The first German climate case

Background of the case

In December 2014, the Federal Cabinet set a goal of reducing national greenhouse gas (GHG) emissions by 40 per cent compared to 1990 levels by the end of 2020. ³ According to the government’s official climate protection reports, the government will likely only achieve a reduction of around 32 per cent from 1990 levels by the end of 2020. ⁴ The claimants are families, each running organic farms, one in a region near Hamburg, the so-called ‘Altes Land’, a second on the island of Pellworm and a third in Brandenburg. These families claim that they have already been affected by the impacts of climate change as their crops have been damaged by pests and extreme weather events such as droughts. They assert that climate impacts will pose a threat to their health, especially through frequent heatwaves. ⁵ Furthermore, the farm situated on the island of Pellworm in the North Sea lies up to 1 metre below sea level, like much of the island. So far, the dikes on the island have been able to protect the island. However, if sea levels continue to rise and the frequency and intensity of storm surges increase, the dikes may no longer be sufficient.

The families claimed that by failing to meet its own national 2020 target, and that of the European Union (EU), ⁶ the Federal Government was violating their constitutional rights and their rights under European environmental law. ⁷ Greenpeace Germany was asserting its rights as an environmental protection organisation in taking legal action over this violation. ⁸ The claimants brought two main motions and two alternative motions against the Federal Government. They essentially sought orders compelling the Federal Government to adopt additional measures in order to achieve its own GHG emission reduction target and to fulfil its reduction obligations under EU law. ⁹ The Court dismissed the claim on procedural grounds. The two main motions and the first alternative motion were dismissed on lack of standing, and the second alternative motion was dismissed for being too unspecific, ¹⁰ however, the Court did overcome several other hurdles of administrative court procedure law. If the claimants’ position had been fully accepted, this would have had profound consequences for the Federal Government. It became clear during the hearing that the state was not on track to achieve its 2020 GHG emission reduction target and that indeed a postponement of the target by three years had become necessary. ¹¹

Admissibility

The Court found that the case was justiciable (1) and that it was a matter for the administrative courts (2), before reasoning that the requirements of specific legal interest of the claimants were not fulfilled (3).

Justiciability in this case concerned the allocation of decision-making power between the political authorities and the courts in matters concerning climate policy under the separation of powers doctrine. The Federal Government had argued that the case had to be dismissed because setting the national climate target was an act of the executive branch that fell outside the scope of judicial review. ¹² The Court disagreed and found that the case was justiciable, ¹³ thereby dismissing all three grounds on which the government had based its claim for non-justiciability. These three grounds will be explained in turn.

Firstly, according to the Federal Government, the relief sought belonged into a specific category of executive decisions which qualified as non-justiciable acts of state because they were of particular political importance for leading the state ¹⁴ and for that reason, fell entirely within the prerogative of the Federal Government. ¹⁵ However, the Court found that only very few categories of such acts were accepted, where no judicial review was available, such as decisions concerning the denial or granting of amnesty. ¹⁶ No wider rule existed to support the claim that defining the country’s climate target formed part of an exclusive power of the executive branch to the effect that judicial review was excluded. ¹⁷ By contrast, the Court reasoned that judicial review was guaranteed under Article 19(4) Basic Law (Grundgesetz) despite the political significance of these acts for the state. ¹⁸ Consequently, the constitutional standard pursuant to Article 1(3) Basic Law had to be complied with when adopting these important political decisions in the climate change context, ¹⁹ including the protection of all basic rights. ²⁰

Secondly, the Court rejected the Federal Government’s argument that it could rely on the case law of the German Constitutional Court concerning the legal concept of ‘core area of executive autonomy’ (Kernbereich exekutiver Eigenverantwortung) ²¹ to claim non-justiciability. ²² According to the jurisprudence of the Constitutional Court, the responsibility of the Federal Government towards parliament and the people requires such a core area of executive autonomy, which includes an area of governmental initiative, consultation and action that cannot be investigated in principle. ²³ However, this legal concept is designed to protect the freedom and openness of the internal opinion-building process within the government and mostly serves to protect confidentiality in ongoing inner-governmental procedures and, to that extent, excludes investigation. It entails that the access to information and documents can be restricted on a case-by-case basis. The so defined core area of executive autonomy does not concern or indeed restrict the ability of the judicial branch to review the government’s action on climate protection. ²⁴

Thirdly, the Court refused to accept the argument that a regulatory gap existed in the Code of Administrative Court Procedure because this statute lacked an explicit provision dealing with the issue of non-justiciability of a claim due to a violation of the principles of democracy and the separation of powers. The government had argued that this should be resolved by legal analogy, to the effect that the court should limit its judicial review in direct application of the principles of democracy and separation of powers. ²⁵ The Court was unconvinced that a gap in the statutory law existed that would allow to apply these principles by analogy. ²⁶ Instead, the Court explained that the general principle of separation of powers could be adhered to by granting the executive a wide margin of appreciation, but complete exclusion of judicial review of actions of the executive would be irreconcilable with the rule of law and the guarantee of a legal remedy under Article 19(4) Basic Law. ²⁷ It is interesting to note that the Court supported its reasoning by reference to the decision of the High Court of Ireland in Friends of the Irish Government v Ireland. ²⁸

The next question concerned the choice of courts. The government had claimed that the relief sought would serve to qualify the claim as constitutional in nature and could thus not be decided by the Berlin Administrative Court. The Court explained that the claimants had not specified which measure the Federal Government should adopt in order to reach the climate protection target of 2020. Only if a specific claim for a formal statutory law was made, would the constitutional courts be the appropriate forum. ²⁹ While one central measure to still achieve the target would be to end the use of coal-fired power plants in Germany in accordance with the report conducted by the Fraunhofer Institute, and this measure would indeed require a formal law, ³⁰ claimants were not specifically seeking such an act of the legislature. Therefore, the claim was an administrative and not a constitutional matter that the Court could decide. ³¹ At this point, the Court referred to the statement of the Advocate-General at the Supreme Court of the Netherlands (Hoge Raad) ³² who had come to the same conclusion in his opinion on the Urgenda case, in a country where ordinary courts cannot oblige the legislature to enact laws either. ³³

After overcoming these hurdles to judicial review, the Court found that the claimants could not demonstrate their specific legal interest and thus had no standing to bring the claim. In accordance with section 42(2) of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), the admissibility of an action seeking to have an administrative measure set aside or to have the adoption of an administrative measure ordered presupposes that the applicant asserts that his rights have been impaired by that act or by the refusal or failure to adopt it. ³⁴ As this provision aims at excluding actio popularis claims, claimants must argue that an interference with one of their subjective rights is at least possible. ³⁵

In other words, it is necessary and sufficient that, based on the asserted facts, it appears at least possible that the action or omission of the administrative authority has interfered with a subjective right of claimants. ³⁶ According to the general formula which is regularly applied by the courts, such an interference cannot occur, if the asserted legal rights can obviously not exist under any consideration. ³⁷ Thus, if claimants rely upon a general public law rule, it must be possible that this constitutes a norm which is legally binding and confers rights on them as individuals. This requires that the norm provides individualising criteria so that the claimants can be sufficiently distinguished from the general public. ³⁸ By contrast, if claimants rely upon basic rights directly to enforce additional measures, they must demonstrate that the state has failed to comply with its ‘duty to protect’ basic rights, i.e. not applied the constitutionally required minimum standard of rights protection (so-called ‘Untermaßverbot’).

Here, claimants firstly relied on the norm-character of the GHG emission reduction target and thus they had to demonstrate that the cabinet decision had binding norm-character and conferred individual rights on them (a). They also argued that a factual, indirect interference with their basic right under Article 2(1) Basic Law existed (b). Lastly, they invoked the doctrine of the ‘duty to protect’ under the Basic Law where a duty arises directly from the basic right under the state’s obligation to take protective action (c). None of these arguments was successful to demonstrate that a rights violation was at least possible.

The first argument concerned the public law norm-character of the 2020 climate target, from which a corresponding duty of the Federal Government to adopt additional climate protection measures could arise. The Court found that no provision with norm-character existed and for that reason a corresponding legal obligation to adopt further measures could not be established. ³⁹ The Court explained that the cabinet decision to achieve a 40 per cent reduction by 2020 could not qualify as a binding norm and thus could not oblige the government. ⁴⁰ In other words, the omission to adopt additional measures could not amount to a violation of a norm because the cabinet decision, which adopted the Action Programme Climate Protection 2020, did not qualify as a legally binding provision in the first place.

A cabinet decision is adopted by a majority of votes and this decision is binding on ministers. As such, it constitutes internal law. ⁴¹ The fact that the climate protection programme envisaged several actions of the Federal Government did not mean that a legal effect materialised in the form of a binding external effect in relation to individuals before further concrete administrative actions were taken. While some plans and programmes in the area of environmental protection have law-quality, because they rest upon a legal norm and are subject to environmental assessment, these are different from the climate action programme which represents a political statement concerning the intention to adopt certain measures without external effects. ⁴² The subsequent decision of the Federal Government to postpone the 2020 target to the year 2023 in the draft Federal Climate Protection Act was thus also lawful. ⁴³ Three additional legal concepts were introduced by the claimants to argue that the cabinet decision had subsequently acquired norm-character.

Firstly, they argued that the administration was under a legal obligation to achieve the action programme’s original target as a result of the legal concept of ‘self-commitment of the administration’ (Selbstbindung der Verwaltung). This concept entails that if the administration follows a certain administrative practice in relation to individuals, other individuals must be in a position to claim equal treatment in accordance with Article 3(1) Basic Law. ⁴⁴ While the Court found that the programme formed the basis of a number of measures of the Federal Government, this did not constitute a practice that could create the necessary binding effects for the administration in relation to individuals. ⁴⁵

Secondly, the Court refused to accept that an external effect arose on the basis of the protection of legitimate expectations (Vertrauensschutz). ⁴⁶ This concept is crucial in cases primarily involving the protection of property rights, where new laws unfold a retroactive effect. ⁴⁷ Under German law, it requires to demonstrate that property dispositions have been made with the legitimate expectation that the current legal situation remains valid. ⁴⁸ However, the claimants had not made such investments in reliance on the 2020 climate target. ⁴⁹

Thirdly, there was no external effect of the cabinet decision under the theory of statutory reservation (Wesentlichkeitstheorie). ⁵⁰ The theory demands that essential questions concerning the exercise of an intervention in basic rights must be regulated through a legal statute. ⁵¹ The Court held that a sub-statutory rule as replacement for a law enacted by parliament could not be subsequently elevated to norm level, by contrast, it would be unlawful as a violation of the constitution. ⁵²

Basic rights can also be affected by indirect and factual interferences if the objectives and effects of these measures are comparable with imperative interventions. ⁵³ However, the Court found that GHG emissions are not attributable to the state, even though they originate from German territory. In this context, the Court relied on the jurisprudence of the Constitutional Court in the so-called forest damage cases. ⁵⁴ There, the Constitutional Court had found that the state’s preventive control measures in the context of the use of technological means associated with emission of air pollutants could not be used as a link for the argument that the state was also jointly responsible for the consequences of general air pollution that resulted from the ‘use of technic’. ⁵⁵ The Berlin Court transferred the rationale of this reasoning and held that GHG emissions could not be attributed to the state either.

Finally, the Court addressed the possibility of a rights violation under the doctrine of the ‘duty to protect’ basic rights. According to the settled case law of the Constitutional Court, basic rights in their objective content create state duties towards the individual. ⁵⁶ The claimants had invoked the right to physical integrity in Article 2(1) Basic Law. The Court noted that they did not assert that they already had acute health concerns, but that they were afraid that serious health implications could result especially from frequent heatwaves. It was acknowledged that these prospective implications can, under certain conditions, amount to a violation of fundamental rights. The state has a corresponding duty to protect the right to life based on an existing risk. ⁵⁷

The Court clarified that the owners of the three businesses practising organic farming were particularly affected by climate change. ⁵⁸ However, the Court explained that in fulfilling the duty to protect basic rights, the legislature and the executive both have a wide margin of appreciation, which leaves room to consider competing public and private interests. ⁵⁹ Accordingly, this discretion in policymaking can only be subjected to judicial review to a limited extent, depending on the specific nature of the subject matter in question, the possibilities of forming a sufficiently secure judgment and the significance of the legal interests at stake. ⁶⁰ Nevertheless, to fulfil its duty to protect basic rights, the state must take sufficient measures that lead to adequate and effective rights protection, based on careful fact-finding and reasonable assessments. ⁶¹ This concept of the protection of a minimum standard that is demanded by the objective dimension of the basic rights (the so-called ‘Untermaßverbot’) within the margin of appreciation is also derived from the jurisprudence of the Constitutional Court. Both standards, the wide margin of appreciation and the ‘Untermaßverbot’, are applied alongside each other. ⁶²

In relation to the standard set by the wide margin of appreciation, the Court scrutinised whether the measures are entirely unsuitable or completely inadequate. The minimum standard would be violated if it was evident that the state was not achieving the constitutionally required minimum standard of protection. ⁶³ The Court posited that the 2020 climate protection target did not represent the constitutionally required minimum standard. ⁶⁴ In the context of defining the relevant minimum threshold, the Court engaged with international law, ⁶⁵ considering Article 3(1) UNFCCC, Article 10(1) Kyoto Protocol and Article 2(2) Paris Agreement to identify the commitment of Contracting Parties to protect the climate for the present and for future generations in accordance with the principle of common but differentiated responsibilities. The Court pointed out that developed countries should take the lead in combating climate change and its adverse effects. ⁶⁶ It then also acknowledged that Article 4(3) Paris Agreement demanded that the Contracting Parties demonstrated greatest possible ambition through their GHG emission reduction commitments. ⁶⁷ However, following this summary of the state's international obligations, the Court proceeded with the – rather surprising – statement that the international community had not come far in making this responsibility operational and assigning it to individual states over the last three decades. ⁶⁸ The Court then went back in time to the Bali Road Map of 2007 and opined that compared with the IPCC recommendation of emission reductions for developed countries between 10 per cent and 40 per cent at that point in time, ⁶⁹ and in the light of the EU’s 20 per cent target, the target of 40 per cent was already an ambitious objective by international comparison. Against that background, the Berlin Court found it difficult to understand how this target could arguably be the constitutionally demanded minimum. Even if Germany only achieved a reduction of 32 per cent and meeting the target of a 40 per cent reduction was delayed by 3 or 5 years, the constitutionally guaranteed minimum standard would not be violated. ⁷⁰

It is noteworthy that the Court engaged with the argument of the claimants that new scientific evidence would require application of the so-called carbon budget approach. ⁷¹ The Court explained in detail the consequences that this approach would have for Germany's emission levels on the basis of the IPCC calculations. The remaining carbon budget would allow Germany to emit a further 6.600 million tons of CO₂ after 2020. ⁷² If emissions continued at the height of present levels, then this budget would be used up within less than 9 years. However, if a linear reduction rate was implemented, the budget would last until 2037. ⁷³ It is interesting that the Court supported the view that in the context of ethical and normative discussions around the distribution of this remaining global carbon budget, ‘much could be said for an at least equal distribution of the remaining carbon budget per capita of the world population’. ⁷⁴ However, the Court then observed that ‘as far as can be seen, there is arguably not a single industrialised state that would adhere to this’. ⁷⁵

On that basis, the Court found that it would not be for the judge to prescribe an imperative and mandatory minimum standard of climate protection for the state. ⁷⁶ A different result would not be dictated by the case law of the European Court of Human Rights (ECtHR) either. ⁷⁷ The Court acknowledged that the European Convention on Human Rights (ECHR) and the pertinent case law would serve as interpretative tools for the content and scope of basic rights and principles of the rule of law at the level of the constitution. ⁷⁸ However, according to the ECtHR’s settled case law, the ECtHR in a similar fashion afforded Contracting Parties a wide margin of appreciation. ⁷⁹ In contrast to the view of the claimants, the Court held that the judgment of the Court of Appeal in Urgenda could not be used to define the wide margin of appreciation more precisely. ⁸⁰

Standing of Greenpeace Germany as environmental organisation

The Court held that Greenpeace Germany did not have standing to bring the claim on behalf of the three families. Firstly, Greenpeace Germany was not a recognised organisation under section 3 UmwRG. ⁸¹ Secondly, the legal concept of procuratorial right to bring legal action was not applicable. ⁸² This legal concept had been developed by the German Federal Administrative Court at a time when the requirements of Article 9(3) of the Aarhus Convention regarding access of environmental organisations to administrative and judicial proceedings had not yet been implemented by the national legislature. ⁸³ It would presuppose that a natural person has standing, this was not the case as explained above.

Thirdly, the Court found that Greenpeace Germany did not have standing to enforce compliance with European environmental law under EU law in accordance with the criteria developed by the Court of Justice of the European Union (CJEU). ⁸⁴ The Court stated that even if it were assumed that an environmental organisation can demand objective legal review of national law with European environmental law, the 2020 target was not based on EU law. ⁸⁵ Finally, the argument that the so-called Effort Sharing Decision resulted in a duty of the Federal Government to take additional measures for climate protection did not succeed. ⁸⁶ The Court agreed that under certain conditions it was conceivable that environmental organisations or individual citizens may bring an action for compliance with an objective norm of EU environmental law, as the case law on the direct effect of EU directives shows. ⁸⁷ This requires that an unconditional obligation of the Member State arises from the provision. Given that the government may comply with its obligation under the Effort Sharing Decision by offsetting surplus GHG emissions against previous years or by purchasing additional emission allowances from other EU Member States, the Court did not find that the element of unconditionality was satisfied in this instance. ⁸⁸

Final remarks on legal developments

Several points can be taken away from this judgment. Firstly, the Court confirmed that setting a quantified GHG emission reduction target does not belong to an act of the executive branch which is outside of the scope of judicial review, but instead, the executive and the legislature are bound by the constitutional guarantee of Article 19(4) Basic Law and all basic rights in their climate policy and law-making. It is interesting to note that for the first two aspects of admissibility of the application where the Court found in favour of the claimants (‘Justiciability of the case’ and ‘Choice of courts’) and thereby opposed the view of the Federal Government, reference to foreign judgments was made by the Court to strengthen its own decision. The challenge of climate change seems to encourage courts to engage in a transnational judicial discourse where the reasoning of other courts is referenced in support of the own decision, primarily when opposing the position of the defendant government.

Secondly, the Court examined whether the government had fulfilled the minimum standard as required by the Basic Law to protect the rights of the claimants from adverse effect of climate change under the doctrine of the state’s duty to protect basic rights. This is a significant development, it not only confirms that basic rights are under threat through adverse effects of climate change but also clarifies that there is a justiciable standard of rights protection which the State must fulfil. The legal nature of the reduction target (i.e. its norm-quality) is not relevant under the doctrine of the duty to protect, because the objective content of the basic right itself creates the state's duty and thus forms the legal basis of the claim. What matters in that context is only the definition of the minimum standard of rights protection which cannot be undercut by the state, even though a wide margin of appreciation continues to exist. The Court was convinced that the measures of the government so far did not fall below the minimum standard in the light of the fact that the 2020 emission reduction commitment was qualified as an internationally ambitious target. Consequently, a duty to protect basic rights from interference caused by climate change exists and the scope of judicial review includes scrutiny of GHG emission reduction targets. This important development may have consequences for the first Federal Climate Protection Act adopted by the Federal Parliament in November 2019. ⁸⁹ The new law specifically states that no new subjective rights are created through the Act. ⁹⁰ While it is an entirely different question of constitutional law whether this exemption can be lawfully defined by the Act itself, the route to judicial review ⁹¹ will remain open under the doctrine of the duty to protect regardless, given that under this doctrine the basic rights form the legal basis of any application. It is also interesting that the legal argument at this point comes close to the reasoning of the Supreme Court in Urgenda, where the state's duty to protect fundamental rights was aligned with the positive action doctrine developed by the ECtHR. The Supreme Court used the duty to protect the right to life (Article 2) and the right to family life (Article 8) under the ECHR to reason that the Netherlands – as any other Contracting Party to the ECHR – is under the obligation to do 'its part' in order to prevent dangerous climate change. ⁹² Both courts found that a standard in climate protection arises from the duty to protect fundamental rights and that increasing GHG emission reduction efforts will improve rights protection. However, the Supreme Court of the Netherlands went further in drawing out the full consequences of this finding in stating that because of the global nature and grave risk of climate change, 'all countries will have to do the necessary'. ⁹³

Thirdly, the Berlin Administrative Court confirmed that Greenpeace Germany as an environmental organisation while traditionally lacking standing under German law, can sue if an infringement of EU environmental law is argued.

Lastly, the Court voiced the opinion that a valid argument for an at least equal distribution of the remaining global carbon budget across the world’s population could be made. ⁹⁴ It is unfortunate that this promising approach was immediately restrained when the Court pointed out that no other industrialised country seemed to comply with this demand so far. ⁹⁵ This statement was used by the Court to justify that current government measures could not be reconciled with the Court's preference for an equitable per-capita distribution of the global carbon budget. It is a consequence of judicial self-restraint and of the perception that significantly ambitious climate protection might come at a cost for individual countries. However, the statement does not carry any legal value. Conversely, it emphasises that there is a persistent danger of qualifying climate policy and law-making as an inherently foreign policy or international law domain, thereby assigning the responsibility for insufficient climate protection to a distant international community, when instead highest possible ambition must be defined at the domestic level and enshrined in law, in a timely fashion and in accordance with national circumstances and responsibilities.