ECHR rules on three “climate complaints” – a groundbreaking success for future climate-related legal actions?

The European Court of Human Rights (ECHR) in Strasbourg has ruled on the questions of whether climate protection is a human right and who can bring a complaint for such a right. The ECHR had to decide on three cases involving applicants from Switzerland, France and Portugal. The ECHR only allowed the “climate complaint” in one case in its judgment regarding the complaint brought by a group of Swiss senior citizens referring to themselves as “climate seniors”. Although the decision only applies to the Swiss government, it is hoped that it will also cause other states to rethink. Yet it will be celebrated as a groundbreaking success by NGOs and “climate claimants” who are fighting for more climate protection by bringing legal actions against states and companies, and will be used to support their arguments.

The dismissal of the other two cases against the governments of a total of 32 states illustrates how high the threshold is for establishing status as a victim in climate lawsuits. Thus the ECHR’s judgments are not exactly a major breakthrough for climate protection. Nevertheless, they are a step towards the justiciability of climate protection in relation to states. However, this requires that suitable applicants have run through all court instances in the state concerned.

Climate complaint successful before the ECHR

This is the first time a climate complaint has been successful before the ECHR (judgment of 9 April 2024, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Application no. 53600/20).

The judgment is groundbreaking for two reasons: on the one hand, the ECHR found that the human rights under Article 2 and Article 8 of the European Convention on Human Rights (the “Convention”) also grant the right to be protected by state measures from the effects of climate change on lives, health and well-being. On the other, the ECHR recognised that such a request can be made by an association.

In the case itself, the court dealt with a complaint brought by a group of female senior citizens and the association KlimaSeniorinnen Schweiz (“Climate Seniors of Switzerland”). The association had filed a complaint against Switzerland arguing that the Swiss authorities were not taking sufficient action to mitigate the effects of climate change on living conditions and health – especially those of older people, who are particularly affected. They had previously gone through all national court instances in Switzerland without success. The legal action was supported and financed by Greenpeace.

The ECHR held that the Convention gave rise to a right to effective protection by state authorities against the serious adverse effects of climate change on lives, health, well-being and quality of life. It said that Switzerland had failed to fulfil its obligations and had thus violated the right to respect for private and family life of the senior citizens under Article 8 of the Convention.

An important point of contention during the hearing was the applicants’ right to bring the complaint. This involved the issue of “victim-status criteria” under Article 34 of the Convention). The ECHR rejected this status as a victim for the four individual applicants. By doing so, it made clear how high the threshold is for establishing victim status in climate change cases. Considering the unlimited number of people affected, general public-interest complaints (actio popularis) are to be avoided. In brief, this means that applicants have to assert their own right, not the right of the general public. Hence only someone who is exposed to the consequences of climate change to a significant degree (for example in terms of duration and severity of the damage or due to particular geographical proximity) is able to assert a right under the Convention.

However, the ECHR affirmed that the association KlimaSeniorinnen Schweiz had the right to bring a complaint because (i) the organisation is legally established in Switzerland, (ii) it was seeking to defend its members’ human rights in Switzerland and (iii) it was able to prove that it can actually represent these persons. The ECHR therefore held that the association was also able to bring a complaint in the name of the direct victims of climate change. By deciding in this way, the ECHR is strengthening the possibility to bring representative actions in the field of climate disputes.

The other reasons put forward by the ECHR are also interesting in relation to future cases involving climate protection. It said that the Swiss courts had not sufficiently examined the merits of the complaint and that it should have taken into account the compelling scientific evidence concerning climate change. This led the ECHR to rule that there had been a violation of the right to a fair trial under Article 6 of the Convention.

Two other climate lawsuits dismissed as inadmissible

In the two other decisions delivered by the ECHR on 9 April 2024 it is clear that despite the judgment against Switzerland, the bar for climate lawsuits against states is generally high.

A complaint brought against the state by the former mayor of a coastal municipality in northern France failed due to lack of victim status because the mayor had meanwhile moved to Brussels (judgment of 9 April 2024, Carême v. France, Application no. 7189/21).

The ECHR also declared a climate complaint brought by six young Portuguese nationals against a range of European countries (Duarte Agostinho and Others v. Portugal and 32 Others, Application no. 39371/20) inadmissible. In addition to all Member States of the European Union, these applicants had also sued Norway, Great Britain, Turkey, Switzerland and Russia. However, they had not used the legal remedies available to them in their home country Portugal (Article 35 of the Convention). Like the complaint brought by the mayor, the complaint against the other states was rejected because it was directed at states where the applicants did not live. In its reasoning, the ECHR maintained that states only have to guarantee the rights under the Convention in their own territory. While it conceded that human rights can also be applied extraterritorially in exceptional situations, it explained that this was not possible in this case because otherwise a state’s extraterritorial responsibility would go too far.

Is the judgment against Switzerland a precedent?

Although the judgment in the KlimaSeniorinnen case is initially only directed at Switzerland, it is nevertheless set to have an legal and political signalling effect internationally. It is to be expected that NGOs in Europe and worldwide engaged in climate protection will feel vindicated and will file claims in other states. However, the ECHR has also made clear that general public-interest complaints in the field of climate protection have no prospect of success. The threshold for establishing victim status – and therefore the right to bring a complaint – remains high for climate complaints.

In Germany, the effects of the KlimaSeniorinnen judgment will be limited. In its decision of 21 March 2021 on the German Climate Change Act (Klimaschutzgesetz), the Federal Constitutional Court (Bundesverfassungsgericht) already decided on the basis of the German constitution, or Basic Law (Grundgesetz), that the state has to take suitable measures to keep to the climate goals set down in the Paris Agreement. This led it to call for more comprehensive climate protection by the legislature to safeguard future generations (“Climate compliance”: after the German Federal Constitutional Court and the District Court of The Hague, ECJ increases pressure to act (noerr.com)). The legislature subsequently improved the German Climate Change Act. The Federal Constitutional Court refused to consider a further complaint for decision.

Despite this, it is to be expected that climate-related legal actions against companies will be given another boost by the ECHR’s judgment in Germany. At the same time, there are no indications that the ECHR’s judgment might change the current case law of the German civil courts. German civil courts have dismissed climate-related legal actions for reductions in emissions brought against companies up to now (Weitere Klimaklagen abgewiesen – zum „E“ in ESG Litigation (noerr.com); (only in German) Update „Klimaklagen“ – Erste Landgerichte halten „Klimaklagen“ für unbegründet (noerr.com) (only in German); “Climate lawsuits” against German companies under scrutiny (noerr.com)). The justification is essentially that, if anyone, it is the legislature that is obliged to make more efforts in the field of climate protection. On the other hand, it is not the task of the judiciary to order individual private actors to reduce emissions that have not yet been required of them by law or regulation.

A decision by the German Federal Court of Justice (Bundesgerichtshof) on these subjects is still outstanding. Until this happens, parties bringing climate-related legal actions will regard their argumentation as being supported by the KlimaSeniorinnen judgment. Things are set to stay interesting in the field of climate disputes.