Pascal Pichonnaz (ELI President; Professor, University of Fribourg) welcomed participants and outlined the webinar’s aim and framework. The landmark 9 April 2024 ruling by the Grand Chamber of the Strasbourg Court in Verein Klimaseniorinnen Schweiz and Others v Switzerland, sparked polarised reactions regarding the court’s role in climate policymaking, among many other contentious issues, he explained. Pichonnaz pointed to the Swiss parliament's rejection of the ruling and emphasised the case’s significance in heralding a new era in climate change litigation, a central focus of ELI’s Climate Justice – New Challenges for Law and Judges project launched in 2021. ‘As a voice of the legal community in Europe’, he continued, ‘ELI felt a duty to organise this roundtable to better understand and assess the impact of the Klimaseniorinnen case and related rulings’. Pichonnaz went on to introduce the distinguished panellists.
Véronique Boillet (Professor, University of Lausanne) stressed her responsibility as a Swiss scholar to oversee the implementation of the ECtHR judgments, noting the Strasbourg Court’s finding of insufficient measures undertaken by Switzerland to curb greenhouse gas emissions, in violation of Article 8 of the European Convention on Human Rights.
Boillet highlighted the Swiss parliament’s rejection of the ruling, which put into question the Court’s legitimacy, accused the Court of overstepping the boundaries of the separation of powers and stated that the Court, by its judgment, was undermining democratic processes. She emphasised Switzerland’s historical compliance with the Court’s judgments but anticipated significant challenges in implementing the ruling across federal, cantonal, and communal authorities, particularly in terms of coordination. She concluded that uncertainty also surrounds the Committee of Ministers’ role in evaluating Switzerland’s actions in response to the judgment, before outlining options available to the Court should Switzerland refuse to comply. In her view, the statements by Switzerland’s parliament were highly problematic in that they call into question the legitimacy of the Court and judicial review in general. They imply the Court has engaged in judicial activism, even though it has a rich body of case law in environmental matters to support its conclusion. Among other things, she pointed to the Court’s emphasis on State discretion in lessening the effectiveness of claims that the Court is undermining the separation of powers.
Luca De Carli (Head of Unit CLIMA A1 Strategic Coordination, Legal & Institutional, DG for Climate Action, European Commission) emphasised the EU’s compliance and alignment with relevant standards, an important conclusion in light of the interconnectedness between the EU Charter of Fundamental Rights and the Convention. He voiced appreciation of the standard set in the Klimaseniorinnen judgement, stressing that the right to a protected climate is crucial, given the existential context and severities of climate change. Among other things, De Carli acknowledged the importance of States’ discretion, which must, however, operate within a well-defined framework of robust rules, long-term strategies (eg Paris Agreement), intermediate targets and coherent laws. De Carli observed that the case prompts considerations on ambitious climate actions amidst societal and economic trade-offs, advocating for comprehensive policies integrating social impacts. Overall, he again expressed confidence in EU’s compliance with the ruling and believed Switzerland could meet its climate obligations through effective climate policies.
In his intervention, Matthias Keller (Co-Reporter of ELI Climate Justice project; Judge, Aachen Administrative Court) put Klimaseniorinnen in perspective with German Neubauer case. Preliminarily, however, he stated that the positive aspects of Swiss climate policies should not be forgotten, urging a balanced perspective following the Klimaseniorinnen ruling. Among other things, Keller then highlighted the key legal question occurring in climate cases: the adequacy of climate laws, and referenced the Dutch Urgenda ruling and Neubauer decision, both affirming that insufficient climate laws violate human rights. He then focused on Klimaseniorinnen’s innovative approach to NGO standing, which, in his view, enhanced procedural justice. Keller contrasted this with Germany, where individual standing was granted to young people for the purpose of intergenerational equity, but where at the same time NGOs were denied standing. Finally, he supported the Strasbourg court’s emphasis on positive obligations and practical guidelines for States to meet their climate commitments.
Kerem Altiparmak (Senior Legal Programme Consultant, International Commission of Jurists) discussed the challenges relating to the implementation of the KlimaSeniorinnen judgment and its erga omnes effect. He emphasised that the judgment imposes binding obligations on Switzerland under Article 46 of the Convention and that its reasoning outlines what Switzerland failed to do and what needs to be done, setting a precedent for other States. Altiparmak highlighted that although the judgment directly binds Switzerland, its principles, including setting clear targets and measures for reducing greenhouse gas emissions, apply to all Contracting Parties to the European Convention on Human Rights. He anticipated that similar obligations will be imposed on other States with pending cases, reinforcing the principle of subsidiarity and the broader impact on international climate policy compliance.
Róbert Ragnar Spanó’s (Partner at Gibson Dunn; Former President of the European Court of Human Rights) intervention was focused on the main takeaways of the trilogy of ECtHR climate rulings, Klimaseniorinenn, Duarte Agostinho and Carême and the future of European climate change litigation against States and corporates in light of these rulings. As a preliminary consideration, Spanó said that human rights law often entails binary, with clear right or wrong answers, which contrasts with the complexity of climate change issues and makes it inadequate to address them. He then mentioned a process resulting from the judgements that marks a major shift within the future climate change litigations in Europe: the exclusion of individual victim status while expanding associational standing, allowing organisations to litigate without proving individual victimhood. Underscoring the court’s stance against being the primary venue for climate litigation, Spanó insisted on the exhaustion of domestic remedies first. Among other things, he recalled, however, that while the court rejected claims that climate change is a global issue with extraterritorial jurisdiction, it acknowledged that States have obligations under Article 1 of the Convention for embedded emissions from imported goods and this significantly impacts Switzerland’s accountability.
The interventions were followed by lively discussions.
The recording is available below.
