by Anna Bortolussi
|Law Applied||Constitutional Law; International Human Rights Law; Domestic Environmental Law.|
|Key words||Germany; Federal Court; Constitutional Law; Environmental Law; Human Rights Law.|
Court(s): Federal Court of Germany
Dissenting judgement: No
Filing date: 2020
Last Update: 2021
The Federal Court of Germany was asked to determine whether, as the claimants alleged, Germany’s Federal Climate Protection Act (‘Bundesklimaschutzgesetz’ or ‘KSG’) was in violation of the Human Rights protected by the Basic Law (Germany’s Constitution) and could be in breach of International and European obligations to reduce greenhouse gas (GHG) emissions .
The case before the court is composed of four claims  and several claimants; one of which is a group of adolescents and young adults. The case is similar to that of Urgenda v The Netherlands , and challenges the commitments taken by the German government to reduce the effects of global warming; international (UNFCCC) and European agreements are used to support their claim.
Of the four complaints – 1 BvR 2656/18 – was drafted before the KSG came into force, which set out Germany’s specific target goals for reducing emissions; this was later amended. The Federal Court of Germany addressed the four constitutional complaints together . The courts examined whether the rights of the claimants contained in Articles 1(1) and 2(2) of the Basic Law, could be breached; the articles grant the right to a future consistent with human dignity and the fundamental right to life and physical integrity.
THE ARGUMENTS OF THE PARTIES
The Plaintiffs’ Arguments:
The claimants challenged Germany’s commitment to reducing their GHGs emissions, which is essential to mitigating the effects of climate change . The claimants argued that according to the recommendations contained in a report by the Intergovernmental Panel on Climate Change (IPCC), Germany’s emissions would need to be reduced by 70% from 1990 levels by 2030, to ensure that global warming does not lead to an increase in temperature of more than 2°C. Since the targets contained in the KSG aim to reduce emissions by 55%, this could lead to a rise in temperature of more than 2°C. Furthermore, the plaintiffs claimed that allowing unused emission allocations to be sold to other EU states reduces national incentives to tackle global warming . In doing so, the claimants alleged that the state is failing to fulfil its duty to protect against health impairments and risks to life caused by climate change; the rights enshrined in Article 2 of the Basic law can only be fulfilled by pursuing the target of limiting global warming to a maximum of 1.5°C .
The Defendant’s Arguments:
The German legislator and the German government considered the complaints to be both inadmissible and unfounded. With regards to complaint 1 BvR 78/20–on the matter of violation of the duties of protection that may be owed to the complainants living in Bangladesh and Nepal–the Federal government argued that since the circumstances give rise to non-domestic examples of violation, there cannot be a violation of rights under the Basic Law .
The court reached a unanimous decision and declared that the first three complaints were successful: section 3(1) second sentence and section 4(1) third sentence of the KSG, in conjunction with Annex 2, were incompatible with fundamental rights, since they did not include a provision on updating the targets for reducing GHGs emission from 2031 onwards . The court rejected the complaints on the other matters and stated that the legislator was to enact the provisions for these targets by 31st December 2022.
The court reached this decision by looking first at the admissibility of the claims and then at their substance.
- The court declared that since the claimants are natural persons, the claims are admissible. The constitutional complaint of claimants no. 12 and 13 in proceedings 1 BvR 2656/18 were dismissed as inadmissible .
- The court found that the complainants in Nepal and Bangladesh had standing even though they were not living in Germany . However, the court stated that it had not been established yet whether 1) the Basic Law’s fundamental rights placed an obligation on the German state to contribute to protecting people abroad; and 2) whether there may be any circumstances in which a duty of protection could be violated .
- The court found that the German government was in breach of their obligations and violating the rights of the individuals by not setting target reductions on GHGs emissions from 2031 onwards . However, the court also found that it was not necessary to compel the government to reduce its emissions to limit global warming to 1.5°C instead of 2°C, since this was not stated in the IPCC report. Due to the considerable uncertainty documented in the IPCC report, the court found that as long as Germany limits its emissions to comply with the 2°C target, it is up to the legislator to decide which obligations fulfil the duty of protection that arises from fundamental rights .
- The court also found that by not specifying the amount of emissions permitted after 2031, Germany was violating fundamental rights by failing to take sufficient precautionary measures. In doing so, Germany created a disproportionate risk that impaired the freedoms protected by fundamental rights. Even though there was no certainty that this would occur, the court held that it was necessary to keep that risk to a minimum .
- Lastly, the court touched upon how the duty of protection applies to Germany in an international context. The court recognised that “the obligation to take national climate action cannot be invalidated by arguing that such action would be incapable of stopping climate change” .
| Neubauer, et. al. v Germany  Federal Court of Germany (hereafter ‘Neubauer v Germany’), available in German at http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210324_11817_order.pdf [Accessed 17 May 2022] and in English at http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210324_11817_order-1.pdf [Accessed 17 May 2022].|
 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20.
 Urgenda v The Netherlands C/09(456689/HA ZA 13-1396, The Hague Court of Appeal, Civil-law Division, 9 October 2018.
 Neubauer v Germany, para 39.
 Ibid., para. 31.
 Ibid., para. 60.
 Ibid., para. 159.
 Ibid., para. 89.
 Ibid,, para. 266.
 Ibid., para. 40.
 Ibid., para. 90.
 Ibid., para. 101.
 Ibid., para. 182.
 Ibid., para. 162.
 Ibid., paras. 182 -195.
 Ibid., para. 201.