Germany: Peruvian landowner loses case against RWE – but still a victory for climate litigation (?)
Written By
Counsel
Germany
As Counsel of the German and international dispute resolution teams, I advise clients on disputes before state courts as well as in national and international arbitration proceedings.
“The fact that the plaintiff lives in Peru does not prevent him from asserting a claim against the defendant under Section 1004(1) sentence 2 of the German Civil Code (BGB). The distance between the source of the disturbance and the affected property is irrelevant; neighbourhood is not a prerequisite for a claim, either according to the wording or the meaning and purpose of the provision.”
Judgment of the Higher Regional Court of Hamm, dated May 28, 2025 (Ref. 5 U 15/17), available at www.nrwe.de
On 28 May 2025, the Higher Regional Court of Hamm (Ref.: 5 U 15/17) brought to an end the nearly 10-year legal dispute between the Peruvian landowner and the energy supplier RWE. The landowner claimed that his home in the Peruvian city of Huaraz was at risk of flooding from the Laguna Palcacocha glacial lake, which he attributed to climate change. He demanded that RWE contribute to the costs of protective measures in proportion to its share of global CO₂ emissions (0.38%, according to the lawsuit).
By the end of 2017, it was clear from the evidence ruling issued by the Higher Regional Court of Hamm that the court would disagree with the lower court's assessment, which had deemed the lawsuit inadmissible in part. This was followed by a spectacular site visit in Peru in May 2022. Ultimately, however, the court dismissed the lawsuit because the plaintiff was unable to prove that his property was in concrete danger, as defined in Section 1004(1) of the German Civil Code (BGB). Following an extensive review of evidence, including an on-site visit to Peru and the collection of several expert opinions, the probability of a glacial lake outburst affecting the plaintiff's property was estimated at approximately 1% over the next 30 years. In the court's view, this probability was insufficient to constitute 'serious concern of a future, imminent infringement of rights'.
Nevertheless, the decision of the Higher Regional Court of Hamm is likely to be a landmark ruling for future climate lawsuits. This is because the lawsuit failed only due to a lack of evidence of a concrete threat to the plaintiff's property. The court ruled in favor of the plaintiff on numerous fundamental legal issues, thereby setting a precedent for future climate lawsuits.
