Skip to content Skip to footer

German climate change law partially censured by the Federal Constitutional Court!

BVerfG 24 March 2021 – 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20 – Klimaschutzgesetz, ECLI:DE:BVerfG:2021:rs20210324.1bvr265618

The German Federal Constitutional Court in Karlsruhe has upheld some of the appeals against the Climate Protection Act on the grounds that it was too vague as to how to achieve the targets for reducing greenhouse gas emissions while at the same time accommodating them with fundamental freedoms.

The Climate Protection Act aims to provide a roadmap for Germany to achieve the 2030 climate targets: to achieve a 55% reduction in greenhouse gas emissions, and to ensure compliance with the Paris agreements, which prohibit a global temperature rise of more than 2°C. It then delegated to the government the task of taking measures for the period from 2031 onwards, by ordinance, from 2025.

The court judged the measures from 2030 onward to be too vague to ensure sufficient compatibility of environmental protection with fundamental rights.

Intergenerational solidarity must also be considered. The Climate Protection Act opens the way for excessive use of emission credits until 2030, so that after that date, future generations will have virtually no decision-making leeway to make the transition to a low-carbon society and will thus be deprived of entire parts of their fundamental rights.

Overall, this decision is good news for climate protection, as the court clarifies the state’s obligations in this area. This decision also establishes an environmental precautionary principle: in the event of serious scientific doubt about the environmental impact of a measure, the necessary precautions must be taken to guarantee future generations the free exercise of their fundamental rights, and in particular their free development in a sustainable world.

Beyond this dynamic reading of fundamental rights, the court reaffirmed the international nature of this protection: since climate change is a global phenomenon, the German state has a duty to fulfil its constitutional obligations to protect the environment through its actions.

This decision is part of a wider trend of using the courts to achieve climate objectives, in the absence of a satisfactory response from governments, France was condemned in February 2021 for climate inaction by the Administrative Court of Paris in the “affaire du siècle”.

In March 2019, the environmental associations Oxfam France, Notre Affaire à tous, Fondation pour la Nature et l’Homme and Greenpeace France filed four petitions before the Administrative Court of Paris in order to obtain recognition of the French State’s failure to combat climate change, to obtain an order to compensate not only their moral prejudice but also the ecological prejudice, and to put an end to the State’s failures to meet its obligations.