Category: Paris Agreement

Categories
2022 Children and young people Deciding Body Domestic court Emissions reductions/mitigation Germany Keywords Paris Agreement Right to life Rights at stake State concerned Year

Alena Hochstadt et al. v. Hessen

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by three young people against the German State of Hessen in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

In June 2021, Hessen’s Climate Change Act was introduced to the state parliament and is currently under debate. According to the plaintiffs, the Climate Change Act in its current version does not fulfil the constitutional obligations for climate protection.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO2 emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Alena Hochstadt et al. v. Hessen, Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Emma Johanna Kiehm et al. v. Brandenburg

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Leonie Frank et al. v. Saarland

Tristan Runge et al. v. Sachsen

Jannis Krüssmann et al. Nordrhein-Westfalen (NWR)

Cosima Rade et al. v. Baden-Württemberg

Matteo Feind et al. v. Niedersachsen

Links:

For the decision in German, see here.

Categories
2022 Children and young people Deciding Body Domestic court Emissions reductions/mitigation Germany Keywords Paris Agreement Right to life Rights at stake State concerned Year

Emma Johanna Kiehm et al. v. Brandenburg

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by three young people and three landowners against the German State of Brandenburg in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO2 emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Emma Johanna Kiehm et al. v. Brandenburg, Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Alena Hochstadt et al. v. Hessen

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Leonie Frank et al. v. Saarland

Tristan Runge et al. v. Sachsen

Jannis Krüssmann et al. Nordrhein-Westfalen (NWR)

Cosima Rade et al. v. Baden-Württemberg

Matteo Feind et al. v. Niedersachsen

Links:

For the decision in German, see here.

Categories
2021 Brazil Deforestation Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

Laboratório do Observatório do Clima v. Minister of Environment and Brazil

Facts of the case:

This is a class action suit brought before the 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas, by a network of 71 civil society organizations against the Environmental Ministry and the Brazilian Government. The petitioners allege that the respondents are committing a systematic violation of the right to an ecologically balanced environment as well as Brazil’s obligation under the Paris Agreement by- failing to update and implement Brazil’s ‘National Policy on Climate Change’ pursuant to the federal climate legislation, especially in the face of the updates in IPCC’s 6th Assessment Report; downgrading the ambition in Brazil’s ‘Nationally Determined Contributions’ communication under the Paris Agreement; failing to address the problem of deforestation in the Amazon; disproportionately favouring and intensifying the use of fossil fuel over renewable sources in its energy sector; and reducing the powers and capabilities of institutions for environmental protection that make up the national system for environmental protection and climate control, and thereby paralysing the accountability processes.

The reliefs sought by the petitioners include a declaration of non-compliance with constitutional law, and a mandatory injunction. As for the latter, the respondents ask for the preparation of an updated National Policy on Climate Change which takes into consideration all sectors of the economy, is in strict compliance with the federal climate legislation and principles recognised in the Paris Agreement, informed by the IPCC’s latest Assessment Report and the Paris Agreement’s 1.5ºC temperature target.   

Date of institution of proceedings:

26 October 2021

Admissibility:

TBD

Merits:

TBD:

Reliefs Awarded:

TBD

Status of the case:

Pending.

Further information:

On 11 November 2021, Judge Mara Elisa Andrade scheduled a conciliatory hearing between the parties to the case, which was subsequently cancelled on 25 November 2021 owing to the defendants’ lack of interest in settling the dispute through conciliation.

Case documents:

Petition (in Portuguese)

Categories
2021 Domestic court Emissions reductions/mitigation European Convention on Human Rights France Paris Agreement Private and family life Right to life

Notre Affaire à Tous and Others v. France (‘L’affaire du siècle’)

Summary:
The L’affaire du siècle (French for “affair of the century”) is a French climate justice campaign initiated by four organisations (Fondation pour la nature et l’homme, Greenpeace France, Notre affaire à tous and Oxfam France) on 17 December 2018 to bring the French State to justice for its inaction in the fight against global warming. After the French State rejected the campaigners’ demand, a legal action against the State was filed with the Paris Administrative Court on 14 March 2019.

On 3 February 2021, in a decision that the associations described as ‘a historic victory for the climate’, this court confirmed the existence of a causal link between environmental damage and the failure of the State to adequately combat climate change. It ordered the State to submit written observations within a two-month time frame.

On 14 October 2021, in its final decision, the court instructed the French State to take immediate and concrete measures to combat climate change and to repair the damage caused by its inaction by 31 December 2022.

Rights invoked:
Among other things, the applicant organisations relied on Articles 2 and 8 of the European Convention on Human Rights (ECHR) and the French Charter of the Environment, as well as the “right to a preserved climate system”. The plaintiffs argued that this right stems from national and international law such as the Stockholm Declaration, the World Charter for Nature, the Rio Declaration, the UN Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement, the Climate action and renewable energy package for 2020.

Findings on the merits:
The court found that the State had not respected its greenhouse gas reductions commitments and had therefore committed a “fault”. It accordingly held that, “[i]n line with the commitments that it had made within the framework of the first carbon budget, which it failed to respect, the State must be regarded as responsible […] for part of the ecological damage observed”.

The Administrative Court of Paris thereby confirmed on 3 February 2021 that there was a causal link between the environmental damage and the inaction of the French government in combating climate change. In other words, it recognized that the government’s inaction had caused ecological damage, and that the State should be held responsible for at least part of this damage. The court ordered the government to show, within two-months, the measures it intended to take against climate change. The court reserved the rest of its judgment until after it had received these submissions.

In its final decision on 14 October 2021, the Administrative Court of Paris instructed the Prime Minister and the relevant ministers to take all possible measures to combat climate change and to repair the ecological damage and prevent it from getting worse. The Court specified the damage in the amount of the uncompensated share of greenhouse gas emissions under the initial carbon budget, i.e. 15 million tons of CO2 equivalents. It ordered that the recuperation of this damage must be effective no later than 31 December 2022. However, the Court did not consider it appropriate to impose a penalty on its order.

The Court noted that it is not its role to assess whether the totality of the measures taken is sufficient or not. Therefore, the specific measures to implement this recuperation may take various forms, and are left to the discretion of the French government. In its findings, the Court referred to the Commune de Grande-Synthe decision of the Conseil d’État (“Council of State”) of 1 July 2021. This decision states that the current measures are not sufficient to achieve the necessary reduction in greenhouse gas emissions.

Date of filing:
14 March 2019

Date of decision:
14 October 2021

Links:
For the full text of the final decision of 14 October 2021 (in French), see here.

For the full text of the first decision of 3 February 2021 (in French), see here.

For an unofficial translation of the first decision of 3 February 2021 (in English), see here.  

For an unofficial translation of the State’s reply (in English), see here.

For the plaintiff’s reply to the State’s arguments (in French), see here.

The applicant organisations are active on Twitter at @laffairedusiecl, and they have a website that can be found at https://laffairedusiecle.net/.

Suggested citation:
Paris Administrative Court, Notre Affaire à Tous and Others v. France (‘L’affaire du siècle’), Decision of 3 February 2021, Nos. 1904967, 1904968, 1904972, and 1904976/4.

Paris Administrative Court, Notre Affaire à Tous and Others v. France (‘L’affaire du siècle’), Decision of 14 October 2021, Nos. 1904967, 1904968, 1904972, and 1904976/4.

Further reading:
Christel Cournil, Antoine Le Dylio, Paul Mougeolle, ‘L’affaire du Siècle : French Climate Litigation between Continuity and Legal Innovations’, 14(1) Carbon & Climate Law Review (2020), 223-233. Available here.

Categories
2021 Deciding Body Domestic court European Convention on Human Rights Keywords Paris Agreement Right to assembly and association Right to freedom of expression Rights at stake State concerned Switzerland Year

Credit Suisse Climate Activists Trial (Geneva)

Summary:
On 13 October 2018, during a climate march in Geneva, a young climate activist from the collective “BreakFree Suisse” spread his hands smeared with red paint all over the facade of the Swiss bank Credit Suisse, leaving red handprints to denounce investments in fossil fuels. According to the climate activist, these red handprints symbolized the blood of the various victims of climate change.

On 20 February 2020, the activist was found guilty by the Tribunal de police (“Police Court”) for property damage.

On 14 October 2020, the Cour de Justice (“Court of Justice”) acquitted the climate activist and argued that the young man had acted in a putative state of necessity due to climate change.

A year later, on 28 September 2021, the Swiss Bundesgericht (“Federal Supreme Court”) overturned this decision and referred the case back to the Cour de Justice. The Bundesgericht argued that climate change and the resulting consequences do not represent an imminent danger to individual legal interests.

Consequently, on 31 March 2022, the Cour de Justice revised its first decision and ordered the climate activist to pay a symbolic fine of 100 Swiss francs as well as compensation for material damage.

In a similar case in Lausanne, climate activists from the same collective were on trial after occupying the entrance halls of the Swiss bank Credit Suisse.  

Rights invoked:
The activist invoked his rights to freedom of expression (Article 10 European Convention on Human Rights (ECHR)) and assembly and association (Article 11 ECHR).

The Swiss Bundesgericht held that Article 11 ECHR only protects the right to freedom of “peaceful assembly”. With his behavior, the young man committed an act of vandalism, which is incompatible with freedom of expression. Accordingly, the Court found that the activist could not rely on Articles 10 and 11 ECHR.  

Further proceedings:
It was reported that applications concerning both of these cases have been filed at the European Court of Human Rights.

Date:
28 September 2021

Suggested citation:
Swiss Bundesgericht, N.B. v. Credit Suisse, 6B_1310/2020, 6B_1298/2020, Judgment of 28 September 2021.

Links:
For the Federal Supreme Court’s judgment, see here.

For the Cour de justice’s second judgment, see here.

For the Cour de Justice’s first judgment, see here.

For the Tribunal de police’s judgment, see here.

Categories
Domestic court Emissions reductions/mitigation European Convention on Human Rights Italy Paris Agreement Right to a healthy environment

Giudizio Universale (The Last Judgment) (A Sud and Others v. Italy)

Summary:
On 5 June 2021, 203 plaintiffs (24 associations, 17 minors represented in court by their parents, and 162 adults) led by the environmental justice NGO A Sud filed a lawsuit with the Civil Court of Rome against the Italian State, represented by the Presidency of the Council of Ministers. The lawsuit is part of a campaign for awareness raising named “Giudizio Universale” (The Last Judgment).

The plaintiffs allege that the Italian State is fully aware of the climate emergency and the urgency of GHG emissions reduction, as demonstrated by official declarations and explicit acknowledgements by State representatives in recent years which produced environmental information as per Article 2(3) of the Aarhus Convention. Notwithstanding, the climate measures taken by the Italian State were insufficient. Limited emissions reductions had been achieved mainly due to the economic crisis and the following recessions, but it was projected that the State would not meet even modest reduction targets by 2030. These measures would not satisfy the climate obligations that the Italian State is required to observe and implement, originating from the UNFCCC, the Paris Agreement, and specific EU Regulations. Therefore, the plaintiffs allege that the State infringed human rights, including the right to a stable and safe climate, which interfaces with the principles in Article 6 of the Treaty of the European Union, and the rights recognized by Articles 2 (right to life), 8 (respect for private and family life), 14 (prohibition of discrimination) of the ECHR. The plaintiffs allege that this gives rise to non-contractual liability of the State under Article 2043 of the Italian Civil Code, and that responsibility may also be identified according to Article 2051 of the Civil Code as the State can be considered the guardian of the climate system.

The plaintiffs requested the judge to declare that the Italian State is responsible for failing to tackle the climate emergency and to order the State to reduce greenhouse gas emissions by 92% by 2030 compared to 1990 levels, applying the principle of equity and the principle of common but differentiated responsibilities (Fair Share).

Hearings:
The first hearing was held on 14 December 2021 in the form of an exchange of written briefs. The Italian State requested the judge to declare the complaint inadmissible, or to dismiss it on the merits as completely ill-founded. Subsequent oral hearings were held on 21 June 2022 and 13 September 2023.

Decision:
On 26 February 2024 the Court declared the complaints inadmissible for absolute lack of jurisdiction. Notably, the Court considered it impossible to verify the adequacy of the measures taken by the State to achieve its climate targets, noting that it lacked the necessary information to examine choices of such complexity. The Court also rejected the existence of State emissions-reductions obligations under private law that can be claimed by individuals, and invoked the principle of the separation of powers. The plaintiffs declared that they would challenge this judgment on appeal.

Appeal proceedings:
In November 2024, it was reported that the applicants had appealed the Civil Court of Rome’s decision, citing the success of the KlimaSeniorinnen case at the European Court of Human Rights as bolstering its case.

Date filed:
5 June 2021

Jurisdiction:
Civil Court of Rome

Status of the case:
First instance judgment; appeal pending

Suggested case citation:
Complete first instance judgment citation: A Sud Ecologia e Cooperazione ODV et al. v. Presidenza del Consiglio dei Ministri, Tribunale di Roma, Seconda Sezione Civile, n. 39415/2021, 26 febbraio 2024 [A Sud Ecologia e Cooperazione ODV et al. v. Presidency of the Council of Ministers, Civil Court of Rome, Secon Civil Section, n. 39415/2021, 26 February 2024], case under appeal.

Further reading:
English language: a summary of the legal action was provided by the applicant NGO here.

Italian language: all the documents from the proceedings and a review of relevant literature can be found on this website hosting the Observatory on Italian climate change litigation, edited by the students in Comparative Climate Change Law at the University of Salento.

Last updated:
13 November 2024

Categories
2021 Brazil Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

Thalita Silva e Silva and Others v. Minister of Environment et al.

Summary:
This case was brought before the 14th Federal Civil Court of Sao Paulo by six youths as a popular action against the Brazilian Government, challenging Brazil’s updated ‘nationally determined contribution’ (NDC). These were submitted on 8 December 2020 pursuant to its obligation under Article 4.2 of the Paris Agreement. The petitioners argue that the NDC is regressive in comparison to its previous NDC, as it alters the baseline relative to which its emissions reductions targets for the years 2025 and 2030 were to be calculated. Both the initial and the updated NDC provided for a commitment to reduce greenhouse gas (GHG) emissions by 37% by 2025, and 45% by 2030 compared to 2005 levels, but the estimated emissions for the base year 2005 was increased from 2.1 to 2.8 billion tonnes of CO2 equivalent pursuant to an update in Brazil’s national GHG inventory report.

The petitioners contended that this regression in the updated NDC constituted a violation of Article 225 of the Constitution of Brazil, which provides for the right to an ecologically balanced environment. They further argued that there was a new GHG inventory report which estimated the 2005 emissions levels to amount to 2.4 billion tonnes rather than 2.8 billion tonnes as per the previous inventory report, and since this new report was published before the updated NDC was communicated, the updated NDC stands to be quashed in any case. The respondents contested the courts’ jurisdiction on the ground that the claim concerned an act of the Brazilian government at the international level. They also contended that the NDC in question met the criteria of progression and highest possible ambition.  

Date of decision:

28 May 2021

Admissibility:

The Federal Civil Court of Sao Paulo found that it was competent to adjudicate the case as per Article 109, Item III of the Constitution of Brazil which provides federal courts the competence to hear cases based on a treaty between the Union and other States or international bodies.

Merits:

The Federal Civil Court of Sao Paulo summarily dismissed the plaintiffs’ request for injunction on the count that the updated NDC maintains the emissions reduction targets specified in the previous NDC, and that the change in the estimated emissions during the base year in different national inventory reports was normal and expected in light of improvements in scientific understanding and techniques. It also highlighted that the Paris Agreement requires parties to periodically update their national inventories and inferred from this requirement that the targets in NDCs are to be understood in relation to the inventory available at the time of communicating them. The Court also considered the updated NDC to be ambitious as it contained a carbon neutrality commitment.

Status of the case:

The petitioners have appealed against the decision of the Federal Civil Court.

Suggested case citation:

Federal Civil Court of Sao Paulo, Thalita Silva e Silva & Ors. v. Minister of Environment & Ors., Ação Popular nº 5008035-37.2021.4.03.6100, decision of 28 May 2021.

Case documents:

Petition (in Portuguese)

Decision of the Federal Civil Court of Sao Paulo (in Portuguese)

Categories
2021 Deciding Body Domestic court European Convention on Human Rights Imminent risk Keywords Paris Agreement Right to assembly and association Right to freedom of expression Rights at stake State concerned Switzerland Year

Credit Suisse Climate Activists Trial (Lausanne)

Summary:
On 22 November 2018, a group of 20 to 30 climate activists from the collective “BreakFree Suisse”, among them the 12 complainants, occupied the entry halls of the Swiss bank Credit Suisse in Lausanne to demonstrate against the bank’s investment in fossil fuels. The protest aimed to draw attention to this issue by condemning the participation of the Swiss tennis player Roger Federer in the advertising campaign of this bank. To do so, the activists were dressed in sports clothes and staged a tennis match. While some activists complied with the police request to leave the premises, others had to be dragged out by the police.

The activists argued that they had been in a “justifiable state of emergency” (rechtfertigender Notstand) due to climate change and that their protest was therefore lawful.

On 13 January 2020, the Tribunal de police de l’arrondissement de Lausanne (“Police Court of the district of Lausanne”) ruled in favor of the protesters. The judge found that climate change posed an imminent threat and that the protest was therefore a necessary and proportionate means to achieve the activists’ intended goal.

On 22 September 2020, this decision was overruled by the Tribunal Cantonal du Vaud (“Vaud Cantonal Tribunal”). The Court argued that the activists could have protested the bank by using other means, such as political or legal instruments. It further found that climate change is an imminent threat and that measures must be taken to address it. However, the Tribunal Cantonal du Vaud doubted that the protest could have led to a reduction in greenhouse gas emissions. Furthermore, it also noted that the Swiss government is aware of the issue and has already taken necessary measures, such as ratifying the Paris Agreement. Finally, the Court held that it is not yet too late to take the necessary protective measures to combat climate change.

On 26 May 2021, the Swiss Bundesgericht (“Swiss Federal Supreme Court”) mainly upheld the Tribunal Cantonal du Vaud’s decision. It argued further that climate change may be considered an imminent threat and that the activists did not intend to protect a specific legal interest, but rather collective interests, namely the environment, health, or the well-being of the population, and thus, the protest was not lawful.

In a similar case in Geneva, a climate activist from the same collective was on trial after putting red handprints all over the front of the Swiss bank Credit Suisse.

Rights invoked:
The complainants invoked their rights to freedom of expression (Article 10 European Convention on Human Rights (ECHR)) and assembly and association (Article 11 ECHR).

The Swiss Bundesgericht argued that the complainants are not entitled to invoke Articles 10 and 11 ECHR in this context because they had no right to enter private property to take their actions. The freedom of assembly does not include the right to gather on private property without the owner’s consent. Consequently, the claimants could not rely on Articles 10 and 11 ECHR.

Date of decision:
26 May 2021

Suggested case citation:
Swiss Bundesgericht, 12 climate protesters v. ministère public central du canton de Vaud, 6B_1295/2020, Judgment of 26 May 2021.


Links:
For the judgment of the Swiss Bundesgericht (in French), see here.

For the judgment of the Tribunal Cantonal du Vaud (in French), see here.

For the judgment of the Tribunal de police de l’arrondissement de Lausanne (in French), see here.  

Categories
Access to a remedy Austria Disability and health-related inequality Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Fair trial Paris Agreement Private and family life Right to life Victim status Vulnerability

Müllner v. Austria

Summary:
On 25 March 2021, an application was filed before the European Court of Human Rights concerning the impact of climate change (specifically, temperature increases) on an applicant suffering from temperature-sensitive multiple sclerosis and Uhthoff’s syndrome. The applicant alleged a violation of his rights under Article 8 ECHR by the failure by the Austrian government to set effective greenhouse gas emissions reduction measures.

The applicant alleged in particular that, at temperatures above 25 degrees Celsius, he is no longer able to walk, and that above 30 degrees Celsius, he loses complete control over his muscular movement. He alleged that, by failing to sufficiently reduce its emissions to meet the goals set out in the Paris Agreement, the respondent State had not only made it impossible to meet the 1,5 degree Celsius warming target set out therein, but had even actively taken measures to exacerbate the climate crisis, including through subsidies and incentives. The applicant also alleged that the domestic State’s legal system systemically impeded him from challenging the climate policies at stake, and the government’s inaction in this regard. This, he submitted, reflects a systemic deficit in the domestic legal system, making it impossible to challenge inaction by the State.

The applicant invoked the right to respect for private and family life in Article 8 ECHR, and subsidiarily the right to life in Article 2 ECHR, as well as the rights to access to a remedy and fair trial in Articles 13 and 6 ECHR.

The case was initially adjourned pending the outcome of Grand Chamber proceedings in three other climate cases, in which the Court issued its rulings on 9 April 2024 (KlimaSeniorinnen, Duarte Agostinho and Carême). On 1 July 2024, it was announced that the Court had communicated the case to the Austrian government. The Court also granted the case priority under Article 41 of the Rules of Court, meaning that it will receive expedited treatment.

Status of case:
The case was communicated to the Austrian government on 1 July 2024 as per the Court’s press release below.

In communicating the case, the Court asked the following questions of the parties:

1.  Is the application admissible? In particular:

a.  Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in respect of each of his complaints lodged with the Court under Articles 6, 8 and 13 of the Convention (see Duarte Agostinho and Others v. Portugal and Others (dec.) [GC], no. 39371/20, § 215, 9 April 2024, and Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, §§ 138-145, 27 November 2023)?

b.  Can the applicant claim to be a victim of a violation of Article 8 of the Convention, within the meaning of Article 34 of the Convention (see Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, §§ 460-472, 478-488, 527-535, 9 April 2024)?

c.  Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (see Verein KlimaSeniorinnen Schweiz and Others, cited above, §§ 594-625)?

2.  To the extent that the complaints are admissible, has there been a violation of Articles 6, 8 and 13 of the Convention? In particular:

a.  Has there been an interference with the applicant’s right to respect for his private and family life or home, within the meaning of Article 8 § 1 of the Convention?

Did the respondent State fail to comply with its positive obligations to effectively protect the applicant’s respect for his private and family life, including his home (see Verein KlimaSeniorinnen Schweiz and Others, cited above, §§ 538-574)?

b.  Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see Verein KlimaSeniorinnen Schweiz and Others, cited above, §§ 626-640)?

Did the manner in which the Constitutional Court applied Articles 139 and 140 of the Federal Constitution involve excessive formalism (see Zubac v. Croatia [GC], no. 40160/12, §§ 80-86, 96-99, 5 April 2018, and Dos Santos Calado and Others v. Portugal, nos. 55997/14 and 3 others, §§ 111-117, 31 March 2020)?

c.  Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?

Suggested case citation:
ECtHR, Müllner v. Austria, application no. 18859/21, filed on 25 March 2021, communicated on 1 July 2024.

Links:
For the last-instance domestic judgment in this case, see here: https://www.vfgh.gv.at/downloads/VfGH_Beschluss_G_144_2020_vom_30._September_2020.pdf

For the full text of the application to the Court, see here: https://www.michaelakroemer.com/wp-content/uploads/2021/04/rechtsanwaeltin-michaela-kroemer-klimaklage-petition.pdf

For more information on the case from Fridays for Future Austria, see here.

For a statement from the applicant’s lawyer, Michaela Kroemer, see here.

Last updated:
1 July 2024.

Categories
2020 Business responsibility / corporate cases Deciding Body Domestic court Emissions reductions/mitigation Keywords Paris Agreement Private and family life Right to life Rights at stake The United Kingdom Year

R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd

Summary:
On 26 June 2018, the UK Secretary of State for Transport adopted the Airports National Policy Statement (ANPS), which governs the construction of a third runway at Heathrow Airport. This led to challenges from several environmental campaigners, including Friends of the Earth Ltd and Plan B Earth. Among other grounds, it was argued that the Secretary of State had disregarded the UK Government’s commitments under the Paris Agreement (ratified on 17 November 2016 by the UK) when designating the ANPS.

In 2019 the Divisional Court dismissed all of the objectors’ claims in two separate judgments. However, in 2020 the Court of Appeal allowed part of Friends of the Earth’s and Plan B Earth’s grounds, and held that the ANPS was unlawful (see judgment here). The Secretary of State did not appeal the Court of Appeal’s decision. However, Heathrow Airport Ltd, owner of Heathrow Airport, sought and was granted permission to appeal to the Supreme Court (UKSC). Heathrow Airport stated that it had already invested a large sum of money in promoting the third runway. On 16 December 2020, the Supreme Court unanimously decided to allow Heathrow Airport’s appeal on all grounds, ruling that the ANPS was lawful. However, the judgment states clearly that the climate must be considered at the planning permission stage of the third runway.

Human rights claims:
Under Section 3 of the Human Rights Act 1998, Friends of the Earth et al. argued against interpreting section 5(8) of the Planning Act 2008 in a way that excluded consideration of the Paris Agreement temperature limit. This would result in the development of large-scale national projects posing an unacceptable risk to people’s lives and homes, in breach of Articles 2 and 8 of the European Convention on Human Rights (ECHR).

The Supreme Court found that this reasoning must fail for two reasons. First, this argument had already been raised as a separate ground before the Divisional Court, where it was rejected. This decision was not appealed to the Court of Appeal, and was therefore not considered subject to the UKSC proceedings. Secondly, even if this argument were within the scope of the appeal, it would not have succeeded because any effect of the third runway on the lives and families of those affected by the consequences of climate change would result not from the designation of the ANPS but from granting permission to develop the construction project. As Heathrow Airport Ltd. had conceded, and the respondents agreed, the ANPS requires the third runway to be evaluated against the emissions targets in place if and when an application to develop the runway were to be made (para 113 of the UKSC judgment).

Further information:
Shortly after the Supreme Court’s decision, Plan B Earth announced in a press release that it intends to take the judgment to the European Court of Human Rights, arguing that reliance upon the 2 degrees Celsius target is a violation of the right to life (see here). Additionally, Plan B Earth served a pre-action letter on the UK Government alleging that its failure to develop a plan to address climate change is a violation of human rights as well as domestic and international law (see here).

Date of decision:
16 December 2020

Suggested case citation:
UK Supreme Court, R (on the application of Friends of the Earth Ltd and others) v. Heathrow Airport Ltd, UKSC 2020/0042, Judgment of 16 December 2020, [2020] UKSC 52

Case documents:
For the full judgment, click here.

To watch a webcast of the hearing, click here.

Further reading:
Joanne Hawkins, ‘A lesson in un-creativity: (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52’, 23(4) Environmental Law Review (2021), 344-349. Available here.