reliably determine from the applicable general civil law when CO2 emissions give rise to liability, then it would obviously be up to the legislator to set such thresholds in the first place.
In Switzerland, however, the first question is whether the Indonesian plaintiffs are even allowed to sue in Swiss courts. The development remains exciting.
