Background

Three rulings were published by the European Court of Human Rights ("ECHR") on 9 April 2024, in this article we discuss the outcome of those cases and how they might affect future cases.

While two out of the three claims were dismissed as inadmissible, these cases are still instructive for future legal disputes.

In contrast, Verein KlimaSeniorinnen Schweiz and others v. Switzerland ("Verein KlimaSeniorinnen") was successful and provides the basis for further legally enforceable climate protection. A summary as well as the official press releases of the individual cases can be found here.

Under Article 34 of the European Convention on Human Rights (the "Convention"), applicants must show that they are personally and directly affected by governmental action or inaction for complaints to be admissible – the Convention does not allow general public interest complaints.  They have to show that they are victims. The requirement for being personally affected is also found in many national procedural laws and has been an obstacle for individuals bringing claims in national courts.

In this case, Article 34 of the Convention, which has traditionally been applied rather strictly, has been found to allow associations recourse to legal action in the context of climate change. The threshold also in climate related cases for associations now seems to be easier to meet than for individuals. This paves the way for future climate protection lawsuits.

The rulings of 9 April 2024

The three cases before the ECHR centred on the obligation of the sued states to make greater efforts to protect the climate. However, they differ with regard to the applicants, defendants and national legal remedies.  Below, we set out a summary of the three judgments.

Verein KlimaSeniorinnen Schweiz and others v. Switzerland

Claims and national appeal proceedings

Four individual applicants and Verein KlimaSeniorinnen Schweiz, an association of over 2,500 women of retirement age, complained that Swiss authorities have not taken sufficient action to mitigate the effects of climate change, despite their obligations under the Convention.

• 25 November 2016 – applicants submitted a request to the Federal Council and other Swiss environmental and energy authorities, pointing out failures in the area of climate protection and demanded a decision on countermeasures to be taken.  They also called on authorities to act to meet the 2030 goal set by the Paris Agreement.
• 25 April 2017 – the Federal Department of the Environment, Transport, Energy and Communications ("DETEC") declared the request inadmissible. They found that the applicants were pursuing general public interests, especially as the request was aimed at a global and not a local reduction of greenhouse gas emissions. DETEC therefore denied victim status.
• 27 November 2018 – the Federal Administrative Court dismissed a subsequent appeal on the grounds that climate change affects all people and that the applicants are therefore not at a particular disadvantage.
• 5 May 2020 –  the Federal Supreme Court dismissed a complaint filed by the applicants on 21 January 2019 and denied that the individual applicants were sufficiently and directly affected in their asserted rights, the right to life (Article 2 of the Convention) and the right to respect for private and family life, including the home (Article 8 of the Convention), and found that the individual applicants were not sufficiently and directly affected.

Please refer to the press release for a more detailed overview of the procedural process.

Strict requirements for establishing the victim status in individual actions

According to the ECHR, individual applicants need to be able to show that they are personally and directly affected by government action or inaction and meet the following criteria: (a) the applicant must be exposed to the adverse effects of climate change to a high degree and (b) there must be an urgent need to ensure the individual protection of the applicant.

The Court emphasised that, in order to avoid general public interest complaints (actio popularis), a particularly high threshold for establishing victim status must be applied. Specifically, it requires a careful examination of the nature and scope of the individual applicants' complaints and the material they have submitted, the degree of likelihood and/or probability of the adverse effects of climate change over time, the specific impact on the life, health or well-being of the specific applicant, the extent and duration of the adverse effects, the extent of the risk (local or general) and the nature of the complainant's vulnerability. These requirements will be examined by the ECHR on a case-by-case basis.

In Verein KlimaSeniorinnen, the four individual applicants were found not to fulfil these requirements.

Community interests can be pursued by associations

With regard to the association itself, Verein KlimaSeniorinnen Schweiz, the Court found that climate change is a concern shared by all generations. Certain interests can only be effectively defended by allowing collective actions. The association does not need to meet the requirement that each individual on whose behalf the association is bringing the claim would themselves be a victim.

The ECHR specified the requirements to be met by associations in order to act for individuals in a claim such as this:

1) the association must be lawfully established or have the capacity to act in the relevant  jurisdiction;

2) the association must be able to demonstrate that its purpose is to defend the human rights of its members or other affected persons in the relevant jurisdiction whether limited to, or including, collective action for the protection of those rights against the threats of climate change; and 

3) the association must be able to demonstrate that it is qualified to defend the rights of its members and other persons concerned.

According to the ECHR, Verein KlimaSeniorinnen Schweiz was able to meet these requirements.

Unlike the individual applicants, the association was therefore able to file a complaint about the threats posed by climate change in the defendant state on behalf of those persons who could legitimately claim to be exposed to specific threats or adverse effects of climate change on their lives, health, well-being and quality of life.

Climate protection was found to be a human right

Climate change is a globally and scientifically recognised. Due to the causal link between state measures (or state failure to act) and the dangers and damage caused by climate change, the ECHR found that Article 8 of the Convention also covers the right of individuals to effective climate protection measures by the respective state authorities.  So climate protection measures must protect against serious adverse effects of climate change on life, health, well-being and quality of life.

The ECHR found that Switzerland had failed to comply with its Convention duties.  The Swiss authorities had not acted in a timely or appropriate manner with regard to the enactment of climate protection legislation and other climate protection measures.

Carême v. France

Claims and national appeal proceedings

On 19 November 2018, Damien Carême, mayor of the municipality of Grande-Synthe from 23 March 2001 to 3 July  2019, requested, on his own behalf and in his capacity as mayor of the municipality of Grande-Synthe, the President of the Republic, the Prime Minister and the Minister for Ecological Transition and Solidarity to take all necessary measures to curb climate change so that France can comply with the commitments it has made.  He received no response.

• 23 January 2019 – the applicant and the municipality of Grande-Synthe applied to the Conseil d'Etat for a judicial review of the authority's implicit refusal.
• 19 November 2020 – the Conseil d'Etat found that the mere assertion that the applicant's current residence would be flooded by 2040 was not sufficient to justify a sufficient interest in bringing proceedings.  But found that Grande-Synthe, did have an interest based on the direct and certain impact of climate change on its situation and interests for which it was responsible.
• 1 July 2021 – the Conseil d'Etat set aside the authorities’ refusal to respond to the request and ordered the authorities to take additional measures by 31 March 2022 to meet the greenhouse gas emission reduction targets set out in European law.  

For further information as well as the national development of the legal dispute with the municipality of Grande-Synthe, please see the press release.

Inadmissibility due to a missing victim status

Carême filed his complaint against France with the European Court of Human Rights on 28 January 2021. He stated that France had taken inadequate measures to prevent climate change. This led to a violation of his right to life (Article 2 of the Convention) and his right to respect for his private and family life and home (Article 8 of the Convention).

His case was ultimately dismissed for lack of standing of the applicant. While the ECHR did not question the statements on the dangers of climate change, it rejected Carême's victim status under Article 34 of the Convention, citing a lack of relevant connection to his municipality in France (as he became a Member of the European Parliament in May 2019 and moved to Brussels). The ECHR also denied victim status in regards to his position as former mayor of Grande-Synthe. The action was therefore declared inadmissible.

Duarte Agostinho and Others v Portugal and 32 others ("Duarte")

Content and scope of the claim

Duarte was brought by six Portuguese nationals, born between 1999 and 2012, who complained about the serious existing and future effects of climate change. The applicants did not seek recourse to the national courts, but turned directly to the ECHR. The case filed on 7 September 2020 targets the Portuguese Republic and 32 other European states.

In their complaint, the applicants referred to the extreme temperatures and heat Portugal has experienced and the wildfires. They relied on various Convention articles, recent reports of the Intergovernmental Panel on Climate Change, the Paris Agreement and the UN Convention on Rights of the Child to demonstrate the basis of the claim and the effects of climate change.  They contended that deep and rapid emissions cuts were need to achieve the 1.5 degree Celsius pathway.

The ECHR had to decide whether the problem of climate change, which transcends national borders, also gives rise to cross-border jurisdiction. For further information on the procedure, please read the press release.

No extended jurisdiction of the ECHR

While the ECHR recognised that the 33 States sued had entered into international agreements, such as the Paris Agreement, in which they undertook to reduce greenhouse gas emissions, it ultimately dismissed the claim as inadmissible. While the ECHR recognises the supranational problem of climate change, it denied an extension of the Convention’s jurisdiction based on this. Contrary to the applicants’ argument, the Convention does not serve as a safeguard for general climate protection. Rather, the Convention aims to establish a system of protection based on the principles of territorial jurisdiction and subsidiarity. For this reason, the applicants' argument that their EU citizenship gives rise to jurisdiction at least for the 27 sued EU Member States, also failed: the jurisdiction was limited to Portugal.

Domestic options for legal protection not fully exhausted

The ECHR also found that the applicants had failed to fully exhaust their national legal remedies in Portugal, so the action was also found inadmissible on this ground.

The ECHR found that the right to a healthy and ecologically balanced environment is expressly enshrined in the Portuguese constitution (Article 66) and that this constitutional provision is also directly applicable and enforceable by national courts. This means that there was a realistic possibility of legal protection for the applicants in Portugal. In the absence of obvious impracticability, the national legal process must therefore be pursued.

Victim status was not sufficiently presented

Ultimately, the ECHR also found that the applicants did not meet the requirements for victim status as required by Article 34 of the Convention. In particular, the individual situation of the applicants was not sufficiently presented, which according to the ECHR was due to the failure to exhaust national legal protection options.

What is next for climate protection litigation?

• Although the ECHR’s ruling in Verein KlimaSeniorinnen only binds Switzerland, further climate protection lawsuits by comparable or still emerging associations in Convention member states are foreseeable. Other courts could also take up the ECHR's arguments in order to oblige countries that have ratified the Paris Agreement to step up their climate protection efforts. 
• These rulings join a series of other court decisions that call on governments to take stronger climate protection measures. For example, the German Climate Protection Act (Klimaschutzgesetz) was declared unconstitutional in parts by the Federal Constitutional Court in a ruling from 29 April 2021 because it was not suitable to achieve climate protection targets.
• The recognition of climate protection as a human right covered by Article 8 of the Convention means that climate protection measures look to become increasingly important. So States which are signatory to the Paris Agreement and the Convention should ensure that they have met their obligations under those agreements.

Looking to other jurisdictions: on 21 March 2024, India's Supreme Court set out a right to be protected from the adverse effects of climate change and that this right should be included in Articles 14 and 21 of the Indian Constitution.

This note is intended to be a general guide and covers questions of law and practice.  It does not constitute legal advice in relation to a particular transaction or situation. Please contact your usual Hogan Lovells contact if you have questions about these cases or the article.

Published by Nicole Saurin, Dr. Carla Wiedeck, Sebastian Graeler and Emily Julier.

supported by Dariush Hauck