Neubauer et al. v Germany, Case No. BvR 2656/18/1, BvR 78/20/1, BvR 96/20/1, BvR 288/20 - Germany

DomesticGermany
Written By Gisela Sin Gomiz

Background

The case concerned a number of constitutional complaints regarding the German Federal Climate Protection Act of 2019 (“the Act”). There were made by children and young people from Germany, Bangladesh and Nepal, some institutional complainants and supporting organisations, such as Fridays for Future, Greenpeace and Friends of the Earth (BUND). The complainants argued that the domestic German climate targets and annual greenhouse gas (“GHG”) emissions allowed until 2030 under the Act (which envisaged a reduction by 55% from levels existing in 1990) were insufficient to reach the targets of carbon neutrality by 2050 agreed to by Germany under the Paris Agreement . The complainants alleged that the insufficiency of those targets were incompatible with their fundamental rights and freedoms rights under the Federal German Constitution (“Basic Law”), including the rights to life and physical integrity (Art 2), to property (Art 14.1), and to a “humane future” or a “future consistent with human dignity” (paras. 1 and 38) (which the claimants argued derived from provisions of the Basic Law). Further, they alleged that the Act failed to protect the natural foundations of life in taking responsibility for future generations as required under Art. 20a of the Basic Law, as a result of the Act’s failure to provide any specifications with respect to further emission reductions from 2031 onwards.

Reasoning

By its order dated 24 March 2021, the Court unanimously (but partially) found for the individual complainants residing in Germany (Claims BvR 96/20/1 and BvR 288/20) and struck down parts of the Act for their incompatibility with the complainants’ fundamental rights for failing to set sufficient provisions for emissions reductions from 2031. The Court decided not to engage in an assessment of the responsibility of the German State with respect to the rights of the children of Nepal and Bangladesh.

The Court confirmed that the state’s duty to protect life and physical integrity under the Basic Law, encompassed impairment caused by environmental pollution and the duty to protect life and health against risks posed by climate change. Against that backdrop, the Court found that although the GHG emission reduction targets under the Act were not obviously unsuitable or completely inadequate, by setting the reduction targets by 2030 at a level that the Court agreed was relatively low, these measures placed an unreasonable burden on future generations, as they will be required to adopt more severe measures after 2030 in order to reduce emissions. The severity of these measures will have the capacity to jeopardise practically every type of freedom protected by fundamental rights. However, the Court noted that Art. 20a of the the Basic Law required that the reduction burdens should be evenly “distributed over time and between the generations to the detriment of the future” (para. 192). Therefore, the Court continued, "one generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden . . . and expose their lives to serious losses of freedom” (para. 192).

Consequently, the Court found the existing provisions unconstitutional, given that they would irreversibly require major emission reduction after 2030, thereby violating the complainants’ fundamental rights and freedoms given the future burden that would be placed on them. 

It should be noted that the Court did not consider the substance of the arguments based on the claims that the current GHG emission levels impaired the complainants’ right to a “humane future” or “future consistent with human dignity” (paras. 113-115), as it found that such rights did not confer standing to lodge a constitutional complaint. Further and in any case, the Court noted that the obligation to maintain minimum ecological standards were essential for other fundamental rights, which made it obligatory to afford protection from environmental degradation of “catastrophic or even apocalyptic proportions” (para. 114).

Remedy

In addition to finding that parts of the Act were incompatible with fundamental rights, the Court ordered the legislature to set clear provisions for reduction targets from 2031 onwards by the end of 2022.

Role of children

This case was initiated primarily by young people, including children, who were concerned that they would be faced with an unreasonable and disproportionate burden in the future given that the current measures related to reduction of GHG emissions were, in their view, insufficient.

Enforcement and other outcomes

The German Government responded to the judgment immediately and launched its reform of the Act less than two weeks after the decisions was rendered. Two months later, the Parliament approved significant amendments to the Act, which introduced more ambitious GHG emission reduction targets: a 60% emission reduction from 1990 levels by 2030 and 88% by 2040, leading to net zero emissions by 2045, bringing the zero net emissions target forward by 5 years.

The revised 2030 targets will require that Germany’s energy industry adapts quickly to clean solutions, as it will only be permitted to emit up to 108 million tonnes of CO2, instead of 175 million tonnes previously allowed.

Nevertheless, the Government in January 2022 announced that it had missed its emission reduction targets set for 2021, and it would likely fall short in 2022 and 2023 as well. This means according to German Vice Chancellor Robert Habeck that Germany will have to “triple the pace of emissions cuts” to reach its 2030 goals.

Significance of the case from a CRSL perspective

This case, brought by predominantly children and young complainants, was the first successful climate litigation before the Federal Constitutional Court in Germany. The Court decision was a huge win for the youth climate activist who brought the landslide change in mind-set.  As noted by Professor Frank Biermann, the decision firmly established that “the current delay in effective climate policies is not only an outrage — it is a violation of the constitutional rights of the youth.”

Generally the decision has been hailed as historical, sensational and a breakthrough because it significantly strengthened climate action as, for the first time, the Federal Constitutional Court ruled that failing to guarantee climate protection could constitute a violation of the fundamental rights of citizens, especially those of future generations.

Further, the Court did not shy away from reviewing the adequacy of the GHG emissions reception targets in light of the existing knowledge. In fact, the Court carried out a thorough analysis of climate science and of the moral and political dimensions involved in climate policy.

Country

Germany

Forum and date of decision

Federal Constitutional Court

March 24, 2021

CRC provisions and other international law provisions/sources

  • Charter of Fundamental Rights of the European Union, Article 47

    Paris Agreement adopted by the Conference of the Parties (COP) 21 on 12 December 2015

  • Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013

  • Regulation (EU) No 525/2013 of the European Parliament and of the Council of 21 May 2013 on a mechanism for monitoring and reporting greenhouse gas emissions and for reporting other information at national and Union level relevant to climate change and repealing Decision No 280/2004/EC

Domestic law provisions

Related information

The applicants:

There were number of individual complainants whose names were anonymised in the judgment (see paragraphs I-IV).

Institutional complainants and supporting organisations included:

Complainants legal representation (as reported by the press) 

Case documents

Secondary documents

Amelang S et al, Landmark ruling from German top court: key climate legislation falls short”, Clean Energy Wire, published on 29 April 2021 https://www.cleanenergywire.org/news/landmark-ruling-german-top-court-key-climate-legislation-falls-short

Appunn K, “Cabinet decides climate law reform, tougher section emissions budget included”, Clean Energy Wire, published on 12 May 2021  https://www.cleanenergywire.org/news/cabinet-decide-climate-law-reform-tougher-sector-emission-budgets-expected

Biermann F, “Germany's climate law ruled unconstitutional: First reflections”, Global Sustainability Governance, blog entry dated 30 April 2021 (updated on 11 May 2021)  https://www.frankbiermann.org/post/germany-s-climate-law-ruled-unconstitutional-first-reflections

Connolly K, “’Historic’ German ruling says climate goals not tough enough”, The Guardian, 29 April 2021  https://www.theguardian.com/world/2021/apr/29/historic-german-ruling-says-climate-goals-not-tough-enough  

Federal Constitutional Court press Release No. 21/2021 of 29 April 2021 entitled “Constitutional complaints against the Federal Climate Change Act partially successful”  https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html

Garofalo C, “On intergenerational duties and the courts’ role in guiding climate policy: a reflection on the Neubauer case”, Climate Footnotes, dated 29 June 2021 https://climatefootnotes.com/2021/06/29/on-intergenerational-duties-and-the-courts-role-in-guiding-climate-policy-a-reflection-on-the-neubauer-case/

Kotze LJ, “Neubauer et al. versus Germany: Planetary Climate Litigation for the Anthropocene?” German Law Journal (2021), 22, pp. 1423–1444

Kurmayer NJ, “Germany ‘must triple pace of emissions cuts’ to meet 2030 target”, Climate Home News dated 12 January 2022 https://www.climatechangenews.com/2022/01/12/germany-must-triple-pace-emissions-cuts-meet-2030-target/

 

Mührel J, “All that Glitters Is Not Gold”, Volkerrechtsblog, 3 May 2021   https://voelkerrechtsblog.org/all-that-glitters-is-not-gold/

 

Nolan A, 'Democracy Is Failing To Protect The Environment For Future Generations. So The Courts Are Stepping In - Prospect Magazine' (Prospect Magazine, 2021) <https://www.prospectmagazine.co.uk/world/democracy-future-generations-environment-climate-german-constitutional-court> accessed 13 April 2022

UNICEF, Office of Research-Innocenti, “Climate Change and Intergenerational Justice” dated 25 October 2012 https://www.unicef-irc.org/article/920-climate-change-and-intergenerational-justice.html#:~:text=With%20respect%20to%20intergenerational%20justice,natural%20resources%20can%20be%20used

White A and O Callaghan-White L, “Taking Governments to Court Climate Litigation and its Consequences”, The Institute of International and European Affairs, dated July 2021 https://www.iiea.com/images/uploads/resources/Taking-Governments-to_Court_1.pdf

Gisela Sin Gomiz
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