Belgium found to be in breach of European human rights obligations by failing to take substantive climate change mitigation action
VZW Klimaatzaak v Kingdom of Belgium & Others (30 November 2023)
Summary
In VZW Klimaatzaak v Kingdom of Belgium & Others (Klimaatzaak), the Brussels Court of Appeal ordered that Belgium and the Flemish and Brussels-Capital Regions reduce greenhouse gas (GHG) emissions by 55 percent by 2030 compared to 1990 levels.
Facts
VZW Klimaatzaak, a non-profit organisation, filed the claim in 2014 alongside approximately 60,000 private citizens (the Applicants). The Applicants claimed that under Belgian and European law the Belgian national and regional governments must adopt a more proactive stance to lowering GHG emissions. The Applicants asked the court to impose a GHG emissions reduction target of between 61-81 percent by 2030 compared with 1990 levels.
On 17 June 2021, the Brussels Court of First Instance held that the Respondents had violated their duty of care by failing to take necessary measures to prevent the damaging effects of climate change. However, the Court of First Instance declined to impose particular emissions reduction obligations on the Respondents on the basis of the separation of powers doctrine. On 17 November 2021, the Applicants appealed to the Brussels Court of Appeal
Decision
On 30 November 2023, the Court of Appeal (the Court) determined that climate change posed a risk of danger to the Applicants and that the Respondents had failed to act with prudence and diligence in accordance with Article 1382 of the Belgian Civil Code. In the absence of a right to healthy environment in the European Convention on Human Rights (ECHR), the Court determined that the Respondents violated Articles 2 and 8 of the ECHR by failing to take appropriate climate action to safeguard the plaintiffs' rights to life and rights to privacy, as they relate to and are breached by environmental damage.
The Court rejected the Respondents’ separation of powers arguments ordering the state and regional authorities to impose GHG reduction targets of 55 percent below 1990 levels by 2030. The Court considered that the 55 percent target was mandated by Belgian, European, and international law and supported by authoritative scientific evidence.
Consideration of ECHR obligations
The Court found that Article 2 of the ECHR contains a positive obligation to “take the necessary measures to protect the lives of persons” within the State’s jurisdiction and a negative obligation to “refrain from causing death voluntarily and wantonly” (At [139] citing the European Court of Human Rights in Kurt v Austria, Judgement June 15, 2021 at §157). The Court noted that the state and regional authorities must adopt appropriate measures to ensure a minimum GHG emissions reduction of 55 percent of 1990 levels by 2030.
The Court found that Article 8 could be violated where “serious environmental nuisances” prevent people from enjoying their lives. As relevant to both Articles 2 and 8, the existence of a serious and imminent risk is not necessarily impacted by the fact that the expected impacts will occur at an unknown future date. The Court’s analysis of ECHR obligations was subject to little variance from the first instance decision.
The Court carefully considered the application of the ‘margin of appreciation’ which was raised by the Respondents to support their position that the Court did not have sufficient jurisdiction to mandate climate targets. In its judgement the Court accepted the Applicants’ submission that:
the margin of appreciation granted by the Court of Human Rights to the Contracting States in application of the principle of subsidiarity does not apply to national judges, who are the guarantors of the effective protection of fundamental rights within their own system.
The Court’s decision differed from the judgement at first instance in two primary regards:
the Court held that an injunction against public authority does not violate the concept of separation of powers in circumstances where the court does not select the means of remedying the wrongdoing; and
the Walloon Region (the fourth respondent) was deemed not to be at fault because it had already met its previous targets, taken considerable action to combat climate change as early as 2014, and enshrined the 2030 target of a 55 percent reduction in a draft decree that would soon be implemented.
Commentary
The decision in Klimaatzaak indicates that European state courts are increasingly taking the position that state and regional authorities do have a responsibility to mitigate climate change. The Court noted that Belgium was not relieved of this responsibility on the basis that it is one among many states contributing to global warming. The Court referred to the German Constitutional Court in Neubauer v Germany (24 March 2021) 1 BvR 2656/18, and the Dutch Supreme Court in The State of the Netherlands v Stichting Urgenda (20 December 2019) 19/00135, to support the conclusion that the State cannot disengage from responsibility by highlighting that GHG emissions are also emitted by other states, and that states are individually responsible despite the global dimension of the climate crisis.
Notably, the Applicants made their submissions on the basis of duty of care and ECHR obligations, rather than European Union climate policy. The Court thus considered the human rights impacts of climate change in greater detail. As a living instrument, the Court considered that the ECHR must be interpreted in light of climate science and international obligations.
An unofficial English translation of the full case can be accessed here.
Last updated: 08 February 2024
Credit: This summary was prepared by Riley Arthur, Solicitor, and Rani Ravinthran, Clerk, from DLA Piper