On 24 March 2021, the German Federal Constitutional Court ruled that Germany's Federal Climate Protection Act is partially unconstitutional and forced the legislature to make improvements.
The decision comes at a time when courts in other European countries have also made decisions related to climate protection issues that have received much attention.
- In December 2019, the Dutch Supreme Court's 'Urgenda' decision upheld a ruling that ordered the Dutch government to reduce the Netherlands' greenhouse gas emissions by 25 per cent from a 1990 baseline by the end of 2020.
- A French administrative court ruled in early 2021 ecological damage in France was due to climate change and that the French state is partly responsible (see the blog posts The Trial of the Century and Legal risk and climate change).
- A decision from the Netherlands required Royal Dutch Shell to reduce CO2 emissions by a net 45 per cent by 2030 compared to 2019. (For the significance of this ruling for German companies, see our client briefing (in German).)
- Shortly thereafter, a Belgian court decided that the Belgian public authorities had failed to reduce greenhouse gas emissions.
In addition, several climate lawsuits are currently pending before the European Court of Human Rights, brought by plaintiffs from Portugal, Switzerland, and Austria.
The key findings made by Germany’s Federal Constitutional Court are:
- Climate change is recognised as scientific knowledge, and the court makes this finding the basis for its derivation of the goal of climate neutrality. And it derives this goal from Article 20a of the German Constitution, which sets out the State’s commitment to environmental protection, in conjunction with the state's duty to protect life and health under Article 2(2) sentence 1 of the German Constitution.
- Stopping global warming requires reduction of total anthropogenic CO2 emissions. The increase in the CO2 concentration in the atmosphere contributes to global warming, since CO2 remains in the atmosphere, once released there, and is almost impossible to remove again in the foreseeable future.
- The Federal Constitutional Court imposed a special duty of care on the legislature in the area of climate protection law. Despite scientific uncertainty about the exact quantification of the connection between CO2 emissions and global warming, the legislature must take into account reliable indications of the possibility of serious or irreversible adverse effects.
- The climate protection requirement arising from Article 20a of the German Constitution has an international dimension. The State cannot evade its national obligation to protect the climate by referring to greenhouse gas emissions in other states.
Reasons for the judgment
In its decision, the court criticised the fact that the law did not contain any targets for reducing greenhouse gases from 2031. This is relevant because the more that can be emitted now, the lower is the future budget. The current regime leads to an unconstitutional shift of the greenhouse reduction burden to the future. This causes a threat to any constitutionally protected freedom in the future. The legislature should have taken precautions to create a transition to climate neutrality that preserves such freedoms.
Interestingly, the court did not object to the climate targets of the Paris Agreement and the United Nations Framework Convention on Climate Change, according to which the increase in the global average temperature compared to pre-industrial levels is to be limited to well below 2°C, and if possible below 1.5°C. In the future, however, new and sufficiently reliable scientific findings could make it necessary to set other targets, which the Federal Constitutional Court reserves the right to review.
Even though the court has recognised climate change as such as scientific knowledge, it also acknowledges that climate-physical calculations of warming in emitted CO2 quantities are associated with considerable uncertainties due to the complexity of the global climate system.
The implications of the decision
In cases of conflict between the goal of achieving climate neutrality and other legal positions, the goal of climate neutrality does not automatically take precedence. However, the court has clarified that the relative weight of the climate protection requirement in achieving a balance of positions continues to increase as climate change progresses. In doing so, it has already set a certain framework for balancing such conflicts in the future.
How the German Parliament reacted
By way of a short-term reaction to the decision (Germany's federal election is in September), the German Government presented a draft bill within less than two weeks that significantly tightens the climate targets intended. The bill was passed by parliament at the end of June and will come into force shortly. Emissions are to fall by 65 per cent compared to 1990, instead of the previous 55 per cent, and climate neutrality in Germany is now set to be a reality in as early as 2045, rather than 2050.
Although additional savings are required in all areas of the economy, these are distributed unevenly among the individual sectors. The transport sector, which will have to save 10 million tons more per year by 2030 than previously planned, is particularly affected. The biggest cut, however, is facing the energy sector, whose permitted emissions have been cut by almost 40 per cent.
However, the amended Climate Protection Act does not stipulate how these measures are to be implemented. This means that until the measures to be taken are defined in more detail, there is little certainty for companies, in the short term. As a result, however, the more liberal transition to climate neutrality should also benefit companies in the long term as relative reduction targets from 2031 onwards.