| Applicant name | VEREIN KLIMASENIORINNEN SCHWEIZ AND OTHERS |
| Applicant type | Legal person and natural persons |
| Number of applicants | 5 |
| Country | Switzerland |
| Application no. | 53600/20 |
| Date | 09/04/2024 |
| Judges | Síofra O’Leary, Georges Ravarani, Marko Bošnjak, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, Arnfinn Bårdsen, Pauliine Koskelo, Tim Eicke, Jovan Ilievski, Darian Pavli, Raffaele Sabato, Lorraine Schembri Orland, Anja Seibert-Fohr, Peeter Roosma, Ana Maria Guerra Martins, Mattias Guyomar, Andreas Zünd, |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | |
| Type of privacy | |
| Keywords | |
| Facts of the case | |
| Analysis | <!– /* Font Definitions */ @font-face {font-family:”Cambria Math”; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:roman; mso-font-pitch:variable; mso-font-signature:-536869121 1107305727 33554432 0 415 0;} @font-face {font-family:Aptos; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-pitch:variable; mso-font-signature:536871559 3 0 0 415 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:””; margin:0cm; text-align:justify; line-height:107%; mso-pagination:widow-orphan; font-size:12.0pt; mso-bidi-font-size:11.0pt; font-family:”Times New Roman”,serif; mso-fareast-font-family:Aptos; mso-fareast-theme-font:minor-latin; mso-bidi-font-family:”Times New Roman”; mso-bidi-theme-font:minor-bidi; mso-font-kerning:1.0pt; mso-ligatures:standardcontextual; mso-fareast-language:EN-US;} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; font-size:11.0pt; mso-ansi-font-size:11.0pt; mso-bidi-font-size:11.0pt; font-family:”Aptos”,sans-serif; mso-ascii-font-family:Aptos; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Aptos; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Aptos; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:”Times New Roman”; mso-bidi-theme-font:minor-bidi; mso-fareast-language:EN-US;} .MsoPapDefault {mso-style-type:export-only; margin-bottom:8.0pt; line-height:107%;} @page WordSection1 {size:595.3pt 841.9pt; margin:70.85pt 70.85pt 70.85pt 70.85pt; mso-header-margin:35.4pt; mso-footer-margin:35.4pt; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} –> The Court is, and must remain, mindful of the fact that to a large extent measures designed to combat climate change and its adverse effects require legislative action both in terms of the policy framework and in various sectoral fields. In a democracy, which is a fundamental feature of the European public order expressed in the Preamble to the Convention together with the principles of subsidiarity and shared responsibility, such action thus necessarily depends on democratic decision‑making. Judicial intervention, including by this Court, cannot replace or provide any substitute for the action which must be taken by the legislative and executive branches of government. However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes. The task of the judiciary is to ensure the necessary oversight of compliance with legal requirements. The legal basis for the Court’s intervention is always limited to the Convention, which empowers the Court to also determine the proportionality of general measures adopted by the domestic legislature. The relevant legal framework determining the scope of judicial review by domestic courts may be considerably wider and will depend on the nature and legal basis of the claims introduced by litigants. At the same time, the Court must also be mindful of the fact that the widely acknowledged inadequacy of past State action to combat climate change globally entails an aggravation of the risks of its adverse consequences, and the ensuing threats arising therefrom, for the enjoyment of human rights – threats already recognised by governments worldwide. In the context of climate change, the key characteristics and circumstances are significantly different. First, there is no single or specific source of harm. GHG emissions arise from a multitude of sources. Secondly, CO2 – the primary GHG – is not toxic per se at ordinary concentrations. Thirdly, that chain of effects is both complex and more unpredictable in terms of time and place than in the case of other emissions of specific toxic pollutants. Fourthly, the sources of GHG emissions are not limited to specific activities that could be labelled as dangerous. Fifthly, combating climate change, and halting it, does not depend on the adoption of specific localised or single‑sector measures. Climate change is a polycentric issue. Because of these fundamental differences, it would be neither adequate nor appropriate to follow an approach consisting in directly transposing the existing environmental case‑law to the context of climate change. Questions of causation: The first dimension of the question of causation relates to the link between GHG emissions – and the resulting accumulation of GHG in the global atmosphere – and the various phenomena of climate change. This is a matter of scientific knowledge and assessment. The second relates to the link between the various adverse effects of the consequences of climate change, and the risks of such effects on the enjoyment of human rights at present and in the future. In general terms, this issue pertains to the legal question of how the scope of human rights protection is to be understood as regards the impacts arising for human beings from an existing degradation, or risk of degradation, in their living conditions. The third concerns the link, at the individual level, between a harm, or risk of harm, allegedly affecting specific persons or groups of persons, and the acts or omissions of State authorities against which a human rights‑based complaint is directed. The fourth relates to the attributability of responsibility regarding the adverse effects arising from climate change claimed by individuals or groups against a particular State, given that multiple actors contribute to the aggregate amounts and effects of GHG emissions. Issues of proof: In the context of environmental cases, as regards general principles on the standard and burden of proof, the Court has held as follows: “The Court reiterates at the outset that, in assessing evidence, the general principle has been to apply the standard of proof ‘beyond reasonable doubt’. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. It should also be noted that it has been the Court’s practice to allow flexibility in this respect, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. In certain instances, only the respondent Government have access to information capable of corroborating or refuting the applicant’s allegations; consequently, a rigorous application of the principle affirmanti, non neganti, incumbit probatio is impossible …” Effects of climate change on the enjoyment of Convention rights: The Court will proceed with its assessment of the issues arising in the present case by taking it as a matter of fact that there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5oC above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target. The question of causation and positive obligations in the climate-change context: First, the applicability of Article 8 is triggered not only by actual damage to the health or well-being of an applicant but by the risk of such effects, where such risks present a sufficiently close link with the applicant’s enjoyment of his or her rights under Article 8. Secondly, the complaints in such cases have concerned alleged failures by the authorities to comply with positive obligations directed at the avoidance or reduction of harm. Thirdly, such obligations have been formulated in terms of a duty to take measures to ensure the effective protection of those who might be endangered by the risks inherent in the harmful activity. In the context of climate change, the particularity of the issue of causation becomes more accentuated. The adverse effects on and risks for specific individuals or groups of individuals living in a given place arise from aggregate GHG emissions globally, and the emissions originating from a given jurisdiction make up only part of the causes of the harm. Accordingly, the causal link between the acts or omissions on the part of State authorities in one country, and the harm, or risk of harm, arising there, is necessarily more tenuous and indirect compared to that in the context of local sources of harmful pollution. Furthermore, from the perspective of human rights, the essence of the relevant State duties in the context of climate change relates to the reduction of the risks of harm for individuals. Conversely, failures in the performance of those duties entail an aggravation of the risks involved, although the individual exposures to such risks will vary in terms of type, severity and imminence, depending on a range of circumstances. Accordingly, in this context, issues of individual victim status or the specific content of State obligations cannot be determined on the basis of a strict conditio sine qua non requirement. The issue of the proportion of State responsibility: The Court notes that while climate change is undoubtedly a global phenomenon which should be addressed at the global level by the community of States, the global climate regime established under the UNFCCC rests on the principle of common but differentiated responsibilities and respective capabilities of States. As regards the “drop in the ocean” argument it should be noted that in the context of a State’s positive obligations under the Convention, the Court has consistently held that it need not be determined with certainty that matters would have turned out differently if the authorities had acted otherwise. The relevant test does not require it to be shown that “but for” the failing or omission of the authorities the harm would not have occurred. Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm. Scope of the Court’s assessment: The Court has repeatedly stressed that no Article of the Convention is specifically designed to provide general protection of the environment as such. To that effect, other international instruments and domestic legislation are more adapted to dealing with such protection. At the same time, the Court has often dealt with various environmental problems deemed to affect the Convention rights of individuals, particularly Article 8. It has, however, explained that in contrast with actio popularis type of complaints the crucial element which must be present in determining whether, in the circumstances of a given case, an environmental harm has adversely affected one of the rights safeguarded by the Convention is the existence of a harmful effect on a person and not simply the general deterioration of the environment. While the Court has on occasion referred to “the right of the people concerned … to live in a safe and healthy environment”, this language cannot be understood without regard to the distinction that must be made between, on the one hand, the rights protected under the Convention and, on the other hand, the weight of environmental concerns in the assessment of legitimate aims and the weighing-up of rights and interests in the context of the application of the Convention. Relevant principles regarding the interpretation of the Convention: The Court cannot ignore the pressing scientific evidence and the growing international consensus regarding the critical effects of climate change on the enjoyment of human rights. This consideration relates, in particular, to the consensus flowing from the international-law mechanisms to which the member States voluntarily acceded and the related requirements and commitments which they undertook to respect, such as those under the Paris Agreement. The Court must bear these considerations in mind when conducting its assessment under the Convention. Admissibility: There are, in general, three possible approaches in the Court’s case‑law to examining the existence of victim status under Article 34 of the Convention. It may be examined as a separate preliminary issue in the case; it may be examined in the context of an assessment of the applicability of the relevant Convention provision; or it may be considered to be “closely bound up with” the issues to be considered on the merits and thus joined to the examination of the complaint on the merits. General principles: The Convention does not provide for the institution of an actio popularis. The Court’s task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention. Accordingly, a person, non‑governmental organisation or group of individuals must be able to claim to be a victim of a violation of the rights set forth in the Convention. The Convention does not permit individuals or groups of individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention. In general, the word “victim” under Article 34 denotes the following categories of persons: those directly affected by the alleged violation of the Convention (the direct victims); those indirectly affected by the alleged violation of the Convention (the indirect victims); and those potentially affected by the alleged violation of the Convention (the potential victims). In order to fall into the category of direct victims, the applicant must be able to show that he or she has been personally and actually affected by the alleged violation of the Convention, which is normally the result of a measure applying the relevant law or a decision allegedly in breach of the Convention or, in some instances, of the acts or omissions of State authorities or private parties allegedly infringing the applicant’s Convention rights. However, this does not necessarily mean that the applicant needed to be personally targeted by the act or omission complained of. The issues relating to the category of indirect victims normally concern the question of the standing of the direct victim’s next of kin to submit or pursue an application before the Court concerning issues affecting the direct victim. Thus, indirect victims must demonstrate a “ricochet effect” created by the alleged violation affecting one person (the direct victim) on the Convention rights of another person (the indirect victim) in order for the latter to demonstrate harm or a valid personal interest in bringing the situation complained of to an end. Two types of potential victim status may be found in the case-law. The first type concerns persons who claim to be presently affected by a particular general legislative measure. The Court has specified that it may accept the existence of victim status where applicants contend that a law violates their rights, in the absence of an individual measure of implementation, if they belong to a class of people who risk being directly affected by the legislation, or if they are required either to modify their conduct or risk being prosecuted. The second type concerns persons who argue that they may be affected at some future point in time. The Court has made clear that the exercise of the right of individual petition cannot be used to prevent a potential violation of the Convention and that, in theory, the Court cannot examine a violation other than a posteriori, once that violation has occurred. It is only in highly exceptional circumstances that an applicant may nevertheless claim to be a victim of a violation of the Convention owing to the risk of a future violation. In general, the relevant test to examine the existence of such victim status is that the applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur; mere suspicion or conjecture being insufficient in this regard. Locus standi (representation) by associations: In accordance with the Court’s case-law, an association is in principle not in a position to rely on health considerations to allege a violation of Article 8 and in general it cannot complain of nuisances or problems which can only be encountered by natural persons. However, although in the absence of a measure directly affecting them the Court does not normally grant victim status to associations, even if the interests of their members could be at stake, there may be “special considerations” where an association represents individuals, even in the absence of a measure directly affecting the association in question. In order to be recognised as having locus standi to lodge an application under Article 34 of the Convention on account of the alleged failure of a Contracting State to take adequate measures to protect individuals against the adverse effects of climate change on human lives and health, the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing 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. Having regard to the above considerations, the Court finds that the applicant association is lawfully established, it has demonstrated that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members and other affected individualsagainst the threats arising from climate change in the respondent State and that it is genuinely qualified and representative to act on behalf of those individuals who may arguably claim to be subject to specific threats or adverse effects of climate change on their life, health, well-being and quality of life as protected under the Convention. Victim status/locus standi in the climate-change context: The question for the Court in the present case is how and to what extent allegations of harm linked to State actions and/or omissions in the context of climate change, affecting individuals’ Convention rights, can be examined without undermining the exclusion of actio popularis from the Convention system and without ignoring the nature of the Court’s judicial function, which is by definition reactive rather than proactive. If the circle of “victims” within the overall population of persons under the jurisdiction of the Contracting Parties actually or potentially adversely affected is drawn in a wide-ranging and generous manner, this would risk disrupting national constitutional principles and the separation of powers by opening broad access to the judicial branch as a means of prompting changes in general policies regarding climate change. If, on the other hand, this circle is drawn too tightly and restrictively, there is a risk that even obvious deficiencies or dysfunctions in government action or democratic processes could lead to the Convention rights of individuals and groups of individuals being affected without them having any judicial recourse before the Court. In addition, in view of the considerations of intergenerational burden-sharing related to the impacts and risks of climate change, the members of society who stand to be most affected by the impact of climate change can be considered to be at a distinct representational disadvantage. The Court will rely on distinguishing criteria such as a particular level and severity of the risk of adverse consequences of climate change affecting the individual(s) in question: (a) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, 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. Turning to the present case, while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection, not least given the high threshold which necessarily applies to the fulfilment of the criteria. It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country. It should also be reiterated that victim status in relation to future risk is only exceptionally admitted by the Court and the individual applicants have failed to demonstrate that such exceptional circumstances exist in their regard. It follows from the above considerations that applicants nos. 2‑5 do not fulfil the victim-status criteria under Article 34 of the Convention Article 2 ECHR: While Article 8 undoubtedly applies in the circumstances of the present case as regards the complaints of the applicant association concerning the effects of the alleged shortcomings on the part of the respondent State in its measures to combat the adverse effects and threats of climate change on human health, whether those alleged shortcomings also had such life‑threatening consequences as could trigger the applicability of Article 2 is more questionable. The Court finds it appropriate to examine the applicant association’s complaint from the angle of Article 8 alone. To a great extent the Court has applied the same principles as those set out in respect of Article 2 when examining cases involving environmental issues under Article 8, notably by affirming that: (a) The States have a positive obligation to put in place the relevant legislative and administrative framework designed to provide effective protection of human health and life. (b) The States also have an obligation to apply that framework effectively in practice. (c) In assessing whether the respondent State complied with its positive obligations, the Court must consider whether, in the manner of devising and/or implementing the relevant measures, the State remained within its margin of appreciation. (d) The choice of means is in principle a matter that falls within the State’s margin of appreciation; even if the State has failed to apply one particular measure provided for by domestic law, it may still fulfil its positive duty by other means. (e) While it is not in the Court’s remit to determine what exactly should have been done, it can assess whether the authorities approached the matter with due diligence and gave consideration to all competing interests. (f) The State has a positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives. (g) In assessing whether the respondent State complied with its positive obligations, the Court must consider the particular circumstances of the case. The scope of the positive obligations imputable to the State in the particular circumstances will depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation. In environmental cases examined under Article 8 of the Convention, the Court has frequently reviewed the domestic decision-making process, taking into account that the procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. In this context, the Court has had particular regard to the following principles and considerations: (a) The complexity of the issues involved with regard to environmental policy-making renders the Court’s role primarily a subsidiary one. (b) The Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making procedure, and the procedural safeguards available. (c) In particular, a governmental decision-making process concerning complex issues such as those in respect of environmental and economic policy must necessarily involve appropriate investigations and studies in order to allow the authorities to strike a fair balance between the various conflicting interests at stake. (d) The public must have access to the conclusions of the relevant studies, allowing them to assess the risk to which they are exposed. (e) The individuals concerned must have an opportunity to protect their interests in the environmental decision-making process, which implies that they must be able to participate effectively in relevant proceedings and to have their relevant arguments examined, although the actual design of the process is a matter falling within the State’s margin of appreciation. The States’ margin of appreciation: Taking as a starting-point the principle that States must enjoy a certain margin of appreciation in this area, the above considerations entail a distinction between the scope of the margin as regards, on the one hand, the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect, and, on the other hand, the choice of means designed to achieve those objectives. As regards the former aspect, the nature and gravity of the threat and the general consensus as to the stakes involved in ensuring the overarching goal of effective climate protection through overall GHG reduction targets in accordance with the Contracting Parties’ accepted commitments to achieve carbon neutrality, call for a reduced margin of appreciation for the States. As regards the latter aspect, namely their choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources, the States should be accorded a wide margin of appreciation. Content of the States’ positive obligations: When assessing whether a State has remained within its margin of appreciation, the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to: (a) 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; (b) 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; (c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)‑(b) above); (d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and (e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures. In this context, drawing on the approach taken in environmental cases, and noting the specific features and complexities of the issues concerning climate change, the following types of procedural safeguards are to be taken into account as regards the State’s decision-making process in the context of climate change: (a) The information held by public authorities of importance for setting out and implementing the relevant regulations and measures to tackle climate change must be made available to the public, and in particular to those persons who may be affected by the regulations and measures in question or the absence thereof. In this connection, procedural safeguards must be available to ensure that the public can have access to the conclusions of the relevant studies, allowing them to assess the risk to which they are exposed. (b) Procedures must be available through which the views of the public, and in particular the interests of those affected or at risk of being affected by the relevant regulations and measures or the absence thereof, can be taken into account in the decision-making process. Content: Given the pressing urgency of climate change and the current absence of a satisfactory regulatory framework, the Court has difficulty accepting that the mere legislative commitment to adopt the concrete measures “in good time”, as envisaged in the Climate Act, satisfies the State’s duty to provide, and effectively apply in practice, effective protection of individuals within its jurisdiction from the adverse effects of climate change on their life and health. While acknowledging the significant progress to be expected from the recently enacted Climate Act, once it has entered into force, the Court must conclude that the introduction of that new legislation is not sufficient to remedy the shortcomings identified in the legal framework applicable so far. In conclusion, there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, the Court has noted that, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets . By failing to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework, the respondent State exceeded its margin of appreciation and failed to comply with its positive obligations in the present context. In his partly dissenting opinion, judge Eicke feels that this judgment goes too far. |
| Other Article violation? | Yes, 6, no, 2 and 13 |
| Damage awarded | Holds, unanimously, (a) that the respondent State is to pay the applicant association, within three months, EUR 80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect of costs and expenses; |
| Documents | Judgment |