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Freshfields Sustainability

| 3 minutes read

Constitutional complaints against German states’ climate legislation unsuccessful

On 18 January 2022, the German Federal Constitutional Court decided not to admit for decision several climate-related constitutional complaints that were supported by the German NGO Deutsche Umwelthilfe (DUH) because the court held the complaints have no prospects of success.

Alleged failures to adopt a climate protection law

In its 24 March 2021 ruling relating to the German Federal Climate Protection Act (KSG), the German Federal Constitutional Court recognised that fundamental rights laid down in the German constitution protect against a unilateral shift of the burden to reduce CO2 emissions to future generations if climate protection measures to meet Paris Agreement climate targets lead to disproportionate burdens in the future (see our blog post on the German Federal Constitutional Court ruling).

Referring to this ruling, the DUH targeted ten German states for failure to adopt a climate protection law at the state level, or by the alleged inadequacy of the adopted climate protection laws (see our blog post on the constitutional complaints against the states of Niedersachsen and Baden-Württemberg).

The Federal Constitutional Court’s findings 

The Federal Constitutional Court found that the constitutional complaints have no prospects of success based on the below considerations.

  • The constitutionally protected freedoms are only threatened in the future if permitting emissions today necessarily leads to restrictions of fundamental rights in the future.
  • Such a threat only exists if there is a ‘budget’ of CO2 emissions, from which a disproportionate amount of emissions is used up today, so that the burden of reducing emissions is shifted unilaterally to future generations.
  • Since there are no reduction targets that would allow remaining CO2 budgets to be derived for specific federal states, federal states cannot unilaterally shift this burden to future generations by implementing insufficient Climate Protection Acts or not adopting Climate Protection Acts.

Reasons for the judgment 

The Federal Constitutional Court affirmed its previous ruling that legal provisions laying down a budget of total CO2 emissions can be challenged by way of a constitutional complaint if such provisions already jeopardise constitutionally protected rights in the future.

The Court held that, while it is possible (within the framework of a state-specific emission reduction approach) to roughly identify a residual budget for the Federal Republic of Germany, there are no reduction targets that would allow remaining CO2 budgets to be derived for individual states. Therefore, the Federal Constitutional Court held that the complainants in this case were not able to demonstrate that their future freedom is endangered by the Climate Protection Acts of the federal states or the failure to adopt such laws. The Constitutional Court emphasised that, due to the federal structure, different regulations for constitutionally required climate protection measures are possible. The legislator could implement CO2 budgets for the states but could also choose a different approach and adopt a sectoral regulation that does not include any budgets for the states.

According to the Constitutional Court, the constitutional complaints also have no prospect of success when the complainants invoke a duty of the states to protect them against potential health or property infringements. In this respect, sufficient regulations already exist at the federal level.

Implications of the decision 

With this decision, the Federal Constitutional Court ultimately established that climate protection is primarily a matter for the federal legislator, not for the federal states. Only when the federal legislator decides to impose specific emission reduction targets or CO2 budgets on the states can complainants argue that the states are not taking sufficient action to meet these targets but are shifting this burden to future generations.

Whether the legislator will impose such reduction targets for the individual states is still unclear at this time. The Federal Constitutional Court acknowledged that there are other legislative mechanisms for sharing the burden to reduce emissions, for example a sector-specific approach. In its coalition agreement, the new government has announced the verification of compliance with climate targets using a cross-sectoral calculation analogous to the Paris Agreement. However, the government has not been specified whether CO2 budgets should be adopted for states, sectors or corporations.

This decision might also have an impact on climate-related civil lawsuits. Such claims are typically based on sec 1004, 823 (1) German Civil Code, invoking a violation of the fundamental rights to health and property as well as the general right of personality/privacy, including claims recently brought against four companies, including automotive manufacturers (see our blog post on the climate-related lawsuits against German car manufacturers). The claimants argue that the CO2 budget could be allocated to individual states but could also be allocated to corporations based on their market/emission shares.

However, as the Federal Constitutional Court has now emphasised once again, it is the federal legislator’s responsibility to regulate the distribution of the CO2 budget. As long as there are no binding CO2 budgets for states or corporations, claimants cannot argue that the emissions allowed today will inevitably lead to restrictions on their freedom in the future.

Whether the German courts will nevertheless follow the claimants’ reasoning and affirm an unwritten duty of care to reduce CO2 emissions by applying soft law standards comparable to the Shell judgment in the Netherlands (see our blog post on the Shell judgment; for the significance of this ruling for German companies, see our client briefing (in German)) remains to be seen.


climate change, litigation