Verein KlimaSeniorinnen Schweiz and others v. Switzerland

Summary of the judgment of the Grand Chamber of the European Court of Human Rights of
9 April 2024
prepared on behalf of the KlimaSeniorinnen Schweiz association
fromlic. iur. Cordelia Bähr, LL.M. Public Law (LSE), Attorney-at-Law
Lead lawyer of the association KlimaSeniorinnen Schweiz

Status: 26 April 2024

Table of contents
I.

Summary of the judgment of the Grand Chamber of the European Court of Human
Rights of 9 April 2024 ............................................................................................................................................ 4
A.

Introduction........................................................................................................................................................... 4

B.

Starting point ........................................................................................................................................................ 4C.

The role of the European Court of Human Rights in the context of climate change ....... 5

D.

Causality in the context of climate change ........................................................................................... 7E.

Principles for the interpretation of the ECHR in the context of climate change ................ 8

F.

Right of individuals to file applications in the context of climate change .............................. 8

G.

Right of associations to file applications in the context of climate change ......................... 9H.

When is the "right to life" (Art. 2 ECHR) affected in the context of climate change? ..... 11I.

When is the "right to private and family life" (Art. 8 ECHR) affected in the context ofclimate change?............................................................................................................................................... 11J.

What must the Council of Europe states do in the context of climate change to fulfil
their duty to protect human rights? ....................................................................................................... 131.

The duty of states to protect the environment (established case law) .......................... 13

2.

States' margin of appreciation in the context of climate change...................................... 13

3.

A state's duty to protect in the context of climate change .................................................. 14

4.

Consumption-related “embedded” emissions ........................................................................... 16

K.

On what grounds did the court come to the conclusion that Switzerland (as at 14
February 2024) had not fulfilled its duty to protect human rights under Art. 8 ECHR? 16

L.

To what extent and against whom has Switzerland violated access to justice (Art. 6
ECHR)? .................................................................................................................................................................. 19II.

Annex (extracts from the judgment of the Grand Chamber of the European Court of
Human Rights of 9 April 2024) ........................................................................................................................ 22
A.

Facts in relation to climate change emerging from the material available to the Court ...
.................................................................................................................................................................................. 22

B.

Relevant legal framework and practice ................................................................................................ 25C.

The Law ................................................................................................................................................................ 30
1.

Scope of the complaint .......................................................................................................................... 30

2.

Preliminary points regarding the alleged violation of Art. 2 and 8 ECHR ....................... 30

3.

General considerations relating to climate-change cases regarding alleged
violation of Art. 2 and 8 ECHR.............................................................................................................. 32

4.

Victim status and standing in the climate change context regarding the alleged
violation of Art. 2 and 8 ECHR.............................................................................................................. 37

5.

Applicability of Art. 2 ECHR in the climate change context .................................................. 412

6.

Applicability of Art. 8 ECHR in the climate change context .................................................. 42

7.

Applicability of Arts. 2 and 8 ECHR in the present case......................................................... 42

8.

Merits regarding Art. 8 ECHR ............................................................................................................... 44

9.

Victim status and standing regarding the alleged violation of Art. 6 and 13 ECHR . 51

10. Applicability of Art. 6 ECHR in the climate change context .................................................. 51
11. Applicability of Art. 6 ECHR in the present case ........................................................................ 52
12. Merits regarding Art. 6 ECHR ............................................................................................................... 53
13. Considerations regarding Art. 13 ECHR ........................................................................................ 55
14. Considerations regarding Art. 46 ECHR ........................................................................................ 55

3

I.

Summary of the judgment of the Grand Chamber of the European Court of
Human Rights of 9 April 2024

A.

Introduction

1

The European Court of Human Rights (ECtHR) based its judgment in the case of Verein
KlimaSeniorinnen Schweiz and others v. Switzerland1 of 9 April 2024 on over 100 pagesof facts and law recognised by Switzerland and the member states of the Council ofEurope. With regard to the assessment of climate targets, the Court not only had
available the opinions of Switzerland but also the opinions of a further 31 Council ofEurope states due to the similar case Duarte Agostinho and Others v. Portugal and 32
Others2, which was judged in parallel.

2

The cut-off date for the facts on which the judgment was based, the relevant legal
framework and the relevant practice was the date of the judgment on 14 February
2024. The ECtHR took into account all national and international developments up tothat point in its decision-making process. This also applies in particular to the vote of 18
June 2023 on the Federal Act on Climate Protection Targets, Innovation andStrengthening Energy Security (Climate Act).3

3

The following statement is limited to summarising the considerations of the Grand
Chamber of the ECtHR. Apart from the thematic weighting inherent in a summary, it
contains no evaluations or analyses of its own. It is intended to enable a wide range ofreaders to familiarise themselves with the 260-page judgment in depth and in areasonable amount of time. The summary is based on the judgment extracts in the
appendix.

B.

Starting point

4

The reports of the Intergovernmental Panel on Climate Change ("IPCC") form the mainscientific basis. The IPCC states:

1

2

3

4

−

The world is not on the right track; the promises made under the Paris
Agreement4 are not being fulfilled (gap between the measures implemented andthe promises made by states).

−

Failure to meet the targets of the Paris Agreement will have a significant negative
impact on people's lives and well-being.

Verein KlimaSeniorinnen Schweiz and others v. Switzerland (Grand Chamber), application

no. 53600/20, available at https://hudoc.echr.coe.int/?i=001-233206.
Duarte Agostinho and Others v. Portugal and 32 Others (Grand Chamber), application
no. 39371/20, available at https://hudoc.echr.coe.int/?i=001-233261.
Federal Act on Climate Protection Targets, Innovation and Strengthening Energy Security,
SR 814.310.
Paris Agreement (Climate Agreement), SR 0.814.012 (Instrument of ratification deposited by
Switzerland on 6 October 2017. Entered into force for Switzerland on 5 November 2017).

4

5

−

The window of opportunity for limiting global warming to 1.5°C above preindustrial levels is closing rapidly. The choices and actions implemented in thisdecade are of the utmost importance and will have impacts for thousands ofyears.

−

Compliance with a CO2 budget and a net zero policy are important for achieving
the target. The IPCC has calculated global emission reduction pathways and a
global CO2 budget.

In the first global stocktake of COP285 of 13 December 2023, the Parties (including theCouncil of Europe)−emphasised the need for urgent action and support to keep the 1.5°C target
within reach and address the climate crisis in this critical decade,−committed to accelerating action in this critical decade, based on the best
available science, reflecting equity and the principle of common but differentiatedresponsibilities and respective capabilities in the light of different national
circumstances and in the context of sustainable development and efforts toeradicate poverty;−

noted with concern the pre-2020 gaps in both mitigation ambition andimplementation by developed country Parties and that the IPCC has earlier
indicated that developed countries must reduce emissions by 25-40% below
1990 levels by 2020, which was not achieved;−

expressed concern that the carbon budget consistent with achieving the Paris
Agreement temperature goal is now small and being rapidly depleted andacknowledges that historical cumulative net carbon dioxide emissions alreadyaccount for about four fifths of the total carbon budget for a 50 per centprobability of limiting global warming to 1.5°C.

6

The realisation that the consequences of global warming have an impact on humanrights is not new. The UN General Assembly has put the issue of global climate
protection for present and future generations on the agenda nearly every year since
Resolution No. 43/53 on the protection of global climate for present and future
generations of mankind adopted on 6 December 1988, resulting in the adoption ofnumerous resolutions. Several senior judiciaries in Council of Europe states have also
already recognised this (e.g. in Germany, the Netherlands and Belgium).

C.

The role of the European Court of Human Rights in the context of climatechange7

To a large extent measures designed to combat climate change and its adverse effects
require legislative action. In a democracy, such action necessarily depends on
democratic decision-making. Judicial intervention, including by the ECtHR, cannot

5

FCCC/PA/CMA/2023/L.17, 13 December 2023.

5

replace the action which must be taken by the legislative and executive branches ofgovernment.
8

However, democracy cannot be reduced to the will of the majority of the electorate andelected representatives, in disregard of the requirements of the rule of law. The remit ofdomestic courts and the ECtHR is therefore complementary to those democratic
processes.

9

The task of the judiciary is to ensure the necessary oversight of compliance with legal
requirements - in this case: the European Convention on Human Rights (ECHR 6). Where
complaints lodged before the Court relate to State policy with respect to an issue
affecting the Convention rights of an individual or group of individuals, this subject
matter is no longer merely a question of politics or policy, but also a matter of law. In
such instances, the ECtHR retains competence, albeit with substantial deference to thedomestic policy-maker. The domestic authorities' margin of appreciation is notunlimited and is subject to supervision by the ECtHR, which must be satisfied that theeffects produced by the impugned national measures were compatible with the ECHR.

10The ECtHR's competence in the context of climate-change litigation cannot therefore,
as a matter of principle, be excluded. The ECtHR, in its role as a judicial body entrustedwith the enforcement of human rights cannot ignore the fact that the widely recognised
inadequacy of existing state measures to combat climate change is exacerbating theadverse consequences and the resulting threats to human rights.

11

In the context of climate change, intergenerational burden-sharing assumes particularimportance, both in regard to the different generations of those currently living and inregard to future generations. Future generations are likely to bear an increasingly
severe burden of the consequences of present failures and omissions to combat
climate change. At the same time, they have no possibility of participating in current
decision-making processes. By their commitment to the United Nations Framework
Convention on Climate Change (UNFCCC)7, the States Parties have undertaken toprotect the climate system for the benefit of present and future generations ofhumankind (Art. 3 UNFCCC). The intergenerational perspective underscores the risk
inherent in political decision-making processes, namely that short-term interests may
come to prevail over the pressing needs for sustainable policy-making, rendering thatrisk particularly serious and adding justification for the possibility of judicial review.

12

Given the need to address the acute threat of climate change and the general
acceptance that climate change is a common concern of humanity, the question is nolonger whether, but how human rights courts should address the impact of climatechange on the enjoyment of human rights.

6

Convention for the Protection of Human Rights and Fundamental Freedoms, SR 0.101.
United Nations Framework Convention on Climate Change, SR 0.814.01.

7

6

13

In this respect, the existing, established case law of the ECtHR in relation to otherenvironmental issues8 that affect human rights (namely: human health and life) cannot
be directly transposed to the context of climate change due to fundamental
differences.9 Rather, the ECtHR considers it appropriate to adopt an approach which
both acknowledges and takes into account the particularities of climate change and is
tailored to addressing its specific characteristics.

D.

Causality in the context of climate change

14

Causality or questions of causation have a bearing on the assessment of victim status
as well as on the substantive aspects of the state's obligations and responsibility. Fourdimensions of causality must be distinguished and assessed:−

The link between greenhouse gas emissions and the resulting accumulation ofgreenhouse gases in the global atmosphere and the various phenomena ofclimate change: This is a matter of scientific knowledge and assessment; thereports produced by the IPCC are of particular importance here.

−

Link between the adverse effects of climate change and their impact on humanrights: The scientific, political and judicial recognition of a link between theadverse effects of climate change and the enjoyment of (various aspects of)human rights must be taken into account by the ECtHR. This is because the ECHR
is a living instrument that must be interpreted in the light of present-day
conditions and in accordance with developments in international law. The ECtHR
therefore uses the following as a starting point for its further assessment:
Anthropogenic climate change exists; it poses a serious current and future threat
to the enjoyment of human rights guaranteed under the Convention; States areaware of it and capable of taking action; the relevant risks are projected to belower if the temperature increase is limited to 1.5°C; and current global efforts tomitigate climate change are insufficient to meet the latter target.
−

The link between harm or the risk of harm to specific individuals or groups ofindividuals and the actions or omissions of State authorities: In the context ofclimate change, questions of individual victim status or the specific content ofstate obligations cannot be determined based on a strict conditio sine qua non10
requirement. Rather, the particularities of climate change and its specificcharacteristics must be considered. A state's duty to protect is triggered

8
9

10

Mudslides, earthquakes, toxic air pollution, noise, etc.
In the context of climate change, there is no single source of damage. CO 2 in itself is not harmful
per se. There are no limits to greenhouse gas emissions. The effects of global warming are
manifold, and the immediate danger to humans arises from the consequences of climatechange. Entire population groups are or will be affected, in different ways and to varying
degrees. The sources of greenhouse gas emissions are linked to fundamental activities ofhuman society, and mitigation measures are necessarily a matter of comprehensive regulation.
The decarbonisation of economies and lifestyles can only be achieved through comprehensive
and far-reaching change.
Literally, Latin for a “condition without which not”, a necessary condition7

depending on the severity of the risk of adverse consequences on human lives,
health and well-being.
−

Attribution of responsibility for the adverse effects of climate change given thatmultiple actors contribute to the overall quantities and effects of greenhouse gas
emissions: Each state has its share of responsibility for taking measures tocombat climate change. A state should not evade its responsibility by pointing to
the responsibility of other states. As far as the "drop in the ocean" argument isconcerned, the ECtHR has consistently held that it need not be determined withcertainty that the harm would not have occurred "but for" the failing or omission of
the authorities. It is sufficient for the state to be held responsible that thereasonable measures that the domestic authorities failed to take could have hada real prospect of altering the outcome or mitigating the harm. The precautionary
principle must also be considered in this assessment (Art. 3 UNFCCC).

E.

Principles for the interpretation of the ECHR in the context of climatechange15

The ECtHR has the task of ensuring compliance with the ECHR. According to its
established case law, the ECHR must be interpreted as far as possible in harmony withother rules of international law, in particular the Paris Agreement. Factual issues anddevelopments affecting the enjoyment of human rights must also be taken into
account. The interpretation and application of the ECHR must therefore also consider
the pressing scientific evidence and the growing international consensus regarding thecritical effects of climate change on the enjoyment of human rights. Failure by the
ECtHR to maintain a dynamic and evolutive approach would risk rendering it a bar toreform or improvement in societies.

F.

Right of individuals to file applications in the context of climate change

16

There is cogent scientific evidence that climate change has already contributed to anincrease in morbidity and mortality, especially among certain more vulnerable groups,
and that without decisive action by states, climate change risks becoming irreversible
and catastrophic.

17

However, in the context of climate change, every person may be directly affected by
the adverse effects of climate change in one way or another and to varying degrees, orbe at real risk of being directly affected. Potentially, an indefinite number of people
could therefore claim the status of victim. The outcomes of complaints are also notlimited to specific identifiable individuals or groups but inevitably affect the population
more widely. Also, the outcome of legal proceedings will inevitably be forward-looking interms of what is required to ensure effective mitigation of the adverse effects of climatechange or adaptation to its consequences.

8

18

Against this background, the ECtHR was faced with the question of how the necessary,effective protection of ECHR rights can be guaranteed without undermining theexclusion of the actio popularis11 from the Convention system.

19

Given these specific characteristics of climate change, the ECtHR sets out thefollowing criteria for the victim status of individuals:−

the applicant must be subject to a high intensity of exposure to the adverse
effects of climate change, that is, the level and severity of (the risk of) adverse
consequences of government action or inaction affecting the applicant must be
significant; and−there must be a pressing need to ensure the applicant’s individual protection,owing to the absence or inadequacy of any reasonable measures to reduce harm.

These special criteria for determining the victim status of individuals is without
prejudice to cases involving a specific individual loss or damage already suffered by thecomplainant.
20

The threshold for fulfilling these criteria is especially high. In view of the exclusion ofactio popularis, the question of whether an individual complainant meets this thresholddepends on a careful assessment of the specific circumstances of the case. In thiscontext, the ECtHR will have due regard to circumstances such as the prevailing local
conditions and individual specificities and vulnerabilities, the actuality/remotenessand/or probability of the adverse effects of climate change over time, the specificimpact on the life, health or well-being of an applicant, the magnitude and duration of
the harmful effects, the scope of the risk (localised or general) and the nature of theapplicant’s vulnerability.

G.

Right of associations to file applications in the context of climate change

21

The ECtHR considers it appropriate, also with regard to the Aarhus Convention 12, torecognise the possibility of a collective action to protect the human rights of thoseaffected or at risk of being affected by the adverse effects of climate change, rather
than only those brought by individuals. Namely:

11
12

−

In modern societies, when citizens are confronted with particularly complex
administrative decisions, recourse to collective bodies such as associations is
one of the accessible, sometimes the only, means available to them to defend
their specific interests effectively.

−

This is particularly true in the context of climate change, which is a global andcomplex phenomenon. It has multiple causes and its adverse effects do not only

Popular action; action in the public interest.
Convention on Access to Information, Public Participation in Decision-making and Access toJustice in Environmental Matters (Aarhus Convention), SR 0.814.07.

9affect a specific individual or group of individuals but are rather "a common
concern of humankind" (preamble of the UNFCCC).
−

There has been an evolution in today's society towards recognising theimportance of associations to litigate issues of climate change on behalf ofaffected individuals. Climate change litigation often involves complex issues oflaw and fact that require significant financial and logistical resources andcoordination, and the outcome of litigation inevitably affects the position of many
individuals.

−

In view of the particular importance of burden-sharing between generations inthis context (para. 11), collective action by associations or other interest groups
may be one of the only means by which the voice of future generations, who areat a distinct representational disadvantage, can be heard and through which they
can seek to influence the relevant decision-making processes.

−

Given the urgency of addressing the adverse effects of climate change and theseverity of its consequences, including the grave risk of their irreversibility, Statesshould take adequate action to secure the ECHR rights not only of those persons
within their jurisdiction who are currently affected by climate change but also of
those persons whose enjoyment of ECHR rights may be severely and irreversibly
affected in the future in the absence of timely action.

22

However, the exclusion of actio popularis requires that the possibility for associations
to lodge complaints with the ECtHR is subject to certain conditions.

23

Against this background, the standing of associations to apply to the ECtHR isdetermined by the following factors. In order to be recognised as having standing, theassociation in question must be:

24−

lawfully established in the jurisdiction concerned or have standing to act there;−

able to demonstrate that it pursues a dedicated purpose in accordance with its
statutory objectives in the defence of the human rights of its members or otheraffected individuals within the jurisdiction concerned, whether limited to or
including collective action for the protection of those rights against the threatsarising from climate change;−

able to demonstrate that it can be regarded as genuinely qualified andrepresentative to act on behalf of members, or other affected individuals within
the jurisdiction who are subject to specific threats or adverse effects of climatechange on their lives, health or well-being as protected under the ECHR.

In this context, the ECtHR takes into account factors such as the purpose for which theassociation was established, that it is of non-profit character, the nature and extent of
its activities within the relevant jurisdiction, its membership and representativeness, its
principles and transparency of governance and whether on the whole, in the particular
circumstances of a case, the grant of such standing is in the interest of the proper
administration of justice.
10

25

In order for an association to have standing, the persons on whose behalf the action
was brought do not need to fulfil the requirements for the victim status of individuals inconnection with climate change (para. 19 et seq.).

26

If the right of associations that fulfil the above conditions to apply to national courts islimited, the ECtHR may also, in the interests of the proper administration of justice, take
into account whether, and to what extent, its individual members or other affectedindividuals have enjoyed access to a court in the same or related domestic
proceedings.

H.

When is the "right to life" (Art. 2 ECHR) affected in the context of climatechange?

27

A state's failure to combat climate change can, by its very nature, jeopardise human life.
The applicants have provided compelling scientific evidence that demonstrates a link
between climate change and an increased risk of mortality, particularly among
vulnerable groups.

28

However, the applicability of Art. 2 ECHR cannot operate in abstracto; there must be a"real and imminent" threat to life. In the context of climate change, the criterion of "realand imminent" can be understood to mean a "serious, genuine and sufficiently
ascertainable threat" to life, containing an element of material and temporal proximity ofthe threat to the alleged harm.

29This threat may exist in principle in circumstances such as the present case, as the
IPCC has established with high confidence that older adults are at "highest risk" oftemperature-related morbidity and mortality. However, it is questionable whether thestate's inaction had such life-threatening consequences that it could trigger theapplicability of Art. 2 ECHR. However, as the state's duty to protect in the environmental
context under Art. 8 ECHR largely overlaps with that under Art. 2 ECHR, this question
can be left open.

I.

When is the "right to private and family life" (Art. 8 ECHR) affected in thecontext of climate change?

30

Art. 8 ECHR includes the right of the individual to effective protection by the Stateauthorities from serious adverse effects of climate change on his or her life, health,well-being and quality of life.

31

The applicability of Art. 8 ECHR depends on the "actual interference" or the existence ofa "relevant and sufficiently serious risk” of harm to life, health, well-being and quality oflife. When examining whether this requirement is met, reference must be made to thecriteria on the victim status of individuals (para. 19 et seq.) or the standing of
associations to apply to the Court (para. 23 et seq.).

11

32

33

The KlimaSeniorinnen Schweiz association has standing, which is why Art. 8 ECHR isapplicable to its complaint. This is because the KlimaSeniorinnen Schweiz association−is lawfully established,−pursues, in accordance with its statutes, the aim of defending the human rights of
its members and other affected persons against the threats arising from climatechange in Switzerland,−

is qualified and representative to act on behalf of those individuals who may
arguably claim to be subject to specific threats or adverse effects of climatechange on their lives, health, well-being and quality of life as protected by the
ECHR.

−

In addition, the individual applicants had no access to a court in Switzerland.
Therefore, the granting of legal standing to the KlimaSeniorinnen Schweiz
association is in the interests of the proper administration of justice.

In contrast, the individual applicants do not have victim status, which is why Art. 8 ECHR
is not applicable to their complaint. The individual applicants did not fulfil the criteria forthe victim status of individuals in the context of climate change.
−

Whilst the individual applicants have provided information and evidence showing
how climate change is affecting older women in Switzerland, particularly in
relation to the increasing occurrence and intensity of heatwaves, it is clear thatthe data provided by the individual applicants is relevant and probative. The datasubmitted by the individual applicants, which originates from domestic andinternational expert bodies and whose relevance and probative value is notquestioned, shows that several summers in recent years have been among thewarmest ever recorded in Switzerland and that heatwaves are associated withincreased mortality and morbidity, particularly among older women. Althoughthese findings undoubtedly suggest that the individual applicants belong to agroup that is particularly susceptible to the effects of climate change, this is not
sufficient given the high threshold that applies to the victim status of individuals in
the context of climate change.

−

And even while it may be accepted that heatwaves affected the individual
applicants 2, 3 and 4’s quality of life, it is not apparent from the documents thatthey were or are at risk of being exposed to the adverse effects of climate changewith a degree of intensity giving rise to a pressing need to ensure their individual
protection. The individual applicants did not suffer from any critical medical
condition whose possible aggravation linked to heat waves could not be
alleviated by the adaptation measures available in Switzerland or by reasonable
personal adaptation measures. This assessment is also made given the extent of
the heatwaves affecting Switzerland.

12

J.

What must the Council of Europe states do in the context of climatechange to fulfil their duty to protect human rights?

1.

The duty of states to protect the environment (established case law)34

According to established case law of the ECtHR on the exercise of duties to protect in
the context of environmental issues−

states have an obligation to create a legislative and administrative framework
designed to provide effective protection of human health and life;−and states must apply this legislative and administrative framework in a timely andeffective manner.

35

When assessing whether a state has complied with its positive obligations, the court
must examine whether the state has acted within its margin of appreciation. The ECtHR
does not have the task of determining what exactly should have been done, but it canassess whether the authorities approached the matter with due diligence and gave
consideration to all competing interests.

36

The governmental decision-making process is also important. This must necessarily
include appropriate investigations and studies on complex issues such asenvironmental and economic policy so that the authorities can strike a fair balance
between the various conflicting interests at stake. In addition, the public must haveaccess to the conclusions of the relevant studies so that they can assess the risk towhich they are exposed. Affected persons must have the opportunity to participate
effectively in the relevant proceedings and to have their relevant arguments examined,even if the actual design of the process falls within the State’s margin of appreciation.

37

The ECtHR takes these principles into account when determining the content of astate's duty to protect under Arts. 2 and 8 ECHR in relation to climate change. However,given the special nature of climate change compared to the isolated sources ofenvironmental harm previously addressed in the Court's case-law, the generalparameters of the positive obligations must be adapted to the specific context ofclimate change.

2.

States' margin of appreciation in the context of climate change

38

In accordance with the principle of subsidiarity, the national authorities are primarily
responsible for securing the rights and freedoms defined in the Convention; they havea margin of appreciation in this respect, subject to the supervisory jurisdiction of the
ECtHR.

39

Given the scientific evidence on how climate change affects ECHR rights, and taking
into account the scientific evidence on the urgency of combating the adverse effects
of climate change, the severity of its consequences, including the grave risk of theirreaching the point of irreversibility, and the scientific, political and judicial recognition ofa link between the adverse effects of climate change and the enjoyment of (various
13aspects of) human rights, the ECtHR considers it justified that climate change should begiven considerable weight in the weighing-up of any competing considerations. Other
factors militating in the same direction include the global nature of the effects ofgreenhouse gas emissions, as opposed to environmental harm occurring only within astate's own borders, and the generally inadequate track record of states in taking action
to address the risks of climate change and the IPCC's finding of "a rapidly closing
window of opportunity to secure a liveable and sustainable future for all." These
circumstances highlight the gravity of the risks arising from non-compliance with theoverall global objective.
40

Based on the principle that states must have a certain margin of appreciation, theabove considerations entail a distinction between the scope of the margin:−

Reduced margin of appreciation in setting the necessary aims and objectives tocombat climate change (due to the nature and gravity of the threat and thegeneral consensus on the importance of effective climate change mitigation
through greenhouse gas reduction targets in line with the Parties' commitment toachieve carbon neutrality).

−

Wide margin of appreciation with regard to the choice of means designed toachieve these objectives.

3.

A state's duty to protect in the context of climate change

41

Art. 8 ECHR contains a right of the individual to effective protection by the stateauthorities from serious adverse effects on their life, health, well-being and quality of life
arising from the harmful effects and risks caused by climate change.

42

A state's obligation flowing from this right is to do its part to ensure such effective
protection. Effective protection includes preventing a rise in global averagetemperature beyond levels capable of producing serious and irreversible adverse
effects on human rights, in accordance with the international commitments undertaken
by member States (in particular the UNFCCC and the Paris Agreement) and the cogent
scientific evidence (in particular the IPCC).

43

The primary duty of the states is to:44−

adopt binding regulations and measures capable of mitigating the existing andpotentially irreversible future effects of climate change, and to−

apply and implement them effectively in practice.

These regulations and measures must−be geared to the specific features of the subject matter (§§ 107-120 and 440 of
the judgment) and the risks involved;−

be informed by the global aims formulated in the Paris Agreement to limit the risein global temperature. However, these aims alone are clearly not sufficient for14

assessing compliance with the ECHR. Each individual state is called upon todefine its own adequate pathway to achieving carbon neutrality.
45

When assessing whether a state has remained within its margin of appreciation (seepara. 38 et seq.), the ECtHR examines whether the competent national authorities, be itat the legislative, executive or judicial level, have had due regard to the need to:a.

adopt general measures that specify a target timeline for achieving carbon
neutrality and the overall remaining carbon budget for the same time frame, in linewith the overarching goal for national and/or global commitments to mitigate
climate change.

b.

set out intermediate targets and pathways for reducing greenhouse gas
emissions (by sector or other relevant methodologies) that are deemed capable,
in principle, of meeting the overall national targets for reducing greenhouse gas
emissions within the relevant time frames;c.

provide evidence showing whether they have duly complied or are in the processof complying with the relevant greenhouse gas reduction targets (see letters aand b);

d.

keep the relevant greenhouse gas reduction targets updated with due diligenceand based on the best available evidence; ande.

act in good time and in an appropriate and consistent manner in devising andimplementing of relevant legislation and measures.

46

The ECtHR assesses whether these requirements are met overall. A shortcoming in aparticular area does not necessarily mean that the state has overstepped its margin of
appreciation.

47

Effective state protection of the rights of individuals from serious adverse effects on
their lives, health, well-being and quality of life resulting from the adverse effects andrisks of climate change also requires that the above-mentioned mitigation measures be
supplemented by adaptation measures. Adaptation measures serve to alleviate themost severe or imminent consequences of climate change, taking into account all
relevant particular protection needs. They must be put in place and effectively appliedin accordance with the best available evidence and in line with the general structure of
the state's positive obligations in this context (see para. 34).

48

When determining whether a state has remained within its margin of appreciation, theprocedural safeguards available to those concerned (see para. 36) are especiallymaterial. This applies not only to the setting of objectives, but also with regard togeneral policy in choosing means to achieve these objectives.
−

The information held by public authorities of importance for setting out andimplementing the relevant regulations and measures to tackle climate changemust be made available to the public and, in particular, to those persons who may
be affected by the regulations and measures in question or the absence thereof.
15

−

Procedural safeguards must be available to ensure that the public has access tothe conclusions of relevant studies.

−

Procedures must be available to ensure that the public's views and, in particular,
the interests of those affected or at risk of being affected by the relevant
regulations and measures, or the absence thereof, can be taken into account in
the decision-making process.

4.

Consumption-related “embedded” emissions

49

It would be difficult, if not impossible, to discuss Switzerland's responsibility for theeffect of its greenhouse gas emissions on the applicants’ human rights without taking
into account Switzerland's emissions from the import of goods and their consumption.

K.

On what grounds did the court come to the conclusion that Switzerland (asat 14 February 2024) had not fulfilled its duty to protect human rights
under Art. 8 ECHR?

50

The current CO2 Act of 2011 (in force since 2013)13 stipulates that greenhouse gas
emissions should be reduced overall by 20% by 2020 compared to 1990 levels.

51−

However, the Federal Council itself has stated that industrialised countries (suchas Switzerland) should have reduced their emissions by 25-40% by 2020
compared to 1990, and that the reduction target of 20% by 2020 was also
insufficient in view of the long-term objectives.

−

The Government itself acknowledged that the 2020 greenhouse gas reduction
target has been missed. Between 2013 and 2020, Switzerland reduced its
greenhouse gas emissions by an average of around 11% compared to 1990
levels, which indicates the insufficiency of the authorities’ past action to take thenecessary measures to address climate change.

In December 2017, the Federal Council tabled a revision of the CO2 Act of 2011 for theperiod from 2020 to 2030, proposing an overall reduction of 50% of greenhouse gas
emissions. This included a domestic reduction of 30% by 2030 compared with 1990
levels, while the rest was to be achieved by measures taken abroad. This proposed
revision of the CO2 Act was rejected in a popular referendum in June 2021. According
to the government, this did not suggest that citizens rejected the necessity of
combating global warming or reducing national greenhouse gas emissions, but rather
the proposed means to do so. In this context, the ECtHR reiterates that states areaccorded a wide margin of appreciation regarding the choice of means to combat
climate change.
−

13

In any event, and irrespective of how the legislative process is organised from adomestic constitutional point of view, the fact is that after the referendum alegislative lacuna existed for the period after 2020. Switzerland sought to address
this lacuna by enacting a partial revision of the existing CO2 Act of 2011 on 17

Federal Act on the Reduction of CO2 Emissions (CO2 Act), SR 641.71.

16

December 2021, according to which the reduction target for the years 2021 to2024 was set at 1.5% per year compared with 1990 levels, on the understandingthat from 2022 onwards, a maximum of 25% of this reduction could be achieved
through measures abroad.

52

53

−

This left the period after 2024 unregulated and thus incompatible with therequirement of the existence of general measures specifying Switzerland's
mitigation measures in line with a net neutrality timeline (§ 550 a) of the judgment).

−

Switzerland has thus failed to fulfil its positive obligation to devise a regulatory
framework setting the requisite objectives and goals (§ 550 a)—b) of thejudgment). In this context, it should be noted that the IPCC stressed that the
choices and actions implemented in this decade will have impacts now and forthousands of years.

On 30 September 2022, the Federal Act on Climate Protection Targets, Innovation andStrengthening Energy Security (the Climate Act) was enacted, reflecting thecommitments in the updated Nationally Determined Contribution (NDC) under the Paris
Agreement. This Act - which was only confirmed in a referendum on 18 June 2023 but
has not yet come into force - envisages the principle of a net-zero emissions target by
2050. To this end, greenhouse gas emissions are to be reduced "as far as possible". In
addition, an intermediate target is set for 2040 (75% reduction compared with 1990
levels) and for the years 2031 to 2040 (at least 64% on average) and 2041 to 2050 (atleast 89% on average compared to 1990 levels). Furthermore, indicative values for the
reduction of emissions in the buildings, transport and industrial sectors have been set
for the years 2040 and 2050.
−

In this connection, the ECtHR notes that although the Climate Act sets out thegeneral objectives and targets, the concrete measures to achieve theseobjectives are not set out in the Act, but rather remain to be determined by theFederal Council and proposed to Parliament "in good time" (Art. 11 para. 1 Climate
Act).

−

In addition, the adoption of the concrete measures is to be provided under the
CO2 Act 2011 (Art. 11 para. 2 Climate Act), which, as mentioned (para. 50), cannot
be considered as a sufficient regulatory framework in its current form.

−

It should also be noted that the new regulation under the Climate Act only
concerns intermediate targets for the period after 2031. Given the fact that theCO2 Act 2011 only provides for legal regulation of the intermediate targets until
2024 (para. 51), this means that the period between 2025 and 2030 still remains
unregulated pending the enactment of new legislation.

In these circumstances, given the pressing urgency of climate change and the current
absence of a satisfactory regulatory framework, the ECtHR has difficulty accepting thatthe mere legislative commitment to adopt the concrete measures "in good time", asenvisaged in the Climate Act, satisfies the State's duty to provide, and effectively apply
in practice, effective protection of individuals within its jurisdiction from the adverse
17effects of climate change on their lives and health. The introduction of the Climate Act
is not sufficient to remedy the shortcomings identified in the existing legal framework.
54

The association KlimaSeniorinnen Schweiz has presented an estimate of the remaining
Swiss CO2 budget under the current situation, also taking into account the targets andpathways introduced by the Climate Act. With reference to the assessment of the
global CO2 budget by the IPCC and the data of the Swiss greenhouse gas inventory, theapplicant association has presented an estimate according to which Switzerland would
have a remaining CO2 budget of 0.44 GtCO2 from 2020, assuming a globally equal per
capita emissions distribution, in order to have a 67% chance of complying with the
1.5°C limit (or 0.33 GtCO2 for an 83% chance). In a scenario with a reduction in CO2emissions of 34% by 2030 and 75% by 2040, Switzerland would have used up theremaining budget by around 2034 (or 2030 for an 83% chance). This means that
Switzerland has allowed more greenhouse gas emissions under its current climate
strategy than it would be entitled to even if quantified according to the principle of"equal per capita emissions".

55

The Swiss government refers to the 2012 policy brief 14 to justify the absence of a
specific CO2 budget for Switzerland. It also suggested that there was no establishedmethodology for determining a country's CO2 budget and acknowledged that
Switzerland had not determined one. It argued that Switzerland's national climate policy
could be seen as a similar approach to setting a CO2 budget and that this climate policy
was based on relevant internal assessments15 prepared in 2020 and expressed in the
NDCs.

56

The ECtHR states that

14

15

−

no effective regulation on climate change can be put in place without quantifying,through a CO2 budget or otherwise, national greenhouse gas emission limitations(§ 550 a) of the judgment);−

the IPCC has stressed the importance of CO2 budgets and policies for net-zeroemissions (§ 116 of the judgment), which cannot be compensated for by relianceon the state's NDCs under the Paris Agreement;−

the reasoning of the Federal Constitutional Court of the Federal Republic of
Germany - which rejected the argument that it was impossible to determine anational CO2 budget, pointing to, among other things, the principle of common
but differentiated responsibilities under the UNFCCC and the Paris Agreement - is

BRETSCHGER, Climate Policy and Equity Principles: Fair Burden Sharing in a Dynamic World,Center of Economic Research at ETH Zurich, Policy Brief 12/16, March 2012, available athttps://www.klimaseniorinnen.ch/wp-content/uploads/2023/04/230329_written-submissionSwitzerland_annex_1_Bretschger_Policy_Brief.pdf.
Swiss Federal Office for the Environment, internal working document, Climate change and theParis Agreement: Which of Switzerland's NDCs is "fair and ambitious"? 2020, available athttps://www.klimaseniorinnen.ch/wp-content/uploads/2023/04/230329_written-submissionSwitzerland_annex_2_internal_working_document.pdf.

18

convincing. This principle requires states to act on the basis of equity and inaccordance with their own respective capabilities;−

the measures and methods that determine the details of a state's climate policy
fall within its wide margin or appreciation. However, in the absence of any
domestic measure attempting to quantify Switzerland's remaining CO 2 budget,
Switzerland could not be regarded as complying with its regulatory obligation
under Art. 8 ECHR.

L.

To what extent and against whom has Switzerland violated access tojustice (Art. 6 ECHR)?

57

Art. 6 ECHR cannot be used to bring an action before a court with the aim of compelling
Parliament to enact legislation if this is not provided for in national law. Accordingly,
demands for legislative and regulatory measures made at national level do not fallwithin the scope of Art. 6 ECHR. However, the effective implementation of mitigation
measures under existing law, which the applicants have also requested, is a matter that
may fall within the scope of Art. 6 ECHR.

58

In accordance with the established case law of the ECtHR, the right to life under Art. 10of the Swiss Constitution is a civil matter. There was undoubtedly a genuine and serious
dispute concerning respect for this right. With regard to the further requirement thatthe outcome of the proceedings must be "directly decisive" for the rights of theapplicants, the ECtHR states the following.
−

The association KlimaSeniorinnen Schweiz has demonstrated that it had an
actual and sufficiently close connection to the matter complained of and to theindividuals seeking protection against the adverse effects of climate change on
their lives, health and quality of life. It aimed to defend the specific civil rights of its
members in relation to the adverse effects of climate change and acted as ameans by which the rights of those affected by climate change could be
defended and by which they could seek to obtain an adequate corrective action
for the state's failings.

−

To the extent that litigation reflects this collective dimension, the requirement of a"directly decisive" outcome for rights is to be understood in the broader sense of
seeking some form of correction of acts and omissions by public authorities that
affect the civil rights of members under national law.

−

In this context, reference is made to the findings on the legal standing of
associations (para. 21 et seq.), in particular to the important role of associations in
the defence of certain concerns in the area of environmental protection, as wellas to the particular importance of collective measures in connection with climatechange, the consequences of which are not specifically limited to certain
individuals.

−

With regard to the individual applicants, on the other hand, for reasons similar to
those set out in relation to Art. 8 ECHR (§§ 527-535 of the judgment), it cannot beassumed that they have demonstrated that the requested action by the19authorities - namely the effective implementation of mitigation measures underthe existing national law – alone would have had a sufficiently imminent andcertain effect on their individual rights in the context of climate change.
59

Art. 6 ECHR is therefore applicable to the complaint of the association
KlimaSeniorinnen Schweiz, but not to the individual applicants.

60

The right of access to a court under Art. 6 ECHR includes not only the right to instituteproceedings but also the right to obtain a determination of the dispute by a court. In thepresent case, the merits of the claims made by the KlimaSeniorinnen Schweiz
association were not examined in the domestic proceedings, which limited this right.

61

The ECtHR must therefore examine whether access to the court regarding therequested effective implementation of mitigation measures was restricted under the
existing law in such a way or to such an extent that the very essence of this right was
impaired.
−

The requested effective implementation of mitigation measures already required
under existing national law cannot automatically be considered an actio popularis
or a political issue. This position is in line with the reasoning set out in § 436 of thejudgment on the impact of climate change on human rights and the urgent needto address the threats posed by climate change.

−

The domestic courts' findings that there was still some time to prevent global
warming from reaching the critical limit were not based on a sufficientexamination of the scientific evidence on climate change that was alreadyavailable at the relevant time and the general acceptance of the urgency
regarding the existing and inevitable future impacts of climate change on various
aspects of human rights.

−

Indeed, the existing evidence and scientific findings on the urgency of addressing
the adverse effects of climate change, including the grave risk of their inevitability
and irreversibility, suggests that there was an urgent need to ensure the legal
protection of human rights.

−

The national authorities also failed to address the content of the Verein
KlimaSeniorinnen Schweiz's submissions, citing inappropriate and inadequate
considerations.

62

Switzerland has restricted the KlimaSeniorinnen Schweiz association's right to access acourt to such an extent that the essence of this right has been impaired. It has thus
violated Art. 6 ECHR.

63

Against this background, the key role that domestic courts have played and will play inclimate-change litigation should be emphasised. This is reflected in the case-law
adopted to date in some Council of Europe member states, which highlights theimportance of access to justice in this field. Given the principles of shared responsibility
20and subsidiarity, it is primarily the responsibility of national authorities, including thecourts, to ensure that obligations under the ECHR are observed.

21

II.

Annex (extracts from the judgment of the Grand Chamber of the European
Court of Human Rights of 9 April 2024)

A.

Facts in relation to climate change emerging from the material available to
the Court
103. With a view to its examination of the present case, and having regard to the twoother cases being examined by the Grand Chamber (see paragraph 5 above), in whichrulings are being delivered on the same day, as well as other pending cases stayed at
the Chamber level, the Court deems it necessary to highlight the following factual
elements which emerge from the material available to it.
106. The Court further notes that by defining the Paris Agreement targets the States
formulated, and agreed to, the overarching goal of limiting warming to “well below 2°C
above pre-industrial levels and pursuing efforts to limit the temperature increase to
1.5°C above pre-industrial levels”, recognising that this would significantly reduce therisks and impacts of climate change (Article 2 § 1 (a)). Since then, scientific knowledge
has developed further and States have recognised that “the impacts of climatechange will be much lower at the temperature increase of 1.5°C compared with 2°C”
and thus resolved “to pursue further efforts to limit the temperature increase to
1.5°C” (see Glasgow Climate Pact, paragraph 21, and Sharm el-Sheikh
Implementation Plan, paragraph 4).
107. (...) The IPCC report in question – IPCC 2018 Special report “1.5°C global
warming” (…) – found that (…) any increase in global temperature (such as +0.5°C) was
projected to affect human health, with primarily negative consequences (highconfidence). Lower risks were projected at 1.5°C than at 2°C for heat-related morbidity
and mortality (very high confidence), and for ozone-related mortality if emissions
needed for ozone formation remained high (high confidence).
108 (…) In particular, limiting warming to 1.5°C implied according to IPCC 2018 Special
report “1.5°C global warming”  reaching net zero CO2 emissions globally around2050 and concurrent deep reductions in emissions of non-CO2 forcers (highconfidence).
109. The IPCC report IPCC 2018 Special report “1.5°C global warming”  sought toquantify mitigation requirements in terms of 1.5°C pathways that refer to “carbon
budgets”. The report explained that cumulative CO2 emissions would be kept within abudget by reducing global annual CO2 emissions to net zero. This assessment
suggested a remaining budget of about 420 GtCO2 for a two-thirds chance oflimiting warming to 1.5°C, and of about 580 GtCO2 for an even chance (medium
confidence). At the same time, staying within a remaining carbon budget of 580
GtCO2 implied that CO2 emissions would have to reach carbon neutrality in about
thirty years, reduced to twenty years for a 420 GtCO2 remaining carbon budget (highconfidence). Moreover, non-CO2 emissions contributed to peak warming and affected
the remaining carbon budget.
110. In its subsequent Assessment Reports (“AR”), the IPCC came to similar
conclusions confirming and updating its findings in the 2018 Special Report. (…) The
report also confirmed the IPCC’s earlier findings (high confidence) that there was anear-linear relationship between cumulative anthropogenic CO2 emissions and theglobal warming they caused. Thus, limiting human-induced global warming to a22

specific level required limiting cumulative CO2 emissions, reaching at least net
zero CO2 emissions, together with strong reductions in other GHG emissions.
Furthermore, the report nuanced the relevant estimated remaining carbon budgets
from the beginning of 2020. It explained that to have a 67% chance of meeting the
1.5°C limit, the remaining global carbon budget was 400 GtCO2 and to have an
83% chance, 300 GtCO2.
111. In AR6 “Climate Change 2022: Mitigation of Climate Change” (…), the IPCC foundthat total net anthropogenic GHG emissions had continued to rise during the period
2010-2019. (…) The report further pointed out that a consistent expansion of policies
and laws addressing mitigation had led to the avoidance of emissions that would
otherwise have occurred. However, global GHG emissions in 2030 associated with theimplementation of NDCs announced prior to the Glasgow Climate Conference(COP26) would make it likely that warming would exceed 1.5°C during the twenty-first
century. It was likely that limiting warming to below 2°C would then rely on a rapid
acceleration of mitigation efforts after 2030. Policies implemented by the end of2020 were projected to result in higher global GHG emissions than those implied
by NDCs (high confidence). In other words, according to the findings of the IPCC, theworld was currently on a trajectory that would lead to very significant adverse
impacts for human lives and well-being.
113. Furthermore, the report  AR6 “Climate Change 2022: Mitigation of Climate
Change”  stressed that global net zero CO2 emissions would be reached in the early2050s in modelled pathways that limited warming to 1.5°C with no or limited
overshoot, and around the early 2070s in modelled pathways that limited warming to
2°C. These pathways also included deep reductions in other GHG emissions. Reachingand sustaining global net zero GHG emissions would result in a gradual decline inwarming (high confidence).
114. In the latest AR6 “Synthesis Report: Climate Change 2023”, the IPCC noted thathuman activities, principally through GHG emissions (increasing with unequal historicaland ongoing contributions arising from unsustainable energy use, land use and landuse change, lifestyles and patterns of consumption and production across regions,
between and within countries, and among individuals), had unequivocally caused
global warming, with global surface temperature reaching 1.1°C above 1850-1900
levels between 2011 and 2020. According to the report, human-caused climatechange was already affecting many weather and climate extremes in every region
across the globe, which had led to widespread adverse impacts and related losses
and damages to nature and people (high confidence).
115. The IPCC further stressed that policies and laws addressing mitigation (…) had
already been deployed successfully in some countries, leading to avoided and in somecases reduced or removed emissions (…). Global GHG emissions in 2030 implied by
NDCs announced by October 2021 made it likely that warming would exceed 1.5°C
during the twenty-first century and made it harder to limit warming below 2°C. There
were gaps between projected emissions from implemented policies and those from
NDCs. Moreover, finance flows fell short of the levels needed to meet climate goals
across all sectors and regions (…). (.) At the same time, every increment of global
warming would intensify multiple and concurrent hazards. However, deep, rapid andsustained reductions in GHG emissions would lead to a discernible slowdown in global
warming within around two decades, and also to discernible changes in atmosphericcomposition within a few years (…). While some future changes were unavoidable

23and/or irreversible, they could be limited by deep, rapid and sustained global GHG
emissions reductions. The likelihood of abrupt and/or irreversible changes increased
with higher global warming levels. Similarly, the probability of low-likelihood outcomes
associated with potentially very large adverse impacts increased with higher global
warming levels (…). Adaptation options that were feasible and effective today would
become constrained and less effective with increasing global warming; losses anddamages would also increase and additional human and natural systems would reach
adaptation limits (high confidence).
116. In the same report, the IPCC stressed the importance of carbon budgets andpolicies for net zero emissions. It noted that limiting human-caused global warming
required net zero CO2 emissions. Cumulative carbon emissions until the time ofreaching net-zero CO2 emissions and the level of GHG emission reductions thisdecade would largely determine whether warming could be limited to 1.5°C or 2°C.
Projected CO2 emissions from existing fossil fuel infrastructure without additional
abatement would exceed the remaining carbon budget for 1.5°C (50%) (…). As regards
mitigation pathways, the IPCC noted that all global modelled pathways that limited
warming to 1.5°C (>50%) with no or limited overshoot, and those that limited warming
to 2°C (>67%), involved rapid and deep and, in most cases, immediate GHG emissions
reductions in all sectors this decade. Global net zero CO2 emissions would bereached for these pathway categories in the early 2050s and around the early2070s, respectively (…).
117. However, the IPCC stressed that if warming exceeded a specified level such as
1.5°C, it could gradually be reduced again by achieving and sustaining net negative
global CO2 emissions, which would require additional deployment of carbon dioxide
removal, compared to pathways without overshoot. This would, however, lead togreater feasibility and sustainability concerns as overshoot entailed adverse impacts,some irreversible, and additional risks for human and natural systems, all growing withthe magnitude and duration of overshoot (...).
118. The IPCC stressed the urgency of near-term integrated climate action. It
noted that climate change was a threat to human well-being and planetary health.
There was a rapidly closing window of opportunity to secure a liveable andsustainable future for all (…). (…). The choices and actions implemented in thisdecade would have impacts now and for thousands of years (…).
119. According to the IPCC, deep, rapid and sustained mitigation and accelerated
implementation of adaptation actions in this decade would reduce projected losses
and damages for humans and ecosystems (...). On the other hand, delayed mitigation
and adaptation action would lock in high-emissions infrastructure, raise risks of
stranded assets and cost-escalation, reduce feasibility, and increase losses anddamages (…).
120. The IPCC noted that effective climate action was enabled by politicalcommitment, well-aligned multilevel governance, institutional frameworks, laws,
policies and strategies and enhanced access to finance and technology. Clear goals,
coordination across multiple policy domains and inclusive governance processes
facilitated effective climate action. Regulatory and economic instruments could
support deep emissions reductions and climate resilience if scaled up and applied
widely (…).

24

B.

Relevant legal framework and practice64

In paras. 138 ff., the Court refers to COP 27 (November 22) and COP 28 (December 23).
Regarding the latter, the Court referred to the synthesis report on the technicaldialogue of the First Global Stocktake under the Paris Agreement:
139. In preparation for the UNFCCC Conference of the Parties (COP28) in Dubai, held
between 30 November and 12 December 2023, the synthesis report on the technicaldialogue of the first global stocktake under the Paris Agreement, made the following
key findings.
(…)
Key finding 3: systems transformations open up many opportunities, but rapid change
can be disruptive. A focus on inclusion and equity can increase ambition in climate
action and support.
Key finding 4: global emissions are not in line with modelled global mitigation pathways
consistent with the temperature goal of the Paris Agreement, and there is a rapidly
narrowing window to raise ambition and implement existing commitments in order tolimit warming to 1.5°C above pre-industrial levels.
Key finding 5: much more ambition in action and support is needed in implementing
domestic mitigation measures and setting more ambitious targets in NDCs to realize
existing and emerging opportunities across contexts, in order to reduce global GHG
emissions by 43 per cent by 2030 and further by 60 per cent by 2035 comparedwith 2019 levels and reach net zero CO2 emissions by 2050 globally.
(…)
Key finding 14: scaled-up mobilization of support for climate action in developing
countries entails strategically deploying international public finance, which
remains a prime enabler for action, and continuing to enhance effectiveness,
including access, ownership and impacts.
Key finding 15: making financial flows – international and domestic, public andprivate – consistent with a pathway towards low GHG emissions and climateresilient development entails creating opportunities to unlock trillions of dollars andshift investments to climate action across scales.
(…).

65

In paras. 140, the Court refers to relevant parts of the COP 28 First Global Stocktake:
140. The relevant parts of the COP28 First Global Stocktake provide as follows:“(…)
Also recalling Article 2, paragraph 2, of the Paris Agreement, which provides that theAgreement will be implemented to reflect equity and the principle of common but
differentiated responsibilities and respective capabilities, in the light of different
national circumstances,25

5. Expresses serious concern that 2023 is set to be the warmest year on record andthat impacts from climate change are rapidly accelerating, and emphasizes the needfor urgent action and support to keep the 1.5°C goal within reach and to address
the climate crisis in this critical decade;6. Commits to accelerate action in this critical decade on the basis of the best
available science, reflecting equity and the principle of common but
differentiated responsibilities and respective capabilities in the light of different
national circumstances and in the context of sustainable development and efforts toeradicate poverty;
16. Notes the following findings of the Sixth Assessment Report of theIntergovernmental Panel on Climate Change:(…)(c) That feasible, effective and low-cost mitigation options are already available
in all sectors to keep 1.5°C within reach in this critical decade with the necessary
cooperation on technologies and support;
17. Notes with concern the pre-2020 gaps in both mitigation ambition andimplementation by developed country Parties and that the Intergovernmental Panel on
Climate Change had earlier indicated that developed countries must reduce
emissions by 25–40 per cent below 1990 levels by 2020, which was notachieved;
II. Collective progress towards achieving the purpose and long-term goals of the Paris
Agreement ... A. Mitigation ...
25. Expresses concern that the carbon budget consistent with achieving theParis Agreement temperature goal is now small and being rapidly depleted andacknowledges that historical cumulative net carbon dioxide emissions alreadyaccount for about four fifths of the total carbon budget for a 50 per cent probability oflimiting global warming to 1.5°C; ...
28. Further recognizes the need for deep, rapid and sustained reductions in [GHG]
emissions in line with 1.5°C pathways and calls on Parties to contribute to the following
global efforts, in a nationally determined manner, taking into account the Paris
Agreement and their different national circumstances, pathways and approaches: ...
(d) Transitioning away from fossil fuels in energy systems, in a just, orderly andequitable manner, accelerating action in this critical decade, so as to achieve net
zero by 2050 in keeping with the science; (…)”

66

In paras. 141 ff., the Court refers to the Aarhus Convention:
141. The relevant parts of the 1998 Aarhus Convention read as follows:“(…)
Article 2 Definitions
4. ’The public’ means one or more natural or legal persons, and, in accordance withnational legislation or practice, their associations, organizations or groups;

26

5. ’The public concerned’ means the public affected or likely to be affected by, or
having an interest in, the environmental decision-making; for the purposes of thisdefinition, non-governmental organizations promoting environmental protection andmeeting any requirements under national law shall be deemed to have an interest.”
142. The relevant parts of the Aarhus Convention Implementation Guide provide as
follows (…):
“While narrower than the ‘public,’ the ‘public concerned’ is nevertheless still very broad.
With respect to the criterion of ‘being affected’, this is very much related to thenature of the activity in question. Some of the activities subject to article 6 of theConvention may potentially affect a large number of people. For example, in the caseof pipelines, the public concerned is usually in practice counted in the thousands,
while in the case of nuclear power stations the competent authorities may consider
the public concerned to count as many as several hundred thousand people acrossseveral countries.
(…)”

67

In para. 145, the Court states that 45 out of 46 member States of the council of Europe
voted in favour of the adoption of the UN Resolution 76/300 on the human right to aclean, healthy and sustainable environment on 28 July 2022.
144. Upon the invitation of the Human Rights Council formulated in its Resolution
48/13 of 8 October 2021, the General Assembly of the United Nations adopted its
Resolution 76/300 on the human right to a clean, healthy and sustainable environment
on 28 July 2022.
145. It was adopted with 161 votes in favour (of the 169 member States present), 8
abstentions and no votes against. 45 of the 46 member States of the Council ofEurope voted in favour.
147. Its four operative paragraphs provide as follows:“(...)
3. Affirms that the promotion of the human right to a clean, healthy and sustainable
environment requires the full implementation of the multilateral environmental
agreements under the principles of international environmental law;
4. Calls upon States, international organizations, business enterprises and otherrelevant stakeholders to adopt policies, to enhance international cooperation,
strengthen capacity-building and continue to share good practices in order to scale
up efforts to ensure a clean, healthy and sustainable environment for all.”68

In para. 148, the Court refers to the first Resolution on the issue on global climate
protection:
148. Nearly every year since its first Resolution on the subject, namely Resolution
no. 43/53 on the protection of global climate for present and future generations ofmankind adopted on 6 December 1988, the issue of global climate protection for
future generations has been put on the agenda of the General Assembly, resulting
in the adoption of numerous resolutions.

27

69

In para. 164, the Court refers to the 2019 report to the General Assembly (A/74/161),
where the Special Rapporteur built on the 2018 framework principles on human rights
and the environment and detailed the content of states’ obligations:164. In the 2019 report to the General Assembly (A/74/161), the Special Rapporteurbuilt on the above-mentioned 2018 framework principles on human rights and theenvironment (…) and detailed the content of State obligations (…):“(…)
65. With respect to substantive obligations, States must not violate the right to a safe
climate through their own actions; must protect that right from being violated by third
parties, especially businesses; and must establish, implement and enforce laws,
policies and programmes to fulfil that right. States also must avoid discrimination andretrogressive measures. These principles govern all climate actions, including
obligations related to mitigation, adaptation, finance, and loss and damage.
(…)
68. States have an obligation to cooperate to achieve a low-carbon, climate resilientand sustainable future, which means sharing information; the transfer of zero-carbon,
low-carbon and high-efficiency technologies from wealthy to less wealthy States;building capacity; increasing spending on research and development related to theclean energy transition; honouring international commitments; and ensuring fair, legal
and durable solutions for migrants and displaced persons. Wealthy States must
contribute their fair share towards the costs of mitigation and adaptation in lowincome countries, in accordance with the principle of common but
differentiated responsibilities. Climate finance to low-income countries should becomposed of grants, not loans. It violates basic principles of justice to force poor
countries to pay for the costs of responding to climate change when wealthy
countries caused the problem.
69. Climate actions, including under new mechanisms being negotiated pursuant toarticle 6 of the Paris Agreement, must be designed and implemented to avoid
threatening or violating human rights (...).
(…)
74. A failure to fulfil international climate change commitments is a prima facie
violation of the State’s obligations to protect the human rights of its citizens. ...
75. A dramatic change of direction is needed. To comply with their human rights
obligations, developed States and other large emitters must reduce their emissions at
a rate consistent with their international commitments. To meet the Paris target oflimiting warming to 1.5°C, States must submit ambitious nationally determined
contributions by 2020 that will put the world on track to reducing [GHG] emissions byat least 45 per cent by 2030 (as calculated by the Intergovernmental Panel on Climate
Change). All States should prepare rights-based deep decarbonization plans intended
to achieve net zero carbon emissions by 2050, in accordance with article 4, paragraph
19, of the Paris Agreement. Four main categories of actions must be taken: addressing
society’s addiction to fossil fuels; accelerating other mitigation actions; protecting

28

vulnerable people from climate impacts; and providing unprecedented levels offinancial support to least developed countries and small island developing States.”

70

In para. 192, the Court noted that the Parliamentary Assembly of the Council of Europe(PACE) adopted a Resolution entitled “The climate crisis and the rule of law”, including:“5.1 promote the rule of law and employ a transparent, accountable and democratic
legislative process for implementing the aim of ‘net zero emissions’, based on clear
and credible plans to meet commitments to keep the global temperature increase inline with the preferred objective of the Paris Agreement, amounting to an increase inaverage temperatures of 1.5°C;”

71

In para. 199, the Court notes that in 2020, the European Commission for Democracy
through Law (“the Venice Commission”) addressed the question of judicial control in thefield of environmental protection:“(…) However, an important argument to counter such a conclusion is that theprotection of the environment is not like the traditional human rights conflict, where
the minority needs protection against the majority. In the area of protection of theenvironment, there is a totally new dimension: the protection of the rights offuture generations. As the future generations do not take part in present day
democracy and do not vote in present day elections, the judicial branch appears to be
best placed to protect the future generations against the decisions of present-day
politicians.”

72

In para. 200 the Court refers to Appendix V of the Reykjavík Declaration where thefollowing was declared:“(...) Together we commit to:v. initiating the ‘Reykjavík process’ of strengthening the work of the Council of Europe
in this field, with the aim of making the environment a visible priority for theOrganisation. The process will focus and streamline the Organisation’s activities, witha view to promoting co-operation among member States. We will identify thechallenges raised by the triple planetary crisis of pollution, climate change andloss of biodiversity for human rights and contribute to the development of common
responses thereto, while facilitating the participation of youth in these discussions. We
will do this by enhancing and co-ordinating the existing Council of Europe activities
related to the environment and we encourage the establishment of a newintergovernmental committee on environment and human rights (‘Reykjavík
Committee’).”73

In paras. 201 ff. the Court lays down the EU law, also stating that in the EU, the legality ofacts can be reviewed (Art. 263 of the Treaty on European Union). The Court further
notes in para. 211 that the European Climate Law also requires the projected indicative
Union GHG budget to be established and based on the best available science.

74

In para. 227 the Court noted that in January 2023, a new request for an Advisory
Opinion was submitted to the Inter-American Court of Human Rights by Colombia andChile. They asked the court to clarify the scope of State obligations, both in their29

individual and collective dimensions, within the framework of international human rights
law, to respond to the climate emergency. This request emphasised paying special
attention to the differentiated impacts of this emergency on individuals from diverse
regions and population groups, as well as on nature and on human survival on theplanet.
75

In para. 246 the Court refers to the Vice-President of the Conseil d’État, Bruno Lasserre,
who made the following remarks on the first decisions given by the administrative
courts in an address to the Court of Cassation on 21 May 2021 entitled“L’environnement: les citoyens, le droit, les juges” (“The environment: citizens, the law
and judges”):«Finally, the Conseil d’État has adapted to current efforts to tackle climate change by
inaugurating a new type of review, which could be termed a ‘pathway review’. The timelimits laid down in law for achievement of the targets may be distant – 2030, 2040, andeven 2050 – but for the courts to wait ten, twenty or thirty years to verify
whether they have been achieved would mean denying the urgency of taking
action now and depriving their review of all meaningful effect from the outset,
given the very high inertia of the climate system. A pathway review is thus akin tomonitoring compliance in advance. This means that the court must be satisfied, atthe point at which it takes its decision, not that the targets have been achieved, butthat they may be achieved, that they are in the process of being achieved, thatthey form part of a credible and verifiable pathway.»C.

The Law

1.

Scope of the complaint279. In the case at hand, it is important to note that it has been accepted in the reportsby the relevant Swiss authorities, and elsewhere, that the GHG emissions attributable
to Switzerland through the import of goods and their consumption form a significant
part (an estimate of 70% for 2015) of the overall Swiss GHG footprint. (…).
280. It would therefore be difficult, if not impossible, to discuss Switzerland’s
responsibility for the effects of its GHG emissions on the applicants’ rights
without taking into account the emissions generated through the import ofgoods and their consumption or, as the applicants labelled them, “embedded
emissions”.
283. (…) This is, of course, without prejudice to the examination of the actual
effects of “embedded emissions” (namely Switzerland’s import of goods forhousehold consumption) on the State’s responsibility under the Convention.

2.

Preliminary points regarding the alleged violation of Art. 2 and 8 ECHR
410. At the outset, the Court notes that climate change is one of the most pressing
issues of our times. (…). The Court is also aware that the damaging effects of climatechange raise an issue of intergenerational burden-sharing (…) and impact most heavily
on various vulnerable groups in society, who need special care and protection fromthe authorities.

30

411. The Court, however, can deal with the issues arising from climate change only
within the limits of the exercise of its competence under Article 19 of the Convention,(…). In this regard, the Court is, and must remain, mindful of the fact that to a large
extent measures designed to combat climate change and its adverse effects requirelegislative action both in terms of the policy framework and in various sectoral fields. In
a democracy, which is a fundamental feature of the European public order expressedin the Preamble to the Convention together with the principles of subsidiarity andshared responsibility (…), such action thus necessarily depends on democratic
decision-making.
412. Judicial intervention, including by this Court, cannot replace or provide any
substitute for the action which must be taken by the legislative and executive
branches of government. However, democracy cannot be reduced to the will of the
majority of the electorate and elected representatives, in disregard of therequirements of the rule of law. The remit of domestic courts and the Court istherefore complementary to those democratic processes. The task of the judiciary is
to ensure the necessary oversight of compliance with legal requirements. The legal
basis for the Court’s intervention is always limited to the Convention, (…). The relevant
legal framework determining the scope of judicial review by domestic courts may beconsiderably wider and will depend on the nature and legal basis of the claims
introduced by litigants.
413. At the same time, the Court must also be mindful of the fact that the widely
acknowledged inadequacy of past State action to combat climate change globallyentails an aggravation of the risks of its adverse consequences, and the ensuingthreats arising therefrom, for the enjoyment of human rights – threats alreadyrecognised by governments worldwide. The current situation therefore involves
compelling present-day conditions, confirmed by scientific knowledge, which
the Court cannot ignore in its role as a judicial body tasked with theenforcement of human rights. Given the necessarily primary responsibility of thelegislative and executive branches and the inherently collective nature of both theconsequences and the challenges arising from the adverse effects of climate change,
however, the question of who can seek recourse to judicial protection under theConvention in this context is not just a question of who can seek to address thiscommon problem through the courts, first domestically and subsequently by engaging
the Court, but raises wider issues of the separation of powers.
415. The Court’s existing case-law in environmental matters concerns situations
involving specific sources from which environmental harm emanates. (...)
416. In the context of climate change, the key characteristics and circumstances are
significantly different. (…)
418. (...) However, without effective mitigation (which is at the centre of theapplicants’ arguments in the present case; …), adaptation measures cannot inthemselves suffice to combat climate change (…).
420. In this connection, the Court notes that, in the specific context of climate change,intergenerational burden-sharing assumes particular importance both in regard to thedifferent generations of those currently living and in regard to future generations.
While the legal obligations arising for States under the Convention extend to thoseindividuals currently alive who, at a given time, fall within the jurisdiction of a given

31

Contracting Party, it is clear that future generations are likely to bear an increasingly
severe burden of the consequences of present failures and omissions to combat
climate change (see paragraph 119 above) and that, at the same time, they have no
possibility of participating in the relevant current decision-making processes. By theircommitment to the UNFCCC, the States Parties have undertaken the obligation toprotect the climate system for the benefit of present and future generations ofhumankind (see paragraph 133 above; Article 3 of the UNFCCC). This obligationmust be viewed in the light of the already existing harmful impacts of climatechange, as well as the urgency of the situation and the risk of irreversible harm
posed by climate change. In the present context, having regard to the prospect ofaggravating consequences arising for future generations, the intergenerational
perspective underscores the risk inherent in the relevant political decisionmaking processes, namely that short-term interests and concerns may come toprevail over, and at the expense of, pressing needs for sustainable policymaking, rendering that risk particularly serious and adding justification for the
possibility of judicial review.
421. Lastly, while the challenges of combating climate change are global, both therelative importance of various sources of emissions and the necessary policies andmeasures required for achieving adequate mitigation and adaptation may vary tosome extent from one State to another depending on several factors such as the
structure of the economy, geographical and demographic conditions and othersocietal circumstances. Even if in the longer term, climate change poses existential
risks for humankind, this does not detract from the fact that in the short term thenecessity of combating climate change involves various conflicts, the weighing-up ofwhich falls, as stated previously, within the democratic decision-making processes,
complemented by judicial oversight by the domestic courts and this Court.
422. Because of these fundamental differences, it would be neither adequate nor
appropriate to follow an approach consisting in directly transposing the existing
environmental case-law to the context of climate change. The Court considers it
appropriate to adopt an approach which both acknowledges and takes into
account the particularities of climate change and is tailored to addressing its
specific characteristics. In the present case, therefore, while drawing someinspiration from the principles set out in the Court’s existing case-law, the Court willseek to develop a more appropriate and tailored approach as regards the various
Convention issues which may arise in the context of climate change.

3.

General considerations relating to climate-change cases regarding alleged
violation of Art. 2 and 8 ECHRa)

Causation

424. (...) In the context of human rights-based complaints against States, issues of
causation (…) have a bearing on the assessment of victim status as well as thesubstantive aspects of the State’s obligations and responsibility under theConvention.
425. The first dimension of the question of causation relates to the link between GHG
emissions – and the resulting accumulation of GHG in the global atmosphere – and thevarious phenomena of climate change. This is a matter of scientific knowledge andassessment. The second relates to the link between the various adverse effects of the32

consequences of climate change, and the risks of such effects on the enjoyment of
human rights at present and in the future. In general terms, this issue pertains to thelegal question of how the scope of human rights protection is to be understood asregards the impacts arising for human beings from an existing degradation, or risk ofdegradation, in their living conditions. The third concerns the link, at the individual level,
between a harm, or risk of harm, allegedly affecting specific persons or groups of
persons, and the acts or omissions of State authorities against which a human rightsbased complaint is directed. The fourth relates to the attributability of responsibility
regarding the adverse effects arising from climate change claimed by individuals orgroups against a particular State, given that multiple actors contribute to theaggregate amounts and effects of GHG emissions.

b)Issues of proof (first causation dimension)

429. The Court also relies on studies and reports by relevant international bodies asregards the environmental impacts on individuals (see Tătar, cited above, § 95). As
regards climate change, the Court points to the particular importance of thereports prepared by the IPCC, (…).
430. Lastly, the Court attaches particular importance to the findings of the domestic
courts and other competent authorities in establishing the factual circumstances of
the case (…). (…) the Court is nevertheless not bound by the findings of domestic
courts and may depart from them where this is rendered unavoidable by thecircumstances of a particular case.

c)

Effects of climate change on the enjoyment of Convention rights (second
causation dimension)

431. In recent times there has been an evolution of scientific knowledge, social andpolitical attitudes and legal standards concerning the necessity of protecting theenvironment, including in the context of climate change. There has also been arecognition that environmental degradation has created, and is capable of creating,serious and potentially irreversible adverse effects on the enjoyment of human rights.
This is reflected in the scientific findings, international instruments and domestic
legislation and standards, and is being recognised in domestic and international caselaw (…).
432. The findings of the IPCC reports noted in paragraphs 107 to 120 above
have not been challenged or called into doubt by the respondent or intervening
States. It should also be noted that the clear indications as regards the adverse
effects of climate change, both existing and those associated with an overshoot of
1.5°C global temperature rise, noted by the IPCC, have been shared by manyenvironmental experts and scientists intervening as third parties in the present
proceedings before the Court (…).
433. Moreover, the IPCC findings correspond to the position taken, in principle, by theStates in the context of their international commitments to tackle climate change. (…).
Moreover, the respondent Government in the present case, as well as the many
third-party intervener Governments, have not contested that there is a climate
emergency (..).

33

434. The Court cannot ignore the above-noted developments andconsiderations. On the contrary, it should be recalled that the Convention is a living
instrument which must be interpreted in the light of present-day conditions, andin accordance with developments in international law, so as to reflect the increasingly
high standard being required in the area of the protection of human rights, thus
necessitating greater firmness in assessing breaches of the fundamental values of
democratic societies (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 146,
ECHR 2008). Indeed, an appropriate and tailored approach as regards the various
Convention issues which may arise in the context of climate change, (…), needs totake into account the existing and constantly developing scientific evidence on thenecessity of combating climate change and the urgency of addressing its adverse
effects, including the grave risk of their inevitability and their irreversibility, as well as
the scientific, political and judicial recognition of a link between the adverse effects ofclimate change and the enjoyment of (various aspects of) human rights.
436. In sum, on the basis of the above findings, the Court will proceed with its
assessment of the issues arising in the present case by taking it as a matter of factthat there are sufficiently reliable indications that anthropogenic climate change
exists, that it poses a serious current and future threat to the enjoyment of
human rights guaranteed under the Convention, that States are aware of it andcapable of taking measures to effectively address it, that the relevant risks areprojected to be lower if the rise in temperature is limited to 1.5oC above preindustrial levels and if action is taken urgently, and that current global mitigation
efforts are not sufficient to meet the latter target.

d)

The question of causation and positive obligations in the climate-change
context (third causation dimension)

439. In the context of climate change, the particularity of the issue of causation
becomes more accentuated. The adverse effects on and risks for specific individuals
or groups of individuals living in a given place arise from aggregate GHG emissions
globally, and the emissions originating from a given jurisdiction make up only part ofthe causes of the harm. Accordingly, the causal link between the acts or omissions on
the part of State authorities in one country, and the harm, or risk of harm, arising there,is necessarily more tenuous and indirect compared to that in the context of local
sources of harmful pollution. Furthermore, from the perspective of human rights, theessence of the relevant State duties in the context of climate change relates to the
reduction of the risks of harm for individuals. Conversely, failures in the performance of
those duties entail an aggravation of the risks involved, although the individual
exposures to such risks will vary in terms of type, severity and imminence, depending
on a range of circumstances. Accordingly, in this context, issues of individual victim
status or the specific content of State obligations cannot be determined on thebasis of a strict conditio sine qua non requirement.
440. It is therefore necessary to further adapt the approach to these matters, taking
into account the special features of the problem of climate change in respect of which
the State’s positive obligations will be triggered, depending on a threshold of
severity of the risk of adverse consequences on human lives, health and wellbeing. (…)

34

e)

The issue of the proportion of State responsibility (fourth causation
dimension)

442. For its part, the Court notes that while climate change is undoubtedly a global
phenomenon which should be addressed at the global level by the community ofStates, the global climate regime established under the UNFCCC rests on the principleof common but differentiated responsibilities and respective capabilities of States(Article 3 § 1). This principle has been reaffirmed in the Paris Agreement (Article 2 § 2)
and endorsed in the Glasgow Climate Pact (cited above, paragraph 18) as well as in the
Sharm el-Sheikh Implementation Plan (cited above, paragraph 12). It follows,
therefore, that each State has its own share of responsibilities to take measures
to tackle climate change and that the taking of those measures is determined by
the State’s own capabilities rather than by any specific action (or omission) of
any other State (see Duarte Agostinho and Others, cited above, §§ 202-03). The
Court considers that a respondent State should not evade its responsibility bypointing to the responsibility of other States, whether Contracting Parties to theConvention or not.
444. Lastly, as regards the “drop in the ocean” argument implicit in the Government’s
submissions – namely, the capacity of individual States to affect global climate change– it should be noted that in the context of a State’s positive obligations under theConvention, the Court has consistently held that it need not be determined withcertainty that matters would have turned out differently if the authorities had acted
otherwise. The relevant test does not require it to be shown that “but for” the failing oromission of the authorities the harm would not have occurred. Rather, what is
important, and sufficient to engage the responsibility of the State, is that reasonablemeasures which the domestic authorities failed to take could have had a real prospectof altering the outcome or mitigating the harm (…). In the context of climate change,
this principle should also be understood in the light of Article 3 § 3 of the UNFCCC
according to which States should take measures to anticipate, prevent or minimise thecauses of climate change and mitigate its adverse effects.

f)

Scope of the Court’s assessment

445. The Court has repeatedly stressed that no Article of the Convention is
specifically designed to provide general protection of the environment as such (…)
446. At the same time, the Court has often dealt with various environmental problems
deemed to affect the Convention rights of individuals, particularly Article 8 (see Hatton
and Others, cited above, § 96). (…)
449. The Court is mindful of the fact that in a context such as the present one it may
be difficult to clearly distinguish issues of law from questions of policy andpolitical choices and, therefore, of the fundamentally subsidiary role of theConvention, particularly given the complexity of the issues involved with regard toenvironmental policy-making (see Dubetska and Others v. Ukraine, no. 30499/03, §142, 10 February 2011). It has stressed that national authorities have direct
democratic legitimation and are in principle better placed than an international court toevaluate the relevant needs and conditions. In matters of general policy, or politicalchoices, on which opinions within a democratic society may reasonably differ
widely, the role of the domestic policy-maker is given special weight (see Hatton
and Others, cited above, § 97).

35

450. However, this does not exclude the possibility that where complaints raised
before the Court relate to State policy with respect to an issue affecting theConvention rights of an individual or group of individuals, this subject matter is nolonger merely an issue of politics or policy but also a matter of law having abearing on the interpretation and application of the Convention. In such
instances, the Court retains competence, albeit with substantial deference to thedomestic policy-maker and the measures resulting from the democratic
process concerned and/or the judicial review by the domestic courts.
Accordingly, the margin of appreciation for the domestic authorities is notunlimited and goes hand in hand with a European supervision by the Court, whichmust be satisfied that the effects produced by the impugned national measures werecompatible with the Convention.
451. It follows from the above considerations that the Court’s competence in thecontext of climate-change litigation cannot, as a matter of principle, be
excluded. Indeed, given the necessity of addressing the urgent threat posed byclimate change, and bearing in mind the general acceptance that climate change is acommon concern of humankind (…), there is force in the argument put forward by the
UN Special Rapporteurs that the question is no longer whether, but how, humanrights courts should address the impacts of environmental harms on theenjoyment of human rights (…).

g)

Relevant principles regarding the interpretation of the Convention

454. The Court reiterates that it only has the authority to ensure that the Convention iscomplied with. (...)
455. Nevertheless, the interpretation and application of the rights provided for under
the Convention can and must be influenced both by factual issues and developments
affecting the enjoyment of the rights in question and also by relevant legal instruments
designed to address such issues by the international community. The Court has
consistently held that the Convention should be interpreted, as far as possible, in
harmony with other rules of international law (ibid.). Moreover, a failure by the Court
to maintain a dynamic and evolutive approach would risk rendering it a bar toreform or improvement (see Fedotova and Others v. Russia [GC], nos. 40792/10 and
2 others, § 167, 17 January 2023).
456. The Court cannot ignore the pressing scientific evidence and the growinginternational consensus regarding the critical effects of climate change on theenjoyment of human rights (…). This consideration relates, in particular, to theconsensus flowing from the international-law mechanisms to which the member
States voluntarily acceded and the related requirements and commitments which they
undertook to respect (…), such as those under the Paris Agreement. The Court mustbear these considerations in mind when conducting its assessment under theConvention (…).
457. At the same time, the Court must also bear in mind its subsidiary role and thenecessity of affording the Contracting States a margin of appreciation in theimplementation of policies and measures to combat climate change, as well as theneed to observe appropriate respect for the prevailing constitutional principles,such as those relating to the separation of powers.

36

4.

Victim status and standing in the climate change context regarding the alleged
violation of Art. 2 and 8 ECHRa)

Victim status of individuals in the climate change context

478. The Court notes that there is cogent scientific evidence demonstrating thatclimate change has already contributed to an increase in morbidity andmortality, especially among certain more vulnerable groups, that it actuallycreates such effects and that, in the absence of resolute action by States, it risks
progressing to the point of being irreversible and disastrous (see paragraphs 104-120
above). At the same time, the States, being in control of the causes of anthropogenic
climate change, have acknowledged the adverse effects of climate change andhave committed themselves – in accordance with their common but
differentiated responsibilities and their respective capabilities – to take thenecessary mitigation measures (to reduce GHG emissions) and adaptation
measures (to adapt to climate change and reduce its impacts). These considerations
indicate that a legally relevant relationship of causation may exist between Stateactions or omissions (causing or failing to address climate change) and the harm
affecting individuals, as noted in paragraph 436 above.
479. Given the nature of climate change and its various adverse effects and futurerisks, the number of persons affected, in different ways and to varying degrees,is indefinite. (…). The critical issues arise from failures to act, or inadequate action. In
other words, they arise from omissions. In key respects, the deficiencies reside at thelevel of the relevant legislative or regulatory framework. The need, in this context, for a
special approach to victim status, and its delimitation, therefore arises from the factthat complaints may concern acts or omissions in respect of various types of generalmeasures, the consequences of which are not limited to certain identifiable individuals
or groups but affect the population more widely. The outcome of legal proceedings inthis context will inevitably have an effect beyond the rights and interests of a particular
individual or group of individuals, and will inevitably be forward-looking, in terms ofwhat is required to ensure effective mitigation of the adverse effects of climatechange or adaptation to its consequences.
480. That being said, the Court notes that the assessment of victim status in thepresent context of complaints concerning alleged omissions in general measuresrelating to the prevention of harm, or the reduction of the risk of harm, affecting
indefinite numbers of persons is without prejudice to the determination of victim
status in circumstances where complaints by individuals concern alleged
violations arising from a specific individual loss or damage already suffered bythem (see, for instance, Kolyadenko and Others, cited above, §§ 150-55).
481. The question for the Court in the present case is how and to what extent
allegations of harm linked to State actions and/or omissions in the context ofclimate change, affecting individuals’ Convention rights (such as the right to life under
Article 2 and/or the right to respect for private and family life under Article 8), can be
examined without undermining the exclusion of actio popularis from theConvention system and without ignoring the nature of the Court’s judicial
function, which is by definition reactive rather than proactive.
483. The Court’s case-law on victim status is premised on the existence of a direct
impact of the impugned action or omission on the applicant or a real risk thereof.

37

However, in the climate-change context, everyone may be, one way or anotherand to some degree, directly affected, or at a real risk of being directly affected,
by the adverse effects of climate change. Leaving aside the issue of jurisdiction,
the fact remains that potentially a huge number of persons could claim victim
status under the Convention on this basis. While it is true that in the context ofgeneral situations/measures, the class of persons who could claim victim status “mayindeed be very broad” (see Shortall and Others, cited above, § 53), it would not sit wellwith the exclusion of actio popularis from the Convention mechanism and theeffective functioning of the right of individual application to accept the existence ofvictim status in the climate-change context without sufficient and careful qualification.
484. If the circle of “victims” within the overall population of persons under thejurisdiction of the Contracting Parties actually or potentially adversely affected
is drawn in a wide-ranging and generous manner, this would risk disrupting
national constitutional principles and the separation of powers by opening
broad access to the judicial branch as a means of prompting changes in generalpolicies regarding climate change. If, on the other hand, this circle is drawn too
tightly and restrictively, there is a risk that even obvious deficiencies ordysfunctions in government action or democratic processes could lead to theConvention rights of individuals and groups of individuals being affectedwithout them having any judicial recourse before the Court. In addition, in view of
the considerations of intergenerational burden-sharing related to the impacts andrisks of climate change, the members of society who stand to be most affected by
the impact of climate change can be considered to be at a distinct
representational disadvantage (see paragraph 420 above). The need to ensure, on
the one hand, effective protection of the Convention rights, and, on the other hand,that the criteria for victim status do not slip into de facto admission of actio popularis
is particularly acute in the present context.
485. In this regard, although the lack of State action, or insufficient action, to combat
climate change does entail a situation with general effect, the Court does not consider
that the case-law concerning “potential” victims (..), could be applied here. In thecontext of climate change, this could cover virtually anybody and would therefore notwork as a limiting criterion. Everyone is concerned by the actual and future risks, invarying ways and to varying degrees, and may claim to have a legitimate personal
interest in seeing those risks disappear.
486. Therefore, having regard to the special features of climate change, when
determining the criteria for victim status (…) the Court will rely on distinguishing criteria.
(…)
487. In sum, the Court finds that in order to claim victim status under Article 34 of theConvention in the context of complaints concerning harm or risk of harm resulting
from alleged failures by the State to combat climate change, an applicant needs toshow that he or she was personally and directly affected by the impugned failures. This
would require the Court to establish, (..), the following circumstances concerning theapplicant’s situation: (a) the applicant must be subject to a high intensity of
exposure to the adverse effects of climate change, that is, the level and severity of(the risk of) adverse consequences of governmental action or inaction affecting theapplicant must be significant; and (b) there must be a pressing need to ensure theapplicant’s individual protection, owing to the absence or inadequacy of any
reasonable measures to reduce harm.

38488. The threshold for fulfilling these criteria is especially high. In view of the
exclusion of actio popularis (…) whether an applicant meets that threshold will depend
on a careful assessment of the concrete circumstances of the case. In thisconnection, the Court will have due regard to circumstances such as the prevailing
local conditions and individual specificities and vulnerabilities. The Court’s assessment
will also include, but will not necessarily be limited to, considerations relating to: thenature and scope of the applicant’s Convention complaint, the actuality/remotenessand/or probability of the adverse effects of climate change in time, the specific impact
on the applicant’s life, health or well-being, the magnitude and duration of the harmful
effects, the scope of the risk (localised or general), and the nature of the applicant’svulnerability.

b)Standing of associations in the climate change context

489. As the Court already noted in Gorraiz Lizarraga and Others (…), in modern-day
societies, when citizens are confronted with particularly complex administrativedecisions, recourse to collective bodies such as associations is one of the accessiblemeans, sometimes the only means, available to them whereby they can defend their
particular interests effectively. This is especially true in the context of climatechange, which is a global and complex phenomenon. It has multiple causes and its
adverse effects are not the concern of any one particular individual, or group ofindividuals, but are rather “a common concern of humankind” (see the Preamble to the
UNFCCC). Moreover, in this context where intergenerational burden-sharing
assumes particular importance (…), collective action through associations or otherinterest groups may be one of the only means through which the voice of those ata distinct representational disadvantage can be heard and through which they canseek to influence the relevant decision-making processes.
490. These general observations (…) are reflected in (…) the Aarhus Convention. That
Convention recognises that “every person has the right to live in an environment
adequate to his or her health and well-being, and the duty, both individually and inassociation with others, to protect and improve the environment for the benefit ofpresent and future generations” (…).
491. The Aarhus Convention also emphasises the importance of the role which nongovernmental organisations play in the context of environmental protection. (…)
492. The Court further notes that the EU has developed a set of legal instruments
concerning the implementation of the Aarhus Convention (…).
493. In this connection, it should also be noted that a comparative study from 2019
found that broad legal standing was granted by law and in practice in a number of EU
member States (thirteen out of twenty-eight at the time). (…)
494. The findings of the above studies were confirmed by a broader comparative
survey conducted by the Court for the purposes of the present proceedings. (…)
495. In the light of the above considerations, in order to devise an approach to thematter in the present case, in which the applicant association also claims victim status,
the Court notes some key principles which must guide its decision in that
respect.

39496. First, it is necessary to make, and to maintain, the distinction between the victim
status of individuals and the legal standing of representatives who are acting on behalfof persons whose Convention rights are alleged to be violated (…). (…) there seems to
be no reason to call into question the principle in the case-law that an association
cannot rely on health considerations or nuisances and problems associated withclimate change which can only be encountered by natural persons (…). This, by thenature of things, places a constraint on the possibility of granting victim status to an
association with regard to any substantive issue under Articles 2 and/or 8 of theConvention.
497. Secondly, there has been an evolution in contemporary society as regards
recognition of the importance of associations to litigate issues of climate change on
behalf of affected persons. Indeed, climate-change litigation often involves
complex issues of law and fact, requiring significant financial and logisticalresources and coordination, and the outcome of a dispute will inevitably affectthe position of many individuals (…)
498. The specific considerations relating to climate change weigh in favour ofrecognising the possibility for associations, subject to certain conditions, tohave standing before the Court as representatives of the individuals whoserights are or will allegedly be affected. Indeed, (…) it may be possible for an
association to have standing before the Court despite the fact that it cannot itself
claim to be the victim of a violation of the Convention.
499. Moreover, the special feature of climate change as a common concern of
humankind and the necessity of promoting intergenerational burden-sharing inthis context (…), speak in favour of recognising the standing of associations before
the Court in climate-change cases. In view of the urgency of combating the adverse
effects of climate change and the severity of its consequences, including thegrave risk of their irreversibility, States should take adequate action notably
through suitable general measures to secure not only the Convention rights ofindividuals who are currently affected by climate change, but also thoseindividuals within their jurisdiction whose enjoyment of Convention rights may
be severely and irreversibly affected in the future in the absence of timely
action. The Court therefore considers it appropriate in this specific context toacknowledge the importance of making allowance for recourse to legal action by
associations for the purpose of seeking the protection of the human rights of thoseaffected, as well as those at risk of being affected, by the adverse effects of climatechange, instead of exclusively relying on proceedings brought by each individual on
his or her own behalf.
500. However, (…), the exclusion of actio popularis under the Convention requiresthat the possibility for associations to lodge applications before the Court be subject
to certain conditions. It is clear that the Convention mechanism cannot accept an
abstract complaint about a general deterioration of the living conditions of people
without considering its impact on a particular person or group of persons.
501. In this connection, when devising the test for the standing of associations inclimate-change litigation under the Convention, the Court finds it pertinent to haveregard to the Aarhus Convention (…).The Court must, however, be mindful of thedifference between the basic nature and purpose of the Aarhus Convention,
which is designed to enhance public participation in environmental matters, and that40

of the Convention, which is designed to protect individuals’ human rights. (…)

The Court must be mindful of the fact that its own approach cannot result in an
acceptance of actio popularis (…).

502. (…) the following factors will determine the standing of associations before the
Court in the present context. In order to be recognised as having locus standi to lodge
an application under Article 34 of the Convention on account of the alleged failure of aContracting State to take adequate measures to protect individuals against theadverse effects of climate change on human lives and health, the association inquestion must be: (a) lawfully established in the jurisdiction concerned or havestanding to act there; (b) able to demonstrate that it pursues a dedicated purpose inaccordance with its statutory objectives in the defence of the human rights of its
members or other affected individuals within the jurisdiction concerned, whether
limited to or including collective action for the protection of those rights against thethreats arising from climate change; and (c) able to demonstrate that it can be
regarded as genuinely qualified and representative to act on behalf of members
or other affected individuals within the jurisdiction who are subject to specificthreats or adverse effects of climate change on their lives, health or well-being
as protected under the Convention. In this connection, the Court will have regard tosuch factors as the purpose for which the association was established, that it is of
non-profit character, the nature and extent of its activities within the relevant
jurisdiction, its membership and representativeness, its principles and transparency of
governance and whether on the whole, in the particular circumstances of a case, thegrant of such standing is in the interests of the proper administration of justice. In
accordance with the specific features of recourse to legal action by associations inthis context (see paragraphs 497-499 above), the standing of an association to act
on behalf of the members or other affected individuals within the jurisdiction
concerned will not be subject to a separate requirement of showing that thoseon whose behalf the case has been brought would themselves have met thevictim-status requirements for individuals in the climate-change context asestablished in paragraphs 487 to 488 above.
503. In the event of existing limitations regarding the standing before the domestic
courts of associations meeting the above Convention requirements, the Court may
also, in the interests of the proper administration of justice, take into account whether,and to what extent, its individual members or other affected individuals may haveenjoyed access to a court in the same or related domestic proceedings.
505. Having regard to the approach outlined in paragraph 459 above, the Court will
examine the issues of the victim status of applicants nos. 2-5 and the standing of theapplicant association in the context of its assessment of the applicability of Articles 2
and 8 of the Convention.

5.

Applicability of Art. 2 ECHR in the climate change context
509. It follows from the above-noted general principles that complaints concerning
the alleged failures of the State to combat climate change most appropriately fall into
the category of cases concerning an activity which is, by its very nature, capableof putting an individual’s life at risk. Indeed, the applicants referred the Court tocompelling scientific evidence showing a link between climate change and anincreased risk of mortality, particularly in vulnerable groups (…). At present, there
is nothing in the arguments provided by the respondent Government or the41

intervening Governments to call into question the relevance and reliability of thisevidence.
511. The applicability of Article 2, however, cannot operate in abstracto in order toprotect the population from any possible kind of environmental harm arising fromclimate change. (…) in order for Article 2 to apply in the context of an activity which is,by its very nature, capable of putting an individual’s life at risk, there has to be a “realand imminent” risk to life. This may accordingly extend to complaints of State action
and/or inaction in the context of climate change, notably in circumstances such as
those in the present case, considering that the IPCC has found with high confidence
that older adults are at “highest risk” of temperature-related morbidity and mortality.
513. In sum, in order for Article 2 to apply to complaints of State action and/or inactionin the context of climate change, it needs to be determined that there is a “real andimminent” risk to life. However, such risk to life in the climate-change context must be
understood in the light of the fact that there is a grave risk of inevitability andirreversibility of the adverse effects of climate change, the occurrences of which aremost likely to increase in frequency and gravity. Thus, the “real and imminent” test
may be understood as referring to a serious, genuine and sufficiently
ascertainable threat to life, containing an element of material and temporalproximity of the threat to the harm complained of by the applicant. This would
also imply that where the victim status of an individual applicant has been establishedin accordance with the criteria set out in paragraphs 487 to 488 above, it would bepossible to assume that a serious risk of a significant decline in a person’s life
expectancy owing to climate change ought also to trigger the applicability of Article 2.

6.

Applicability of Art. 8 ECHR in the climate change context
519. Drawing on the above considerations, and having regard to the causal
relationship between State actions and/or omissions relating to climate change andthe harm, or risk of harm, affecting individuals (…), Article 8 must be seen as
encompassing a right for individuals to effective protection by the Stateauthorities from serious adverse effects of climate change on their life, health,well-being and quality of life.
520. However, in this context, the question of “actual interference” or the
existence of a relevant and sufficiently serious risk entailing the applicability of
Article 8 essentially depends on the assessment of similar criteria to those set
out in paragraphs 487 to 488 above concerning the victim status of individuals,
or in paragraph 502 above concerning the standing of associations. These
criteria are therefore determinative for establishing whether Article 8 rights are atstake and whether this provision applies. In each case, these are matters that remain
to be examined on the facts of a particular case and on the basis of the available
evidence.

7.

Applicability of Arts. 2 and 8 ECHR in the present casea)Applicability of Art. 8 ECHR confirmed for association

522. The FSC and the FAC limited their assessment of standing to the individual
applicants, considering it unnecessary to examine that of the applicant association. As
a result, the Court does not have the benefit of the assessment of the legal status of42

the applicant association under domestic law or of the nature and extent of its
activities within the respondent State.
523. (…) Given the membership basis and representativeness of the applicant
association, as well as the purpose of its establishment, the Court accepts that it
represents a vehicle of collective recourse aimed at defending the rights and interestsof individuals against the threats of climate change in the respondent State (seeparagraph 497 above). The Court, furthermore, notes that the individual applicants did
not have access to a court in the respondent State. Thus, viewed overall, the grant ofstanding to the applicant association before the Court is in the interests of the proper
administration of justice.
524. Having regard to the above considerations, the Court finds that the applicant
association is lawfully established, it has demonstrated that it pursues a dedicatedpurpose in accordance with its statutory objectives in the defence of the human rights
of its members and other affected individuals against the threats arising from climatechange in the respondent State and that it is genuinely qualified and representative
to act on behalf of those individuals who may arguably claim to be subject tospecific threats or adverse effects of climate change on their life, health, wellbeing and quality of life as protected under the Convention (see paragraph 519
above).
526. Accordingly, it follows that the applicant association has the necessary locus
standi in the present proceedings and that Article 8 is applicable to its complaint. (…)b)

Applicability of Art. 8 ECHR denied for individual applicants

527. Two key criteria have been set out for recognising the victim status of natural
persons in the climate-change context: (a) high intensity of exposure of the applicant
to the adverse effects of climate change; and (b) a pressing need to ensure theapplicant’s individual protection (see paragraphs 487-488 above). The threshold for
fulfilling these criteria is especially high (see paragraph 488 above).
529. (…) the applicants provided information and evidence showing how climatechange affects older women in Switzerland, in particular in relation to the increasing
occurrence and intensity of heatwaves. The data provided by the applicants,
emanating from domestic and international expert bodies – the relevance andprobative value of which has not been called into question – shows that several
summers in recent years have been among the warmest summers everrecorded in Switzerland and that heatwaves are associated with increased
mortality and morbidity, particularly in older women (…).
530. Older people have been found by the IPCC to belong to some of the mostvulnerable groups in relation to the harmful effects of climate change on physical andmental health. Similar findings were made by the Swiss FOEN, (…) In this context, older
people were found to be particularly at risk. Moreover, the adverse effects of climatechange on older women, and the need to protect them from the adverse effects ofclimate change, have been stressed in many international documents.
531. While the above findings undoubtedly suggest that the applicants belong
to a group which is particularly susceptible to the effects of climate change, thatwould not, in itself, be sufficient to grant them victim status within the meaning of43

the criteria set out in paragraphs 487 to 488 above. It is necessary to establish, in eachapplicant’s individual case, that the requirement of a particular level and severity of theadverse consequences affecting the applicant concerned is satisfied including theapplicants’ individual vulnerabilities which may give rise to a pressing need to ensure
their individual protection.
532. In this connection, as regards applicants nos. 2-4, it should be noted that in theirwritten declarations and their medical records they provided accounts of the various
difficulties they encountered during heatwaves, including the effects on their medical
conditions. They also submitted that they needed to take various personal adaptation
measures during heatwaves.
533. However, while it may be accepted that heatwaves affected the applicants’quality of life, it is not apparent from the available materials that they were
exposed to the adverse effects of climate change, or were at risk of being
exposed at any relevant point in the future, with a degree of intensity giving rise
to a pressing need to ensure their individual protection, not least given the highthreshold which necessarily applies to the fulfilment of the criteria set out inparagraphs 487 to 488 above. It cannot be said that the applicants suffered from any
critical medical condition whose possible aggravation linked to heatwaves could not
be alleviated by the adaptation measures available in Switzerland or by means ofreasonable measures of personal adaptation given the extent of heatwaves affectingthat country (…). It should also be reiterated that victim status in relation to future risk isonly exceptionally admitted by the Court and the individual applicants have failed todemonstrate that such exceptional circumstances exist in their regard (…).

c)

Not necessary to analyse applicability of Art. 2 ECHR

536. While Article 8 undoubtedly applies in the circumstances of the present case as
regards the complaints of the applicant association (…), whether those alleged
shortcomings also had such life-threatening consequences as could trigger theapplicability of Article 2 is more questionable. However, for the reasons stated inparagraphs 537 and 538 below, the Court finds it unnecessary to analyse further theissues pertinent to the threshold of applicability of Article 2.

8.

Merits regarding Art. 8 ECHRa)

General principles

538. To a great extent the Court has applied the same principles as those set out in
respect of Article 2 when examining cases involving environmental issues under
Article 8 (…)(a) The States have a positive obligation to put in place the relevant legislative
and administrative framework designed to provide effective protection ofhuman health and life. (...)(b) The States also have an obligation to apply that framework effectively inpractice; indeed, regulations to protect guaranteed rights serve little purpose if they
are not duly enforced and the Convention is intended to protect effective rights, notillusory ones. The relevant measures must be applied in a timely and effective
manner (...)

44

(c) In assessing whether the respondent State complied with its positive obligations,the Court must consider whether, (…) the State remained within its margin of
appreciation. In cases involving environmental issues, the State must be allowed awide margin of appreciation (…).
(d) The choice of means is in principle a matter that falls within the State’s margin of
appreciation; even if the State has failed to apply one particular measure provided forby domestic law, it may still fulfil its positive duty by other means. (…)(e) While it is not in the Court’s remit to determine what exactly should have been
done, it can assess whether the authorities approached the matter with due
diligence and gave consideration to all competing interests (…).
(f) The State has a positive obligation to provide access to essential information
enabling individuals to assess risks to their health and lives (…).
(g) In assessing whether the respondent State complied with its positive obligations,the Court must consider the particular circumstances of the case. The scope of thepositive obligations imputable to the State in the particular circumstances will dependon the origin of the threat and the extent to which one or the other risk is susceptible
to mitigation (…).
539. In environmental cases examined under Article 8 of the Convention, theCourt has frequently reviewed the domestic decision-making process, taking
into account that the procedural safeguards available to the individual will beespecially material in determining whether the respondent State has remained within
its margin of appreciation (…). In this context, the Court has had particular regard to thefollowing principles and considerations:(a) The complexity of the issues involved with regard to environmental policy-making
renders the Court’s role primarily a subsidiary one. The Court must therefore firstexamine whether the decision-making process was adequate (…);(b) The Court is required to consider all the procedural aspects, including the type ofpolicy or decision involved, the extent to which the views of individuals were taken
into account throughout the decision-making procedure, (…).
(c) In particular, a governmental decision-making process concerning complex issues
such as those in respect of environmental and economic policy must necessarily
involve appropriate investigations and studies in order to allow the authorities tostrike a fair balance between the various conflicting interests at stake. (…).
(d) The public must have access to the conclusions of the relevant studies,
allowing them to assess the risk to which they are exposed (…).
(e) The individuals concerned must have an opportunity to protect their interests in theenvironmental decision-making process, which implies that they must be able toparticipate effectively in relevant proceedings and to have their relevant
arguments examined, although the actual design of the process is a matter fallingwithin the State’s margin of appreciation (…)
540. It is with these principles in mind that the Court will proceed by identifying thecontent of the State’s positive obligations under Articles 2 and 8 of the Convention in45

the context of climate change (…) However, given the special nature of thephenomenon as compared with the isolated sources of environmental harm
previously addressed in the Court’s case-law, the general parameters of thepositive obligations must be adapted to the specific context of climate change.

b)

The States’ positive obligations in the context of climate change(1)

The States’ margin of appreciation

542. Having regard, in particular, to the scientific evidence as regards the manner inwhich climate change affects Convention rights, and taking into account the scientificevidence regarding the urgency of combating the adverse effects of climate change,
the severity of its consequences, including the grave risk of their reaching the point of
irreversibility, and the scientific, political and judicial recognition of a link between theadverse effects of climate change and the enjoyment of (various aspects of) humanrights (…), the Court finds it justified to consider that climate protection should
carry considerable weight in the weighing-up of any competing considerations.
Other factors militating in the same direction include the global nature of the effects of
GHG emissions, as opposed to environmental harm that occurs solely within a State’s
own borders, and the States’ generally inadequate track record in taking action
to address the risks of climate change that have become apparent in the past
several decades, as evidenced by the IPCC’s finding of “a rapidly closing window ofopportunity to secure a liveable and sustainable future for all” (see paragraph 118
above), circumstances which highlight the gravity of the risks arising from noncompliance with the overall global objective (see also paragraph 139 above).
543. Taking as a starting-point the principle that States must enjoy a certain margin of
appreciation in this area, the above considerations entail a distinction between thescope of the margin as regards, on the one hand, the State’s commitment to thenecessity of combating climate change and its adverse effects, and the settingof the requisite aims and objectives in this respect, and, on the other hand, thechoice of means designed to achieve those objectives. As regards the former
aspect, the nature and gravity of the threat and the general consensus as to thestakes involved in ensuring the overarching goal of effective climate protection
through overall GHG reduction targets in accordance with the Contracting
Parties’ accepted commitments to achieve carbon neutrality, call for a reduced
margin of appreciation for the States. As regards the latter aspect, namely their choiceof means, including operational choices and policies adopted in order to meetinternationally anchored targets and commitments in the light of priorities andresources, the States should be accorded a wide margin of appreciation.

(2)

Content of the States’ positive obligations in the climate change
context

545. Accordingly, the State’s obligation under Article 8 is to do its part to ensure
such protection. In this context, the State’s primary duty is to adopt, and toeffectively apply in practice, regulations and measures capable of mitigating theexisting and potentially irreversible, future effects of climate change. (..).
546. In line with the international commitments undertaken by the member States,
most notably under the UNFCCC and the Paris Agreement, and the cogent scientificevidence provided, in particular, by the IPCC (…), the Contracting States need to put

46

in place the necessary regulations and measures aimed at preventing an
increase in GHG concentrations in the Earth’s atmosphere and a rise in global
average temperature beyond levels capable of producing serious andirreversible adverse effects on human rights, notably the right to private and family
life and home under Article 8 of the Convention.
547. Bearing in mind that the positive obligations relating to the setting up of aregulatory framework must be geared to the specific features of the subject matterand the risks involved (…) and that the global aims as to the need to limit the rise inglobal temperature, as set out in the Paris Agreement, must inform the formulationof domestic policies, it is obvious that the said aims cannot of themselves suffice
as a criterion for any assessment of Convention compliance of individual
Contracting Parties to the Convention in this area. This is because each individualState is called upon to define its own adequate pathway for reaching carbon
neutrality, depending on the sources and levels of emissions and all otherrelevant factors within its jurisdiction.
548. It follows from the above considerations that effective respect for the rights
protected by Article 8 of the Convention requires that each Contracting State
undertake measures for the substantial and progressive reduction of theirrespective GHG emission levels, with a view to reaching net neutrality within, in
principle, the next three decades. In this context, in order for the measures to beeffective, it is incumbent on the public authorities to act in good time, in an appropriate
and consistent manner (…).
549. Moreover, in order for this to be genuinely feasible, and to avoid adisproportionate burden on future generations, immediate action needs to betaken and adequate intermediate reduction goals must be set for the periodleading to net neutrality. Such measures should, in the first place, be incorporated
into a binding regulatory framework at the national level, followed by adequate
implementation. The relevant targets and timelines must form an integral part of thedomestic regulatory framework, as a basis for general and sectoral mitigation
measures. Accordingly, and reiterating the position taken above, namely that themargin of appreciation to be afforded to States is reduced as regards the setting of
the requisite aims and objectives, whereas in respect of the choice of means topursue those aims and objectives it remains wide, the Court finds it appropriate tooutline the States’ positive obligations (…) in this domain as follows.
550. When assessing whether a State has remained within its margin of appreciation(…), the Court will examine whether the competent domestic authorities, be it at thelegislative, executive or judicial level, have had due regard to the need to:(a) adopt general measures specifying a target timeline for achieving carbon
neutrality and the overall remaining carbon budget for the same time frame, oranother equivalent method of quantification of future GHG emissions, in line with theoverarching goal for national and/or global climate-change mitigationcommitments;(b) set out intermediate GHG emissions reduction targets and pathways (by sector
or other relevant methodologies) that are deemed capable, in principle, of meetingthe overall national GHG reduction goals within the relevant time frames
undertaken in national policies;

47

(c) provide evidence showing whether they have duly complied, or are in theprocess of complying, with the relevant GHG reduction targets (see subparagraphs(a)-(b) above);(d) keep the relevant GHG reduction targets updated with due diligence, andbased on the best available evidence; and(e) act in good time and in an appropriate and consistent manner when devisingand implementing the relevant legislation and measures.
551. The Court’s assessment of whether the above requirements have been met will,in principle, be of an overall nature, meaning that a shortcoming in one particularrespect alone will not necessarily entail that the State would be considered to haveoverstepped its relevant margin of appreciation (…).
552. Furthermore, effective protection (…) requires that the above-noted mitigation
measures be supplemented by adaptation measures aimed at alleviating the most
severe or imminent consequences of climate change, taking into account any relevant
particular needs for protection. Such adaptation measures must be put in place andeffectively applied in accordance with the best available evidence (…) and consistent
with the general structure of the State’s positive obligations in this context (…).
553. Lastly, (…) the procedural safeguards available to those concerned will beespecially material in determining whether the respondent State has remained within
its margin of appreciation (…).
554. (…), the following types of procedural safeguards are to be taken into account as
regards the State’s decision-making process in the context of climate change: (a) The
information held by public authorities of importance for setting out and implementing
the relevant regulations and measures to tackle climate change must be madeavailable to the public, and in particular to those persons who may be affected by theregulations and measures in question or the absence thereof. In this connection,
procedural safeguards must be available to ensure that the public can have access tothe conclusions of the relevant studies, allowing them to assess the risk to which they
are exposed. (b) Procedures must be available through which the views of the public,
and in particular the interests of those affected or at risk of being affected by therelevant regulations and measures or the absence thereof, can be taken into accountin the decision-making process.

(3)

Switzerland’s failure to comply with its positive obligations

558. At the outset, the Court notes that the currently existing 2011 CO2 Act (in force
since 2013) required that by 2020 GHG emissions should be reduced overall by 20%
compared with 1990 levels (…). However, as pointed out by the applicants, in an
assessment dating back to August 2009, the Swiss Federal Council found (…) thatthe industrialised countries (such as the respondent State) had to reduce theiremissions by 25-40% by 2020 compared to 1990 levels. (…).
559. Moreover, as the Government acknowledged, the relevant domestic
assessments found that even the GHG reduction target for 2020 had been
missed. Indeed, on average over the period between 2013 and 2020, Switzerland
reduced its GHG emissions by around 11% compared with 1990 levels (see paragraph48

87 above), which indicates the insufficiency of the authorities’ past action to take thenecessary measures to address climate change.
561. (…) In any event, and irrespective of the way in which the legislative process isorganised from the domestic constitutional point of view (...), the fact is that after thereferendum a legislative lacuna existed for the period after 2020. The State sought toaddress this lacuna by enacting, on 17 December 2021, a partial revision of theexisting 2011 CO2 Act, according to which the reduction target for the years 2021 to2024 was set at 1.5% per year compared with 1990 levels, on the understanding thatfrom 2022 onwards, a maximum of 25% of this reduction could be achieved bymeasures implemented abroad (…). This also left the period after 2024 unregulated
and thus incompatible with the requirement of the existence of generalmeasures specifying the respondent State’s mitigation measures in line with a
net neutrality timeline.
562. These lacunae point to a failure on the part of the respondent State to fulfil its
positive obligation derived from Article 8 to devise a regulatory framework setting
the requisite objectives and goals (see paragraph 550 (a)-(b) above). In this context,
it should be noted that in its latest AR6 Synthesis Report (Climate Change 2023) the
IPCC stressed that the choices and actions implemented in this decade would
have impacts now and for thousands of years (…).
564. On 30 September 2022, reflecting the commitments in the updated NDC, theClimate Act was enacted (…). This Act – which was confirmed in a referendum only on
18 June 2023 but has not yet come into force – envisages the principle of a net-zeroemissions target by 2050 by providing that the GHG emissions should be reduced “asfar as possible”. It also provides for an intermediate target for 2040 (75% reduction
compared with 1990 levels) and for the years 2031 to 2040 (average of at least 64%)
and 2041 to 2050 (average of at least 89% compared with 1990 levels). It also set
indicative values for the reduction of emissions in the building, transport and industrial
sectors for the years 2040 and 2050. 565. In this connection, the Court notes that the
Climate Act sets out the general objectives and targets but that the concretemeasures to achieve those objectives are not set out in the Act but rather remain
to be determined by the Federal Council and proposed to Parliament “in good time”(section 11(1) of the Climate Act). Moreover, the adoption of the concretemeasures is to be provided under the 2011 CO2 Act (section 11(2) of the Climate
Act), which, as already noted in paragraphs 558 to 559 above, in its current formcannot be considered as providing for a sufficient regulatory framework.
566. It should also be noted that the new regulation under the Climate Act concerns
intermediate targets only for the period after 2031. Given the fact that the 2011 CO2
Act provides for legal regulation of the intermediate targets only up until 2024 (seeparagraph 561 above), this means that the period between 2025 and 2030 still
remains unregulated pending the enactment of new legislation.
567. In these circumstances, given the pressing urgency of climate change and thecurrent absence of a satisfactory regulatory framework, the Court has difficulty
accepting that the mere legislative commitment to adopt the concretemeasures “in good time”, as envisaged in the Climate Act, satisfies the State’s
duty to provide, and effectively apply in practice, effective protection ofindividuals within its jurisdiction from the adverse effects of climate change on their lifeand health (see paragraph 555 above).

49568. While acknowledging the significant progress to be expected from the recently
enacted Climate Act, once it has entered into force, the Court must conclude that the
introduction of that new legislation is not sufficient to remedy the shortcomings
identified in the legal framework applicable so far.
569. The Court further observes that the applicant association has provided an
estimate of the remaining Swiss carbon budget under the current situation, also
taking into account the targets and pathways introduced by the Climate Act (seeparagraph 323 above). Referring to the relevant IPCC assessment of the global carbon
budget, and the data of the Swiss greenhouse gas inventory, the applicant association
provided an estimate according to which, assuming the same per capita burdensharing for emissions from 2020 onwards, Switzerland would have a remaining carbon
budget of 0.44 GtCO2 for a 67% chance of meeting the 1.5°C limit (or 0.33 GtCO2 foran 83% chance). In a scenario with a 34% reduction in CO2 emissions by 2030 and
75% by 2040, Switzerland would have used the remaining budget by around 2034 (or2030 for an 83% change). Thus, under its current climate strategy, Switzerland
allowed for more GHG emissions than even an “equal per capita emissions”
quantification approach would entitle it to use.
570. The Court observes that the Government relied on the 2012 Policy Brief to justify
the absence of any specific carbon budget for Switzerland. Citing the latter, theGovernment suggested that there was no established methodology to determine acountry’s carbon budget and acknowledged that Switzerland had not determined one.
They argued that Swiss national climate policy could be considered as being similar inapproach to establishing a carbon budget and that it was based on relevant internal
assessments prepared in 2020 and expressed in its NDCs (…). However, the Court is
not convinced that an effective regulatory framework concerning climatechange could be put in place without quantifying, through a carbon budget orotherwise, national GHG emissions limitations (see paragraph 550 (a) above).
571. In this regard the Court cannot but note that the IPCC has stressed theimportance of carbon budgets and policies for net-zero emissions (seeparagraph 116 above), which can hardly be compensated for by reliance on theState’s NDCs under the Paris Agreement, as the Government seemed to suggest.
The Court also finds convincing the reasoning of the GFCC, which rejected theargument that it was impossible to determine the national carbon budget,
pointing to, inter alia, the principle of common but differentiated responsibilities
under the UNFCCC and the Paris Agreement (see Neubauer and Others, cited inparagraph 254 above, paragraphs 215-29). This principle requires the States to act
on the basis of equity and in accordance with their own respective capabilities.
Thus, for instance, it is instructive for comparative purposes that the European Climate
Law provides for the establishment of indicative GHG budgets (see paragraph 211
above).
572. In these circumstances, while acknowledging that the measures and methods
determining the details of the State’s climate policy fall within its wide margin of
appreciation, in the absence of any domestic measure attempting to quantify the
respondent State’s remaining carbon budget, the Court has difficulty acceptingthat the State could be regarded as complying effectively with its regulatory
obligation under Article 8 of the Convention (see paragraph 550 above).

50

9.

Victim status and standing regarding the alleged violation of Art. 6 and 13 ECHR
590. In order to claim to be a “victim” in the context of an alleged violation of Article 6of the Convention, and to complain of alleged procedural shortcomings under thatprovision, it is normally sufficient that the applicant was affected as a party to theproceedings brought by him or her before the domestic courts (…).
592. (…), the Government (…) did not challenge the victim status of applicants nos. 2-5
under the procedural provisions (Articles 6 and 13) (…).
593. Having regard to the fact that the issue of victim status under Article 34 is, in any
event, a matter that goes to the Court’s jurisdiction and which the Court examines of
its own motion (…), the issue of the victim status of the applicants under Article 6 § 1 of
the Convention will be examined by joining it to the assessment of the applicability ofthat provision.
594. Article 6 of the Convention does not guarantee a right of access to a court withpower to invalidate or override a law enacted by the legislature (…).

10.

Applicability of Art. 6 ECHR in the climate change context
608. The above-noted general principles concerning the applicability of Article 6 § 1
also prevail in the present climate-change context, it being understood that theirapplication may need to take into account the specificities of climate-change
litigation. In other words, while characteristics of the subject matter do not at present
prompt the Court to revise its firmly established case-law on Article 6, they will
nonetheless inevitably have implications for the application of that case-law, both inregard to the conditions for its applicability and to the assessment of compliance withthe requirements flowing from that provision.
609. (…) Article 6 cannot be relied upon to institute an action before a court for the
purpose of compelling Parliament to enact legislation. However, where domestic law
does provide for individual access to proceedings before a Constitutional Court oranother similar superior court which does have the power to examine an appeal
lodged directly against a law, Article 6 may be applicable (…)
610. (…) it is important to note that in so far as participation of the public and access to
information in matters concerning the environment (as widely acknowledged ininternational environmental law) constitute rights recognised in domestic law, this maylead to a conclusion that there is a “civil” right within the meaning of Article 6. (…)
612. As regards, lastly, the requirement that the outcome of the proceedings inquestion must be “directly decisive” for the applicant’s right, the Court notes that there
is a certain link between the requirement under Article 6 that the outcome of theproceedings must be directly decisive for the applicants’ rights relied on underdomestic law, and the considerations it has found relevant with a view to settingout criteria for victim status as well as those relating to the applicability of
Article 8 (…).
613. Furthermore, the object of the proceedings also has a bearing on whether theoutcome can be considered decisive for the right relied on. (…). In the context ofclimate litigation, however, the object of the proceedings may well be broader, which is51

why the question whether their object can be considered directly decisive for therights relied on becomes more critical and distinct.
614. At the same time, the various elements of the analysis under this limb of the test,
and in particular the notion of imminent harm or danger, cannot be applied without
properly taking into account the specific nature of climate change-related risks,
including their potential for irreversible consequences and corollary severity of harm.
Where future harms are not merely speculative but real and highly probable (orvirtually certain) in the absence of adequate corrective action, the fact that theharm is not strictly imminent should not, on its own, lead to the conclusion thatthe outcome of the proceedings would not be decisive for its alleviation or
reduction. Such an approach would unduly limit access to a court for many of themost serious risks associated with climate change. This is particularly true for legal
actions instituted by associations. In the climate-change context, their legal actions
must be seen in the light of their role as a means through which the Convention rightsof those affected by climate change, including those at a distinct representational
disadvantage, can be defended and through which they can seek to obtain an
adequate corrective action for the alleged failures and omissions on the part of theauthorities in the field of climate change.

11.

Applicability of Art. 6 ECHR in the present case615. The Court notes that the applicants’ action instituted at the domestic level
largely concerned requests for legislative and regulatory action falling outside
the scope of Article 6 § 1 (see points 1-3 and some items under point 4 of theirclaims in paragraph 22 above). In part, however, the action concerned theimplementation of measures within the competence of the respective
authorities, required to achieve the current reduction target of 20%, and thus forending the unlawful omissions (see the opening part of point 4 in paragraph 22 above).
They also requested a declaratory ruling of unlawfulness of the alleged
governmental omissions in the field of climate change (see point 5 of the request).
(…)
616. While the complaint concerning policy decisions that are subject to therelevant democratic processes is not a matter falling within the scope of Article
6 (see paragraph 594 above), the applicants’ complaint concerning effective
implementation of the mitigation measures under existing law is a mattercapable of falling within the scope of that provision, provided that the otherconditions for the applicability of Article 6 § 1 are satisfied.
620. Lastly, as regards the third criterion – whether the outcome of the proceedings
was “directly decisive” for the applicants’ rights – the Court notes the following.
621. As regards the dispute brought by the applicant association, and in so far as that
dispute arose out of a relevant part of its claim at the domestic level – namely, thecomplaint concerning the failure to effectively implement mitigation measures underthe existing law (see paragraph 615 above) – the applicant association has
demonstrated that it had an actual and sufficiently close connection to the mattercomplained of and to the individuals seeking protection against the adverse effects ofclimate change on their lives, health and quality of life. In other words, the applicant
association sought to defend the specific civil rights of its members in relation to theadverse effects of climate change (see also paragraphs 521-526 above). It acted as a52

means through which the rights of those affected by climate change could be
defended and through which they could seek to obtain an adequate corrective action
for the State’s failure to effectively implement mitigation measures under the existinglaw (see paragraph 614 above).
622. In this connection, the Court refers to its above findings regarding the applicant
association’s standing for the purposes of the complaint under Article 8 of theConvention (see paragraphs 521-526 above). It reiterates the important role ofassociations in defending specific causes in the sphere of environmental protection,
as already found in its case-law (see paragraph 601 above), as well as the particular
relevance of collective action in the context of climate change, the consequences ofwhich are not specifically limited to certain individuals. Similarly, in so far as adispute reflects this collective dimension, the requirement of a “directly
decisive” outcome must be taken in the broader sense of seeking to obtain aform of correction of the authorities’ actions and omissions affecting the civilrights of its members under national law.
623. Article 6 § 1 therefore applies to the complaint of the applicant association and it
can be considered to have victim status under that provision regarding its complaintof lack of access to a court (see paragraph 593 above). (…)
624. With respect to applicants nos. 2-5, it cannot be considered that the dispute they
had brought concerning the failure to effectively implement mitigation measures
under the existing law was or could have been directly decisive for their specific rights.
For similar reasons as those stated above with respect to Article 8 of the Convention(see paragraphs 527-535 above), it cannot be held that applicants nos. 2-5 havemade out a case demonstrating that the requested action by the authorities –
namely, effectively implementing mitigation measures under the existing
national law – alone would have created sufficiently imminent and certain
effects on their individual rights in the context of climate change. It therefore
follows that their dispute had a mere tenuous connection with, or remoteconsequences for, their rights relied upon under national law (…).

12.

Merits regarding Art. 6 ECHR
627. It should also be reiterated that Article 6 does not go so far as to guarantee aremedy allowing a Contracting State’s laws as such to be challenged before a national
authority on the grounds of being incompatible with the Convention or to equivalent
domestic legal norms (…). Furthermore, the Court has also accepted, albeit in anothercontext, that maintaining the separation of powers between the legislature and the
judiciary is a legitimate aim as regards limitations on the right of access to a court (…).
629. At the outset, the Court reiterates that the right of access to a court includes not
only the right to institute proceedings but also the right to obtain a determination of
the dispute by a court (…).
630. In the present case, the applicant association’s legal action was rejected, (…)
without the merits of its complaints being assessed (…). There was therefore alimitation on the right of access to a court and the Court must assess whether themanner in which the limitation at issue operated in the present case restricted theapplicant association’s access to a court in such a way or to such an extent that thevery essence of the right was impaired (…).

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633. In this connection, it should be reiterated that the action which the applicant
association instituted at the domestic level could be seen as being hybrid in nature. In
its main part, it clearly concerned issues pertaining to the democratic legislative
process and falling outside the scope of Article 6 § 1, but it also concerned issues
pertaining specifically to alleged failures in the enforcement of the existing domestic
law affecting the protection of the rights defended by the applicant association. Someof the claims thus raised issues going to the lawfulness of the impugned governmental
actions or omissions, alleging adverse effects on the right to life and the protection ofphysical integrity, which are enshrined in the domestic law, notably in Article 10 of theConstitution (see paragraphs 615-617 above).
634. To the extent that it was seeking to vindicate these rights in the face of thethreats posed by the allegedly inadequate and insufficient action by theauthorities to implement the relevant measures for the mitigation of climatechange already required under the existing national law, this kind of action
cannot automatically be seen as an actio popularis or as involving a politicalissue which the courts should not engage with. This position is consistent with thereasoning set out in paragraph 436 above as regards the manner in which climatechange may affect human rights and the pressing need to address the threats posedby climate change.
635. The Court is not persuaded by the domestic courts’ findings that there wasstill some time to prevent global warming from reaching the critical limit (seeparagraphs 56-59 above). This was not based on sufficient examination of thescientific evidence concerning climate change, which was already available at therelevant time, as well as the general acceptance that there is urgency as regards theexisting and inevitable future impacts of climate change on various aspects of humanrights (see paragraph 436 above; see also paragraph 337 above as regards the
respondent Government’s acceptance that there was a climate emergency). Indeed,
the existing evidence and the scientific findings on the urgency of addressing theadverse effects of climate change, including the grave risk of their inevitability andtheir irreversibility, suggest that there was a pressing need to ensure the legal
protection of human rights as regards the authorities’ allegedly inadequate
action to tackle climate change.
636. The Court further notes that the domestic courts did not address the issue of thestanding of the applicant association, an issue which warranted a separate
assessment irrespective of the domestic courts’ position as regards the individual
applicants’ complaints. The domestic courts did not engage seriously or at all with theaction brought by the applicant association.
637. What is more, before resorting to the courts the applicant association, and its
members, had raised their complaints before various expert and specialised
administrative bodies and agencies, but none of them dealt with the substance of theircomplaints (see paragraph 22 above). Despite the fact that such an examination by theadministrative authorities alone could not satisfy the requirements of access to a
court under Article 6, the Court notes that, judging by the DETEC’s decision, therejection of the applicants’ complaint by the administrative authorities would
seem to have been based on inadequate and insufficient considerations similar
to those relied upon by the domestic courts (see paragraphs 28-31 above). The
Court notes, furthermore, that individual applicants/members of the association54

were not given access to a court, and nor was there any other avenue underdomestic law through which they could bring their complaints to a court. (…).
638. The foregoing considerations are sufficient to enable the Court to conclude that,to the extent that the applicant association’s claims fell within the scope of Article 6 §1, its right of access to a court was restricted in such a way and to such an extent thatthe very essence of the right was impaired.
639. In this connection, the Court considers it essential to emphasise the key role
which domestic courts have played and will play in climate-change litigation, afact reflected in the case-law adopted to date in certain Council of Europe member
States, highlighting the importance of access to justice in this field. Furthermore,
given the principles of shared responsibility and subsidiarity, it falls primarily tonational authorities, including the courts, to ensure that Convention obligations
are observed.
640. In the present case, the Court finds that there has been a violation of Article 6 § 1of the Convention.

13.

Considerations regarding Art. 13 ECHR
644. The Court notes that the role of Article 6 in relation to Article 13 is that of a lex
specialis, the requirements of Article 13 being absorbed by the more stringent
requirements of Article 6 (…).
645. As regards applicants nos. 2-5, having regard to its findings in paragraphs 527 to
535 and 625 above, the Court finds that they have no arguable claim under Article 13
(…).

14.

Considerations regarding Art. 46 ECHR
657. In the present case, having regard to the complexity and the nature of theissues involved, the Court is unable to be detailed or prescriptive as regards any
measures to be implemented in order to effectively comply with the present
judgment. Given the differentiated margin of appreciation accorded to the State inthis area (…), the Court considers that the respondent State, with the assistance of theCommittee of Ministers, is better placed than the Court to assess the specificmeasures to be taken. It should thus be left to the Committee of Ministers tosupervise, on the basis of the information provided by the respondent State, theadoption of measures aimed at ensuring that the domestic authorities comply with
Convention requirements, as clarified in the present judgment.

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