Landmark judgment of European Court on Human Rights paves the way for climate change litigation in Europe – potential impacts on European businesses

Although the Court declared the complaints lodged by individuals inadmissible, most importantly, in the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20) the Court recognised environmental organisations’ right to lodge complaints and that the right to respect for private and family life guaranteed in Article 8 of the Convention encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.

The Court found that Switzerland had failed to comply with its duties to mitigate climate change under the Convention. There were critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify greenhouse gas emissions limitations.

The judgment sets a precedent and has significant implications for future climate change litigation in Europe, reinforcing the responsibility of contracting states to take effective measures against climate change. The case also affirms the link between human rights and climate change thus establishing that climate change mitigation falls within state’s duty to protect human rights. Eventually, the implementation of the mitigating measures in the case will require investments in green technology and cutting the emissions of European businesses.

Environmental organisations are entitled to sue authorities for insufficient climate change mitigation measures

In the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court found that the environmental organisation lodging the complaint had been deprived of any effective legal remedies by the Swiss courts. The Swiss courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the association’s complaints and failed to take into consideration the compelling scientific evidence concerning climate change when not taking the complaints seriously. Consequently, the association’s right to a fair trial under Article 6 of the Convention had been breached. 

Only the environmental organisation’s complaint was declared admissible as the Court took an approach emphasising the necessity of environmental organisations as the guardians of mitigating climate change as the common concern of humankind and the need to promote intergenerational burden-sharing. Thus, the Court set a low threshold for environmental organisations to lodge complaints.

Conversely, the individual applicants’ complaints of which the other cases in the series of judgments consisted were all dismissed as the Court set a high threshold for individuals to obtain a status of victim under the Convention. Instead, the Court stressed the role of collective action in combatting climate change. (Carême v. France, Duarte Agostinho and Others v. Portugal and 32 Others, and the individual applicants in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland.)

As a result, the Court gave environmental organisations the role of a watchdog for European authorities’ climate change mitigation measures. Thus, European environmental organisations now have extensive possibilities to push national authorities by legal means to adopt proper measures to combat climate change, even by court proceedings if necessary. The implications may be far-reaching as several organisations may see new value in impact litigation as a way to fight climate change and will add to the growing amount of climate related litigation proceedings globally.

States need to set sufficient and effective measures to mitigate climate change

In the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court ruled that the right to respect for private and family life guaranteed under Article 8 of the Convention includes a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.

The right includes a positive obligation of the contracting states to adopt sufficient measures to mitigate climate change. More precisely, the Court stressed that the effective protection of the right to respect for private and family life requires the undertaking of measures for the substantial and progressive reduction of greenhouse gas emission to reach net neutrality within the next three decades, including setting science-based targets and pathways to reach the goals as well as properly following up on the results.

When it comes to the Swiss measures to combat climate change, the Court found that Switzerland had not put in place a satisfactory regulatory framework to combat climate change as it had for example failed to quantify any greenhouse gas emissions limitations as well as failed to meet its past greenhouse gas emission reduction targets. Thus, Switzerland had not acted timely nor in an appropriate way to mitigate climate change and therefore breached Article 8 of the Convention and had not proactively protect fundamental rights.

Consequently, Article 8 of the Convention requires European authorities to adopt proper and scientifically acceptable measures to mitigate climate change and ensure the effective implementation of the measures to reach carbon neutrality within the next three decades. It is, however, up to national authorities to choose the appropriate means for reaching the targets, thus leaving room for national solutions and innovations to reach carbon neutrality. Primarily, it is for environmental organisations and national courts to monitor the setting of proper targets and the timely reaching of those targets, but in the end the states are responsible to the European Court of Justice for insufficient combatting of climate change.

According to the ruling, states needed to put in place the necessary regulations and measures aimed at preventing an increase in greenhouse gas concentrations in the atmosphere and irreversible adverse effects on human rights under Article 8. Specific attention was paid to the United Nations Framework Convention on Climate Change and the Paris Climate Agreement. Effective respect for human rights requires states to undertake measures to reduce their greenhouse gas emission levels, with a view to reaching net neutrality within, in principle, the next three decades. States need to act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures. The case does not directly tackle corporate activities, but if states are required to ensure that they appropriately tackle emission, all economic activity will be indirectly covered.

Future outlook

The Court’s ruling opens new pathways for climate impact litigation. The Court noted that, in its role as a judicial body tasked with the enforcement of human rights, it could not ignore compelling present‑day conditions, confirmed by scientific knowledge. States have an obligation to ensure that they combat climate change, but they have a wide margin of appreciation as to the choice of means designed to achieve those objectives. 

As noted, there is a number of climate disputes occurring globally and with the European Court of Human Rights’ judgment irrevocably considering the link between climate change and human rights legally, there may be a new wave of climate litigation to be expected in Europe.