Clifford Chance

The Strasbourg-based court ruled that Switzerland's failures to combat climate change constitute a violation of the right to respect for private and family life, placing increased pressure on governments to proactively tackle the effects of climate change.

Overview

On 9 April 2024, the Grand Chamber of the European Court of Human Rights ("ECtHR") handed down 3 judgments in the cases of Carême v. France, Duarte Agostinho v. Portugal and 32 Others, and KlimaSeniorinnen Schweiz and Others v Switzerland ("KlimaSeniorinnen"). Addressing the issue of climate change for the first time, the ECtHR considered in each case whether States are required to take action on climate change in order to comply with their human rights obligations under the European Convention of Human Rights (the "Convention").

The ECtHR dismissed the claims in Caréme and Duarte on procedural grounds. In KlimaSeniorinnen, the ECtHR considered claims brought by the NGO applicant (though not the individual applicants) and ultimately ruled that Switzerland, by failing to put in place a relevant domestic regulatory framework and to quantify its national GHG emissions limitations, had not complied with its positive obligations arising out of Article 8 of the Convention. The UK's judge to the ECtHR, Tim Eicke KC, dissented.

Given the complexity of the issues, the ECtHR declined to order any detailed or prescriptive measures against Switzerland, and instead called on the Committee of Ministers to supervise Switzerland adoption of measures to ensure its compliance with the Convention.

This blog post outlines: (1) the claims brought, (2) the key findings of the ECtHR, and (3) the implications of the judgment.

Claims by KlimaSeniorinnen and individuals

In 2016, the Swiss NGO Verein KlimaSeniorinnen Schweiz, representing more than 2,000 of its elderly female members resident in Switzerland, and four individual women filed a complaint against the government before the Swiss courts. This complaint alleged that the Swiss government's failure to take sufficient measures to mitigate the effects of climate change (in that case "climate change-induced heatwaves") constituted a breach of the government's obligations under the Swiss Constitution and Article 2 (right to life) and Article 8 (right to respect for private and family life). The claim was dismissed by the Swiss courts. The applicants took the claims under Articles 2 and 8 and also Articles 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention.

Key Findings

NGO had standing and its rights to a fair trial were infringed

Claims under the Convention can only be made by those with "victim" status under Article 34. Further, the ECtHR does not permit actio popularis (claims made in the public interest). As a result, applicants must demonstrate that they are personally and "directly affected" by measures taken or failures to take such measures. The ECtHR considered these principles in the context of climate change, reaching different conclusions in respect of the individual applicants and the NGO.

In relation to the individuals, the ECtHR confirmed that the hurdle for victim status is high: (a) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, meaning that the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and (b) there must be a pressing need to ensure the applicant's individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (KlimaSeniorinnen §487). The ECtHR found that although the individual applicants were part of a group that were susceptible to the harmful effects of climate change (i.e. older women), they did not require individual protection and their claims, accordingly, were inadmissible before the ECtHR (KlimaSeniorinnen §535).

In relation to the NGO, however, the ECtHR held that an association could have standing to bring a claim distinct from its victim status (or lack thereof), provided that it is: (a) lawfully established in the jurisdiction or otherwise able to act there, (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change, and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention (KlimaSeniorinnen §502).

Applying the criteria above, the ECtHR found that the NGO did, in principle, have standing to bring the claims under Articles 2 and 8. On the merits, however, the ECtHR found that it was unnecessary to consider the applicability of Article 2, noting that in its previous environmental case law, the ECtHR had largely applied the same principles in relation to both Articles 2 and 8 (KlimaSeniorinnen §537).

The ECtHR held that the difficulties the NGO applicant had experienced in bringing its claim before domestic courts and administrative tribunals constituted a breach of its right to a fair trial under Article 6 of the Convention (and, in doing so, found there was no need to consider Article 13) (KlimaSeniorinnen §640, 644).

States should, at a minimum, set climate targets

Considering the merits of the NGO's claim, the ECtHR clarified that States have the primary responsibility to secure the rights and freedoms in the Convention, and when doing so, enjoy a margin of appreciation to determine policy and law as they consider appropriate, subject to the Court's supervisory jurisdiction. However, given the grave risks presented by climate change and the urgency of combatting the adverse effects of climate change, the ECtHR considered that climate protection should carry considerable weight in decision making. Further, whilst States enjoy a margin of appreciation in this area, the scope of the margin differs depending on the task at hand. A reduced margin is justified regarding the setting of aims and targets, given the gravity of the threat of climate change and the general consensus that reducing GHG emissions is required to protect the climate. As to the policies and "operational choices" adopted to reach these targets, the margin of appreciation is wider (KlimaSeniorinnen §543).

Contracting States are obliged to substantially reduce emissions within the next 3 decades

The ECtHR found that the positive obligation to establish legislative and administrative frameworks to promote human health and life under Article 8 requires, in the context of climate, that Contracting States undertake measures for the "substantial and progressive" reduction of their GHG emission levels, with the view of reaching net neutrality "within, in principle, the next three decades" (KlimaSeniorinnen §548).

If evaluating whether a State has remained within its margin of appreciation in taking measures to meet this obligation, the ECtHR would consider whether a State had due regard to the need to:

•  adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
•  set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
•  provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets;
•  keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
•  act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures. (KlimaSeniorinnen §550).

Accordingly, the ECtHR found that Switzerland had failed to uphold the right to respect for private and family life due to "critical lacunae" in its domestic regulatory framework, including a failure to quantify national GHG emissions limitations through, for example, a carbon budget. Also, it had failed to "act in good time and in an appropriate and consistent manner", exceeding its margin of appreciation (KlimaSeniorinnen §573).

Implications of the judgment

In an announcement on 28 August 2024, the Federal Council indicated that it is critical of the judgment of the ECtHR, which it considers did not take into account recent revisions to Switzerland's legislation on climate renewable energy. Further, it resists any expansion of the scope of the Convention (which was also the basis for the dissenting ECtHR judge's opinion).¹ The Swiss government is due to report to the Committee of Ministers of the Council of Europe on its implementation of the judgment. What supervisory steps the Committee of Ministers chooses to take to ensure Switzerland's compliance with the Convention remains to be seen.

Regardless of the whether Switzerland follow the ECtHR's judgment, the significance of the KlimaSeniorinnen judgment reaches beyond Switzerland. The findings on the scope of the human rights obligations under Article 8 and on standing under the Convention are binding on Contracting States. 16 States and various civil society organisations made submissions to the ECtHR on the issues, conscious that the court's decision will shape future climate litigation and policy. In particular:

1.  Individuals face considerable hurdles in satisfying the "victim status" test in climate cases. Given the ECtHR's confirmations as to when NGOs (and other associations) representing persons affected by violations of Convention rights have standing to bring climate-related cases, it is likely that climate-focused NGOs will become the primary candidates to bring climate litigation cases before the ECtHR.
2.  The ECtHR found that there should be a reduced margin of appreciation for Contracting States' climate change goals and targets. Given that ECtHR decisions are binding on Convention States, we expect that NGOs will be measuring the actions of other Contracting States against international targets and commitments, and bringing cases within national courts, seeking more precise measures per the reduced margin of appreciation founded by the ECtHR. The case has already been referred to in an ongoing youth climate case brought against Poland.
3. This case, and any other similar finding against Convention States, is likely to shape climate policy and legislation of Convention States as they seek to avoid further scrutiny of NGOs and other stakeholders. The knock-on effect for businesses will be evident in increased climate-related legislation as States seek to avoid future human rights-related litigation associated with their climate policies.

¹ See here