KlimaSeniorinnen and states’ obligation to mitigate climate change

On 9 April 2024, the European Court of Human Rights (ECtHR) released its judgments in three climate change cases regarding the interpretation of human rights as enshrined in the European Convention on Human Rights (ECHR): Duarte Agostinho v Portugal and 32 Others, Carême v France and Verein KlimaSeniorinnen Schweiz v Switzerland. This is the first time the ECtHR has addressed allegations of human rights violations originating from climate impacts, and the extent to which states are obliged to mitigate climate change to protect individuals.

While two of the cases – Duarte Agostinho¹ and Carême² – have been held inadmissible (due to the applicants’ failure to exhaust domestic remedies and lack of victim status, respectively), the ECtHR found by a 16:1 majority⁴ that the Swiss government breached their human rights obligations in the case of KlimaSeniorinnen³, specifically the right to private and family life (Article 8 of the ECHR)⁵ and the right to a fair trial (Article 6). The ECtHR’s Grand Chamber issued the judgment, so it is conclusive. Given the case’s potential impacts on corporate actors, in this opinion piece we focus on the violation of the applicants’ right to private and family life. 

Verein KlimaSeniorinnen Schweiz  

What was at stake? 

The KlimaSeniorinnen case was brought against the Swiss government in November 2020 by an organisation of senior Swiss women Verein KlimaSeniorinnen Schweiz (Climate Seniors Switzerland)⁶ and four Swiss individual women concerned about the impact of global warming on their living conditions and health, specifically the fact that women aged 75 and over are most affected by frequent and intense heatwaves. The ECtHR case was brought after the Swiss Supreme Court dismissed⁷ the applicants’ claims against Swiss government entities for failing to implement policies to keep global temperatures in line with Paris Agreement goals⁸ in order to protect the applicants from the mortality and morbidity risks associated with rising heat and heatwaves.

In keeping with other court decisions regarding the justiciability of climate change-related harms, the Swiss Supreme Court determined that the applicants' rights had not been affected with sufficient intensity, and that the remedy sought should come through political rather than judicial mechanisms. 

In the ECtHR case, the applicants argued that:  

• Switzerland's inadequate climate policies violate Articles 2 (right to life) and 8 (right to private and family life) of the ECHR;  
• as the Swiss courts rejected their case on arbitrary grounds, this violated their right to a fair trial under Article 6; and  
• their right to an effective remedy under Article 13 had been breached because the authorities and courts did not effectively deal with the content of their complaints. 

What has the ECtHR decided? 

The ECtHR held that: 

• it was not necessary to consider the applicability of Article 2 (right to life) and 13 (right to an effective remedy);
• the Swiss government violated Article 6 (right to a fair trial) in relation to some applicants; and
• the Swiss government violated Article 8 (right to private and family life) in relation to the applicants. 

As noted in the KlimaSeniorinnen, the ECtHR had already determined that protection under Article 8 extends to adverse effects on human health, well-being and quality of life arising from environmental harm. In the present case, the ECtHR found that Article 8 encompasses the right to effective protection by the state from serious adverse effects of climate change.⁹ This represents a positive obligation on states to put in place legislative and administrative frameworks to provide such effective protection.

In the context of climate change and as outlined in the KlimaSeniorinnen judgment, Switzerland is obliged to put in place frameworks designed for the specific features of the risks associated with climate change impacts, as established by science. Even though Switzerland has significant discretion as to the design and implementation of such frameworks, these must effectively apply in practice (i.e. it is not enough to simply have measures in place). 

As part of its assessment, the ECtHR considered Swiss national legislation introduced to reduce the level of GHG in the atmosphere and prevent rising temperatures, including the 2011 'CO2 Act’¹⁰ and the ‘Law on climate protection, innovation and strengthening energy security’¹¹ (the Climate and Innovation Act) (which was passed via referendum but has not yet come into force). The ECtHR found that such measures were insufficient, and that Switzerland had not done enough to protect the rights of its citizens.  

For example, a 2021 amendment to the CO2 Act introduced emissions targets up until 2024 only, which left the period after this unregulated; there was therefore a failure of the requirement under Article 8 to devise an effective regulatory framework setting goals and objectives.¹² In addition, the Swiss Climate and Innovation Act does not set out concrete measures to achieve objectives on emissions reductions but notes that these objectives will be proposed “in good time”; the ECtHR found that such an unclear timeline does not satisfy a state’s duty to protect its citizens from the adverse effects of climate change.  

The ECtHR set out how it will examine whether domestic authorities have complied with their positive obligations in this regard:

"….the Court will examine whether the competent domestic authorities, be it at the legislative, executive or judicial level, have had due regard to the need to:

(a) 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;

(b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;

(c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)‑(b) above);

(d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and

(e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures."¹³

These measures must be supported by adaptation measures which alleviate the most severe or imminent consequences of climate change, taking into account relevant particular needs for protection.¹⁴

The judgment emphasises the importance of ‘carbon budgets’ – statutory caps on a state’s total GHG emissions that should not be exceeded – in order to meet emission reduction commitments. To date, Switzerland has not provided any estimate of its remaining carbon budget. The ECtHR found that this meant that the country did not comply with its positive obligations under Article 8: 

“…effective respect for the rights protected by Article 8 of the Convention requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades. In this context, in order for the measures to be effective, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner…”¹⁵

The Swiss government must now enact measures to comply with the judgment. National courts will take into account judgments of the ECtHR, and will lend particular weight to judgments, such as this one, which are delivered by the Grand Chamber of 17 judges. Accordingly, the ECtHR judgment will embolden individuals (and civil society groups and NGOs acting on their behalf) in Council of Europe Member States to challenge government law and policy on emissions reduction targets and adaptation measures. Those who do not obtain satisfaction domestically and who have exhausted all national remedies will have a clear pathway to challenge at the European level.

What are the implications for corporates? 

Transition risk stemming from legislative and regulatory changes  

Although binding only on the relevant government defendant(s), judgments in human rights cases may pose a significant transition risk to corporations if they lead to governments adopting more ambitious climate targets and energy transition strategies. For example, the KlimaSeniorinnen judgment will inform how the ECHR must be interpreted in all 46 Member States of the Council of Europe. It will also very likely have an impact on how other states across the globe decide to implement changes to legislative and regulatory frameworks in light of climate change. Such changes then cascade down the economy and can have a direct impact on businesses.  

The 2021 Neubauer v Germany¹⁶ case is a powerful example. In this case, brought against the German government, the claimants argued that the absence of provisions on the post-2030 yearly reduction targets in the German Climate Protection Act infringed their fundamental rights to human dignity, life and physical integrity under the German Basic Law. In its groundbreaking judgment, the Federal Constitutional Court ordered the government to set clear provisions for reduction targets from 2031 onward by the end of 2022. 

Following this judgment, on 24 June 2021, the German government passed an amendment¹⁷ to the Climate Protection Act with yearly reduction targets from 2031-2040 as follows: 

• GHG emission reduction target of a minimum of 88% by 2040 against the 1990 baseline; 
• 5-yearly minimum reduction targets for the land and forestry sector; and 
• an obligation to propose legislation to codify the minimum reduction targets for the years 2041-2045 in 2032 at the latest. 

Since then, Germany has introduced separate emissions removal targets for the forestry sector – directly impacting companies in the land and forestry sectors – as well as those in their value chains, including food and beverage, fashion and pharmaceuticals. 

The level of transition risk that the KlimaSeniorinnen decision may bring will vary from state to state and will partly depend on both the political appetite of governments, and the likelihood of individuals within the jurisdiction bringing a legal challenge. With EU-wide and various Member State elections looming this year, there has been a shift¹⁸ in the political climate and some EU governments are pushing for less environmental and emissions-reduction regulation, which may impact how governments react to this judgment. For example, the requirements under the EU’s draft Corporate Sustainability Due Diligence Directive (CS3D) – which would require large EU companies (and some non-EU companies) to conduct mandatory human rights and environmental due diligence – have been watered down to enable its passing¹⁹ at the EU Council stage, following pushback from some EU Member States. 

State’s human rights obligations used to shape corporate duties of care 

The “first generation” of climate cases were brought against states,²⁰ but plaintiffs are increasingly deploying similar arguments against corporate targets. 

For example, in the 2021 Dutch case Milieudefensie, the duty of care owed to Dutch citizens to protect them from the harmful impacts of climate change – a duty which the case of Urgenda v Netherlands²¹ had established – was extended to companies. The court found that energy giant Shell had a corporate duty of care to reduce its GHG emissions (based in part on human rights), and that its business practices violated that duty. Shell was ordered to reduce its scope 1, 2, and 3 emissions by 45% by 2030 (compared to 2019 levels).²² The judgment is currently being appealed²³ by Shell, but the order has not been suspended, meaning Shell is still required to reduce its emissions while the appeal is pending. 

Even while under appeal, the Milieudefensie judgment has been used strategically by the litigants. In April 2022, Dutch NGO Milieudefensie sent letters²⁴ to 29 Dutch companies in sectors that “contribute significantly to causing dangerous climate change” highlighting the Shell judgment and threatening litigation unless the companies implemented climate mitigation plans to reduce emissions in line with the Shell judgment. Milieudefensie recently also took steps towards suing ING, demanding²⁵ that the largest bank in the Netherlands cut its total emissions in half and stop working with large clients that do not have suitable climate plans. In Italy, proceedings²⁶ brought by Greenpeace are underway against ENI, the Italian oil major, relying on constitutional provisions as well as the civil code and international law, seeking an order similar to that granted against Shell together with damages for material damage and the health impacts of historic emissions attributable to the company’s products. 

In France, claims against BNP Paribas by NGOs Comissão Pastoral da Terra and Notre Affaire à Tous²⁷ and by Oxfam and others²⁸ relating to climate change and deforestation which have been brought under the ‘Duty of Vigilance Law’ are ongoing. Under the French law (a precursor to EU-wide due diligence regulations), any person with an interest in bringing an action can serve formal notice on a reporting company to comply with its obligations relating to the publication of a “Vigilance Plan” to identify and prevent risks of severe violations of human rights and fundamental freedoms, health and safety of people and to the environment. 

All these cases demonstrate that human rights arguments are no longer confined to cases against governments. In fact, human rights arguments are increasingly being deployed as the basis for seeking to force changes in corporate duties and behaviours. Various human rights have been used to that end, including the right to life, the right to private and family life and the right to be free from discrimination. 

We anticipate that the ECtHR judgment will lead to an increase in the number of human rights cases brought against both governments and companies related to the sufficiency of climate change emission reduction targets and/or adaptation measures, as claimants will seek to rely on arguments which were successful in KlimaSeniorinnen (or adopt alternative arguments to those which were unsuccessful). 

Could there also be implications for companies’ boards? The English courts recently refused ClientEarth permission to proceed with a derivative claim against Shell’s directors that alleged they were in breach of statutory and fiduciary duties in failing to adopt a stronger emissions reduction strategy. Now the ECtHR has ruled that Article 8 of the Convention encompasses a right for individuals to effective protection by the state authorities from the serious adverse effects of climate change and that a contracting state’s main duty is to adopt emissions mitigation measures and apply them in practice. Will activists point to this judgment in support of an argument that directors of a high-emitting company are under a duty to adopt a strategy aligned with IPCC guidance?  

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¹ Application no. 39371/20

² Application no. 7189/21

³Application no. 53600/20 

⁴ While fully accepted the magnitude of the risks posed by climate change, Judge Eicke considered that the majority had gone beyond the court’s legitimate role in accepting the Swiss claimants had “victim” status under the Convention and imposing new obligations on contracting states. 

⁵ https://www.echr.coe.int/documents/d/echr/convention_ENG 

⁶ https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-233206%22]}

⁷ https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2020/20200505_No.-A-29922017_judgment.pdf

⁸ Article 2 of the Paris Agreement which was agreed at COP21 states that countries must keep global average temperatures “well below” 2ºC above pre-industrial levels and pursue efforts to limit the temperature increase to 1.5ºC above pre-industrial levels

⁹ See paragraphs 519 and 544 of the judgment.

¹⁰ The Federal Act on the Reduction of CO2 Emissions

¹¹ https://www.admin.ch/gov/en/start/documentation/votes/20230618/climate-and-innovation-act.html

¹² See paragraphs 550 and 558-572 of the judgment.

¹³ Paragraph 550

¹⁴ Paragraph 552

¹⁵ Paragraph 548

¹⁶ https://climatecasechart.com/non-us-case/neubauer-et-al-v-germany/

¹⁷  https://cdn.climatepolicyradar.org/navigator/DEU/2021/federal-climate-change-act-2021-amendment_29dfb4dbcf633044964d7f4eaa20af2e.pdf

¹⁸ https://www.reuters.com/world/europe/green-backlash-looms-over-eu-elections-2024-02-05/

¹⁹  https://www.forbes.com/sites/jonmcgowan/2024/03/15/after-delays-eu-approves-corporate-sustainability-due-diligence-law/

²⁰  For example, see the UK Supreme Court case of Finch v Surrey County Council regarding Scope 3 emissions.

²¹ https://climatecasechart.com/non-us-case/urgenda-foundation-v-kingdom-of-the-netherlands/

²² As a reminder, Scope 1 emissions cover emissions from sources that an organisation owns or controls directly, and Scope 2 emissions are those that a company causes indirectly and that come from where the energy it purchases and uses is produced. Scope 3, meanwhile, refers to emissions which a company is indirectly responsible for, up and down its value chain; this means that it includes the emissions of its suppliers and its consumers.

²³https://www.ft.com/content/ac1623a4-d87a-4ad5-9328-59c09f381a8f

²⁴ https://en.milieudefensie.nl/climateplan

²⁵ https://en.milieudefensie.nl/news/this-is-our-official-letter-to-ing#:~:text=We%20demand%20that%20ING%20halves,Want%20to%20know%20more%3F

²⁶ https://climatecasechart.com/non-us-case/greenpeace-italy-et-al-v-eni-spa-the-italian-ministry-of-economy-and-finance-and-cassa-depositi-e-prestiti-spa/

²⁷ https://climatecasechart.com/non-us-case/comissa%CC%83o-pastoral-da-terra-and-notre-affaire-a-tous-v-bnp-paribas/

²⁸https://climatecasechart.com/non-us-case/notre-affaire-a-tous-les-amis-de-la-terre-and-oxfam-france-v-bnp-paribas/