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European Court of Human Rights on the climate crisis and what this means for our key industry sectors13 June 2024

This is the first in a series of articles covering the recent European Court of Human Rights case, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, together with other industry-specific developments in climate litigation across WFW’s key sectors of energy, infrastructure and transport. Click on the links below to access industry-focussed analysis. New sectors will be added on a regular basis.

"The Swiss government’s actions did not conform with the requirements under Article 8 of the European Convention on Human Rights"

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

On 9 April 2024, the European Court of Human Rights (“ECtHR”) rendered its ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland where 2,000 female members of the KilmaSeniorinnen Schweiz (Senior Women for Climate Protection) group (the “Applicants”), all over the age of 64, won a case against the Swiss government for its failure to implement necessary measures to fulfil its obligations to cut greenhouse gas (“GHG”) emissions and protect the Applicants against the impact of climate change. The Swiss government’s actions did not conform with the requirements under Article 8 (the right to private and family life and the right to a home) of the European Convention on Human Rights (the “Convention”).

The Applicants contended that Switzerland had failed, and continued to fail, to protect them effectively in violation of Articles 2 (right to life) and 8 of the Convention. Specifically, the Applicants argued that the government had a duty and positive obligation to put in place the necessary regulatory framework to mitigate climate change, factoring in the level of risk associated with their age and increased vulnerabilities. As per the jurisdiction of the ECtHR, the Applicants sought a declaration from the Court that the Swiss government had failed to adequately protect their rights, thereby requiring it to enact legislative changes to remedy this.

In reaching its decision, the ECtHR noted in particular that “anthropogenic climate change exists” and that “the relevant risks are projected to be lower if the rise in temperature is limited to 1.5^oC above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target”. The court attached importance to relevant international standards, the decisions of domestic courts and the conclusions of reports and studies by relevant international bodies, such as the United Nations Intergovernmental Panel on Climate Change.

"The ECtHR found that Switzerland’s current regulatory framework, including legislation and the carbon budget, was insufficient to meet necessary climate targets."

The court also considered that in the climate change context there exists a causal link between state actions or omissions (causing or failing to address climate change) and the harm affecting individuals and vulnerable groups. The ECtHR determined that the Article 8 right under the Convention includes a right to effective protection from the serious adverse effects of climate change on human health and well-being. The ECtHR also found that the Swiss government failed to meet its past GHG emission reduction targets resulting in the government’s failure to protect citizens against the impacts of climate change in violation of Article 8 of the Convention.

The ECtHR recognised a positive obligation on states to put in place legislation sufficient to protect Articles 2 and 8 rights. The ECtHR found that Switzerland’s current regulatory framework, including legislation and the carbon budget, was insufficient to meet necessary climate targets and therefore, insufficient to protect the Article 8 rights of the Applicants.

What does this mean in practice?

Whilst this is a finding against states, they are likely to seek to comply with their own legal obligations by introducing new laws and regulations affecting businesses.

London Trainee Kayla Gild also contributed to this article.