The ECtHR sets the framework for liability actions for climate inaction against European States

The ECtHR sets the framework for liability actions for climate inaction against European States.

In three judgments of 9 April 2024, the European Court of Human Rights agreed to admit liability actions for “climate inaction,” holding that those responsible for climate disruption, States as well as companies, could be held liable on the ground of the right to respect for private and family life, under Article 8 of the European Convention on Human Rights (right to respect for private and family life).

The ECtHR notably clarified the contours of its jurisdiction to rule on climate issues, setting out the framework for standing to act and, more specifically, for victim status.

In the first case, admitted by the Court, a Swiss association named “KlimaSeniorinnen” (Senior Women for Climate Protection), together with four individuals who were members of that association, brought legal proceedings against Switzerland.

The Court first decided to dismiss the four individuals, as they were not sufficiently affected by the consequences of climate disruption to have victim status.

As regards the victim status of individuals, the Court held that the applicant must demonstrate that he or she has been personally and directly affected by the failings complained of.

To this end, the Court relies on two cumulative criteria:

1) the applicant must be exposed intensely to the adverse effects of climate change: a notable level and severity must characterise the (risk of) negative consequences of an action or inaction by the public authorities for the applicant; and

2) there must be a compelling need to ensure the individual protection of the applicant, owing to the absence of reasonable or adequate measures to reduce the harm.

The threshold to be met in order to satisfy these criteria will nevertheless be “particularly high.” Account will be taken in particular of circumstances such as the prevailing local situation and the existence of individual particularities and vulnerabilities.

In the second case, which concerned an action brought by the former mayor of the municipality of Grande-Synthe, the Court denied the mayor victim status, since he had moved to Brussels and was therefore no longer a victim of the recurrent flooding affecting the municipality.

In the third case, the Court dismissed the claims of six young Portuguese applicants since they had not exhausted all available remedies in Portugal.

As regards the standing of associations to act, the Court decided to admit the action, taking the view that the right of an association to act on behalf of its members or other affected individuals was not subject to the requirement of establishing victim status:

“The Court considers that, while it does not ordinarily grant victim status to an association in the absence of a measure directly affecting it, even where the interests of its members might be at stake, there are nonetheless instances where ‘special considerations’ justify an association representing individuals even in the absence of such a measure.”

On this occasion, the Court also emphasises that it is appropriate to allow associations to bring legal proceedings, given the particular nature of climate change, a matter of concern for humanity.

While the Court did not impose a particularly severe penalty on the Swiss State (it merely required the payment of €80,000 to the association by way of reimbursement of costs and expenses), these decisions are nonetheless significant for environmental law, since they mean that the greenhouse-gas targets set by each government could become binding and enforceable before the European Court.