Case name:                      VZW Klimaatzaak v. Kingdom of Belgium, et al.

Jurisdiction:                     Belgium

Type of claim:                  Claim against federal legislature or government to enact stricter GHG reduction targets

Summary of result:       Belgian State and thee sub-regions found in violation of Art. 1382 and 1383 of the Civil Code as well as Art. 2 and 8 ECHR for failure to sufficiently reduce greenhouse gas emissions. However, Court refuses to order the State to pursue specific reduction targets as requested by the plaintiffs.

Judgment final:               No

Court instances:

Court	Type of decision	Summary of decision
Brussels Court of First Instance Judgment of 17 June 2021	First instance	Belgian State and thee sub-regions found in violation of Art. 1382 and 1383 of the Civil Code as well as Art. 2 and 8 ECHR for failure to sufficiently reduce greenhouse gas emissions. However, Court refuses to order the State to pursue specific reduction targets as requested by the plaintiffs.

Source of claims:            Tort law

Art. 2 (right to life) and Art. 8 (family and private life) of the European Convention on Human Rights (ECHR)

Art. 6 (right to life, survival and development) and 24 (right to health, water, food and environment) of the International Convention on the Rights of the Child

 

Summary of Judgment

Facts and claims of the parties

The Belgian ENGO ASBL Klimaatzaak as well as some 58,000 individual plaintiffs brought a claim against the federal government as well as the three regions of Wallonia, Flanders and Brussels-Capital, arguing that the state’s greenhouse gas reductions effort are not aggressive enough.

The plaintiffs argue that the defendants are in breach of Art. 1382 and 1383 of the Civil Code in that they have not acted with the necessary prudence and due diligence in pursuing their climate policy, and are thus damaging the interests of the plaintiffs.

Art. 1382 and 1383 of the Civil Code set out the general principles of tort liability. Art. 1382 stipulates: “Any act whatever of man which cause damage to another obliges him by whose fault it occurred to make reparation”. According to Art. 1383, the same holds true for damages caused by negligence or imprudence.

Furthermore, the plaintiffs argue that the defendants violate the fundamental rights of the plaintiffs under Art. 2 (right to life) and 8 (private and family life) ECHR and under Art. 6 (right to life, survival and development) and 24 (right to health, water, food and environment) of the International Convention on the Rights of the Child.

Besides asking for a declaration that the defendants are in breach of Art. 1382 and 1383 of the Civil Code, the plaintiffs ask the court to order the state to pursue reductions of 48%, or at least 42%, below 1990s levels by 2025, of 65%, or at least 55%, by 2030, and net zero emissions by 2050. Furthermore, the plaintiffs seek a penalty against the defendants of EUR 1,000,000 per month of delay in reaching the target imposed for 2025 and 2030 respectively, payable to Klimaatzaak.

The plaintiffs also brought the case on behalf of 82 trees.

Brussels Court of First Instance

Admissibility

The Court first notes that climate change poses a treat to every Belgian citizen. Therefore, each of the individual plaintiffs has a direct and personal interest in the matter, which differentiates it from an action brought in the popular interest, that would be inadmissible. The fact that other Belgian citizens may suffer comparable damages does not contradict a personal interest of each plaintiffs.^[1] Klimaatzaak as an ENGO has a special right of access to courts in environmental matters under the so-called Aarhus Convention^[2].^[3]

The claim filed on behalf of the 82 trees is deemed inadmissible because trees cannot be subjects of rights.^[4]

Merits

The Court first sets out that it has been established in previous jurisprudence that the legislator can be held liable for damages caused to others in the exercise of legislative functions.^[5] This is particularly true where the legislator fails to act when there is a risk, such as to safety, public health, hygiene or the environment, or where the legislator fails to take the necessary measures to guarantee his subjects the constitutional rights and freedoms and the rights and freedoms of the European Convention on Human Rights.^[6] The Court furthermore rejects the defendants’ argument that public authorities could be held responsible for failure to comply with a norm of international law only where that norm has direct effect in national law.^[7]

With regard to the alleged violation of rights under the ECHR, the Court finds that the right to life under Art. 2 ECHR includes a positive obligation of the State to take all necessary measures to protect the lives of persons, as well as a negative obligation not to inflict death. In terms of the positive obligation invoked here, the State must take preventive measures in the event of dangerous activities or disasters that the State is aware of. The choice of appropriate measures is within the broad discretion of the State.^[8]

Regarding the right to private and family life under Art. 8 ECHR, the Court notes that environmental damage may affect the well-being of a person and deprive her of the enjoyment of her home in such a way as to adversely affect her private and family life.^[9]

The Court further notes that the European Court of Human Rights has previously placed a positive obligation on the State, where there is a serious and substantial risk to a person’s health and well-being, to adopt reasonable and adequate measures capable of protecting the rights of that person.^[10]

The current state of climate sciences leaves no doubt that climate change poses a real threat to the daily lives of current and future generations of Belgian citizens, including the risk of rising North Sea levels and increasing health problems. The State is therefore under a positive obligation to implement protective measures.^[11] Such measures can include the reduction of greenhouse gas emissions or adaptation measures.^[12]

The Convention on the Rights of the Child, to the contrary, the Court finds, does not create any positive obligations on the part of the State.^[13]

Next, the Court examines reduction targets that Belgium has committed to, either under the framework of the European Union or domestically, and finds that the State is unlikely to meet most of these targets. Also, the current reduction scenario proposed for 2030 makes it impossible to achieve carbon neutrality by 2050.^[14] The Court furthermore notes that cooperation between the federal state and the federated entities has been deficient.^[15] All this shows that the federal state as well as the three sub-regions have failed to act with prudence and diligence with regard to the risks from climate change. They have not at present taken all the necessary measures to prevent the effects of climate change on the life and privacy of the plaintiffs, as they are obliged to do under Art. 2 and 8 ECHR.^[16]

However, while it is clear that the State is in breach of its protective duties, the Court refuses to issue an order as to the specific amount of greenhouse gas emissions which the defendants are obliged to reduce. The Court notes that while political declarations on the need of developed countries (so-called Annex I countries) to reduce global greenhouse gas emissions by 25% to 40% below 1990’s levels by 2020 have been made, Belgium has not made any binding commitments in this regard.^[17] The principle of separation of powers prevents the Court from determining the exact content of the State’s reduction obligation and thereby depriving the State of its discretionary power.^[18] While the reduction targets proposed by the Plaintiffs are based on recommendations by the Belgian expert group, whose scientific merit is not disputed, they have not been politically agreed to and can therefore not be regarded as binding on the State.^[19]

 

[1] Brussels Court of First Instance, decision dated 17 June 2021, file no. 2015/4585/A, at p. 47-51.

[2] United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, dated 25 June 1998.

[3] Pp. 51-55.

[4] P. 56.

[5] Pp. 57-58.

[6] P. 57-58, citing the First Advocate General Leclercq in his conclusions preceding the judgment by the Court of Cassation of 28 Sep 2006, JL.MB., 2006, p. 1549.

[7] P. 58.

[8] P. 60.

[9] P. 60, citing the European Court of Human Rights’ decision in Lopez Ostra v. Spain, decision of 9 Dec 1994, at para. 51.

[10] P. 60, citing the European Court of Human Rights’ decision in Tàtar v. Romania, decision of 27 Jan 2009, at para. 107.

[11] P. 61.

[12] P. 62.

[13] Pp. 62-63.

[14] Pp. 67-73.

[15] Pp. 73-79.

[16] P. 79.

[17] P. 66.

[18] P. 80.

[19] P. 82.