Category: Austria

Categories
Austria Domestic court Emissions reductions/mitigation European Convention on Human Rights Farming Fossil fuel extraction Imminent risk Margin of appreciation Right to life

Jasansky and Others v. Austria

Summary:
On 10 November 2023, it was reported that a climate-related application had been filed with the European Court of Human Rights (ECtHR) against Austria. The case is brought on behalf of four Austrian nationals — Monika Jasansky, Peter Fliegenschnee, Friedrich Pichler, and Klara Butz –along with the NGO Global 2000.

The application contests Austrian inaction in terms of mitigation measures, and argues that the individual applicants — who have been described, respectively, as an organic farmer, a retiree, a mayor, and a climate activist — have been adversely affected by extreme weather events aggravated by climate change, namely droughts, heatwaves and mudslides. The applicants allege a violation of the State’s positive obligation to protect the right to life in Article 2 of the European Convention on Human Rights.

Domestic proceedings:
The applicants contest a finding from the Austrian Constitutional Court, made in July 2023, which recognized the state’s duty to actively take effective measures to protect life and health as well as to protect private life and property, but accorded the government a wide margin of discretion and found that fundamental and human rights do not allow for claims to a specific measure (here the applicants petitioned the domestic courts to order legislators to set binding expiry dates for the permissibility of the sale of fossil fuels in 2040). Rather, the domestic court found that the legislature must be allowed to choose between the various available measures to meet the State’s protective obligations.

Suggested citation:
European Court of Human Rights, Jasansky and Others v. Austria, pending case, filed November 2023.

Categories
Austria Children and young people Domestic court Emissions reductions/mitigation

Austrian Fridays for Future case

Summary:
On 21 February 2023, it was announced that a climate case had been brought by twelve children before the Austrian Constitutional Court (“Verfassungsgerichtshof”). They argued that the failure to take adequate climate protection measures is endangering their future. The claimants, aged between five and sixteen years old, invoked the rights of the child with are, in Austria, constitutionally protected. The argued that inadequate domestic climate legislation (the “Klimaschutzgesetz” of 2011) violates these rights. They alleged that, because this legislation had not led to emissions reductions, it also failed to protect children from the life-threatening effects of climate change, and accordingly violated the domestic Constitution. On 7 July 2023, the Court announced that it had rejected the case as inadmissible.

Extended summary:
The case was supported by Fridays For Future and the asssociation CLAW – Initiative für Klimarecht, as well as lawyer Michaela Krömer, who is also involved in the Mex Müllner case. It invoked the Federal Constitutional Law on Children’s Rights, which guarantees — among other things — constitutional-level rights to protection and care, child welfare and participation, a prohibition of child labor and violence and a prohibition of discrimination against children living with disabilities.

The Austrian Constitutional Court’s consideration of the case began on Monday, 12 June 2023.

On 7 July 2023, the Court announced that it had rejected the case as inadmissible, finding that the applicants had not contested all of the relevant and interconnected parts of the contested legislation, the 2011 Klimaschutzgesetz. In other words, their complaint was too narrow, and repealing only the contested parts of the law would not only fail to eliminate its alleged unconstitutionality, but would change the legislative intention behind the law and would make the Federal government responsible for all climate measures.

The Court issued two separate decisions in the case, one concerning the child applicants and one concerning the separate complaints of a lawyer concerning the impact of drastic emissions reductions on his freedom to make a living and his right to property and to respect for private life. These latter complaints, the Court found, had not been sufficiently substantiated.

Further reading:
The decisions in the case, as well as a summary from the Austrian Constitutional Court (all in German), can be found here.

More information:
More information on the case can be found at www.fridaysforfuture.at/klimaklage/presse.

For coverage from the Austrian media on the occasion of the hearings in June 2023, see here.

Suggested citation:
Austrian Constitutional Court, case G 123/2021-11, Decision of 27 June 2023.
Austrian Constitutional Court, case G 139/2021-11, Decision of 27 June 2023.

Last updated:
7 July 2023.

Categories
Access to a remedy Austria Children and young people Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights France Gender / women-led Italy Non-discrimination Norway Paris Agreement Portugal Private and family life Right to life Switzerland Turkey

De Conto and Uricchio v. Italy and 32 other States

Summary:
In 2021, two further cases in the style of the Duarte Agostinho application were brought before the European Court of Human Rights, this time by two young people from Italy. The cases were brought against 33 Council of Europe Member States, and refer to storms, forest fires and heat waves experienced by the applicants, as well as associated physical and psychological distress. The applicants, two women aged 18 and 20 at the time of filing, invoked Articles 2, 8, 13 and 14. They made arguments about the positive obligations to protect against environmental harm under Articles 2 and 8 ECHR, discrimination against younger generations, and a lack of access to effective domestic remedies given the excessive burden of being required to bring domestic proceedings in 33 States.

The application forms in these cases have not been made publicly available, and the cases had not yet been communicated by the Court at the time of writing. It had been announced, however, that the cases have been adjourned pending the outcome of Grand Chamber proceedings in three other climate cases (see the following section). More information on the cases will be published as it becomes available.

Status of case:

Adjourned until the Grand Chamber has ruled in the climate change cases pending before it (see the ECtHR’s press release here).

Suggested citation:

ECtHR, De Conto v. Italy and 32 other States, application no. 14620/21, submitted on 3 March 2021.

ECtHR, Uricchio v. Italy and 32 other States, application no. 14615/21, submitted on 3 March 2021.

More information (via climatecasechart.com):

On the De Conto case.

On the Uricchio case.

Last updated:

15 March 2023.

Categories
2022 Austria Belgium Cyprus Denmark European Court of Human Rights France Germany Greece Luxembourg Private and family life Right to life Sweden Switzerland The Netherlands The United Kingdom

Soubeste and 4 other applications v. Austria and 11 other States

Summary:
On 21 June 2022, it was reported that an application had been filed at the European Court of Human Rights concerning membership in the Energy Charter Treaty of 1994 (ECT), which entered into force in 1998. The case was brought by five young people, aged between 17 and 31, who allege that the 12 respondent States’ membership of the ECT stymies climate action, thereby violating their rights under Articles 2 (right to life) and 8 (right to respect for private and family life) ECHR.

It was further reported that the 12 respondent States in this case are Austria, Belgium, Cyprus, Denmark, France, Germany, Greece, Luxembourg, Netherlands, Sweden, Switzerland and Britain. In these States, corporate actors in the fossil fuel sector can bring legal action against the respective governments for losses of profits due to energy-related measures, thereby raising the costs of the green energy transition or making it illusory. The applicants argue that their Convention rights have been violated as a result.

In this regard, the IPCC pointed out in Chapter 14 of Working Group III report in the Sixth Assessment Cycle in 2022 (available here) that “bilateral and multilateral agreements, including the 1994 Energy Charter Treaty, include provisions for using a system of investor-state dispute settlement (ISDS) designed to protect the interests of investors in energy projects from national policies that could lead their assets to be stranded. Numerous scholars have pointed to ISDS being able to be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets”. It also noted that “international investment agreements may lead to ‘regulatory chill’, which may lead to countries refraining from or delaying the adoption of mitigation policies, such as phasing out fossil fuels”.

Status of case:

Adjourned until the Grand Chamber has ruled in the climate change cases pending before it (see the ECtHR’s press release here).

Suggested case citation:

European Court of Human Rights, Soubeste and 4 other applications v. Austria and 11 other States (nos. 31925/22, 31932/22, 31938/22, 31943/22, and 31947/22), application filed on 21 June 2022 (not yet communicated).

Last updated:

15 March 2023

Categories
Access to a remedy Austria 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

Mex Müllner v. Austria

Summary:
On 25 March 2021, a yet-uncommunicated 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 alleges 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. The applicant 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.

He 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.

This case has not yet been communicated by the Court at the time of writing. It had been announced, however, that the case has been adjourned pending the outcome of Grand Chamber proceedings in three other climate cases (see the following section). More information on the case will be published as it becomes available.

Status of case:
Adjourned until the Grand Chamber has ruled in the climate change cases pending before it (see the ECtHR’s press release here).

Suggested case citation:
ECtHR, Mex Müllner v. Austria, application no. 18859/21, filed on 25 March 2021 (not yet communicated).

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:
16 March 2023.

Categories
Austria Belgium Bulgaria Children and young people Croatia Cyprus Czechia Denmark Emissions reductions/mitigation Estonia European Convention on Human Rights European Court of Human Rights Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Non-discrimination Norway Paris Agreement Poland Portugal Private and family life Prohibition of torture Right to life Romania Russian Federation Slovakia Slovenia Spain Sweden Switzerland The Netherlands The United Kingdom Turkey Ukraine

Duarte Agostinho et al. v. Austria et al. (“Portuguese Children’s Case”)

Summary:
This case was brought by a group of six young people, acting together as the ‘Youth for Climate Justice’, against 33 Council of Europe Member States. Theirs is the first climate case to come before the ECtHR. In their application, the six applicants, who are aged between 8 and 21, argue that the 33 respondent States have failed to comply with their positive obligations under Articles 2 and 8 of the Convention, read in the light of the commitments made under the 2015 Paris Climate Agreement. They claim that their right to life (Art. 2 ECHR) is being threatened by the effects of climate change in their home State of Portugal, including through the harms caused by forest fires. Moreover, they claim that their right to respect for their private and family life under Art. 8 ECHR is being threatened by heatwaves that force them to spend more time indoors. They also note their anxiety about their uncertain future, and the fact that, as young people, they stand to experience the worst effects of climate change. They accordingly allege a violation of Article 14 ECHR (non-discrimination), given the particular impacts of climate change on their generation. According to the applicants, the absence of adequate measures to limit global emissions constitutes, in itself, a breach of the obligations incumbent on States.

This is the first climate application brought before the European Court of Human Rights, and it was brought with the support of the Global Legal Action Network (GLAN). The issues raised here are novel in the Strasbourg context. In addition, in communicating the case, the Court also proprio motu raised an issue under Article 3 ECHR, the prohibition of torture and inhuman and degrading treatment.

Domestic proceedings:
None. This case was brought directly to the ECtHR. The applicants submit that, given the complexity of the case and their limited financial means, as well as the limited prospects of success before domestic instances, requiring them to exhaust the domestic remedies in each of the 33 respondent States would impose an excessive and disproportionate burden on them.

Relinquishment:

On 29 June 2022, the 7-judge Chamber to which the case had originally been allocated relinquished jurisdiction over it in favour of the Court’s 17-judge Grand Chamber. Relinquishment is possible where a case either (a) raises a serious question affecting the interpretation of the Convention or its Protocols, or (b) might lead to a result inconsistent with the Court’s case-law (Rule 72, paras 1-2 of the Rules of Court).

In February 2023, the Court announced that it would hold a public Grand Chamber hearing in this case, along with two other climate cases pending before it (Carême v. France and KlimaSeniorinnen and Others v. Switzerland). It announced that it would adjourn the remaining climate cases pending before it in the meantime. The oral stage in these three cases is staggered: Carême and KlimaSeniorinnen were heard on 29 March 2023, while the hearing in Duarte Agostinho was heard by the same composition of the Grand Chamber on 27 September 2023.

Grand Chamber hearing:
A hearing in this case was held on 27 September 2023. A webcast of the hearing is available here.

During the hearing, the respondent States pooled their submissions to a large extent, with additional arguments from the Netherlands, Portugal, and Turkiye. Third-party interveners also received leave to appear during the oral hearing, namely the Council of Europe Commissioner for Human Rights, Dunja Mijatovic, the EU’s European Commission, and the European Network of National Human Rights Institutions (ENNHRI). The substance of the hearing focused largely on admissibility issues, namely victim status, the (non-)exhaustion of domestic remedies and the extraterritoriality of Convention obligations. The judges also asked a number of questions to the parties before retiring to consider the admissibility and merits of the case.

Admissibility:
Pending

Merits:
Pending

Remedies:
Pending

Separate opinions:
Pending

Implementation measures taken:
N/A

Date:
Pending

Type of Forum:
Regional

Status of case:
Communicated by the Court on 30 November 2020. Relinquished to the Grand Chamber on 29 June 2022. Grand Chamber hearing held on 27 September 2023.

Suggested case citation:
ECtHR, Duarte Agostinho and Others v. Portugal and 32 Other Member States, no. 39371/20, Communicated Case, 30 November 2020, relinquished to the Grand Chamber on 29 June 2022.

Links:
For more information on this case, see the following links.

  • For more background on the case and profiles on the applicants, click here: https://youth4climatejustice.org/. 
  • For all of the case documents, including the submissions from the respondent States and the third-party interveners, see here.
  • For analyses of the Grand Chamber hearing, see this post on our own blog by Viktoriya Gurash, or this post on Verfassungsblog by Corina Heri.

Last updated:
5 October 2023

Categories
2020 Austria Domestic court Emissions reductions/mitigation European Convention on Human Rights Keywords Paris Agreement Private and family life Right to life Rights at stake Standing/admissibility State concerned Year

Greenpeace et al. v. Austria (The Zoubek Case)

Summary:
On 20 February 2020, Greenpeace Austria and other applicants called on the Austrian Constitutional Court to invalidate the preferential tax treatment of aviation companies over rail transportation companies in two Austrian tax laws. They claim that this preferential treatment would lead to an unjustified favoring of passenger air traffic and a disadvantage for less climate-damaging means of transport (e.g. railroads). Furthermore, the value-added tax exemption for cross-border flights and the kerosene exemption for domestic flights lead to higher prices for rail than for air travel and thus, contribute to climate change. Against this background, the applicants alleged that their rights under Articles 2 and 8 of the European Convention on Human Rights (ECHR) were violated, since the Austrian State has not fulfilled its duty to protect its citizens from the consequences of climate change.

On 30 September 2020, the Constitutional Court dismissed the application as inadmissible because it considered that the plaintiffs were not covered by the challenged legislation, which does not apply to rail transport, but only to air transport.

One of the applicants, who suffers from multiple sclerosis and Uhthoff’s syndrome, took this case to the European Court of Human Rights. He alleges a violation of his rights under, among others, Article 8 ECHR. The case, known as Mex M. v. Austria, it was filed on 25 March 2021 and has not yet been communicated.

Date of decision:
30 September 2020

Status of case:
Dismissed

Suggested citation:
Austrian Verfassungsgerichtshof, Greenpeace et al. v. Austria, Decision of 30 September 2020 – G 144-145/2020-13, V 332/2020-13.

Links:
For the decision of the Constitutional Court, see here.

For the application, see here.