On 9 April 2024, the ECHR rendered judgements in three climate change litigation cases, against Switzerland (see here), France (see here) and Portugal (and 32 other European states, see here). Only the Swiss case was handled on the merits, since the ECHR declared other two complaint cases inadmissible. In the Swiss case, the ECHR ruled – in short – that Switzerland had failed to comply with its duty of care following from human rights under the the European Convention on Human Rights (the Convention) concerning climate change. Switzerland had not acted in time and in an appropriate way to design, develop and implement the relevant legislative and administrative frameworks to prevent (dangerous) climate change. In this blog, we discuss these three ECHR climate cases and the potential impact of the ECHR judgement in the Swiss case on ESG liability and (class action) litigation risks in the Netherlands.

Pending human rights cases at the ECHR and ECHR judgements of 9 April 2024

All three cases concerned the main legal question whether or not the Convention entails a State’s duty of care to protect the human rights of its inhabitants by reducing GHG emissions. The claims of the applicants were primarily based on the positive obligations of States to protect the right to life (Article 2 of the Convention) and the right to respect for private and family life (Article 8 of the Convention).

On 9 April 2024, the ECHR presented judgements in all three climate change litigation cases:

  • Duarte Agostinho and others v. Portugal and 32 other European states
    Six Portuguese youths filed a lawsuit against Portugal and 32 other European states (including the Netherlands) for allegedly failing to reduce GHG emissions to keep temperature rise below 1.5 degrees Celsius, in line with the Paris Agreement. The applicants also requested an order requiring the 32 States to adopt more ambitious measures to mitigate dangerous climate change. In its judgement, the ECHR held that the applicants had not fully resorted to the legal possibilities available to them in Portugal and had thus not exhausted domestic judicial remedies. Therefore, the applicants’ claim against Portugal was declared inadmissible. Furthermore, the ECHR held that there was no legal basis in the Convention to justify the judicial extension of the extraterritorial jurisdiction of the other 32 States as proposed by the applicants.

  • Carême v. France
    The former resident and mayor of a municipality in France, filed a complaint against France for not taking sufficient measures to comply with the objective of reducing GHG emissions by 40% by 2030. ECHR. In its judgement, the ECHR noted a lack of relevant links between the applicant and the French municipality, combined with the applicant’s current residence being outside France. Therefore, the applicant lacked standing as a victim within the meaning of Article 34 of the Convention in respect of any conceivable aspect of Article 2 (right to life) or Article 8 (right to respect for private and family life or home) of the Convention. The applicant’s claim was therefore declared inadmissible by the ECHR.

  • KlimaSeniorinnen v. Switzerland
    This case concerns an action brought against Switzerland by the so-called KlimaSeniorinnen association, an association of elderly women concerned about the impact of global warming on their living conditions and health and four individual applicants. According to the applicants, Switzerland has failed to adopt appropriate legislation and adequate (mitigating) measures to combat dangerous climate change. In this context, the applicants argued that Switzerland has failed to effectively fulfil its positive obligations under Articles 2 and 8 of the Convention.

    In its judgement, the ECHR held that the four individual applicants lacked standing as a victim within the meaning of Article 34 of the Convention. To claim victim status, persons must demonstrate direct and personal effects of State action or inaction, as the Convention does not provide for general public interest claims (actio popularis). The ECHR concluded that the four individual applicants did not meet the victim-status criteria. Therefore, the individual applicants’ claim was declared inadmissible by the ECHR.

    The ECHR did hold the claim of the KlimaSeniorinnen association admissible. The ECHR considered that, especially in the context of climate change as a common intergenerational concern of humankind, recourse through associations may be the only means available to defend particular interests in an effective manner. Based on specific considerations relating to climate change, the ECHR recognised the possibility for associations, subject to certain criteria, to have a standing before the ECHR as representatives of individuals whose rights are or will allegedly be affected. According to the ECHR, the KlimaSeniorinnen association met such criteria, and was thus declared admissible by the ECHR.

    As for the merits: the ECHR found several important shortcomings in the legislative process of Switzerland in relation to mitigating (dangerous) climate change. Furthermore, Switzerland had failed to meet its previous GHG emission reduction targets, as recognised by the competent authorities. Therefore, Switzerland had failed to act in a timely, adequate and consistent manner with respect to the design, development and implementation of the relevant legislative and administrative frameworks to prevent (dangerous) climate change. Accordingly, Switzerland exceeded its margin of appreciation and failed to fulfil its positive obligations under Article 8 of the Convention in the context of climate change. The ECHR therefore ruled that Switzerland violated the human rights of the members of KlimaSeniorinnen association as laid down in Article 8 of the Convention.

The judgements of the ECHR (of the Grand Chamber) cannot be appealed.

Potential impact of the ECHR judgements on climate change litigation 

With its judgement in the KlimaSeniorinnen case, the ECHR presented a groundbreaking ruling on a State’s positive obligations in the context of climate change.

Firstly, the ECHR ruled that individuals are entitled to receive effective protection from States against the serious adverse effects of climate change. Article 8 of the Convention requires States to adopt and effectively apply regulations and measures that mitigate the existing and potentially irreversible future effects of climate change.

The ECHR explicitly considered that the States must enact regulations and measures aligned with international commitments, such as the Paris Agreement, supported by scientific evidence and advice from bodies like the Intergovernmental Panel on Climate Change (IPCC), to prevent further increases in GHG emissions and global temperatures that could result in irreversible adverse impacts on human rights. The ECHR emphasized that timely and consistent action by States under the Convention is essential to effectively adhere the human rights protected by the Convention in the context of climate change. In doing so, States are obliged to progressively reduce their GHG emissions and regularly update its climate goals on the basis of due diligence, with the aim of achieving net neutrality within approximately three decades.

Secondly, the ECHR did not accept the often-used defence by States that their GHG emissions are only a minor cause of climate change (the so-called drop-in-the-ocean argument) and that therefore, in the absence of a direct causal link, States cannot be held responsible. The ECHR held that, in the specific context of climate change, a causal link between the (potential) adverse human rights impacts of climate change and the alleged failure of States to fulfil their positive obligations under the Convention to mitigate such climate change is sufficient to establish causality. Therefore, a direct causal link is not required to establish a potential violation of human rights in the context of climate change attributable to a State under the Convention.

We expect the ruling in the KlimaSeniorinnen case to have a serious impact on the existing field of climate change litigation. It might result in an increase of ESG liability and litigation risks against States in which the positive obligations of States to counteract adverse impacts of climate change on human rights will be enforced. In the Netherlands, a similar landmark ruling was rendered in the Urgenda case, which required the Dutch State to take necessary measures to reduce GHG emissions by at least 25% by 2020 compared to 1990 (please see our earlier trend report in this regard).

Possibly, the KlimaSeniorinnen case may also impact any positive obligations a company may have in relation to climate change. In the Netherlands, in May 2021 the District Court of The Hague ruled that, as brought forward by claimant Friends of the Earth (Milieudefensie), Royal Dutch Shell has an obligation to ensure that the GHGH emissions of the Shell group is reduced by net 45% at the end of 2030 compared to 2019 (please see our earlier blog and trend report in this regard). The Shell judgement was also based on the findings in aforementioned Urgenda case. The case is currently pending in appeal at the Hague Court of Appeal. In the appeal, this month various court hearings took place; a decision is expected in the Shell case is not expected before November 2024. Most certainly, the recent ECHR judgement will also be relevant for the court’s considerations on Friends of the Earth’s claims against Shell.

In the Netherlands, most climate change related litigation, concerning both the Dutch State and companies, finds its way to the court through class actions. This is also because of the Dutch sophisticated class action system, including the Act on Collective Damages in Class Actions (WAMCA). The WAMCA, introduced in 2020, further expanded possibilities for climate change litigations in the Netherlands, because of the more lenient admissibility regime for claims that pursue an ideological purpose (such as, non-monetary, climate change claims). 

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Our experts are closely monitoring these and other climate change litigation developments and potential ESG liability and litigation risks in this respect. Please do not hesitate to contact any of us for more information.