Germany

In Germany, there have been several cases where citizens or NGOs filed lawsuits against the State alleging that its inadequate climate change mitigation policy violates national law.

In Family Farmers and Greenpeace Germany v. Germany (VG, Berlin, 2019)before the administrative court of Berlin claimants alleged that by abandoning its 2020 mitigation target the government had acted unlawfully in view of the general principles of self-binding administration as well as fundamental rights. However, the court dismissed the case due to a lack of standing. It held that, while the government’s climate policy is generally justiciable, the specific target was non-binding and internal, and a violation of fundamental rights was not substantiated.

The 2021 landmark decision by the Federal Constitutional Court (BVerfG, 2021), concerned the argument that the Federal Climate Protection Act’s target of reducing greenhouse gas emissions by 55% by 2030 from 1990 levels violated fundamental rights of the claimants and did not sufficiently take into account Germany’s obligations under the Paris Agreement. The claimants inter alia challenged the compatibility of the Climate Protection Act with Article 20a of the German Constitution (Basic Law – BL), stipulating the aim to protect the environment for future generations. The Constitutional Court found the claims to be partly justified and held that Article 20a BL obliges the legislator to protect the climate and pursue efforts towards climate neutrality, particularly with a view of future generations. The legislator had failed to distribute the burden of the remaining carbon budget on the path towards climate neutrality proportionally along the remaining years, so that harsher future intrusions into fundamental rights may constitute an undue burden. Therefore, the Court ordered the legislator to set clear provisions for reduction targets for the whole period until climate neutrality will be reached.

Following this decision, the NGO Deutsche Umwelthilfe filed lawsuits against the German Federal Government, requesting the adoption of a specific and adequate climate protection programme that meets the cross-sectoral greenhouse gas emissions and the targets for the transport sector laid down in the Climate Protection Act. Moreover, with support of the same NGO, eight lawsuits were filed with regards to lacking regional Climate Protection Acts in the respective federal States in Germany. Claimants seek an order for the establishment of such acts, and/or for their targets to be aligned with the goals of the Paris Agreement.

In general, individuals may allege a violation of their own fundamental right before the Constitutional Court under Article 93 I Nr. 4 a BL. Similarly, in administrative proceedings, individuals need to substantiate an infringement of a subjective right. The prerequisite of individual concern can be challenging for claimants in climate change cases, where a concrete violation may be hard to pinpoint and often only materialises in the future. Only certain State organs may challenge the legality of climate laws or policies based on violations of non-subjective legal norms (Article 93 I Nr. 2 BL, e.g. BVerfG, 2007).

According to § 3 Environmental Remedies Act (Umwelt-Rechtsbehelfsgesetz) only recognized associations have standing, but only where cases covered by § 1 Environmental Remedies Act are concerned. Alternatively, associations may argue that they have a right of action based on procuration provided that an individual would have standing. A right of action by Greenpeace based on the CJEU’s jurisprudence (CJEU, 2017) had been rejected in Family Farmers and Greenpeace Germany v. Germany, because the challenged German Climate Protection Goal 2020 had not been based on European provisions (e.g. VG Berlin, 2019).

With regards to the legal basis, the German Basic Law does not include an explicit or implicit right to environmental protection that goes further than what can be inferred from the respective substance of the various fundamental rights. Claims may in particular be based on Article 2 II 1 BL, which stipulates the right to life and physical integrity, on Article 14 I BL, which guarantees property, as well as on Article 12 I BL, which protects professional freedom. Under aggravated circumstances, even Article 1 BL containing the right to human dignity might be invoked, which, in conjunction with Art. 2 I and 20a BL has been labelled as the ecological minimum standard of living by several scholars and been discussed by the Constitutional Court in its 2021 landmark decision. That decision particularly  underlined the importance of Article 20a BL and is likely to be used in many future cases. In light of Art. 20a BL the Court understood relevant fundamental rights as ‘intertemporal guarantees of freedom [that] afford the complainants protection against comprehensive threats to freedom caused by the greenhouse gas reduction burdens […] being unilaterally offloaded onto the future’ (BVerfG, 2021, para. 183). However, the Court reaffirmed what it had already stated in an earlier relevant decision concerning emission reductions under the EU emissions trading system (BVerfG, 2007): The legislator has a wide margin of discretion as to how to implement Article 20 a BL.

Remedies sought may take the form of a declaration of unlawfulness of the challenged national policy and the obligation to restore legal compliance (e.g. Family Farmers and Greenpeace Germany v. Germany), or an order to amend the challenged law (e.g. BVerfG, 2021).