VZW Klimaatzaak v Kingdom of Belgium

The court must determine whether the Belgian governments breached their duty of care by failing to take necessary measures to prevent the harmful effects of climate change. Furthermore, the court is asked to set specific binding targets for the governments’ climate policy. The issue of the separation of powers in climate litigation was brought up and has been interpreted by the court.

In 2015, an organisation of concerned citizens, VZW Klimaatzaak, together with 58,000 citizen co-plaintiffs, filed a lawsuit against the Belgian federal government, as well as the regional governments of Wallonia, Brussels and Flanders.[1] They argued that the governments were not fulfilling their obligations regarding the international climate crises, and therefore asked the court to require the Belgian state to adopt a more ambitious climate policy.

The case was delayed for almost three years because of proceedings contesting the language of the case. In the end it was adjudicated in French.[2]

1. 1. The plaintiffs’ arguments

First of all, the plaintiffs argued that the governments did not comply with self-recognised objectives, namely to have reduced greenhouse gas emissions by 40%, or at least by 25%, compared to 1990 levels.[3] These objectives were agreed upon during the COP16 in Cancun in order to achieve the target of limiting global warming to no more than 2°C.[4]

The plaintiffs further claimed that the defendants violated Article 1382 of the Belgian Civil Code, which provides for civil liability.[5] Three cumulative conditions must be satisfied for civil liability: (i) wrongdoing, (ii) harm, and (iii) a causal link between the wrongdoing and the harm.[6]

Additionally, the plaintiffs declared that, by failing to adopt strong mitigation and adaptation measures, the defendants violated Articles 2 (right to life) and 8 (right to private and family life) of the European Convention on Human Rights (ECHR) and Articles 6 (right to life) and 24 (right to health and health services) of the Convention on the Rights of the Child (CRC).[7]

To address these violations, the plaintiffs asked the Court to order the defendants to take necessary measures to reduce the total amount of greenhouse gas emissions from the Belgian territory: namely (i) by 2025, by 48%, or at least 42%, of 1990 levels; (ii) by 2030, by 65%, or at least 55%, of 1990 levels; and (iii) by 2050, to reach zero net emissions.[8]

2. 2. The defendants’ arguments

All defendants concluded that the petition and voluntary interventions were inadmissible and unfounded.[9]

The regional governments (Wallonia, Brussels and Flanders) objected to the fact that the court of first instance lacked jurisdiction to hear the claim, as it would thereby substitute itself for the defendants’ legislative and executive powers.[10]

The court of first instance first analysed whether the claim was admissible. It found that it had jurisdiction to hear the case and that the plaintiffs had standing under Articles 17 and 18 of the Belgian Judicial Code.[11] In light of Article 9(3) of the Aarhus Convention, the court interpreted the standing broadly and considered all citizens personally impacted.[12]

On the substance, the court decided that the governments jointly and individually breached their duty of care according to Article 1382 of the Belgian Civil Code. This breach is based on: (i) mixed results in reducing greenhouse gas emissions; (ii) the lack of effective climate governance; and (iii) since 2011, repeated warnings from the European Union which pointed out that Belgium was lagging behind climate objectives, especially given that the Belgian federal government was fully aware of the certain risk of dangerous climate change.[13] Additionally, the court found that the governments have not taken all necessary measures to prevent the effects of climate change on the lives and privacy of the plaintiffs, as obliged under Articles 2 and 8 of the ECHR.[14] The court also clarified that Articles 6 and 24 of the CRC, unlike Articles 2 and 8 of the ECHR, cannot be interpreted as imposing a positive obligation on signatory states, since the wording of those provisions leaves them free to achieve the objective set out therein.[15]

Despite acknowledging the breach of a duty of care, the court rejected the plaintiffs’ request to set specific binding targets for the governments.[16] The court argued that a request for an injunction cannot be granted without violating the principle of separation of powers. Consequently, the court cannot determine the content of a public authority’s obligations and thus deprive it of its discretion.[17]

Since the court did not address the question of imposing concrete reduction targets for the governments, VZW Klimaatzaak appealed the judgement on 17th of November 2021.[18] The pleadings in the appeal case were published in September and October 2023.[19]

Please find the full judgement and other relevant case documents here.
Last edited on 24 January 2025, with special thanks to the case editor Björn Lambrenos.