Transcript
A. Introduction
In previous instalments of “Lost in Translation”, we covered the basics concerning fundamental rights under the German constitution (GG).
In march 2021, the Federal Constitutional Court (BVerfG) issued its monumental “climate change decision” (Klimaschutzbeschluss), containing instrumental passages on various human rights aspect related to the climate. Among these were…
- whether the right to human dignity might play a role
- under which conditions the state has the duty to protect health and property against climate change
- how the idea of negative rights may be defended in an intertemporal or intergenerational manner.
B. Protective duties
Public authorities in Germany are obliged to actively protect certain constitutional goods, including several rights held by the individual. Among these are the right to human dignity acc. to Art. 1(1), the right to life and physical integrity as per Art. 2(1), as well as property rights (Art. 14). The Court clarifies that they also apply in principle to people residing abroad.
Claiming that the state has breached its duty to protect human dignity is obviously the heftiest accusation. However, the complainants in the 2021 case did not convince the Court, even when making reference to the “social minimum of existence” recognised as guaranteed by Art. 1(1) in conjunction with the welfare state principle in Art. 20(1).
Emitting greenhouse gases – including, of course, the private sector – directly leads to the rise in average temperature that is threatening individual health, the production of food, property close to bodies of water, etc. That being said, the Court limits the dignity guarantee to protection against future states of affairs bordering on the apocalyptic. Below that treshold, the aforementioned lower-tier protective duties apply.
In any case, the standard of review as regards protective duties is limited to evidently unsuited or substantially insufficient measures. Under these standards, the Court does not find the actions Germany has taken to reduce emissions and mitigate already materialising effects of climate change to be lacking.
C. Right to climate protection
Meanwhile, the Court infers from the explicit duty to protect the natural foundations of life (Art. 20a) not only a duty to protect the climate but specifically to reach climate neutrality. Moreover, it does not accept the argument that unilateral reduction measures are inefficient unless combined with other countries’ efforts.
Perhaps even more controversially, the Court equivocates the duty emanating from Art. 20a GG with the Paris climate goals referenced by the domestic Climate Protection Act (KSG). This results in the legislature being bound to certain carbon dioxide budgets, which may be calculated based e.g. on relative population size or historic responsibilities.
Unsurprisingly, this result has provoked criticism. The Court specifies an inconcrete but binding constitutional provision with a subconstitutional law referring to another, still somewhat abstract provision in international law. It justifies this approach with reference to how essential the international trust in Germany’s adherence to the climate goals is for climate protection as a whole.
Art. 20a thus plays an important part in filling with meaning the state’s protective duties and its authority to restrict people’s freedom to emit greenhouse gases. Nevertheless, Art. 20a GG is decidedly not a subjective right. Unwilling to revise its dogma on the scope of protective duties, the Court had to resort to different means in order to empower the complainants.
D. Intertemporal freedom
What the Court came up with next is without a doubt the most controversial part of the decision. The BVerfG poses that the irreversible nature of greenhouse gas emissions (translated into the expenditure of the national carbon dioxide budget) necessarily results in heavier restrictions on the exercise of fundamental freedoms in the future. It is up to the legislature to equitably distribute these “freedom chances“ between present and future or, as some would interpret it, between present and future generations.
Consequently, the latent danger of extensive (if justified) restrictions on any number of constitutional freedoms is itself justified only if the legislature conforms to the demands of Art. 20a and to the principle of proportionality. The legislator is required to initiate the transformation towards climate neutrality in time and transparently. Any German resident may file a constitutional complaint presently and individually if these requirements are not met.
This way, the Court arrives at the conclusion that parts of the Climate Protection Act authorising the federal government to fix certain climate goals left too much discretion to the executive. Indeed, the political consequences of the verdict were much greater, even resulting in a legislative overshoot.