Article 8 of the ECHR does not grant the right to specific climate measures such as a ban on fossil fuels

Background to the case

The applicants in the Fliegenschnee and Others case (application no. 40054/23) are three individuals residing in Austria and an environmental organisation. The case concerns complaints raised primarily under Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). The complaints relate to the refusal of Austria’s Federal Minister for Digital and Economic Affairs to grant the request for a ban on the sale of fossil fuels to mitigate the effects of climate change.

Victim status of individuals – confirmation of previous rulings by the Court

In this decision, the Court refers to the general principles applicable to complaints under the ECHR concerning climate change, as set out by the Grand Chamber of the Court in Verein KlimaSeniorinnen Schweiz and Others (application no. 53600/20; for a detailed discussion of this judgment, please refer to this blog). When assessing victim status for individuals, the Court sets a high threshold: in order to claim victim status under Article 34 of the ECHR in the context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change, an individual applicant must show (a) that they are subject to a high intensity of exposure to the adverse effects of climate change, and (b) that there is a pressing need to ensure the applicant’s individual protection.

In Fliegenschnee and Others, the Court found that although the individual applicants had argued that the adverse effects of climate change endangered their lives and health in general – particularly due to their medical conditions and ages – they had not provided any details about whether and how they had been affected personally, nor had they submitted any evidence to substantiate that they were particularly at risk. Merely claiming to belong to a group that is particularly susceptible to the effects of climate change, or merely claiming, for example, to have heart disease, is not sufficient. The Court therefore declared the individual applicants' complaint inadmissible. 

The Court's declaration of inadmissibility of the individual applicants' complaints is not particularly innovative: the Court's decision is in line with a series of declarations of inadmissibility in climate cases, as we saw earlier in Verein KlimaSeniorinnen Schweiz and Others, Duarte Agostinho and Others (app. no. 39371/20), Carême (app. no. 7189/21) and Greenpeace Nordic and Others (app. no. 34068/21). 

Locus standi organisations – substantiating and documenting in concrete terms

In Verein KlimaSeniorinnen Schweiz and Others, the Court explained that environmental associations do not automatically have locus standi. For complaints concerning climate change, an association must demonstrate that it (a) is lawfully established in the jurisdiction concerned or has standing to act there, (b) pursues a dedicated purpose in accordance with its statutory objectives in defending the human rights of its members or other affected individuals within the relevant jurisdiction – including against threats arising from climate change, and (c) is actually qualified and representative to act on behalf of members or other affected individuals.

In the present case, the environmental organisation was established under Austrian law and recognised as an environmental organisation under Austrian law. In principle, the Court considers this sufficient to show that the organisation was lawfully established and had standing to act there, and that it pursues a dedicated purpose, based on its statutes, for the protection of the environment. However, according to the Court, it was unclear whether the organisation had a dedicated purpose in defending human rights in the context of environmental protection and whether it could be regarded as representative to act on behalf of members or other affected individuals, as no detailed information on its membership nor its statues had been provided. 

However, the Court did not address the question of whether the environmental organisation has locus standi in this case, since the organisation's complaint could be declared inadmissible on other grounds in any event. We discuss this below. 

No application of Article 2 of the ECHR - doubtful whether there are life-threatening consequences 

The Court reiterates that Article 2 of the ECHR only applies in the context of climate change in cases where there is a serious, genuine and sufficiently ascertainable threat to life, such as a significant decline in a person's life expectancy as a result of climate change. In the present case, however, the Court doubts whether the alleged shortcomings in climate policy have such life-threatening consequences that Article 2 of the ECHR applies. Consequently, the Court examines the applicants' complaints solely on the basis of Article 8 of the ECHR. 

No right to specific measures under Article 8 of the ECHR – focus on the regulatory framework as a whole

The obligation of States under Article 8 of the ECHR to provide sufficient effective protection against the serious adverse effects of climate change primarily includes the task of adopting and effectively implementing regulations and measures. In assessing whether a State has fulfilled this obligation, the Court focuses on the regulatory framework as a whole: the Court emphasises that, in accordance with the principle of subsidiarity, the national authorities have the primary responsibility to secure the rights and freedoms defined in the ECHR, and in doing so they enjoy a margin of appreciation. In the context of climate change, the Court refers to the distinction it made in Verein KlimaSeniorinnen Schweiz and Others. Given the nature and seriousness of the threat posed by climate change, the margin of appreciation is more limited with regard to whether action should be taken against the effects of climate change. However, States have a wider margin of appreciation when it comes to choosing between different means of achieving the objective.

During the national proceedings, the applicants had addressed Austria’s Federal Minister for Digital and Economic Affairs with a request for a ban on the sale of fossil fuels based on Section 69 of the Trade Act. Both the Minister and the Austrian courts rejected this request on the grounds that the requested measure fell outside the Minister's constitutionally defined competencies. The applicants' complaints in the present case relate to the refusal to grant a ban on the sale of fossil fuels. The Court ruled that Article 8 of the ECHR does not include the right to a specific mitigation measure, pointing to the principle of subsidiarity and the wide margin of appreciation enjoyed by States in choosing the means to achieve their climate objectives. Therefore, Article 8 of the ECHR does not include the right to a specific mitigation measure by a specific State body. This is certainly the case when the specific mitigation measure falls outside the Minister’s competence, as it does in the present case.

Furthermore, the Court considers that a mere reference to a report concluding that Austria will not achieve its greenhouse gas emission reduction targets for 2030 with the existing measures is insufficient. The applicant should have provided evidence as to why the government failed to establish an adequate regulatory framework, and explained why the existing framework should be considered inadequate. 

Article 1, Protocol 1 ECHR and climate damage 

One of the applicants argued that her economic existence as a farmer had been endangered due to an increase in crop shortfalls and a decrease in her agricultural productivity, caused by of drought resulting from climate change. She invoked the right to protection of her property, as laid down in Article 1 of Protocol 1 to the ECHR. 

The Court had not previously applied Article 1 of Protocol 1 of the ECHR in the context of climate change, and notes first of all that the applicability of Article 1 of Protocol 1 of the ECHR to climate damage does not follow from current case law. However, the Court deliberately leaves unanswered the question of whether Article 1 of Protocol 1 of the ECHR can be applicable in the context of climate change, and deals with the complaint solely on the basis of the lack of victim status: the Court concludes that the applicant's complaint is inadmissible as the applicant does not meet the high threshold to fulfil the criteria for victim status in the specific context of climate change. 

We cautiously conclude that the door appears to be open for future climate cases under Article 1 of Protocol 1 of the ECHR, as the Court merely States that the applicability of this provision to climate damage does not follow from current case law.

Finally

Fliegenschnee and Others. confirms and builds on the approach adopted by the Grand Chamber of the Court in Verein KlimaSeniorinnen Schweiz and Others: a high threshold for establishing individual victim status, strict admissibility requirements for associations, and no right to specific mitigation measures under Article 8 of the ECHR. The Court focuses on the regulatory framework as a whole, acknowledging that States have a wide margin of discretion in choosing the means to achieve their climate goals. Furthermore, the Court appears to leave the door open for the applicability of Article 1 of Protocol 1 of the ECHR in climate cases, even though this does not follow from current case law.