Verein KlimaSeniorinnen Schweiz et al. v. Federal Department of the Environment, Transport, Energy and Communications (DETEC)

Case name: Verein KlimaSeniorinnen Schweiz et al. v. Federal Department of the Environment, Transport, Energy and Communications (DETEC)

Jurisdiction: Switzerland / European Court of Human Rights

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

Summary of result: Court found that Switzerland violated Articles 8 and 6 §1 of the ECHR

Judgment final: Yes

Court instance:

Court	Type of decision	Summary of decision
Swiss Federal Department of the Environment, Transport, Energy and Communications (DETEC) Decision of 25 April 2017	Administrative Law Decision	Request rejected (lack of standing)
Federal Administrative Court of Switzerland Decision of 27 November 2018, A-2992/2017	Appeal	Appeal dismissed
Federal Supreme Court of Switzerland Decision of 5 May 2020, 1C_37/2019	Appeal	Appeal dismissed
European Court of Human Rights (ECtHR) Decision of 9 April 2024, 53600/20	Decision on violation of the European Convention on Human Rights (ECHR)	Appeal accepted: Court found a violation of Convention rights

Source of claims:

European Convention of Human Rights, Art 8 and 6 §1

Summary of Judgement

1. Introduction/Background

KlimaSeniorinnen is an association of over 2,500 Swiss women over the age of 64 that banded together to demand stronger climate policy from the Swiss Government.[1] The group was formed over a shared concern of the health impacts that climate change has on female seniors specifically. KlimaSeniorinnen, along with four individual women who suffered climate-related ailments, brought forth a lawsuit against the Swiss Government that ultimately ended up before the European Court of Human Rights. The general objective of the lawsuit was to compel Swiss authorities to take the necessary steps towards meeting Switzerland’s 2015 Paris Agreement commitments.[2]

KlimaSeniorinnen’s pursuit of a more rigorous Swiss climate policy began in 2016 with the submission of a request to the Federal Department of the Environment, Transport, Energy and Communications (DETEC). This request was made under Switzerland’s Federal Administrative Procedure Act (APA) which allows “any person who has an interest that is worthy of protection [to] request from the authority that is responsible for acts that are based on federal public law and which affect rights or obligations that it refrains from, discontinues or revokes unlawful acts.”[3]

Their request demanded that DETEC authorities undertake “real act[ion]” to address the existing gaps in climate protection.[4] The DETEC rejected their request, claiming it was invalid because it was too general and no specific individual’s legal rights were affected.[5]

Not to be discouraged, KlimaSeniorinnen escalated their concerns through the Swiss courts all the way to the Federal Supreme Court of Switzerland (FSC). They argued before the FSC that Switzerland’s failure to implement mitigation measures “impacted their lives and health” as a particularly vulnerable group.[6] Ultimately, the FSC dismissed their request on the grounds that the DETEC and the FAC’s decisions were duly reasoned and their request under section 25a of the APA could not provide protection for an actio popularis[7] avenue.

After exhausting all national authorities, KlimaSeniorinnen’s only remaining option was to take the case to the European Court of Human Rights (ECtHR) by arguing that the Swiss government had violated the European Convention on Human Rights (the Convention).

KlimaSeniorinnen and the four individual women argued that the Swiss Government’s failure to mitigate climate change as well as the DETEC denying them access to a proper trial violated Articles 2, 6, 8, and 13 of the Convention. In a groundbreaking decision, the ECtHR ruled in favour of KlimaSeniorinnen for the reasons outlined below.

The European Court of Human Rights (ECtHR)

The ECtHR is the judicial authority of the Council of Europe. Not to be confused with the European Union (of which Switzerland is not a member state), the Council of Europe is a separate international organisation that centres around the promotion of human rights, democracy, and the rule of law.[8] In order to join the Council of Europe, states must sign onto the European Convention on Human Rights (the Convention).[9]

The Convention protects basic human rights, such as the right to life, freedom and security; respect for family and private life; freedom of expression; freedom of thought, conscience and religion; and more.[10] The ECtHR ensures that member states do not violate any of the rights set out in the Convention. Individuals from member states may bring complaints of a violation of their Convention rights to the ECtHR only after exhausting all domestic possibilities of appeal.[11]

2. Claims by the parties

The applicants (KlimaSeniorinnen and the four individual women) claimed that the Swiss Government had violated the following Articles of the Convention:

Article 2 – Right to Life

“1. Everyone’s right to life shall be protected by law.”[12]

Reason: Evidence showed a correlation between increased morbidity/health risks among older women and recurring heat waves. Therefore, the Swiss Government failed to meet its obligation to implement measures that “provide effective deterrence against threats to the right to life.”[13]

Article 8 – Right to Respect for Private and Family Life

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”[14]

Reason: Article 8 includes the “right[s] to personal autonomy and […] to age with dignity.”[15] The Swiss Government’s omissions contributed to climate change-induced heatwaves which posed a “real and serious risk” to the applicants’ health and well-being, thus violating their Article 8 rights.[16]

Article 6 – Right to a Fair Trial

“1. In the determination of his civil rights […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[17]

Reason: The Swiss Courts’ rulings that KlimaSeniorinnen lacked proper standing were arbitrary and unreasonable.[18]

Article 13 – Right to an Effective Remedy

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Reason: Not specified in judgment.

3. ECtHR Judgement

Standing

Before addressing the alleged violations of the Convention, the ECtHR assessed the “victim standing” of the applicants. Article 34 of the Convention requires that applicants be “personally and directly affected” by the State’s conduct.[19] In the past, the ECtHR has not regarded general environmental damage as sufficient to establish victim standing under the Convention.[20] In this judgment, the ECtHR ruled that an applicant must establish 2 criteria to claim victim status in the context of climate change cases:

“the applicant must be subject to a high intensity of exposure to the adverse effects of climate change” (i.e., the risk of government action/inaction must be significant); and
“there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.”[21]

The ECtHR determined that KlimaSeniorinnen met the necessary requirements to pursue its claims but that the individual applicants did not. In essence, the ECtHR was unable to differentiate the individual applicants’ vulnerabilities from those of older women in general (as represented by KlimaSeniorinnen). As such, the ECtHR decided to only consider the complaints pursued by KlimaSeniorinnen on behalf of its members.

The ECtHR’s decision to expand the rather narrow definition of individual standing by permitting KlimaSeniorinnen’s claim is an innovation. Typically, the Convention does not provide victim standing for associations; however, the ECtHR acknowledged the complex nature of climate change proceedings which will “inevitably have an effect beyond the rights and interests of a particular individual.”[22] As a result, the ECtHR opened the possibility for certain associations to bring forward particular environmental claims.

Legal Standing

The ECtHR held that the individual applicants did not fulfill the victim status criteria because they failed to prove “that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection.”[23] In other words, they did not prove that their individual medical conditions were unique enough to give rise to a governmental duty to “ensure their individual protection.”[24]

KlimaSeniorinnen established its legal standing by demonstrating the following:

“a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members and other affected individuals”; and
“that it is genuinely qualified and representative to act on behalf of [affected] individuals.”[25]

Article 2 – Right to Life

KlimaSeniorinnen argued for a positive right to life. This means that they demand government action be performed (rather than stopping an ongoing action). The ECtHR decided to analyze the applicant’s claims within the purview of Article 8 alone. While they decided not to examine a violation to Article 2, the ECtHR did apply principles developed within the Article 2 case law to its Article 8 analysis.

Article 8 – Right to Respect for Private and Family Life

The existing European case law in regard to environmental claims has established that claimants must prove 2 elements:

an “actual interference” with the enjoyment of their private or family life or home; and
this interference must meet a minimum level of severity.[26]

The ECtHR interprets this as establishing a “direct and immediate link” connecting the alleged environmental damage to the applicant’s private life.[27] The minimum threshold for the alleged damage is relative to the factual circumstances of the specific case (e.g., the intensity, duration, or physical and mental impact).[28]

In summary, the ECtHR declared that “Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life.”[29] This creates a duty for States to establish and effectively implement relevant climate change mitigation measures.

To determine whether a State has provided “effective protection” from climate-related risks, the ECtHR will assess whether the State has “had due regard” in adopting appropriate mitigatory measures that align with national GHG emission reduction goals. Specifically, the ECtHR will look at the timeliness, the scientific backing, the execution, the consistency, and, most importantly, the suitability of the State’s actions in meeting its GHG emission commitments.[30]

Criteria for assessing effective climate action

“When assessing whether a State has remained within its margin of appreciation, the Court will examine whether the [State] has had due regard to the need to:

adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
set out intermediate GHG emissions reduction targets and pathways […] that are deemed capable, in principle, of meeting the overall national GHG reduction goals […];
provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets […];
keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.”[31]

Furthermore, the ECtHR also clarified that they will consider all the elements collectively (i.e., suitability, timeliness, scientific backing, execution, consistency). This means that a shortcoming within one element does not necessarily lead to finding that Article 8 was violated.

In the case at hand, the ECtHR analyzed the Swiss Government’s existing mitigation legislation—specifically the Climate Act—with respect to Switzerland’s Paris Agreement commitments. As it was, the Climate Act set out “general objectives and targets”; however, it did not provide a concrete regulatory framework to meet those goals.[32] The Court found this to be insufficient to satisfy the Swiss Government’s duty to provide effective protection from the adverse effects of climate change.[33]

Additionally, the ECtHR found that Switzerland’s failure to quantify a remaining carbon budget rendered the fulfillment of its regulatory obligation under Article 8 impossible.[34]

Finally, the ECtHR concluded that the Swiss Government’s failure to “act in good time and in an appropriate and consistent manner” to devise and implement necessary mitigation regulations resulted in a failure to meet its positive obligation under Article 8 of the Convention.[35]

Article 6 – Right to a Fair Trial

The ECtHR also found that the Swiss Authorities violated Article 6 §1 in denying KlimaSeniorinnen’s legal action without assessing the merits of its complaint. The ECtHR deemed the Swiss Authorities’ basis for rejection as “inadequate and insufficient.”[36]

In addition, the ECtHR also highlighted the important role played by domestic courts in ensuring access to justice for climate litigation, stating that national authorities are primarily responsible for enforcing Convention obligations.[37]

Article 13 – Right to an Effective Remedy

After finding a violation of Article 6, the ECtHR confirmed that Article 13 need not be considered as it falls within the “more stringent requirements of Article 6.”[38]

4. Implications of the Judgment

It is important to note that this is not a decision regarding the applicability of the Paris Agreement, but rather a finding that KlimaSeniorinnen’s Convention rights were violated. Consequently, the Swiss Government must effectively implement mitigatory measures that comply with the Convention requirements set out in this judgment under the supervision of the Committee of Ministers.[39]

As for the other member states of the Council of Europe, this judgment sets the precedent for the interpretation of Article 8 as it relates to climate mitigation measures.

[1] https://en.klimaseniorinnen.ch/.

[2] Switzerland must lower emissions by 2030 to such an extent that their contribution aligns with the ‘well below 2^oC’ target.

[3] Federal Administrative Procedure Act of 20 December 1968, 25a.

[4] https://www.climatecasechart.com/documents/association-of-swiss-senior-women-for-climate-protection-v-federal-department-of-the-environment-transport-energy-and-communications-detec-and-others-petition_7fb5.

[5] Verein Klimaseniorinnen Schweiz and Others v Switzerland [GC], No 53600/20 (9 April 2024) at paras 28-30 [ECtHR Decision].

[6] ECtHR Decision, supra supra at para. 44.

[7] Actio popularis is the right to make a judicial claim on behalf of others in protection of a public legal interest.

[8] https://www.coe.int/en/web/about-us/do-not-get-confused.

[9] https://www.coe.int/en/web/human-rights-convention.

[10] https://www.coe.int/en/web/human-rights-convention/our-rights.

[11] https://www.coe.int/en/web/human-rights-convention/our-rights

[12] https://www.echr.coe.int/documents/d/echr/convention_ENG