Background on the Lliuya v. RWE case
In November 2015, Lliuya, a farmer from the Andean city of Huaraz, Peru, filed a lawsuit in the District Court of Essen, Germany, against RWE, one of Germany’s largest electricity producers. Supported by the NGO Germanwatch, Lliuya sought a declaratory judgment and partial compensation for the costs of implementing flood protection measures. The measures were intended to mitigate the risk posed by the growing volume of the Palcacocha glacial lake, located above his hometown. He attributes this risk, in part, to global climate change.
Lliuya argued that RWE's historical GHG emissions had contributed to the melting of nearby glaciers, thereby increasing the flood risk to his property. Lliuya requested that RWE be held liable for 0.47% of the anticipated mitigation costs, which corresponds to the company’s estimated share of global industrial emissions since 1751 as calculated in the Carbon Majors Study (based on a database of historical production data from 180 of the world's largest oil, gas, coal, and cement producers). Attribution science supports the claim that global climate change is the primary driver of glacial retreat in the Peruvian Andes and that RWE has made a quantifiable causal contribution to this retreat.
Ruling of 28 May 2025 in the Lliuya v. RWE case
In its ruling of 28 May 2025, the German Higher Regional Court of Hamm ruled that specific flooding risks and consequential damages to Lliuya’s property in Peru did not meet the legal threshold to proceed with the appeal proceedings (for further information, please refer to the court’s press release, as the full text of the ruling has not yet been published).
However, the German Higher Regional Court of Hamm has ruled that companies – in principle – can be held liable (under German civil law) for their contribution to the impact and risks of climate change. Furthermore, the court has stated that the significant distance between RWE's power plant and Lliuya's property does not inherently pose a legal challenge. This may be interpreted as a recognition of both the shared global responsibility and the potential individual accountability of companies in addressing climate change. While this could raise various legal questions (e.g. about the foreseeability of such claims), its relevance will ultimately depend on how courts assess the facts and context of each case.
The ruling of the German Higher Regional Court of Hamm of 28 May 2025 is significant because, to our knowledge, it is one of the first times that a court in the EU has recognised a claim for monetary damages against a company as legally possibility in the context of climate change. Even without a finding of liability, the case sets an important procedural precedent and may encourage further litigation in which claimants seek to hold states and companies accountable for climate-related damages. These efforts will likely focus on proving a breach of the duty to mitigate climate change by reducing GHG emissions. However, establishing a legally relevant causal link between global emissions and localized risks and consequential damages remains a substantial hurdle. The diffuse and cumulative nature of climate change does not easily align with the traditionally localized framework of tort law, particularly across jurisdictions. Thus, although attribution science may support these claims, its role in satisfying legal standards of causation is subject to judicial interpretation and evidentiary scrutiny.
Could climate attribution reasoning succeed in the Dutch jurisdiction?
As illustrated by the recent ruling in Lliuya v. RWE, the question of how courts assess complex causal links in climate litigation remains open and depends on the specific circumstances. Climate liability under Dutch tort law (Article 6:162 of the Dutch Civil Code) remains also an evolving area. The Milieudefensie v. Shell ruling of the The Hague Court of Appeal illustrates the evolvement, in which the court ruled that a duty of care may be (partly) derived from international (soft) law and human rights norms (see our case-analysis on this here). Whether such a duty can also give rise to claims for monetary compensation under Dutch tort law, however, remains legally uncertain and highly dependent on the specific circumstances of each case.
A key challenge in this context is the requirement to establish causation under Dutch law. Dutch courts generally apply the conditio sine qua non (but-for) test, which sets a relatively high threshold. In this context, a Dutch equivalent of the Lliuya v. RWE case, where a company’s GHG emission represents a small fraction of global totals, may struggle to demonstrate a sufficiently concrete causal link to specific harm. That said, certain legal concepts may offer points of reference. In Nefalit v. Karamus, the Dutch Supreme Court acknowledged that, in specific circumstances, proportional liability could be considered where a direct causal link cannot be established with certainty – provided it is sufficiently plausible that the defendant’s conduct materially increased the risk of harm. In addition, recent decisions in EU cases – such as the KlimaSeniorinnen v. Switzerland case – may provide broader context for how courts might approach questions of climate-related causality (please be referred to our earlier blog on this here). However, to which extent such reasoning could be applied in private law contexts, particularly in horizontal relationships between individuals and companies, remains open to interpretation.
Although these legal concepts offer a perspective, the legal framework for climate damage claims in the Netherlands remains complex and highly dependent on the specific facts of each case. Further judicial interpretation and legal development are crucial to shaping the future of such claims under Dutch civil law.
What’s next?
The Lliuya v. RWE case has drawn considerable attention as one of the first climate-related damages claims to reach the evidentiary stage in a civil court. The ruling of 28 May 2025 addressed an initial evidentiary question concerning causation. In its decision, the German court found that the evidence did not demonstrate a sufficiently concrete risk of danger to the claimant’s property. Therefore, the claim was dismissed and consequently the appeal proceedings as well. As a result, the case has not reached the stage at which the causal link between RWE’s emissions and the alleged climate-related harm would have been examined. While this outcome may temper expectations for similar claims in the short term, it does not preclude further developments in this area. Especially because the German court recognised the legal possibility of corporate climate liability. Looking ahead, claimants might further explore new legal and scientific approaches to establish causation in support of claims for monetary damages in climate litigation. To be continued.
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ESG litigation is rapidly increasing and unfolding across multiple avenues. Our firm is closely monitoring ESG litigation and legislation and potential liability and litigation risks in this respect. Feel free to contact one of our colleagues below for more information about the ESG litigation in the Netherlands.
