Abstract
In its KlimaSeniorinnen judgment, the ECtHR held for the first time that Switzerland’s inadequate climate protection measures violated Article 8 ECHR. The Court denied that the Swiss elderly complainants were victims. However, it held that the association KlimaSeniorinnen Schweiz had standing to bring the case (locus standi) and thus confirmed a violation of the right to respect for private and family life. In doing so, the Court created a human rights complaint for associations, which is not provided for in the Convention. The Court’s findings on Article 6 ECHR – while taking up considerably less space in the decision – are likely to have an even more far-reaching effect than those on Article 8. The Court found a violation of the association’s right of access to justice because the national courts did not deal seriously or at all with the association’s application. Although these findings in the ECtHR’s KlimaSeniorinnen judgment can be read to require far-reaching domestic class actions in climate change cases, the implications are not so clear. A case in point are recent developments in climate change litigation in Germany, where the Federal Constitutional Court (FCC) will have to react to the ECHR’s findings. In its well-known own climate protection ruling, the FCC had explicitly denied standing for associations. Recently, several environmental organisations (as well as individuals) have again filed a constitutional complaint against the new Federal Climate Protection Act, referring to the ECHR ruling. In July 2024, the legislator weakened the Federal Climate Protection Act, which had been strengthened after the FCC’s climate protection ruling of March 2021. In my presentation, I will first look at the relevant passages of the ECtHR’s seminal judgment. Second, I will examine the strength of the ECtHR’s arguments in favour of national class actions in the climate context. Third, I will analyse how the German Federal Constitutional Court deals with decisions of the ECtHR. On this basis, I will venture a prediction as to how the Federal Constitutional Court will rule with regard to the pending constitutional complaints filed by environmental organisations.
Bio
Angela Schwerdtfeger holds a chair of public law, in particular administrative law, at the Georg-August-Universität Göttingen. She is a member of the Institute for Public
Law and the Institute for International and European Law of the Göttingen Faculty of Law. As a Senior Research Fellow at the Friedrich Schiller University of Jena and the Humboldt Universität zu Berlin, she conducted a research project on crisis legislation, which was funded by the German Research Foundation. She was a Visiting Researcher at the University of Michigan Law School and a Visiting Professor at the Freie Universität Berlin, the University of Leipzig and the University of Trier. In August/September 2024 she is Visiting Professor at the University of Oslo. Since her PhD thesis on ‘Legal Remedies in German Administrative Law under the Influence of the Aarhus Convention’, she has pursued research projects and published extensively on environmental and climate protection law, with a focus on access to justice. Her research projects have been funded by the German Federal Ministry of the Environment and the Lower Saxony Ministry of Science, among others. Other research interests include multi-level protection of fundamental rights, migration law, parliamentary law and legislative theory. She has been a deputy member of the Constitutional Court of Lower Saxony since July 2021.