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In brief

The European Court of Human Rights (“ECtHR”) has ruled on a case brought against Switzerland by the Swiss association KlimaSeniorinnen on behalf of its members and four individual women of the association. More than 2,000 members of the association are elderly women (the majority over the age of 70) concerned about the consequences of global warming on their living conditions and health. The ECtHR found that Switzerland has violated Art. 8 of the European Convention on Human Rights (“ECHR”) by failing to take timely and sufficient action to adopt and implement relevant legislation and measures to mitigate climate change. The ECtHR also held that, from a procedural perspective, Switzerland failed to grant effective access to court to challenge the insufficient implementation of mitigation measures. In this contribution, we summarize the background of the case and the ECtHR’s decision and analyze its possible impacts.


The circumstances of the case

In 2016, the association KlimaSeniorinnen submitted a complaint to the Swiss Federal Department of the Environment, Transport, Energy and Communications (“DETEC”). The association called on the Swiss authorities to take the environmental and sustainability goals enshrined in the Swiss Federal Constitution seriously. They claimed that the reduction in CO2 emissions envisaged by the Swiss authorities was not sufficient to limit global warming to a maximum of 1.5°C. The association therefore demanded that the Swiss authorities fulfill their duty to protect the environment and increase their efforts to reduce greenhouse gases (“GHG”). In their request, they urged the Swiss authorities to take immediate action in order to meet the goals set out in the Paris Climate Agreement and comply with their international commitments.

The DETEC ruled that the application of the association KlimaSeniorinnen would not be considered, as the requested measures did not relate to specific acts but would require a general change in policy. DETEC was also of the opinion that it could not be expected to regulate CO2 emissions alone and that a reduction in CO2 emissions would have to be regulated worldwide. The association KlimaSeniorinnen lodged an appeal against this judgment of the DETEC with the Swiss Federal Administrative Court (“SFAC”).

The SFAC also dismissed the claims brought by the association KlimaSeniorinnen, though with a new reason: older individuals would not suffer to a particular extent from the consequences of climate change and therefore did not have the right to make such claims. In 2019, the case was then brought before the Swiss Federal Supreme Court (“SFSC”). The SFSC ruled that the association KlimaSeniorinnen did not have standing to bring the case because the rights they sought, including the right to life, would only be at risk if global warming exceeds 1.5°C.

At the end of 2020, the association KlimaSeniorinnen decided to challenge the judgment of the SFSC before the ECtHR. In their complaint, the association argued that Switzerland was not fulfilling its duty to protect, which is derived from the rights set out by Art. 2 ECHR (right to life) and Art. 8 ECHR (right to respect for private and family life). The association also claimed a violation of the right to an effective remedy (Art. 6 ECHR), as no Swiss court examined their action on its merits.

The judgment of the ECtHR

The complaint was brought on behalf of four individual members of the association and the association itself. In its judgment, the Grand Chamber of the ECtHR examined whether the four individuals and the association qualified as victims and thus had standing to bring a complaint. This requires the existence of a direct impact of the impugned action or omission on the applicant or a real risk thereof; so-called actiones populares are excluded. Having regard to the special features of climate change, the ECtHR held that applicants need to show, first, that they are subject to a high intensity of exposure to the adverse effects of climate change and, second, a pressing need to ensure the applicant’s individual protection. The four individual applicants did not fulfill these requirements and therefore lacked standing to bring the complaint.

By contrast, the standing of the association KlimaSeniorinnen was affirmed by the ECtHR. The Court found that the specific considerations relating to climate change, its special feature of being a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context speak in favor of recognizing the standing of associations before the ECtHR in climate-change cases.

With regard to the complaint brought by the association, the ECtHR found that the right to effective protection by public authorities from the serious adverse effects of climate change on life, health, well-being and quality of life is encompassed by Art. 8 ECHR and that the Swiss authorities had violated this right. The ECtHR explained that Switzerland failed to fulfill its positive obligations under the ECHR in relation to climate change, as there were critical gaps in the establishment of a relevant domestic regulatory framework, including through a carbon budget or national GHG emissions limits. There had also been a past failure on the part of Switzerland to comply with its GHG emissions reduction targets. While acknowledging that national authorities enjoy a broad margin of discretion in the implementation of legislation and measures, the ECtHR found that the Swiss authorities had not acted in a timely and adequate manner to draft, develop, and implement the relevant legislation and measures. Thus, the ECtHR concluded that Switzerland has violated Art. 8 ECHR by not taking sufficient measures to combat climate change. With respect to Art. 2 ECHR no findings were made by the ECtHR, but it noted that the principles developed under Art. 2 ECHR closely resemble those under Art. 8 ECHR.

The ECtHR also found a violation of Art. 6 para. 1 ECHR (right to access to a court). Although the association KlimaSeniorinnen had exhausted all available avenues of appeal, the ECtHR was of the opinion that the Swiss courts had not carried out a substantive examination of the griefs brought forward by the association. The ECtHR explained that the Swiss courts should have provided convincing reasons on why they did not consider it necessary to examine the merits of the complaints and for their dismissals. In addition, the ECtHR found that the Swiss courts did not adequately consider the strong scientific evidence on climate change and had failed to take the association’s complaints seriously.

Due to the complexity and nature of the issues linked to climate change, the ECtHR did not impose specific measures on Switzerland and deferred the assessment of such measures to the Swiss authorities. In terms of procedural rights, the ECtHR emphasized the key role of national courts in climate litigation and stressed the importance of ensuring access to justice in this area.

Impact of the judgment and outlook

Over the past years, lawsuits accusing governments of inadequate climate action have become increasingly successful in many jurisdictions.1 Nevertheless, the present judgment is the first in which the ECtHR found that a member state’s inadequate measures against climate change constitute a violation of human rights protected by the ECHR. The ECtHR’s previous case law was limited to environmental matters involving specific sources causing harmful effects on an identifiable group of individuals. For example, earlier cases concerned a landfill site that caused harmful emissions for the local population, or a steel factory that led to a much higher cancer rate in the surrounding area. In the context of climate change, the key characteristics and circumstances are significantly different. Climate change arises from a variety of sources, with the harm being caused by an accumulation of GHG emissions over a long period of time. Moreover, climate change is a global phenomenon, as emissions have no regard for national borders. The chain of effects is both complex and unpredictable: the immediate danger to humans arises from harmful phenomena caused by extreme conditions triggered by global warming.

In this context, the ECtHR considered 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 1.5°C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target“. According to the ECtHR, the effective protection of human rights requires that states take measures to reduce their GHG emission levels, with the aim of reaching net neutrality, in principle, within the next three decades. In this regard, states must set relevant targets and timelines, which must form an integral part of the national legal framework as a basis for mitigation measures.

The judgment of the ECtHR undoubtedly has far-reaching implications as it sets a precedent for all 46 member states of the Council of Europe. Citizens of these states could now request a review of national climate policies to ensure the protection of human rights based on the principles established by the ECtHR. Although the human rights protected under the ECHR do not directly extend to private entities, this judgment could fuel the momentum of climate change lawsuits targeting especially major corporations with substantial GHG emissions.

While it remains to be seen how the Federal Council and the Parliament intend to close the gaps in the regulatory framework identified by the ECtHR, it is to be expected that the Swiss authorities will reassess and possibly tighten the Swiss carbon reduction targets. Potential new climate protection regulations required to achieve these targets will also have an impact on companies. In addition, the ECtHR’s decision has also shown certain shortfalls of the Swiss procedural framework available for challenging human rights violations in the area of climate change, in particular, on the standing of associations to bring relevant claims, which was clearly affirmed by the ECtHR. A revision of the legal framework for collective redress in Swiss civil procedure law, which aims at strengthening relevant instruments, is already ongoing, but has now been put to a temporary halt. The Swiss legislator recognized that the ECtHR’s decision will have an impact on the planned revision and has asked the Federal Council to explain the direct or indirect consequences this decision will have on the design of instruments of collective redress pursuant to Swiss civil procedure law (see press release of 12 April 2024).


1 For example, the German Federal Constitutional Court held in 2021 that the provisions of the German Federal Climate Change Act governing national climate targets and the annual emission amounts allowed until 2030 were incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards.

Author

Dr. Jürgen Mark practices in the areas of litigation, domestic and international arbitration, commercial and company law, product liability law and distribution law. Dr. Mark is highly recommended by JUVE Handbook in the dispute resolution area, and has been recognized as one of the leading German lawyers in the field of dispute resolution by PLC Which Lawyer? and Legal 500. In 2013, he won the ILO Client Choice Award for Litigation.

Author

Dr. Fabienne Bretscher is a mid-level associate at Baker McKenzie’s Zurich office focusing on contentious matters in the areas of civil and commercial as well as intellectual property and competition law. She holds a PhD in the area of dispute resolution in international human rights law from the University of Zurich and a Master's Degree in Transnational Law from the University of Basel. During her graduate and postgraduate studies, Fabienne worked as associate lecturer and research assistant.
Fabienne first joined Baker McKenzie Zurich in 2018 as a trainee lawyer and rejoined the firm after being admitted to the Swiss Bar in 2021.

Author

Dr. Valentina Hirsiger is senior associate in Baker McKenzie’s Arbitration and Litigation Group in Zurich. Prior to joining the Firm as an associate in 2016, Valentina was an associate lecturer and research assistant at the University of Zurich and was awarded the Walter Hug Prize for her doctoral thesis on arbitration clauses in articles of association of Swiss corporations. Since 2023, Valentina has acted as a part-time judge at the Princely Supreme Court in Liechtenstein.

Author

Corinne Nacht is an associate in Baker McKenzie's Dispute Resolution and Compliance & Investigations practice groups in Zurich. She graduated from the University of St. Gallen (HSG) in 2015. Subsequently, Corinne worked as a trainee lawyer for Baker McKenzie Zurich and for a smaller law firm in the Canton of Thurgau. She was admitted to the bar and rejoined the Firm in 2019.

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