Almost three years ago, a dam at the Córrego do Feijão iron ore mine in Brazil broke and buried large parts of the city of Brumadinho in a mudslide.

More than 260 people died.

Now it should be clarified before the Munich district court whether the TÜV Süd, which certified the stability of the dam, is responsible for the disaster.

Henning Peitsmeier

Business correspondent in Munich.

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This Tuesday, four Brazilians are in the courtroom in Stadelheim.

They are the brothers and the husband of Izabela, an engineer who was killed in the accident, and also the mayor of Brumadinho.

Right at the beginning of the hearing it gets emotional when the presiding judge Ingrid Henn gives the floor to Gustavo Barroso Camara.

The 36-year-old man wears earphones for simultaneous translation.

He is the older brother of Izabela, who ate lunch in the canteen on that unlucky day when 13 million cubic meters of mud spilled over the mine area.

Barroso speaks with a firm voice and says what affects many in the room: “Nobody can bring Izabela back to me.” He is sad and indignant that the TÜV refuses to take full responsibility.

Emotional descriptions of those affected in court

“I want justice,” he says.

No less emotionally, Mayor Avimar Barcelos describes how the place and the people still suffered from the events of January 25, 2019.

He invites the representatives of TÜV Süd to get an idea of ​​the consequences of the up to 15 meter high layer of sludge, which is highly toxic due to the high copper residues.

In the unadorned courtroom in Stadelheim, where the diesel scandal involving former Audi boss Rupert Stadler is usually negotiated, nothing less is at stake than making amends for one of the greatest environmental disasters of recent times. Judge Henn proposes a negotiation of merit, which, however, immediately fails. “Despite all the pain, the plaintiffs are willing to mediate,” says plaintiff's attorney Jan Erik Spangenberg, but at the same time formulates conditions that TÜV does not want to accept. The international law firm PGMBM, together with the German law firm Manner Spangenberg, represents more than 1200 victims.

First of all, there is a model lawsuit in Munich for compensation for the municipality of Brumadinho and for relatives of the Vale engineer.

But should the TÜV take responsibility, as Spangenberg demands, all other claimants should come to the testing company.

In addition, he would then have to pay for environmental damage that runs into the billions.

Group expresses its condolences and rejects responsibility

TÜV chief legal officer Florian Stork expresses his condolences to the relatives in court. However, the group is convinced that it will not bear any responsibility for the death of those affected, although a subsidiary had examined the dam six months earlier and found it to be safe. Philipp Hanfland from the law firm Hengeler Müller makes it clear that the operator is responsible for the mine and the associated dams and is liable for the damage. The mine in Brumadinho was operated by Vale S.A., the largest iron ore exporter in the world. Hanfland explains that Vale has now pledged almost 6 billion euros in compensation in a court settlement with the Brazilian state of Minas Gerais and that part of the amount will also benefit the population, which the plaintiffs, however, doubt.

As a result, the plaintiff and the defendant have a verbal exchange of blows.

Many technical details are interpreted differently.

For example, the plaintiffs claim that the TÜV subsequently lowered the risk of so-called soil liquefaction.

Instead of a previously required safety factor of 1.3, they were satisfied with 1.05, so that the dam could be classified as safe with a measured value of 1.09.

They suspect that the TÜV was deliberately compliant in order to secure follow-up orders from major customer Vale.

TÜV Süd believes that it acted with sufficient caution

The defendants contradict and state that new calculation methods were used and that a value of 1.4 would have been measured according to the earlier ones. Questions from the court also revolve around the matrix organization of TÜV Süd. Can action be taken against the underlying parent company in Munich because of the alleged mistakes made by the Brazilian subsidiary TÜV Süd Bureau? Vale and TÜV Süd are jointly and severally debtors for plaintiff Spangenberg. And to facilitate the enforcement of the claims, he relies on Article 14 of Brazilian environmental law, according to which everyone who is directly or indirectly involved in environmental pollution is liable.

It is also unclear what actually caused the dam to break. For the TÜV Süd lawyer Hanfland, it is "not implausible" that it was explosions that Vale carried out against the advice of the TÜV. He quoted from a study by the University of Nottingham, which showed on satellite images how the break had announced itself "creeping".

If the monitoring association were to be held liable for the accident, there was a risk of considerable “financial burdens” for the two Brazilian companies and “possibly also for TÜV Süd AG”.

At least that's what it says in the annual report.

In this case, the Management Board expects “significant effects on our asset, financial and earnings position for the 2021 financial year and future financial years”.

The civil chamber of the Munich regional court wants to announce a decision on February 1st.

That doesn't have to be a judgment, and certainly not a final judgment.