Climate litigation has now also arrived in Austria. The Constitutional Court recently rejected several such lawsuits on the grounds of formal deficiencies. The content of the relevant applications was not addressed. How do "climate lawsuits" now proceed in Austria and what are their prospects of success?
1. Introduction
In recent years, there has been increasing talk in the media about "climate litigation". However, "climate lawsuits" are understood to be quite different types of legal action: Lawsuits against companies so that they are punished for their climate-damaging behaviour; or lawsuits against a state with the aim of forcing it to adopt stricter climate protection measures. What all these lawsuits have in common is that they aim to protect the livelihoods of future generations. These "climate lawsuits" pose great challenges for companies, especially from the perspective of the plannability and proportionality of the demanded measures. In the meantime, the "climate litigations" have also reached the Austrian Constitutional Court, which however - unimpressed by the prevailing Zeitgeist - rejected them in its recent decisions. Why did the Constitutional Court decide this way and what are the chances of success for "climate suits" in Austria?
2. Previous "Climate Litigation" before the Constitutional Court
So far, the "climate lawsuits" filed in Austria were individual complaints before the Constitutional Court (Art 140 para 1 lit c B-VG). These are legal actions in which a person claims that his or her personal rights have been directly violated by the law, without the law having become effective for that person through a court decision or through the adoption of an administrative decree.
2.1. Individual motions against the Climate Protection Act
The Climate Protection Act (Klimaschutzgesetz – "KSG" - § 3 KSG) establishes a general obligation to implement appropriate climate protection measures with the aim of fulfilling greenhouse emission targets set by the EU and international law. In two different proceedings, § 3 of the KSG was challenged by means of individual complaints, in which various arguments were put forward:
It was argued that § 3 KSG did not contain any sanctions in case of non-compliance with the obligation to implement appropriate climate protection measures, i.e. the provision would be toothless and thus completely unsuitable for the enforcement of climate protection, because there would be no consequences for the failure to meet climate targets agreed under international law. As a result, the applicants felt that a variety of their constitutionally guaranteed (human) rights had been violated, such as Article 2 - right to life - and various civil rights as defined in Article 8 of the European Convention on Human Rights, the principle of equality pursuant to Article 7 B-VG and Article 2 of the Basic Law on the General Rights of Nationals (Staatsgrundgesetz – "StGG"), and Article 1 of the Federal Constitutional Act on the Rights of Children.
The "plot twist" at this point is that the Constitutional Court did not have to deal with the alleged unconstitutionality on the substantive level in either of the proceedings because both applications were rejected by way of a decision due to formal defects,
- as the applicant did not prove in his individual complaint to what extent his rights had been directly violated by the Climate Protection Act, but merely argued that climate protection would be postponed to the future by the contested regulation and that he would have to fear serious restrictions on constitutionally guaranteed (human) rights within the meaning of Art 8 ECHR as a result of the more drastic climate protection measures to be taken in the future (Constitutional Court 27.6.2023, G 139/2021-11).
- In the other proceeding, the rejection was based on the grounds that the petitioner had chosen a scope of challenge that was too narrow. This means that even if the challenged wording of Section 3 KSG were to be annulled by the Constitutional Court, the alleged unconstitutionality (which the Constitutional Court did not deal with in substantive terms) would remain (Constitutional Court 27.6.2023, G 123/2023-12).
Therefore, so far there does not exist a decision on the merits of the cases regarding the highly explosive question of the relationship between climate protection provisions and possible violations of constitutionally guaranteed (human) rights. However, the fact that the Constitutional Court - in the first case - did not "soften" the requirement of a direct impact on personal rights, a generally obligatory application requirement for individual complaints, and denied the right to file an application, leads to the conclusion that the Constitutional Court - also in the case of "climate claims" - is not prepared to relax its strict case law on the admissibility of individual complaints.
2.2. Individual applications due to the tax benefits of aviation
In September 2020, 8,063 persons who filed the "first climate lawsuit in Austria" against the preferential tax treatment of airlines and sought the repeal of certain wordings in the Value Added Tax Act and the Mineral Oil Tax Act as well as the repeal of the Aviation Subsidies Ordinance in its entirety also failed to meet the hurdles of the right to file an individual complaint. Here, too, the Constitutional Court did not consider the applicants to be entitled to file an application because they were not directly affected in their personal rights, as the tax benefits were directed at companies and not at the applicants (VfGH 30.9.2020, G 144-145/2020/13). A recent "renewed" attempt to combat tax benefits for airline companies also failed due to the applicant's lack of legal standing to file an application (VfGH 27.6.2023, G 106-107/2022-10).
3. Conclusion and outlook
It therefore remains the case that no individual complaint can be filed without a violation of constitutionally guaranteed (human) rights and direct negative impact on these personal rights; application requirements which the Constitutional Court has always viewed in a strict manner. Successful "climate lawsuits" are therefore not to be expected in Austria - at least for the foreseeable future - at the constitutional court level. A brief international comparison confirms that the chances of success of climate lawsuits depend primarily on the design of the respective national procedural law. Thus, climate lawsuits fail above all in states in which a special individual or direct concern is required to fight climate protection-relevant provisions.
In Germany, a decision by the Federal Constitutional Court in April 2021 caused a stir when it upheld the complaint of several individuals between the ages of 15-32 and partially anulled the German Climate Protection Act as incompatible with fundamental rights (BVerfG March 24, 2021, 1 BvR 2656/18). The applicants argued that the law's 55% greenhouse gas emissions target by 2030 would violate their fundamental rights. However, what was exciting and surprising for many observers was not so much the court's substantive (approving) assessment, but rather that the "present, direct concern" also provided for in German constitutional procedural law was affirmed without further ado.
Significantly higher formal hurdles seem to exist in Switzerland, where the "Climate Seniors", an association of people of retirement age, have been trying (in vain) since 2016 to persuade the Swiss Confederation to take stronger climate protection measures by legal means, arguing that various fundamental rights have been violated. In 2019, the initiative failed before the Federal Court in Lausanne, and the lawsuit was dismissed on formal grounds for lack of concern of the complainants. The association subsequently brought an individual complaint under Art 34 ECHR to the European Court of Human Rights. For the first time, the ECHR is now dealing with such complaints, the outcome of the proceedings is completely open, the eagerly awaited decision is expected in winter at the earliest, but more likely in spring 2024.