The KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR) has been the subject of intense debate for several weeks. One focus was on the question of standing, i.e., who can bring a lawsuit connected to climate change and human rights before the ECtHR.
However, less attention has been paid to the question of the impact of the judgment on currently pending climate change cases before the ECtHR. This blog post sheds light on “climate change case number four”, a case against Austria primarily challenging the shortcomings of the Austrian Climate Protection Act.
In Müllner vs Austria, Mex M., who suffers from multiple sclerosis and whose health condition worsens with rising temperatures, will have to overcome the high threshold for individuals to qualify as victims in climate change cases. “If Mex is not particularly affected by the climate crisis, then nobody is,” says his lawyer Michaela Krömer. Chances are indeed promising for Mex M., mainly because of the direct correlation between the temperature rise and his health, underpinned by vast scientific evidence and a lack of reasonable personal adaptation measures. The even more important question, however, is how the ECtHR will address the substance of the case. In this blog post, I argue that the ECtHR should classify the shortcomings in the Austrian Climate Protection Act as a violation of the European Convention on Human Rights (ECHR).
Lack of legal remedies to challenge the Climate Protection Act
Under Austrian law, there is no remedy for legislative inactivity. Laws can be challenged before the Austrian Constitutional Court through an individual application only under three strict conditions: The law must (i) directly affect the applicant’s legal position, (ii) take effect without a judgment or decision, and (iii) other means of challenging the law must be unreasonable (Article 140 para. 1 of the Federal Constitutional Act).
Due to these conditions, shortcomings of the Austrian Climate Protection Act cannot be effectively challenged before the Constitutional Court. This is why the “first climate action” before this Court did not address the Climate Protection Act itself. Instead, the applicants submitted an individual application for the repeal of specific provisions (of the Value Added Tax Act 1994 and the Mineral Oil Tax Act 1995) that favored air transport over rail transport for tax purposes. These tax concessions would cause people to choose air travel over rail, thereby encouraging climate-damaging behavior. The applicants argued that this violated their rights under Articles 2 and 8 of the ECHR, which have constitutional status in Austria.
However, the Constitutional Court ruled that the disputed laws did not interfere with the legal sphere of the applicants. It was not sufficient for the Court that the applicants did not (want to) use air carriers for cross-border passenger transport services, but those of rail services (E. 3.2.2.).
The Case of Mex M.
Lawyer Michaela Krömer has taken one of the individual applicants from the “first climate action” before the Austrian Constitutional Court to the ECtHR. Mex M. suffers from a special form of multiple sclerosis, the so-called Uhthoff phenomenon, where rising temperatures directly impair his mobility. The main argument for Mex M.’s victim status is that his rights under Articles 2 and 8 ECHR have already been specifically violated, particularly since he becomes confined to a wheelchair at 25°C and cannot move without assistance at 30°C. The complaint to the ECtHR is extensively supported by medical and scientific reports documenting his health status and deterioration, as well as the significantly lower life expectancy in Austria if the average number of days with temperatures exceeding 25°C continues to rise.
As a reminder, in the KlimaSeniorinnen case, the ECtHR established that to qualify as a victim under Article 34 ECHR, individual applicants must (i) be subject to a high intensity of exposure to the adverse effects of climate change, and (ii) face a pressing need for individual protection due to the absence or inadequacy of reasonable measures to reduce harm.
The applicants in that case failed to satisfy these requirements. The ECtHR found that they were not in any critical medical condition. For instance, no direct relationship was established between the temperature rise and the applicants’ asthma (para. 534).
“It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country. It should also be reiterated that victim status in relation to future risk is only exceptionally admitted by the Court and the individual applicants have failed to demonstrate that such exceptional circumstances exist in their regard.” (para. 533)
Given the robust and promising evidence in Mex M.’s case, and the direct correlation between the deterioration of his health (including the decrease of his life expectancy) and rising temperatures, these requirements could indeed be met. The question of personal adaptation also supports Mex M.’s claim. It seems inadequate and incompatible with the essence of Article 8 ECHR if the ECtHR were to require Mex M. to relocate from Austria – away from his familiar environment and support network – to a country with lower average temperatures.
The substance: Shortcomings of the Austrian Climate Protection Act
Regarding the substance of the case, it should be noted that the ECtHR has made it clear in KlimaSeniorinnen that Article 8 of the ECHR “requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades” (para. 548). To comply with their obligation under Article 8 ECHR to mitigate climate change, Contracting States need to adopt general measures specifying a timely target for achieving carbon neutrality and define the overall remaining carbon budget for the same time frame (or another equivalent method of quantifying future GHG emissions). The ECtHR also requires that Contracting States provide evidence showing whether they have duly complied, or are in the process of complying, with the respective targets and that the targets are regularly updated (para. 550).
The Austrian Climate Protection Act does not meet these requirements. It does not enshrine the achievement of climate neutrality by 2040 (proclaimed in the current Austrian government’s program), and there is no other binding enshrinement of this goal under Austrian law. Furthermore, the Act has not been updated; it only defines annual emission ceilings until 2020, and the targets for 2017 to 2020 were not adapted to EU standards. Notably, Austria only met the Kyoto Protocol targets between 2013 and 2020 due to emission credits from earlier years and short-term emission drops during the COVID-19 pandemic. Further shortcomings of the Austrian Climate Protection Act were identified in a report by Eva Schulev-Steindl, Miriam Hofer, and Lena Franke. These include a lack of accountability and control mechanisms, regular monitoring, and concrete action plans. Consequently, Daniel Ennöckl considers the structure of the Austrian Climate Protection Act to be inadequate under international law. This perspective seems even more valid now after the KlimaSeniorinnen judgement of the ECtHR. Even if the ECtHR did not strictly apply all the criteria it has outlined, it is apparent that Austria would fail to meet the requirements to comply with Article 8 ECHR.
What distinguishes Austria from Switzerland is that – unlike Switzerland – Austria is bound by EU climate targets. Whether and how the ECtHR would make a differentiation in this regard remains an open and crucial question.
Conclusion
If the ECtHR were to affirm the requirements for victim status in the currently pending case of Mex M. – in contrast to the individual applicants in the KlimaSeniorinnen case – and proceed to a substantive examination, it would mark the first instance of the ECtHR granting standing to an individual in a climate mitigation case. It seems likely that the ECtHR would then find that Austria violated Article 13 ECHR (or Article 6 ECHR) in addition to a violation of Article 8 ECHR, as was the case in Switzerland. Consequently, Austria would be required to adopt national climate procedures, introduce complaint mechanisms, and develop a binding roadmap for achieving climate targets, including sanction mechanisms. While the ECtHR would probably leave the selection of specific measures to the Austrian legislature, it is evident that immediate action is necessary to ensure compliance with Article 8 ECHR.