The Brussels Court of Appeal (the Court) has decided that the Belgian State, the Brussels Region, and the Flemish Region violated Articles 2 and 8 of the European Convention on Human Rights (ECHR) and their general duty of care for not having sufficiently reduced Belgium’s greenhouse gas (GHG) emissions by 2020. The Court ruled that such violations are not one off violations but continuing violations in view of the insufficient objectives pursued or insufficient measures taken by 2030. The Court therefore ordered the Belgian State and the two Regions to reduce their GHG emissions by 55% in 2030 compared with 1990 (reference year). No breach or fault could be imputed to the Walloon Region, given the results achieved in 2020 and the measures taken for 2030.
Following the Dutch ruling in the Urgenda case, this is the second time worldwide that a court imposes a binding and quantified reduction order.
On 17 June 2021, the French-speaking Court of Brussels, upon a claim initiated by VZW Klimaatzaak in support of individual applicants, ruled that the Belgian State and the three Regions had not taken the necessary measures to prevent the adverse effects of climate change, and that their climate policy was in breach of Articles 2 and 8 of the ECHR (right to life and right to private and family life) and the general duty of care and diligence (Articles 1382-1383 of the old Civil Code). However, the first instance Court did not force the Belgian authorities to reduce GHG emissions by a certain percentage, as it considered that it is not for the judicial power to decide how to address that question. For more information on the first instance decision, see our previous blog post.
In November 2021, VZW Klimaatzaak appealed the decision and asked the Court to confirm that the violation of Articles 2 and 8 of the ECHR by the Belgian State and the three Regions, constituting a fault in the sense of Articles 1382-1383 of the old Civil Code, is a continuing violation in view of the insufficient objectives pursued or the insufficient measures taken by the authorities by 2030.
For the past, VZW Klimaatzaak blamed the Belgian State and the three Regions for not having adopted and implemented climate governance that would have enabled GHG emissions to be reduced by well over 40% compared to 1990 levels.
For the present and the future, VZW Klimaatzaak considered that the Belgian State and the three Regions should have put in place a climate policy enabling them to achieve an -81% reduction in GHG emissions by 2030 compared with 1990.
VZW Klimaatzaak requested that the Belgian State and the three Regions be ordered to reduce GHG emissions by 61% by 2030, under penalty payment of 1MEUR per month of delay in achieving the target set for 2030, with effect from 1 August 2031. VZW Klimaatzaak also requested the Court to order the production of the GHG emissions report for 2030, under penalty payment of EUR 10,000 per day of delay.
The Belgian State and the three Regions lodged cross-appeals and argued that (i) they had not breached the ECHR nor the duty of care and diligence, and (ii) the request for injunction should be dismissed.
After eight-days hearings spread over four weeks between September – October 2023, followed by a last hearing to address the Court’s follow-up questions, the Court rendered a decision on 30 November 2023.
Jurisdiction and admissibility
After confirming that it had jurisdiction to hear the case, the Court confirmed the first instance decision and ruled that both VZW Klimaatzaak and the individual applicants have legal standing:
- As regards VZW Klimaatzaak, the Court noted that it follows from the Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (the so-called “Aarhus Convention”) that Belgium has undertaken to guarantee to environmental protection associations, such as VZW Klimaatzaak, access to justice when they wish to challenge actions contrary to national environmental law (encompassing all rules forming part of the Belgian legal system) and negligence on the part of private individuals and public bodies. The Court added that VZW Klimaatzaak was not only claiming “purely ecological damage” (which exists irrespective of the 36 consequences on individuals and goods) but also “individual ecological damage” (which has repercussions on individuals and goods) and that, in any event, it had an interest in bringing proceedings to claim moral damage in the event of environmental damage.
- Regarding the individual applicants, the Court held that the potential impact of global warming on life and on the private and family lives of each individual applicant is sufficiently proven. The Court also noted that the fact that other people than the ones in the appeal proceedings may suffer the same damage does not transform the personal interest of each individual applicant into a general interest entailing inadmissibility under Belgian law. The Court confirmed that the damage claimed by individual applicants was not only a purely ecological damage but also individual.
Violation of Articles 2 and 8 of the ECHR
First, for the Court, the ECHR is “a living instrument which must be interpreted in the light of current conditions, which may involve taking into account non-binding sources of law […] or even facts such as scientific studies on which there is unanimous agreement or political consensus at international, European or national level” (free translation of para. 152 of the decision). The Court therefore considered that a breach of Articles 2 and 8 of the ECHR can be established when it is proven that the public authorities failed to take the appropriate and reasonable measures which were required as a minimum, in light of the best available scientific knowledge at the time, to enable them to prevent, to the extent of their powers, the infringement of the rights to life and to the respect for the private and family life.
The Court distinguished between two engagement periods: 2013-2020 (for the past) and 2021-2030 (for the present and the future) and analyzed the purported violations of Articles 2 and 8 of the ECHR for both periods.
- For 2013-2020, the Court noted that the Belgian State, the Brussels and Flemish Regions were unable to set targets that were compatible with what the best available climate science, validated by the international political community, required under Articles 2 and 8 of the ECHR, namely reductions in GHG emissions of at least 25% in order to limit global warming to 2°C. The Court added that the -25% threshold 46 had become manifestly insufficient, if not since 2015 then at least since 2018, so that it was necessary to aim for reductions of at least 30% of GHG by 2020. The Court also noted that neither the Belgian State, nor the Brussels and Flemish Regions, demonstrate that an objective of - 30% would have constituted an excessive burden, before concluding that these parties did not take appropriate and reasonable measures to ensure that the Belgian State did its part to prevent the threshold considered as dangerous by the scientific community from being crossed.
- For 2021-2030, the Court held that a 55% reduction in GHG emissions by 2030 is a minimum threshold below which the Belgian State cannot go, failing which it would be in breach of Articles 2 and 8 of the ECHR. The Court relied on inter alia the European Climate Law of 29 July 2021 as demonstration of a European consensus on this point. Therefore, the Court considered that the target of -55% by 2030 must be achieved at the very least so that, as far as the Belgian State, the Brussels and Flemish Regions are concerned, the breach of Articles 2 and 8 of the ECHR committed for the 2013-2020 period is ended. The Court concluded that these authorities failed to demonstrate that they would have taken appropriate and reasonable measures to meet this objective since 2021 until today. However, the Court considered that it could not be prejudged at this stage whether they will fail to comply with Articles 2 and 8 of the ECHR in the future (after the appeal decision) and by 2030 pursuant to the climate governance that they will be implementing.
As far as the Walloon Region is concerned, the Court noted that already in 2014, it had set itself a target of a 30% reduction in GHG emissions by 2020 in its "Climate" decree, and it met and even exceeded this target by reducing its GHG emissions by 38.5% by 2020. Therefore, as regards the 2013-2020 period, the Walloon Region is compliant with Articles 2 and 8 of the ECHR. The same conclusion was reached with respect to the period 2021-2030, considering inter alia the Walloon Region’s ongoing legislative reform to enshrine the 55% target into positive law.
Violation of Articles 1382 and 1383 of the old Civil Code
As preliminary, the Court stressed the importance of States honoring their international commitments to combat global warming and considered that 56 the inadequate contribution of a single State is detrimental to the overall fight against global warming and constitutes a fault. In particular, the minimum national contribution in terms of reducing GHG emissions is the exact measure of the behavior to be expected from a normally prudent and diligent authority, given the risks of dangerous global warming.
On this basis, the Court held that the Belgian State and the Brussels and Flemish Regions did not behave as prudent and diligent authorities considering their GHG emissions reduction targets. They were held to be at fault in relation to the climate policy pursued and implemented for 2013- 2020 and from 2021 to the present day. The Court also identified a fault in that the upward revision of Belgium's climate ambitions for the period 2021-2030 was too late and, to date, the policies put in place are not likely to achieve the GHG emission reduction target of -55% by 2030. However, the Court again considered that it was not possible at this stage to prejudge the faults that these authorities might commit in the future and by 2030.
Interestingly, for both periods combined, the Court also raised ex officio that Belgium’s positive obligations under Articles 2 and 8 of the ECHR had acquired a sufficiently specific content so that their violation alone constituted a fault.
The Court noted that the finding of a breach of Articles 2 and 8 of the ECHR and Articles 1382-1383 of the old Civil Code is sufficient to demonstrate damage to the interests protected by VZW Klimaatzaak (including not only environmental protection in general, but also the protection of present and future generations against climate change and biodiversity loss).
The Court also identified that the following types of damage were established: (i) the phenomenon of eco-anxiety, (ii) the moral damage resulting from an awareness of the inadequacy of the resources deployed by the Belgian authorities to protect the interests of future generations, (iii) the loss of chance to avoid the effects of global warming, and (iv) the excessive reduction in the residual carbon budget in relation to what good climate governance required.
The Court concluded that there is a causal link between the faults and these types of damage, since without the faults committed, the ecoanxiety and the moral damage would have been lower, the residual carbon budget would not have been dented to the same extent, VZW 66 Klimaatzaak’s interests would have been preserved and Belgium would be in a better position to fight effectively against the risk of global warming.
Power of the Court to impose injunctions
The Court reformed the first instance decision and ordered the Belgian State and the Brussels and Flemish Regions to take appropriate measures, in consultation with the Walloon Region, to ensure that Belgium achieves its target of reducing GHG emissions by 55% from 1990 levels by 2030. Such injunction was ordered by the Court as a remedy for the types of damage caused. No financial compensation was ordered. Since the Court limits this injunction to a GHG emissions reduction target that has already been validated at European level, the Court considered that this injunction cannot constitute an infringement of the principle of the separation of powers. The Court also added that it only defines a minimum reduction threshold to be reached in several years' time, below which there is a fault or failure, leaving the authorities the power to adopt the practical measures to achieve this objective.
Penalty payments and request for production of the GHG emissions report for 2030
The Court suspended its decision on the question of penalty payments and VZW Klimaatzaak’s request to product the GHG emissions report for 2030 pending communication of (i) the official GHG emissions figures for the Belgian State and the Brussels and Flemish Regions for the years 2022- 2024, and (ii) the latest integrated national energy and climate plan, which is currently being updated and which will enable to determine the efforts to be made by each entity.
The case can be rescheduled by the more diligent party, as soon as these figures will be obtained, with a view to ruling on the penalty payments and the production of the GHG emissions report for 2030.
The Flemish Minister for the Environment already announced that the Flemish Region will appeal the decision before the Supreme Court, whose power is limited to reviewing the law but not the merits of the dispute. The Prime Minister of Belgium declared that the Belgian State would not appeal the decision, which remains enforceable despite any potential recourse to the Supreme Court.