Articles for category: The Transformation of European Climate Change Litigation

Quantifying Fair Share Carbon Budgets

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An obligation to quantify each country’s fair share of the remaining global carbon budget associated with limiting global heating to 1.5°C flows from the judgment in KlimaSeniorinnen. While there will naturally be debate about what represents a country’s fair share – the EU’s independent advisory body ESAB recently considered a range of fair share principles and concluded that the EU’s fair share has already been used up under many of these – the obligation to quantify fair share budgets should, in our view, be the subject of a reduced margin of appreciation consistent with KlimaSeniorinnen.

18. Juli 2025

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From Strasbourg to Luxembourg?

KlimaSeniorinnen has established a remedy which, in EU law, is not easy to locate and may actually be unavailable in light of restrictive CJEU case law.  Whatever one’s views on this restrictive case law, it is a fact that the EU Charter of Fundamental Rights now obliges the CJEU to do as much as it can to accommodate the KlimaSeniorinnen remedy and to interpret the relevant TFEU provisions flexibly.  One may assume that, sooner or later, the CJEU will be confronted with a KlimaSeniorinnen claim.  If the CJEU were to declare such a claim inadmissible, it will put itself in the corner of courts refusing to engage with climate change policies.  That would be unfortunate for a court that has long been at the forefront of legal progress.

5. Juni 2024

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What Does the European Court of Human Rights’ First Climate Change Decision Mean for Climate Policy?

On 9 April the European Court of Human Rights issued its first ever comprehensive decision in a climate litigation case. The ECtHR has set out clear directions for member states to follow to align their climate policies with human rights obligations. Domestic legislators across Europe must give these requirements serious consideration to ensure their climate laws not only meet these minimum standards but also effectively contribute to global climate goals. This is imperative for both environmental sustainability and the protection of fundamental human rights that climate change is affecting.

15. Mai 2024

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Reparation for Climate Change at the ECtHR

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The recent rulings on climate change by the European Court of Human Rights (ECtHR) are—as others have pointed out in this blog symposium—both “historic and unprecedented” for various reasons, not least regarding the question of reparation for climate change-related harm. While redress is a pivotal question to think through in relation to climate change, it has, somewhat surprisingly, received less attention from scholars and has not yet been directly addressed by international courts and tribunals. In this regard, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland might be considered a missed opportunity on the part of the ECtHR.

10. Mai 2024

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KlimaSeniorinnen and Gender

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This blog post discusses the relevance of the KlimaSeniorinnen case to the discussion of vulnerability and intersectional gender in climate litigation. To date, very few climate cases have addressed the gendered dimensions of climate change and there was some hope that this case would. However, as this post argues, despite the fact that KlimaSeniorinnen is a case about the impacts of climate change on elderly women, the Court fails to meaningfully engage with gender as a determinant of the harms suffered by individuals. Gender remains an overlooked issue in climate litigation.

9. Mai 2024

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KlimaSeniorinnen and the Question(s) of Causation

In Verein Klimaseniorinnen Schweiz and Others v Switzerland, the European Court of Human Rights makes many general statements about the nature of climate change and different actors’ roles in addressing it. Many points have been addressed in this blog symposium. In my blog post, I turn to a more technical aspect of the judgment, namely the question of causation. I will untangle the analytical gymnastics that the Court performs regarding this question. I will argue that the reasoning regarding causation is confusing and that it is not clear how specifically the ‘real prospect’ test is applied for finding a breach.

7. Mai 2024

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International Trade and “Embedded Emissions” after KlimaSeniorinnen

A key and underrated aspect of the recent triad of climate rulings of the European Court of Human Rights (ECtHR) is that the ECtHR has brought to the fore the role of trade-related greenhouse gas (GHG) emissions in states’ carbon footprints. While most international climate agreements focus on the reduction of domestic GHG emissions, in the Verein KlimaSeniorinnen Schweiz and Others v. Switzerland Judgment (KlimaSeniorinnen), the ECtHR found ‘attributable’ to Switzerland the GHG emissions taking place abroad, ‘embedded’ into goods (and possibly services) ‘consumed’ in Switzerland. As I will argue, the ruling appears to require Switzerland to adopt a climate-oriented trade policy.

1. Mai 2024

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Separation of Powers and KlimaSeniorinnen

Especially in Switzerland, the KlimaSeniorinnen ruling has been met with sharp criticism. The rightwing Swiss People’s party (Schweizerische Volkspartei, SVP) (predictably) accused the Court of judicial overreach and demanded that Switzerland leave the Council of Europe. The ECtHR decision directly addresses separation of powers and the role of the judiciary in adjudicating human rights, specifically in the context of climate change. This post unpacks the decision and argues that concerns about ECtHR overreach are unwarranted. It shows how the judgment forms an integral part of democratic governance (particularly in Switzerland) whilst being conducive to better laws and policies.

30. April 2024

The European Court of Human Rights’ April 9 Climate Rulings and the Future (Thereof)

By recognizing the responsibility they have toward future individuals who will be standing in their shoes, current decision-makers are encouraged to adopt long-term perspectives and consider the broader implications of their actions beyond the immediate. This responsibility is echoed in numerous statements by the ECtHR in its rulings about how it understands its own role in European society and the world, and about the deference it believes it owes to domestic decision-makers on the one hand, and to its own past and future work on the other hand. In this light, the ECtHR has struck a pragmatic yet slightly cynical balance between the great demands it was faced with and the great responsibilities it owes to European citizens, to other institutions, and to itself.

29. April 2024

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The Paris Effect

The judgment of the European Court of Human Rights (ECtHR) in the case Verein KlimaSeniorinnen v. Switzerland is a striking example of the Paris effect: the influence of the non-binding collective goals of the Paris Agreement (PA) on the interpretation of domestic constitutional law or international human rights law in climate litigation. The Court’s decision proves to be an essential element in triggering the necessary democratic debates on which the PA relies “from the bottom up”. Reinforcing the procedural limb of Art. 8 ECHR will be an essential step towards further strengthening democratic decision-making in the societal transition to climate neutrality.

25. April 2024

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