European Court of Human Rights rules that Switzerland’s failure to implement sufficient measures to combat climate change violates human rights

European Court of Human Rights rules that Switzerland’s failure to implement sufficient measures to combat climate change violates human rights

On 9 April 2024, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its long-awaited rulings (available here) in three landmark climate change cases against Portugal (as well as 32 other States), France and Switzerland. The Court was asked to decide whether the Contracting States’ allegedly insufficient measures to combat climate change amounted to a violation of the individual human rights of European citizens as guaranteed by the European Convention on Human Rights (“Convention”).

The three cases were not joined but were heard by the same composition of the ECtHR’s Grand Chamber. While dismissing two of the three cases on procedural grounds, the ECtHR relied on the right to private life and family life (Article 8 of the Convention) to decide, in the third case, that Switzerland had failed to fulfil its obligations to provide protection against the adverse effects on human health caused by climate change.

Key takeaways

• States’ inaction or insufficient action with respect to climate change may be considered as violating human rights.
• States have a positive obligation to ensure protection under Article 8 of the Convention (right to respect for private and family life), which includes protection against harmful effects and risks caused by climate change and requires the adoption of effective and concrete implementing measures to mitigate the current and future effects of climate change.
• While setting a high threshold for admissibility, the ECtHR admitted the case brought by an association fighting climate change.
• This is a landmark decision which lays open the possibility of further legal challenges against parties to the European Convention on Human Rights over climate inaction or insufficient action. It has been described by some as a blueprint for how to successfully sue your own government over climate failures. And as the parties to the Convention are not limited to just EU Member States, this decision is also applicable to the UK and other signatories.

Successful case against Switzerland 

The case Verein Klimaseniorinnen Schweiz v. Switzerland was filed on 28 November 2020 by a Swiss association made up of elderly women and by four individual women. They claimed that the Swiss authorities are not taking sufficient action to mitigate climate change and that the applicants therefore suffer from the consequences of climate change on their living conditions and health. 

The ECtHR found the case admissible insofar as it was brought by the association Verein Klimaseniorinnen Schweiz and ruled that Switzerland has not taken the necessary steps to fight global warming and has therefore violated the applicant’s right to private and family life under Article 8 of the Convention.

Swiss climate association considered as victim able to argue its case 

Due to the high threshold for establishing the status of victim in the specific context of climate change litigation (i.e., demonstrating direct harm to the applicant and an interest in seeing it brought to an end), only the association’s claim was considered admissible. The claims filed by the four individuals were declared inadmissible.

The Court acknowledged the difficulties associated with climate change litigation, explaining that “everyone is concerned by the actual and future risks, in varying ways and to varying degrees, and may claim to have a legitimate personal interest in seeing those risks disappear”. However, the ECtHR held that general public-interest complaints (“actio popularis”) lie outside the scope of the Convention and could therefore not be admitted, since the Court has no jurisdiction to review relevant legislation and/or a practice “in abstracto”.

Under Article 34 of the Convention, individual applicants must show that they are personally and directly affected by governmental action or inaction. According to the Court, this requires the establishment of two conditions: (i) a high intensity of exposure of the applicant to the adverse effects of climate change; and (ii) a pressing need to ensure the applicant’s individual protection. The Court acknowledged that the threshold for establishing the victim status in climate change cases is “especially high”. More specifically, with respect to the right to private and family life (Article 8 of the Convention), the ECtHR explains that admissibility requires that “there was an “actual interference” with the applicant’s enjoyment of his or her private of family life or home and secondly that a certain level of severity was attained”. 

Applying these principles to this particular case and taking into account the importance of associations in climate change litigation, the Court considered that Verein Klimaseniorinnen Schweiz could qualify as a victim under Article 8. On the other hand, the Court considered the claims brought by the four women to be inadmissible since the high threshold was not met.

Climate inaction may violate the right to private and family life

The ECtHR ruled that Article 8 entails a positive obligation for States to provide protection against adverse effects on human health from harmful effects and risks caused by climate change. In this respect, the Court held that “Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades”. 

Although generally being granted a wide “margin of appreciation” regarding their choice of means to mitigate climate change, States are required to establish clear timelines and carbon budgets (or equivalent quantification methods) to achieve carbon neutrality and to define sector-specific or equivalent interim goals and pathways to meet national greenhouse gas reduction targets within set timeframes. States also need to provide evidence of compliance or progress towards meeting these targets, regularly update the targets, and ensure timely and consistent action.

The Court found critical gaps in the Swiss authorities’ implementation of the relevant domestic regulatory framework and noted that they had failed to meet the country’s greenhouse gas emission reduction targets. The authorities, which are said not to have acted in time and in an appropriate way to combat climate change, had therefore exceeded their “margin of appreciation” and failed to comply with their duties in this respect.

Relying on scientific literature and especially various IPCC reports, the Court considered it necessary to avoid imposing a disproportionate burden on future generations, which requires States to take action now. The Court found that Switzerland has not taken the necessary measures to achieve the objectives set out in the Paris Agreement and is therefore violating Article 8 of the Convention. 

Violation of the right to have access to court 

The ECtHR also held that Article 6 §1 of the Convention providing for the right to have access to court was violated since the association’s complaint was brought before Swiss courts but was dismissed without having been examined on the merits.

As a consequence of the ruling, Switzerland is required to pay 80,000 euros for costs. No further request for compensation had been made by the applicants. 

Cases against Portugal and France rejected as inadmissible

The case Duarte Agostinho et al v. Portugal et al, filed on 7 September 2020 against 33 Contracting States, was the most expected ruling in view of its unprecedent and ambitious scope. The case was brought by six Portuguese young people, aged between 12 and 21. They requested the Court to legally compel the defendant States to intensify their efforts to reduce emissions in order to keep global warming below 1.5°C in accordance with the Paris Agreement. 

However, the Court never reached the merits of the case. The claim was declared inadmissible against all defendant States (except Portugal) on the ground of extraterritoriality and against Portugal for non-exhaustion of local remedies.

The case Carême v. France was brought on 28 January 2021 by Daniel Carême, a French citizen and former mayor of the city of Grande-Synthe. He had challenged the French State’s inaction before administrative courts in France. The French Council of State had admitted the city of Grande-Synthe’s request, while denying that Carême had a personal interest in the case. The ECtHR sided with the Council of State since there was no evidence that he would continue living in the city and that he lost his personal interest when he moved to Brussels. The case was therefore declared inadmissible.

What does the ruling mean in practice?

Although a number of domestic courts of the Contracting States had already reached similar conclusions, this first decision of the ECtHR sets a new precedent for future climate change litigation against States (of the Council of Europe and beyond).

Pursuant to Article 46 of the Convention, the ECtHR’s rulings are directly binding on the State that was party to the proceedings. Switzerland is therefore obliged to take all the appropriate measures to put an end to the violation of Articles 8 and 6 §1 of the Convention. The execution of the decision is supervised by the Committee of Ministers of the Council of Europe.

Moreover, the interpretation of the Convention by the ECtHR must also be complied with by all Contracting States, which are therefore obliged to strengthen their climate policies to safeguard human rights as outlined by the Court. It remains to be seen what measures, if any, this will lead to in other States. They are also exposed to the risk of copycat lawsuits forcing them to take concrete measures. As an indirect effect of the judgment, companies may thus be subject to stricter environmental regulations. The relevance of the judgement is underlined by the fact that domestic courts (such as the German Federal Constitutional Court) tend to consider the jurisprudence of the ECtHR when interpreting fundamental rights guaranteed by the applicable national law.

It remains an open question whether the judgment will also fuel claims to impose specific carbon reduction targets on private companies or to challenge their climate transition plans, like the one decided against Shell in the Netherlands (see our previous blog post). This is particularly relevant in light of the upcoming EU Corporate Sustainability Due Diligence Directive (CSDDD), pursuant to which certain private entities would be required to establish and implement a transition plan for climate change mitigation, containing time-bound emission reduction targets and key actions planned to reach these targets. Although public authorities and private companies are in significantly different situations, activist organisations are likely to continue to test these grounds before national courts.

There are a number of other climate cases pending before other international courts, including the International Court of Justice, which are expected to further clarify States’ legal responsibilities for climate change. So we can expect to hear more on this front later this year. 

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