Summary:
On 26 June 2024, it was announced that five German environmental organisations, together with a large number of individual plaintiffs, would be preparing a total of three new constitutional complaints against the Federal Government’s inadequate climate policy and the gutting of the Climate Protection Act (KSG) for the event that Federal President Frank-Walter Steinmeier were to sign pending amendments of the Act into law.
The five organisations — Germanwatch, Greenpeace, Deutsche Umwelthilfe (DUH), Bund für Umwelt und Naturschutz Deutschland (BUND) and Solarenergie-Förderverein Deutschland (SFV) — will each lead a complaint together with plaintiffs affected by climate change in different areas of their lives. Some of these plaintiffs were parties to the groundbreaking Neubauer case before the Federal Constitutional Court, including Luisa Neubauer, Sophie Backsen, Hannes Backsen, and Lüke Recktenwald.
The applicants argue that, even though the Neubauer case elevated climate action to the level of constitutional protection, insufficient action has taken place since then. Drawing on the intertemporal constitutional freedoms recognized in Neubauer, the interests of intergenerational justice, impacts on life and health, and the judgment of the European Court of Human Rights in KlimaSeniorinnen, wherein it found a violation of the right to respect for private and family life in Art. 8 ECHR, the plaintiffs argue that the requisite climate action is being delayed further into the future, increasingly endangering the future enjoyment of rights. This particularly affects the transport sector, where “extreme cuts and measures” will be required to meet reductions targets.
The plaintiffs note that the German Council of Climate Experts has made it clear that Germany is unlikely to achieve its climate targets for 2030, and that according to data from the Federal Environment Agency, the target of net zero by 2045 will also be missed by a considerable margin given current plans. This is in part due to abolition of funding programs as a result of the Federal Constitutional Court’s ruling on the Climate and Transformation Fund in November 2023.
Focusing particularly on an amendment to the German Climate Protection Act (KSG), passed by the German Bundestag on 26 April 2024, the plaintiffs note that this move (i) abolishes binding sector targets; (ii) eliminates the requirement for corrective action to catch up on missed targets; and means that (iii) post-2030 compliance with emission targets will only be considered in detail from 2029 and only planned and implemented from 2030. Overall, these legislative changes show that the legislator has not understood the constitutional limits to the overall concept of climate protection.
Since the 2021 Neubauer judgment, the plaintiffs argue, the German CO2 budget has been unnecessarily used up, while feasible and proportionate measures have not been taken. For example, the introduction of a speed limit on German freeways and in cities would have saved considerable amounts of CO2 and thus protected opportunities for freedom. The plaintiffs also cite failure to plan for green mobility options in rural areas. While immediate action in the transport sector would make it possible to transition gradually, the current plans require an “emergency stop” that will severely limit the freedoms of especially poorer segments of the population.
This cannot be countered by the fact that regulations exist at EU level. The applicants argue that EU climate protection law as a whole, and for the transport sector in particular, does not guarantee the necessary protection of fundamental rights because it does not contain any binding interim targets after 2030 and does not specify a comprehensible budget up to 2050. And, the plaintiffs note, German legislators are currently not even complying with the requirements of EU law, as established by the German Council of Climate Experts, among others.
Relief sought:
In their announcement, the plaintiffs set out three motions for relief.
- The German Climate Protection Act (KSG) still allows too many emissions given that the German emissions budget is empty if measured by the 1.5°C target of the Paris Agreement and the European Court of Human Rights, and almost empty if measured against the 1.75°C threshold set by the Federal Constitutional Court in 2021. The law is not ambitious enough, the permitted quantity targets jeopardize human rights instead of securing them. This must be changed to comply with the state’s existing duty to protect.
- The recent amendment to the KSG is unconstitutional. By weakening the required measures to reach Germany’s goals, the amendment violates the intertemporal freedoms recognized in Neubauer. The amendment must be repealed and the old law must apply unchanged.
- The failure to take climate protection measures in the transport sector already violates intertemporal civil liberties, making disproportionate measures unavoidable later in time. People in rural areas are particularly affected by such restrictions on freedom, putting socially disadvantaged groups at a disadvantage.
Cases under the “Zukunftsklage” umbrella:
A first case under this umbrella was filed in July 2024. Known as “Steinmetz, et al. v. Germany III“, this case was brought by an NGO, Deutsche Umwelthilfe, and 11 individual plaintiffs aged between 14 and 27. They allege that current reforms are insufficient and that they violate the principle of intergenerational freedom developed in the Neubauer ruling. Drawing extensively on the European Court of Human Rights’ KlimaSeniorinnen judgment, they also argue that current mitigation plans in Germany infringe their rights to life and physical integrity, drawing on Article 8 ECHR.
Last updated:
29 November 2024