Case name:    Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others

Jurisdiction:        Switzerland

Type of claim:        Challenge of federal government’s insufficient climate policy

Summary of result:    The request to adopt stricter greenhouse gas reduction measures was rejected by the Federal Department of the Environment, Transport, Energy and Communications; appeal rejected by both court instances.

Judgment final:        Yes

Court instance

Source of claims   

Fundamental Rights: Violation of constitutional right to life, the sustainability principle and the precautionary principle, as well as violation of rights under the European Convention on Human Rights (ECHR) to life and integrity of the person.

Summary of Judgment

Facts and claims of the parties

On 25 November 2016, the applicants, a non-profit organization called “KlimaSeniorinnen Schweiz” (Union of Swiss Senior Women) as well as four individual women, filed a request with four federal administrative authorities (the Federal Council [Bundesrat] as the highest executive body, the Federal Department of the Environment, Transport, Energy and Communications, the Federal Office for the Environment, and the Federal Office for Energy). The applicants allege that (1) the Swiss greenhouse gas reduction target of 20% by the year 2020, compared to the 1990 baseline year, as well as the target included in new draft legislation of 30% reduction by the year 2030, are insufficient to ensure protection of their constitutional rights and rights under the ECHR, and (2) current reduction measures by the State are insufficient to meet even the existing targets, not to speak of the higher targets that are in fact required by constitutional law and the ECHR. The applicants allege a violation of their constitutional rights to life, the sustainability principle and the precautionary principle, as well as violation of the rights to life and integrity of the person under the ECHR.

The applicants therefore request the administrative authorities to take all necessary measures within their area of competence in order to ensure a national greenhouse gas reduction which is in accordance with the worldwide goal of reducing global warming to well below 2°C, but at least to 2°C. This, according to the applicants, requires a reduction of at least 25% by 1990 and of at least 50% by 2030. The applicants further list various specific measures which the administrative authorities shall be obliged to undertake, such as, inter alia, to initiate legislative procedures with the aim of enacting binding legislation on greenhouse gas reduction. Furthermore, the applicants request the administrative authorities to take various specific measures in order to ensure at least compliance with the existing reduction target of 20% by the year 2020, such as obtain technical information on possibilities of reducing emissions in the building sector and enact respective measures, increase the carbon tax on gasoline, and promote electro mobility.

Some background on Swiss law

Under Article 25a (1) Administrative Procedure Act, (Verwaltungsverfahrensgesetz, VwVG), any person who has an interest that is worthy of protection may request from the authority that is responsible for acts that are based on federal public law and which affect rights or obligations that it (a) refrain from, discontinue or revoke unlawful acts; (b) rectify the consequences of unlawful acts; or (c) confirm the illegality of such acts. The authority shall decide by way of a ruling.

This provision aims at real acts rather than laws or public orders.

Federal Department of the Environment, Transport, Energy and Communications Ruling of 25 April 2017

The Federal Department of the Environment, Transport, Energy and Communications (DETEC) responded on behalf of all the four named administrative authorities by ruling of 25 April 2017.

After an extensive summary of past and present efforts of the Swiss government to reduce greenhouse gas emissions, the DETEC holds that the applicants’ request is not permissible under Art. 25a VwVG.

Art. 25a VwVG requires that the real act which is being challenged affects rights and obligations. This applies only to such real acts which constitute an interference with the personal rights sphere of the applicant. Furthermore, Art. 25a VwVG requires a legal dispute, which only exists where an individual’s legal position worthy of protection is at stake. Examples for such an individual legal position are interferences with a person’s religious freedom through state publications, or limitations of freedom of movement by police conduct. (DETEC ruling at p. 13 f.).

The request by the applicants in this case aims at a general reduction of CO2 in the atmosphere and therefore at worldwide rather than local greenhouse gas emission reduction. This, according to DETEC, does not fulfill the requirement of an individual legal position. The applicants want new general-abstract regulations and communications. However, lawmaking is not governed by the procedural rules of the VwVG and can therefore not be subject of a procedure under Art. 25a. Rather, citizens of voting age shall use their political rights to influence law making. (DETEC ruling at p. 14).

For the same reasons, the applicants cannot rely on a complaint mechanism which is guaranteed by Art. 13 ECHR to any person who is a victim of a human rights violation. This requires a sufficiently direct link between the applicant and the violation. It excludes applicants relying purely on public interests, which is the case in the present request. (DETEC ruling at p. 14 f.).

The DETEC therefore decided not to take any further action with regard to the request.

Federal Administrative Court Judgment 

The applicants appealed DETEC’s decision to the Federal Administrative Court. They stress that women over 75 are overproportionally impacted by climate change in terms of mortality and adverse health effects. In addition, one applicant suffers from cardiovascular illness while two other applicants suffer from asthma, which exacerbates the health impacts. The request is therefore not only in the public interest, but in the particular legally protected interest of the applicants. DETEC had further been wrong to assume that their request was aimed at new general-abstract regulations. Rather, they had requested that the agencies take particular measures in order to initiate legislative procedures as well as to comply with existing laws.

In its judgment of 27 November 2018, the Court rejected the appeal, holding that Art. 25a VwVG does not apply to public interest litigation, but requires the applicants to be impacted in their rights in a particular way (Federal Administrative Court Judgment at para. 7.4.1). This is not the case for senior women. While they are vulnerable to extreme heat waves and other effects of climate change, the same is true for other groups such as people living in cities, infants and small children, mountaineers, the agricultural sector, winter tourism etc. (Federal Administrative Court Judgment at paras. 7.4.2-3).

With regard to a possible violation of rights under the ECHR, the Court holds that the types of actions requested by the applicants are not adequate to mitigate such violations. Even if the administrative authorities undertook the requested legislative initiatives, the decision whether to enact respective legislation would still lie with the legislator. The other measures requested from the administrative authorities do not have a basis in existing laws and therefore lie outside of their competencies. These would require the prior enactment or amendments of laws by the legislator. (Federal Administrative Court Judgment at para. 8.3). In this factual situation, it cannot be said that a genuine dispute of a serious nature was brought before the authority which would require a remedy under the ECHR (Federal Administrative Court Judgment at para. 8.4).

Supreme Court of Switzerland Judgment

The Swiss Supreme Court rejected the further appeal by judgment of 5 May 2020. The Court emphasizes that an exceedance of the “well below 2°C” target is not to be expected in the near future (Supreme Court Judgment at para. 5.3). Hence, any failure on the side of the authorities to take enhanced action at the present time does not yet cause a sufficiently intense threat to the applicants’ rights (Supreme Court Judgment at para. 5.4).

The applicants’ request therefore does not seek to mitigate a violation of their individual rights. Rather, it aims to achieve a general policy change in the public interest. The latter, however, is not permissible under Art. 25a VwVG. Such goals cannot be achieved through legal proceedings, but rather through political means. (Supreme Court Judgment at para. 5.5).

The same holds true for possible violations of rights protected under the ECHR (Supreme Court Judgment at paras. 6.2 and 7).