Climate change lawsuits in Germany

June 2024  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

June 2024 Issue

The decision of the European Court of Human Rights (ECHR) dated 9 April 2024 raises the question of how climate change litigation in Germany will be affected by this ruling.

ECHR decision

In its decision in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the ECHR emphasised the importance of combatting climate change and stated that, despite the separation of powers principle, it is entitled to decide on the issue, as it is tasked with protecting minorities.

Even if, under the separation of powers, the legislator has a degree of prerogative in its assessment, its ability to exercise this prerogative is subject to ECHR control. Since climate change is an urgent problem that affects all humanity, the ECHR is justified in intensifying its control here.

The ECHR states that the mere risk of damage is sufficient to qualify as a violation of article 8 of the ECHR. The fact that climate change is a global phenomenon and must also be addressed globally is irrelevant, as each member state is responsible for protecting human rights in its own territory. A state cannot escape this responsibility by pointing out that other states have also failed to take measures.

The ECHR sets strict requirements for a climate lawsuit. A human rights violation only arises from a state’s failure to implement measures against climate change if the affected individual is exposed to the adverse consequences of climate change with a high intensity and high probability, and urgent action is required. The individuals who brought the action in this case did not meet these requirements.

However, the association that brought the action did meet these requirements. In view of the special features of climate change, associations can assert ECHR violations if: (i) they exist in the affected country and are capable of litigation under local law; (ii) they assert collective legal protection in connection with the threats posed by climate change; and (iii) the association is professionally suitable and empowered to represent its members or other affected persons within the relevant jurisdiction, where they are exposed to climate-change related specific dangers with regard to life, limb or wellbeing within the meaning of the ECHR.

In this context, the ECHR examines factors such as the purpose of the articles of association, the extent of profit pursuit, the public benefit, the type and extent of activities carried out in the relevant country, the structure of membership and whether it is representative, and the governance and transparency of the organisation. It also considers whether, in view of the individual circumstances of the case, it is conducive to the administration of justice to accept the association.

The ECHR found that Switzerland violated article 8 of the ECHR by failing to fulfil its obligation to take appropriate legal and administrative measures to protect life and limb from the dangers of climate change. States must give considerable weight to climate protection when balancing decisions and a have a general obligation to act.

The ECHR demands that contracting states comply with international obligations for the reduction of greenhouse gas emissions toward net-zero in the next three decades.

As per the ECHR, there is an urgent need for action to avoid burdening future generations.

The ECHR reviews whether a state: (i) has taken general measures to set time targets for achieving CO2 neutrality and a CO2 budget, or has established equivalent methods of quantifying greenhouse gas emissions in line with national and international obligations; (ii) has set suitable medium-term greenhouse gas emission reduction targets (sectoral or otherwise); (iii) can demonstrate it has taken the aforementioned measures; (iv) carefully and continuously reviews and updates its greenhouse gas reduction targets based on research and knowledge; and (v) has taken timely, appropriate and consistent legislative and administrative measures to this end.

A failure in any one of these aspects does not automatically mean a state has violated article 8 of the ECHR. Whether a state has met its obligations depends on whether it has: (i) published and made accessible, in particular for the affected persons, the information, conclusions and scientific findings on which its decisions and measures (or lack thereof) are based; and (ii) ensured that the interests of the affected parties are heard and taken into account.

The ECHR explained why Switzerland had not met these requirements and thus violated article 8 of the ECHR. The decisive factor was that Switzerland had no regulations for the period between 2025 and 2030 after a climate protection law failed to pass in a referendum. Switzerland, based on its current climate strategy, would therefore cause more greenhouse gas emissions than permitted under a per capita measure. A CO2 budget was also missing.

The ECHR did not impose damages on Switzerland, because the plaintiffs had not requested this, but did oblige Switzerland to reimburse proceedings costs. It did not prescribe any specific measures, which fall to Switzerland’s discretion. However, Switzerland must take all appropriate measures to achieve a minimum reduction of annual greenhouse gas emissions by 40 percent by 2030 and climate neutrality by 2050.

Consequences for German law

The ECHR’s statements largely parallel the guidelines of the Federal Constitutional Court in connection with climate protection.

It aims to ensure a proportionate distribution of the obligation to reduce CO2 emissions. The court emphasises that future generations are limited in their freedom, but not involved in the current democratic process.

The court obliges the German government to work toward climate protection through international coordination (for example via negotiations, treaties or organisations).

The court also grants the legislature considerable scope for determining compliance.

Climate lawsuits against private parties

So far, German courts have dismissed climate lawsuits as the associated behaviour is not unlawful. The courts ruled that the legislator had fulfilled its obligation to avoid infringing fundamental rights by amending the Climate Protection Act. As far as the state cannot be held liable for emissions-reducing action, private parties cannot hold other private parties liable, as long as their actions conform with the law.

Nothing is likely to change in this assessment of the higher courts as a result of the decision of the ECHR. On the one hand, the ECHR only takes into account the relationship between private persons and the state. On the other hand, the ECHR grants the national legislator wide discretion on climate protection measures. This discretion has been exercised under German Civil Code rules, which are not per se derogated by the ECHR.

With regard to collective legal protection, it can be inferred from the judgment that claimants must be singled out from the mass of potential claimants. The hurdles for future plaintiffs in collective actions are therefore high.

Conclusion

The effects of the ECHR judgment on the legal situation in Germany are rather limited. Its requirements could make private climate lawsuits more difficult for both individuals and collective actions. In this respect, the judgment could be a Pyrrhic victory for climate plaintiffs in Germany.

 

Eric Wagner and Marc Ruttloff are partners and Simon Wagner is a counsel at Gleiss Lutz. Mr Eric Wagner can be contacted on +49 711 8997 0 or by email: eric.wagner@gleisslutz.com. Mr Ruttloff can be contacted on +49 711 8997 169 or by email: marc.ruttloff@gleisslutz.com. Mr Simon Wagner can be contacted on +49 711 8997 4975 or by email: simon.wagner@gleisslutz.com.

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Eric Wagner, Marc Ruttloff and Simon Wagner

Gleiss Lutz

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