Clifford Chance

On 30 November 2023, the Brussels Court of Appeal added to recent European case law by ordering a specified reduction in GHG emissions, considered by the court to be the minimum required for effective climate action.

In its eagerly awaited decision in the so-called Belgian "Climate Case" (Klimaatzaak), the Brussels Court of Appeal confirmed that the Belgian authorities are in breach of their duties under the European Convention on Human Rights (the ECHR) and national law through failing to take sufficient action on climate change. Importantly, the Court differed from the first instance decision by finding that the separation of powers did not prevent it from imposing a binding reduction obligation on the executive, ordering the Belgian authorities to reduce the country's GHG emissions by at least 55% by 2030, relative to 1990 levels.

Background: the decision of the Tribunal of first instance – a paper victory

The lawsuit was originally filed in 2015 by Klimaatzaak, a non-profit organisation acting in its own name and on behalf of approximately 58,000 private individuals, against the Belgian federal State and the three regional governments (Flanders, Wallonia and Brussels). The claimants alleged that the authorities had failed to implement sufficient measures to tackle climate change. In 2021, the Brussels Tribunal of first instance held that the defendant authorities had violated their obligations under Article 2 (right to life) and Article 8 (right to respect for private and family life) of the ECHR, as well as their duty of care under (former) articles 1382 and 1383 of the Belgian Civil Code.

Although this judgment was, in principle, a victory for the claimants, the Tribunal did not go further than acknowledging the breaches. Notably, the Tribunal declined to set a binding GHG reduction target on the Belgian authorities on the basis that the overriding principle of the separation of powers prevented it from doing so. The claimants sought to overturn this aspect of the Tribunal's decision on appeal.

The decision on appeal – scientific evidence as a tool to mitigate the separation of powers

In its 160-page decision, the Court set out its detailed legal reasoning and factual analysis before ultimately concluding that it could impose a reduction obligation on the Belgian authorities.

After providing a broad overview of relevant international, European, and national legal developments, the Court upheld the Tribunal's decision that the actions of the Belgian authorities were insufficient and hence incompatible with their obligations under Articles 2 and 8 of the ECHR and the duty of care under Belgian law. However, one of the three regional governments, Wallonia, was able to demonstrate that it had significantly decreased the volume of its GHG emissions during the periods examined and, as a result, was not in breach of its obligations.

As for the Belgian federal State, Flanders and Brussels, the decision confirmed the Tribunal's decision but also went further. Contrary to the Tribunal, the Court considered that the separation of powers did not prohibit it from determining a precise percentage of GHG emissions reduction that should be attained to remedy the breach, as long as (i) this target is calculated on the basis of the minimum scientific consensus presently available and (ii) the judge refrains from specifying the concrete measures that should be implemented to reach this target.

The Court therefore ordered the three authorities to take, in concert with the Walloon Region, all appropriate measures to reduce their combined GHG emissions by 55% by 2030, compared to 1990.

Although the Court's decision was ultimately lauded as a win for the claimants, the Court did reject the claimants' request to impose a reduction target of at least 61% by 2030. This was on the basis that the target should reflect the "minimum minimorum" for effectively tackling the climate emergency, according to scientific evidence. Noting the 1.5°C benchmark set by the IPCC and referring to, amongst other things, the EU "Fit for 55" package, the Court considered that there was not enough scientific evidence to support a reduction order of more than 55% . Nevertheless, the Court stressed that the 55% target is a floor and not a ceiling and suggested that a more ambitious reduction would be desirable.

The claimants requested that the reduction order be made effective through the imposition of a penalty payment of €1M per month of delay in reaching the target. The Court suspended its decision in that regard pending the official publication of Belgium's GHG emissions for 2022-2024. This leaves the door open to the possibility of imposing such penalty in the future.

Broader implications of the decision – a nudge to Strasbourg and a step towards accountability of private actors?

The judicial review of States' efforts in combatting climate change has been a debated topic worldwide and in Europe particularly. The Klimaatzaak decision can be seen as the continuation of previous rulings rendered in neighbouring countries, namely the Dutch Urgenda and the German Neubauer cases, both of which are extensively referred to by the Brussels Court. One may now wonder how the decision will be received in Strasbourg, where the European Court of Human Rights has recently been seized by a group of young Portuguese activists denouncing the climate inaction of 33 European countries (Duarte Agostinho and Others v. Portugal and 32 Other States).

Another key question is whether the reasoning applied by the Court in the Klimaatzaak judgment could be transposed into a private law context, to challenge the efforts of a company in limiting its GHG emissions or to impose specific targets on that company, in similar fashion to the judgment of the Hague District Court in the claim brought by Milieudefensie and others against Shell (which also relied significantly on Urgenda), and which is currently on appeal. The increased focus of NGOs on climate litigation against corporates in recent years suggests that climate activists in Belgium will be encouraged to explore this.

In any event, it seems that the last chapter of the judicial saga remains to be written because, whilst the Brussels government has welcomed the decision and stated that it will use it to implement a more ambitious climate policy, the Flemish government has already announced that it will challenge the ruling before the Belgian Supreme Court (Cour de Cassation / Hof van Cassatie).