Unauthorised translation, provided by Germanwatch e.V. Rechtsanwälte Günther • Postfach 130473 • 20104 Hamburg * Michael Günther 1 An das Hans-Gerd Heidel * Dr. Ulrich Wollenteit * 2 Landgericht Essen 2 Martin Hack LL.M. (Stockholm) * * Clara Goldmann LL.M. (Sydney) 45117 Essen Dr. Michéle John * * LL.M. (Cape Town) Dr. Dirk Legler * Via Telefax in advance (excluding annexes) Dr. Roda Verheyen LL.M. (London) Dr. Cathrin Zengerling LL.M. (Ann Arbor) 0201 - 803-2900 Dr. Davina Bruhn Jenny Kortländer LL.M. (Brisbane) 1 Fachanwalt für Familienrecht 2 Fachanwalt für Verwaltungsrecht * Partner der Partnerschaft AG Hamburg PR 582 Mittelweg 150 20148 Hamburg Tel.: 040-278494-0 Fax: 040-278494-99 www.rae-guenther.de 23.11.2015 14/0354Z/R/rv Claim Mitarbeiterin: Jule Drzewiecki Durchwahl: 040-278494-11 Email: [email protected] bySaúl Ananías Luciano Lliuya, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Departamento de Ancash, Peru, Claimant Attorney of record: Rechtsanwälte Günther – Partnerschaft, Mittelweg 150, 20148 Hamburg against RWE AG, represented through CEO Mr Peter Terium, Opernplatz 1, 45128 Essen, Respondent in the matter of: Removal of derogation of property caused by global climate change § 1004 German Civil Code (BGB) Value in dispute (§§ 2 et seq. ZPO): 21.000 € Buslinie 109, Haltestelle Böttgerstraße Fern- und S-Bahnhof Dammtor Parkhaus Brodersweg Hamburger Sparkasse Commerzbank AG GLS Bank IBAN DE84 2005 0550 1022 2503 83 IBAN DE22 2008 0000 0400 0262 00 IBAN DE61 4306 0967 2033 2109 00 BIC HASPDEHHXXX BIC DRESDEFF200 BIC GENODEM1GLS Rechtsanwälte Günther Partnerschaft - 2 - In the name of and in full warrant of the claimant we request, to determine that the respondent is liable, proportionate to its level of impairment (share of global greenhouse gas emissions), to cover the expenses for appropriate safety precautions in fa- vour of the claimant’s property from a glacial lake outburst flood from Lake Palcacocha. In case of implementation of the written procedure we request at present a de- cree of judgement of default, should the respondent not submit disposition to defence in time according to § 276 German Code of Civil Procedure (ZPO). Substantiation: The claimant is the legal owner of a house in the city of Huaraz, Péru. The es- tate is located at the foot of the Peruvian Andes. This property is acutely threatened by glacial melting which is a direct consequence of climate change taking place with an accelerated pace and to an increasing extent. The glacial lake, Lake Palcacocha, which is located above the city of Huaraz, is threaten- ing to overflow at any moment due to risen water levels or glacial ice ava- lanches. The consequent flood wave would destroy or at least seriously damage the claimant’s house. The respondent is the parent company and owner of RWE group and the owner of different operating companies that discharged large amounts of greenhouse gases in Europe through electricity production and thus they have contributed to the anthropogenic greenhouse gas effect for decades. Greenhouse gas emissions are being released by the subsidiaries of the re- spondent especially as consequence of coal firing. These emissions are to be attributed to the legal person of the parent company, especially because the decisions to build and operate these power plants are not based on the direc- torate of the subsidiaries but on the overall management of the parent compa- ny’s directorate. In § 1004 of the German Civil Code (BGB) it is stated: (1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interfer- ences are to be feared, the owner may seek a prohibitory injunction. (2) The claim is excluded if the owner is obliged to tolerate the interference. The emissions of the respondent and its subsidiaries are not legally prohibited. Since 2004, they fall under the German Greenhouse Gas Emission Allowance Printed on 100% recycled paper Rechtsanwälte Günther Partnerschaft - 3 - Trading Act (TEHG). They lead, however, to interference with the property of the claimant. He thus is entitled to removal of the interference with his property according to § 1004 of the Civil Code BGB. The respondent is a disturber ac- cording to § 1004 of the Civil Code BGB. The norm also protects the claimant’s property when it is located in a foreign territory. The property is impaired by the greenhouse gas emissions caused by the re- spondent in line with § 1004 Civil Code BGB, more precisely by the change of the state of aggregation of the glacial ice located in the mountainous area above the claimant’s property. The glacier loses stability because of the glacial melt- ing which causes a higher risk of a glacial avalanche and thus makes it possible for a flood wave to emerge from the lake. Simultaneously, the water level of the lake rises which has a consequence that in case of a flood wave the water would rise above the moraine dam of the lake. The domicile of the claimant is thus exposed to an acute risk of a flooding. A glacial lake outburst flood is very likely to occur without protective measures and it would destroy or seriously damage the domicile of the claimant. The claimant is not obliged to tolerate this impairment of his property. A. Factual circumstances of the case 1. Mr Luciano Lliuya is a natural person. Annex K 1 (Copy "Documento Nacional de Identidad" attached as hard copy on CD, § 371 paragraph 1 p. 2 Code of Civil Procedure) He earns his living as farmer and mountain tour guide. 2. His property is affected. Mr Luciano Lliuya and his partner Ms Lidia Elena Loli Urbano are owners of an estate in the city of Huaraz (xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx) in accordance with Peruvian law, which is, as in Germany, based on a land register within public law. Annex K 2 ("Inscripción de Registro de Predios" - abstract from the land register - attached as hard copy on CD, § 371 paragraph 1 p. 2 Code of Civil Proce- dure) Printed on 100% recycled paper Rechtsanwälte Günther Partnerschaft - 4 - is the entry at hand is entry no. 11193284 in the land register regarding the ur- ban estate at xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Depart- ment of Ancash, with a property area of 103,88m^2. Registered as owners are Mr Saúl Ananías Luciano Lliuya and Ms Lidia Elena Loli Urbano at the property ownership register, registry zone no. VII, office Huaraz, registry office Huaraz. SUNARP refers to the Superintendencia Nacional de Registros Públicos, the land registry office, administrator is Mr Santos Richer Macedo Chávez. In Annex K 3 (Map, Location of Av. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, Department of Ancash, attached as hard copy on CD, § 371 para- graph 1 p. 2 Code of Civil Procedure) the location of the claimant’s estate is shown. This representation has been created on the basis of Google Maps. The right of property is guaranteed in the Peruvian political constitution as well as in the Peruvian code of civil law. The house the claimant and his Partner inhabit is situated on the property, see Annex K 4 (Picture (Claimant with his father in front of the house) attached as hard copy on CD, § 371 paragraph 1 p. 2 Code of Civil Procedure) The claimant’s estate is situated beneath Lake Palcacocha, from which the threat of flooding emanates. This lake is situated above the city of Huaraz at an altitude of approximately 4562 meters above sea level. Annex K 5 (Map, Distance (in linear meters) Laguna Palcacocha - Huaraz, own doc- umentation, attached as hard copy on CD, § 371 paragraph 1 p. 2 Code of Civil Procedure Printed on 100% recycled paper Rechtsanwälte Günther Partnerschaft - 5 - The lake is located in the area of the Huascaran National Park, in the jurisdic- tion of public authorities. The park was established by decree of the central government in 1975 (http://legislacionanp.org.pe/parque- nacional-huascaran/). 3. 3.1 The surface of Lake Palcacocha has increased eightfold in less than 40 years, while its volume has grown 30-fold (see Table 1). It has grown disproportion- ately over the past 10 years, which is attributable to the increase in global tem- peratures. The water level of the lake is significantly higher than levels deemed ‘safe’ within the natural moraines that enclose the lake (see below). Table 1: Historic Data, Lake Palcacocha Year Size (m2) Volume (m3) Max. Depth (m) 1972 66,800 579,400 14 1974 62,800 514,800 13 2003 342,332 3,959,776 14 2009 518,426 17,325,206 73 This data was taken from the study attached as Annex K 6 (attached only on CD, § 371 paragraph 1 p. 2 Code of Civil Procedure) from the University of Texas (Rivas, D. 2012. “Term report: Glacial lake out- burst flood (GLOF). Palcacocha Lake, Peru.” University of Texas at Austin. A report prepared for Geographic Information Systems course. p. 2). It is a scientific examination of a possible GLOF from Lake Palcacocha. In summary, it concludes that there is a high risk of outburst flood and that an evacuation of Huaraz would not be possible due to extremely fast inundation. The claimant is unaware of any more recent verified data. A depth of 58 m and volume of about 7 million m3 is considered technically safe. This would allow for the installation of a sustainable drainage system. This follows from pages 25-27 of a study, see Annex K 7 (attached only on CD, § 371 paragraph 1 p. 2 Code of Civil Procedure) Printed on 100% recycled paper Rechtsanwälte Günther Partnerschaft - 6 - (Portocarrero Rodríguez, César A. 2014. The Glacial Lake Handbook: Reduc- ing Risk from Dangerous Glacial Lakes in the Cordillera Blanca, Peru.