Big hurdles to green suits in Strasbourg court

KInflamed prosecutors are increasingly pinning their hopes on the European Court of Human Rights in Strasbourg. However, the chances of Strasbourg becoming an engine for climate protection are not particularly good. At least that is the impression conveyed by the last session of the Lawyers’ Day on the role of the courts in protecting the climate. There it became clear: climate prosecutors have to overcome very big obstacles in Strasbourg. The court must be willing to open up new horizons in a number of ways to help it succeed.

However, Berlin lawyer Remo Klinger will also file a complaint in Strasbourg on behalf of the young climate claimants, as announced in Bonn. Klinger recently failed in the Federal Constitutional Court with a constitutional complaint about further improvements to the federal climate protection law. Klinger’s Karlsruhe court “indirectly” criticized climate protection with its 2021 climate ruling, but the emissions-reduction target remains elusive.

However, it will be some time before the Strasbourg judges dedicate themselves to the proceedings in Germany. First of all, three cases currently pending before the Grand Chamber of the Court of Justice will be considered: the complaint of a French mayor, the case of the so-called “climate nurses from Switzerland” and the complaint of Portuguese children and young people, equal to 33 European countries, also including Germany, filed A lawsuit in Strasbourg due to insufficient measures to combat climate change. “This is the first time we have had a lawsuit directed against more than two countries at the same time,” said German-British lawyer Tim Eke, UK judge at the European Court of Justice. Also for this reason, the admissibility of the Portuguese complaint raises difficult questions. The lawsuit may actually fail because plaintiffs have not gone through the options for national legal protections in all 33 states. Another issue is standing up to litigation. The plaintiffs must convince the court that their human rights have been violated “by themselves, immediately and for the time being” by inadequate government measures to protect the climate. This is to avoid the so-called popular lawsuits.

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Judge Ike noted that the Court of Justice has so far interpreted the legal status of more than 350 decisions on environmental protection very narrowly. In addition, “there is no law in the European Convention on Human Rights that establishes a clear link between climate change and human rights.” Even if the plaintiffs cleared this hurdle, there would still be broad discretion that the court would allow suing countries to use, if there was still European consensus on resolving difficult economic and social issues such as climate protection.

Constitutional attorney Christoph Mollers also predicts that he does not expect ground-breaking rulings on climate protection from the court. In general, one should not expect much from the judiciary: “As we know from research, courts are not the engines of social change.”

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