The Holcim trial begins in the cantonal court

Residents of the Indonesian island of Pari are bringing a climate lawsuit against the Zug-based Holcim Group. They also had their say before the Cantonal Court – while the opposing party spoke of a ‘staged event’. Public Interest in the trial is enormous.

Zug railway station, Wednesday morning at 8 am: on platform 6, a small group alights from the S24 train that has just arrived from Zurich. It quickly becomes clear that the group is accompanied by a crowd of media representatives, which seems to grow with every step.

The group is the Indonesian delegation that is bringing charges against the Zug-based construction company Holcim AG in the cantonal court from Wednesday. Two of the four plaintiffs have travelled from the Southeast Asian country, along with two representatives from the Indonesian non-governmental organisation (NGO) Walhi, which is running the public campaign for the trial together with the Swiss Interchurch Aid Organisation (HEKS).

The group's route took them past the Speck confectionery shop and Lake Zug, sparkling in the morning sun, to the government building in Aabach. The cantonal court has moved the trial there due to the expected public turnout.

‘Classic civil law’
The considerable interest – more than thirty people have gathered in front of the government building – stems from the fact that a landmark climate case is being heard before the 1st Division of the Cantonal Court. The four inhabitants of the Indonesian island of Pari are suing Holcim, because they see their livelihoods threatened by rising sea levels. They argue that the company bears a significant share of the responsibility for this due to its high CO₂ emissions. The plaintiffs are demanding proportional compensation from Holcim for damage already caused, participation in adaptation measures and a reduction in CO₂ emissions in line with the 1.5°C target of the Paris Climate Agreement.

Two of the four plaintiffs from Indonesia also appeared before the Zug Cantonal Court      Drawing: Erika Bardakci-Egli
The trial against Holcim before the Zug Cantonal Court attracted numerous media representatives.             Photo: bro
 

In the cantonal council chamber, which has been converted into a courtroom, presiding judge Ruedi Ackermann (FDP: Liberal democratic party) welcomed those present. He was flanked by Daniela Panico Peyer and Martina Casutt (both SVP: Swiss people’s party). Wednesday's hearing are to determine whether the court will hear the case at all.

The Holcim Group, as the defendant, wanted to stop the dispute ‘at the threshold’ of the court by portraying the lawsuit as purely political, said the plaintiff's lawyer Cordelia Bähr in her closing statement. ‘The impression is being created that the case is too big and too political for a cantonal court of first instance.’

But civil courts in various countries have already heard climate lawsuits. The proceedings are not about climate change as such, but rather a classic civil law case: a claim for damages and compensation for a violation of personal rights under the Swiss Civil Code (Zivilgesetzbuch).

More CO₂ emissions than Switzerland
The procedural requirements according to the Code of Civil Procedure (Zivilprozessordnung) have been met. These include a legitimate interest on the part of the plaintiffs. The inhabitants of Pari Island have experienced sea level rise first-hand, and are particularly affected by climate change. For them, the question is whether they can continue to live on the island, or whether they will have to abandon it.

This question, in turn, depends directly on the climate protection measures taken, especially by the defendant company as a ‘carbon major’. ‘The defendant has emitted more CO₂ in the course of its corporate history than the whole of Switzerland,’ says Cordelia Bähr.

The fact that there are other ‘carbon majors’ contributing to global warming is not an argument. It is a principle of Swiss liability law that plaintiffs can take legal action against the (legal) entity that they hold responsible.

After lawyer Cordelia Bähr, one of the plaintiffs who travelled from Indonesia addressed the court: ‘I have travelled a long way and left my children behind to be here today.’ She is afraid for her future and the future of her children. ‘Every ton of CO₂ counts for us,’ she said – and asked the court to hear the case.

‘Activist lawsuit’
Lawyer Stefanie Pfisterer, a partner at the Zurich commercial law firm Homburger, spoke on behalf of the defendant, referring to the case as a ‘staged event’. She said that Heks is attempting to individualise the complex issue of global climate change and portray it as a ‘David versus Goliath’ battle.

Civil law is thereby being used to achieve what was not possible through political means. And this ‘activist lawsuit’ is actually being financed by Zug taxpayers.

The legal conclusion: there is no civil dispute in this case, and the cantonal court thereby has no jurisdiction. Felix Dasser, also a legal representative of the defendant and a partner at Homburger, subsequently mentioned the lack of benefit of the lawsuit: ‘Even if the defendant could be obliged to reduce emissions as demanded, this would not prevent the sea levels in Pari from rising.’ He also added: ‘This is a political trial being conducted in the guise of a civil trial.’

After more than an hour and a half of closing arguments by the defence lawyers, the plaintiff's lawyer Cordelia Bähr declined to respond. Presiding judge Ackermann declared that the interim decision will be communicated to the parties in writing in due course – and closed the hearing.