Brussels Court of Appeal condemns the Belgian State and two of the country’s Regions for climate inaction

On 30 November 2023, in a new episode of the climate change litigation saga, the Brussels Court of Appeal released a landmark decision partially confirming the decision of the Brussels Court of First Instance in the Belgian Klimaatzaak / Affaire Climat to hold liable the Belgian Federal State and two of the country’s three Regions (Brussels-Capital and Flanders), for falling short of their climate commitments. 

The Court determined that, by not taking all necessary measures to prevent the impacts of climate change on the Belgian population, the Belgian Federal State and the Regions of Brussels-Capital and Flanders breached Articles 2 and 8 of the European Convention on Human Rights (“ECHR”) and their general duty of care (under Articles 1382-1383 of the Belgian old Civil Code).

Unlike the French-Speaking Brussels Court of First Instance (for more details on that decision, see our previous blog post), the Brussels Court of Appeal ruled that Belgium’s third region, Wallonia, was not at fault. 

It granted an injunction ordering the Belgian Federal State and the Regions of Brussels-Capital and Flanders to define, in consultation with the Walloon Region, how and to what extent each of them should contribute to achieve the EU target of reducing greenhouse gas (“GHG”) emissions by at least 55% by 2030 in comparison to 1990 levels.

It remains to be seen whether claims imposing specific targets on private companies or challenging their transition plans, like the one decided against Shell in the Netherlands (see our previous blog post for more details), could be supported by this case law. Although public authorities and private companies are in significantly different situations, activist organisations are likely to test these grounds before Belgian courts in the future.

Background and first instance decision

As we previously reported, the not-for-profit Klimaatzaak/L’Affaire Climat (the “NGO”) filed a lawsuit in April 2015 against the Belgian Federal State and the Regions of Flanders, Wallonia and Brussels-Capital, arguing – on behalf of around 8,000 Belgian citizens and an additional 50,000 other Belgian citizens who voluntarily intervened in the proceedings – that these public institutions were falling short of their climate commitments. 

On 17 June 2021, the Brussels French-Speaking Court of First Instance ruled that the State and the three Regions breached Articles 2 and 8 of the ECHR and their general duty of care (under Articles 1382-1383 of the Belgian old Civil Code) by failing to take all necessary measures to prevent the impacts of climate change on the Belgian population.

However, unlike the Dutch Urgenda case, the Brussels Court of First Instance refused to grant the injunction to meet stricter targets for the reduction of GHG emissions requested by the NGO, citing the principle of separation of powers. 

The NGO, supported by the individual applicants, appealed the judgment on 17 November 2021. They requested the Brussels Court of Appeal to confirm the decision on liability but also to order the defendants to reduce the overall volume of annual GHG emissions from the Belgian territory by at least 61% by 2030 compared with 1990. The NGO requested that the Brussels Court of Appeal set monthly civil penalties (astreintes/dwangsommen) of EUR 1,000,000 per month of delay in reaching the 2030 target, effective from 1 August 2031.

In response, the Belgian State and the three Regions filed for cross-appeals. They argued that they had not breached their general duty of care, or Articles 2 and 8 of the ECHR, and that the injunction order should be dismissed. The Regions of Wallonia and Flanders further claimed that the Brussels Court of Appeal had no jurisdiction over the case and that the legal actions of the NGO and the approximately 60,000 individual applicants were inadmissible.

Brussels Court of Appeal’s decision 

Jurisdiction and legal standing

Firstly, the Brussels Court of Appeal decided that it had jurisdiction to hear a case on liability claims against the Belgian Federal State and the Regions, even for alleged errors of conduct, and regardless of whether the claimants requested compensation for the alleged liability. 

Secondly, on admissibility, the Brussels Court of Appeal confirmed the decision of the first instance court and found that both the environmental NGO and the individual applicants had legal standing. The Court ruled that, in relation to environmental associations like the NGO, Belgian admissibility criteria enshrined in the Judicial Code must be interpreted in light of Article 9.3 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“Aarhus Convention”), and cannot be interpreted in a manner which would deny these associations access to justice. 

Regarding the individual applicants, the Brussels Court of Appeal determined that the potential impact of global warming on life and on the private and family lives of each individual on the planet is sufficiently proven. Similarly to the Court of First Instance, the Court of Appeal ruled that: (i) the fact that other people besides those filing the appeal may suffer the same damage does not transform the personal interest of each individual applicant into a general interest (as a legal action brought in the general interest is not admissible under Belgian law); and (ii) the damage claimed by the individual applicants was not merely a “purely ecological damage”, but also affected their health, their capacity to access food and water, etc.

Breach of Articles 2 and 8 of the ECHR and Articles 1382-1383 of the Belgian old Civil Code 

While referring to the Dutch Urgenda decision, the Court formulated the applicable legal test as follows: 

“in terms of global warming, the Judiciary can only find a breach of Articles 2 and 8 of the ECHR when it is proven that the public authorities failed to take the appropriate and reasonable measures which were required as a minimum, in light of the best scientific knowledge at the time (and therefore without any discretion) to enable them to prevent, to the extent of their powers, the crossing of a threshold dangerous to life and likely to seriously infringe respect for the private and family life of natural persons under their jurisdiction.” (§156 of the Brussels Court of Appeal’ decision (unofficial translation)).

The key question was: since when have the Belgian Federal State and the country’s three Regions known the minimum level of GHG emission reduction needed, and what actions have they taken with this knowledge? 

After reviewing the state of science and Belgium’s international and EU commitments for the period of 2013-2020, the Brussels Court of Appeal concluded that the defendants have known since 2007, or at least 2009, that a reduction of GHG emissions of at least 25% by 2020 was required to limit global warming to 2°C. It further considered that, since at least 2015, it was clear that the objective of a reduction of at least 25% was insufficient and that a reduction of 30% by 2020 should be considered as a minimum, in light of Articles 2 and 8 of the ECHR. 

On that basis, the Brussels Court of Appeal found that the reduction of the Belgian Federal State (-26.9%) and the Regions of Brussels-Capital (-23%) and Flanders (-20%) were insufficient, and that these public authorities had thus failed to take the appropriate measures to meet the minimum requirement of 30% reduction of GHG emissions by 2020 (compared to 1990 levels). By contrast, the Court found that the Walloon Region reached this objective, with a reduction of -38.5%. 

The Brussels Court of Appeal conducted the same evaluation for the period of 2021-2030. Drawing on several sources, including the EU "Fit for 55" package, the Court determined that the minimum requirement for this period is a reduction of at least 55% by 2030 (compared to 1990 levels). Once again, the Brussels Court of Appeal concluded that the Belgian Federal State as well as the Regions of Brussels-Capital and Flanders have not taken the appropriate measures to ensure that they will meet this target by 2030. However, the NGO failed to meet its burden of proof regarding the Walloon Region, since the latter managed to reduce its GHG emissions by almost 40% by 2020 and is in the process of adopting legislation that will enshrine the 55% reduction target into law. 

As for the period beyond 2030, the Brussels Court of Appeal was of the opinion that it could not determine at this stage whether there will be compliance or non-compliance.

Injunction order

Unlike the Court of First Instance, the Brussels Court of Appeal ruled that the principle of separation of powers did not prevent the Judiciary from issuing an injunction order against the Executive and/or the Legislative powers in this case, as long as the Judiciary does not deprive the public authorities of their choice regarding which measures to adopt to meet the ordered result.

The Court granted an injunction in respect of the Belgian State and the Regions of Brussels-Capital and Flanders, requiring them to take the appropriate measures, in consultation with the Walloon Region, to do their part to ensure that Belgium achieves the target of reducing GHG emissions from its territory by 55% compared with 1990 levels by 2030. The three parties are not required to individually achieve the 55% reduction target by 2030 on their own, but rather to do their individual part to ensure that this target can be achieved. Therefore, it will be up to these three parties, in consultation with the Walloon Region, to determine how to achieve the required result.

At this stage, the Court deferred its decision on the request for monthly civil penalties (astreintes/dwangsommen), postposing its decision until the official figures on Belgium’s GHG emissions for 2022 to 2024 are made available.

Supreme Court recourse

While Belgium’s Prime Minister declared that the Belgian Federal State would not appeal the decision before the Belgian Supreme Court (Cour de cassation/Hof van Cassatie), the Flemish Minister for the Environment announced that the Region of Flanders will indeed appeal the decision of the Brussels Court of Appeal. The Supreme Court’s review is limited to the correct interpretation of the law by the Court of Appeal, and does not constitute a de novo review of the case. Supreme Court proceedings usually last around 12 to 18 months, although the duration may vary depending on the Court’s priorities.

The decision of the Brussels Court of Appeal is enforceable despite this Supreme Court recourse.

The decision arrives at a very apt moment, as over 200 countries are currently in Dubai until 12 December 2023 for COP28, debating how best to tackle climate change on a global level and increase their climate ambition.

If you would like to discuss any aspect of this case, please reach out to the contacts on this post, or to your usual Linklaters contact.