Out-Law Analysis 6 min. read
20 Jul 2021, 10:19 am
On 24 June the German parliament passed an amendment to the Climate Protection Act - in record time and under the pressure of the parliamentary summer break and the subsequent elections. The government had only presented a draft of the respective amendment on 12 May. This development was triggered by a decision of the Constitutional Court (Bundesverfassungsgericht) from 24 March. The court had declared the Climate Protection Act, in the form as enacted at the end of 2019, unconstitutional in parts.
The court's decision is exceptional in many ways, and is also significant from an international point of view.
The court's decision may serve as a significant building block in other climate lawsuits.
Firstly, the court finds that the German Constitution also "compels the state to engage in internationally oriented activities to tackle climate change at the global level and requires it – the Federal Government in particular – to promote climate action within the international framework".
Secondly the court expressly confirms that it would "appear conceivable in principle [that] duties of protection arising from fundamental rights also place the German state under an obligation vis-à-vis [individuals] living [abroad] to take action against impairments caused by global climate change".
Although the court's decision is of course not directly transferable to other jurisdictions, it may serve as a significant building block in other climate lawsuits. In the future, plaintiffs around the world might refer to the court's decision to lend more weight to their arguments.
The Climate Protection Act is intended to ensure that international, European and national targets for protection against the effects of global climate change are met, in particular those of the Paris Climate Agreement. In its original form the act provided that Germany would have to reduce greenhouse gas emissions by 55% by 2030, compared to 1990 levels, and target (net) zero greenhouse gas emissions by 2050. However, the law did not specify in any detail how the emissions reductions from 2031 onwards should be achieved, but merely provided for the government to stipulate reduction levels by way of an executive order in the year 2025.
Four separate constitutional complaints had been filed in relation to the Climate Protection Act by individuals from Germany and abroad, as well as climate protection organisations, including Fridays For Future. The court admitted all the complaints brought by individuals. In relation to the individuals living abroad this in itself is a remarkable decision, even though the court in the end found that the Climate Protection Act did not violate their rights.
The provisions under the Climate Protection Act found to be unconstitutional by the court are setting out the greenhouse gas emissions reduction target to be achieved by 2030 as well as the annual emissions allowed until then. In its decision the court points out that these provisions "are unconstitutional insofar as they lack provisions that satisfy the requirements of fundamental rights on the updating of [greenhouse gas emission] reduction targets from 2031 until the point when climate neutrality is reached as required by Article 20a [of the German Constitution]".
Article 20a of the German Constitution is a so-called "state aim regulation", rather than a fundamental right provision in itself. It says: "Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order." State aim regulations compel the state to protect fundamental rights and to take measures to achieve the state’s aims. However, they grant no specific rights to the individual that could be the grounds of a court case. Although there have been repeated discussions in the past on proposals to include a subjective constitutional environmental right in the German Constitution, the legislature has opted for the solution as a "state aim regulation". Thus, Article 20a of the German Constitution is still outside the fundamental rights section of the German Constitution, and therefore cannot be challenged as a subjective violation of rights.
In this respect, the court had to take an indirect route to establish that there had been violations of people’s rights where it then relied primarily on the violation of the fundamental right of freedom as stipulated in Article 2 (1) of the German Constitution. Measures put in place in pursuance of the state aim regulation in Article 20a of the German Constitution would have to be balanced against this freedom right, and, as the court points out, "within the balancing process, the obligation to take climate action [under Article 20a of the German Constitution] is accorded increasing weight as climate change intensifies".
On the basis of the greenhouse gas emissions permitted under the Climate Protection Act over the period until 2030 and detailed analysis in relation to the total remaining national CO2 budget the court concluded that "to stay within the limits of the budget, climate neutrality would […] have to be reached soon after 2030".
Whilst adding that this was "unlikely to happen", the key point then taken by the court from this conclusion is that the particularly drastic greenhouse gas reduction burdens required from 2031 onwards would impose disproportionately high losses of freedom on future generations. Allowing “one generation […] to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom”, however, is against the principle of proportionality – a well established key criterion of fairness and justice required to be observed by the legislator. It is necessary, the court ruled, to preserve the natural foundations of life in such a way that they are still sufficient for future generations, without "subsequent generations being able to preserve them only at the price of their own radical abstinence".
Consequently, the court ruled that "the legislator has violated its duty […] to ensure that the reduction of CO2 emissions to the point of climate neutrality that is constitutionally necessary under Article 20a [of the German Constitution] is spread out over time in a forward-looking manner that respects fundamental rights".
The court’s ruling also expressly required the German parliament to be more specific on how to achieve the climate protection targets in the period from 2031 onwards in the necessary amendment of the Climate Protection Act and stipulated a deadline of 31 December 2022 for this purpose.
Two weeks after the Constitutional Court published its decision the German government adopted a draft amendment to the Climate Protection Act. The draft was also adopted by the parliament on 24 June 2021 and passed by the federal council (Bundesrat) only one day later and will come into force one day after it is published in the Federal Law Gazette.
Under the amended Climate Protection Act the climate protection targets have been tightened and commit Germany to become greenhouse gas neutral by 2045, five years ahead of its previous target and also ahead of the EU's target date. A 65% reduction in greenhouse gas emissions is required by 2030, compared to 1990, instead of the 55% previously set.
Moreover, the amended law outlines the reduction path from 2031 onwards more clearly and sets annual reduction targets in the period from 2031 onwards. By the year 2040, a reduction of at least 88% is targeted. From 2050 onwards, Germany wants to achieve negative emissions by binding more greenhouse gases than it emits.
According to the government the amended Climate Protection Act implements the measures required by the Constitutional Court, in particular by legally establishing the annual reduction targets for the years 2031 to 2040 and by stipulating that the annual reduction targets for the years 2041 to 2045 are to be established by 2032 at the latest. In addition, the annual reduction targets for the years 2031 to 2040 are to be set for the individual sectors in 2024, followed in 2034 by the sectoral targets for the final phase in the years from 2041 to 2045. Moreover, compliance with the targets will now also be reviewed annually.
The Constitutional Court’s message is loud and clear: the German legislator can no longer stop at announcing individual climate protections targets, but must ensure that the country is on a credible path towards the realisation of the goals set out in the Paris Climate Agreement while ensuring that the burdens of greenhouse gas emissions reduction measures "are not unevenly distributed over time and between generations to the detriment of the future". Already hailed as a landmark decision, it will accelerate Germany's climate protection efforts – and considerably strengthen the position of climate activists.
07 May 2021