German Constitutional Court: Climate Change Act is Partially Unconstitutional

Jones Day

Jones Day

Lawmakers must amend the German Climate Change Act to protect fundamental rights of future generations.

In a ruling announced on April 29, 2021, the German Federal Constitutional Court ("Court") delivered a groundbreaking decision on national climate change legislation. The Court instructed the German legislator to revise the Federal Climate Change Act ("FCCA") by the end of 2022. The Court considered the current version of the FCCA partially unconstitutional because it did not specify greenhouse gas ("GHG") emission reduction targets beyond the year 2030. This decision will affect various sectors, such as transportation, energy, manufacturing, construction, agriculture, and waste management.

The objective of the FCCA is to meet national and international climate protection targets. It is based on the nation's commitment under the Paris Agreement and the goal to achieve GHG neutrality by 2050. The FCCA prescribes legally binding climate targets with annually decreasing GHG budgets for certain sectors that are relevant to climate change.

Shortly after the FCCA entered into force, several individuals and NGOs filed constitutional complaints. Above all, the complainants argued that Germany has not put in place sufficient regulations to reduce GHG as soon as possible. They claimed that this failure would be a violation of the constitutional duty to protect fundamental rights against the risks of climate change, especially impacting young and future generations.

The Court dismissed the complainant's argument that the FCCA was per se insufficient to protect fundamental rights. However, the Court held that it was unconstitutional to regulate national climate targets and the annual emission amounts only with effect until 2030. The Court argued in particular that the challenged provisions violate the fundamental rights of the (mostly young) complainants, as the provisions irreversibly offload major emission reduction burdens onto periods after 2030. This is the case because, the Court went on, virtually every constitutional freedom is potentially affected by future emission reduction obligations. As almost all areas of human life are still associated with the emission of GHG, there is a risk of drastic implications after 2030 that will hit the younger generation disproportionately hard. The Court therefore instructed the legislator to adopt adequate safeguards to mitigate such risks of disproportionate fundamental rights infringements in the post-2030 era.

This ruling joins a number of similar successful climate protection lawsuits, for example against France and the Netherlands.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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