European Climate Justice: what does the recent ECHR judgement mean for private companies and potential civil liability?

Recent decision marks milestone

The latest much publicised decision of the European Court of Human Rights (ECHR) brings an upswing to the ongoing climate discussions. On 09.04.2024, the Grand Chamber of the ECHR (case: "Verein KlimaSeniorinnen Schweiz and Others v. Switzerland", application no. 53600/20) ruled - by sixteen votes to one - that Switzerland had violated Articles 6 and 8 of the European Convention on Human Rights ("the Convention"). This decision marks a milestone and sets a legal precedent.

The case concerned a complaint by four women (all over the age of 80) and "Verein KlimaSeniorinnen Schweiz", a Swiss association acting on behalf of its elderly members, who due to advanced age would be particularly at risk from climate change. They claimed that Switzerland had violated Art 8 of the Convention on the right to respect private and family life, because Swiss authorities are not taking sufficient action to mitigate the effects of climate change.  

While the court held that the four individuals had not sufficiently shown that they are personally and directly affected by governmental action or inaction (the ECHR can only deal cases after exhaustion of domestic remedies), the court found with respect to Verein KlimaSeniorinnen Schweiz that the Swiss Confederation exceeded its discretion and had failed to comply with its duties and violated Art 8 of the Convention. The court also found that the national courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the complaints or take it seriously thereby violating the right to fair trial (Art 6 (1) of the Convention).

Are individuals or companies affected?

While the Convention and ECHR's decisions are only binding for the contracting states – and not individuals and companies - there are international examples for climate change disputes in front of national civil courts that are not directed against states (such as the ECHR decision) but against companies with high greenhouse gas emissions.

In the Lliuya case, a Peruvian farmer filed a lawsuit against the energy company RWE before a German civil court on 24 November 2015. The plaintiff living in Huaraz (Peru) claims to be threatened by a flood wave due to the consequences of global warming. He claims that RWE is jointly responsible for around 0.47% of global greenhouse gas emissions and thus, in the plaintiff's opinion, contributes to the melting of the glaciers in the Andes and the risk of flooding in Huaraz. The plaintiff's claim requests RWE to contribute to the costs of the urgently needed protective measures at Lake Palcacocha, such as a protective dam. Evidence has been taken in Huaraz to investigate whether the plaintiff's house is actually threatened by a possible flood wave from the Palcacocha glacier lake located 4,500 meters above the town. Currently, the parties are awaiting the expert reports on this subject. Also, check out last year's roadmap article (here).

In the Netherlands, NGOs have filed a class action against the Royal Dutch Shell (Milieudefensie et al. v. Royal Dutch Shell) on 5 April 2019. The plaintiffs argue that Shell's contributions to climate change and global warming violate its duty of care under Dutch law. The District Court in The Hague explained that insufficient CO₂ reduction targets can actually be seen as a violation of human rights and thus ordered Shell in 2021 to reduce its emissions by 45% by 2030 compared to 2019, including both its own emissions and end-use emissions. The court declared the order provisionally enforceable, meaning that the order has immediate effect, even if one of the parties appeals the ruling. The ruling is under appeal. Also, Shell has recently announced to lower some of its climate change targets such as goals for reducing emissions by 2030 as the Financial Times reported (here).

Potential impact on Austrian companies

Currently, it is rather unlikely that claims against private companies before Austrian civil courts will ultimately be successful. As mentioned above, the Convention is binding for the contracting states but does not impose obligations on private companies.

While the recent ECHR decision could give activists more traction since it addresses the courts' failure to review the case on its merits violating Art 6 of the Convention and thereby requires courts to take responsibility, an individual cannot rely on the Convention to bring a claim against a private company. If an individual decides to bring an injunctive or compensation claim against another individuals or companies, she/he would have to rely on domestic (and EU) laws. With respect to non-contractual damages claims in Austria, an individual would have to show and prove that harm was unlawfully caused and the perpetrator was at fault. Causation and unlawfulness of behaviour by an alleged perpetrator (not to mention fault) are particularly high hurdles.

In the Lliuya case, the Higher Regional Court argued that even lawful actions can trigger compensation claims. The respective provision of the German Civil Code (Section 1004 BGB) on neighbouring law refers to interference with property. The Higher Regional Court recognised that cross-border effects of climate change have fostered a sense of global interconnectedness akin to neighbourly relations and by applying Section 1004 overturned the district court's initial dismissal of the claim, allowing it to proceed to evidentiary stage. Although the Austrian Civil Code (ABGB) contains a somewhat related provision on neighbouring law for emissions emanating from officially approved plants, that these plants have been approved by the competent authorities even though they generate emissions and their operation, as approved, cannot therefore be unlawful. Apart from the fact that the provision only gives rise to compensation claims to the extent that an emission is impermissible, it also must exceed the customary local level and impair customary local use of the property.

Nevertheless, climate change litigation in civil courts should not be underestimated. The recent success of Verein KlimaSeniorinnen Schweiz might encourage other climate activists. By exercising their rights, individuals potentially drive change and might also try to hold accountable those whom they perceive, rightly or not, as responsible for environmental harm. Even if a claim fails, extensive media coverage could potentially result in reputational damage.

While many companies have already recognised the significance of climate change and are well aware of the potential pitfalls of civil litigation waged in the name of climate change, the outcomes of court decisions are never easy to predict, the direction of activist movements even less so. Proactively addressing climate change certainly mitigates the legal risks and may prove decisive if a company faces with a climate change claim in civil court. What is more, it may contribute to a more sustainable future.

Authors: Sara Khalil, Verena Schnittler