**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31
Schweizerische Eidgenossenschaft
Swiss Confederation
Confederazione Svizzera
Confederaziun svizra

Prepaid CH-3003 BernFederal Department of Justice and Police FDJP
Federal Office of Justice (FOJ)
Representation of Switzerland before the ECHR, the CAT, the
CEDAW, the CERD and the CRC

POST CH Ltd
FOJ; bj-sim

Mr
Søren Prebensen
Deputy Registrar of the Grand Chamber
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex

Case number: BJ-E-26.09.2022/31
Your reference: ECHR-LF21.10G (mod.) KKM/elf
Our reference: F.2021/3
Bern, 5 December 2022

Application No. 53600/20 – Verein KlimaSeniorinnen Schweiz and Others v. Switzerland
Memorandum of the Government of Switzerland to the Grand Chamber
To the Deputy Registrar of the Grand Chamber,
In your letter dated 28 April 2022, you informed us that the Chamber with jurisdiction to deal
with the above-referenced matter had relinquished its jurisdiction in favour of the Grand
Chamber and that the matter would henceforth be dealt with by the Grand Chamber. By letter
dated 12 September 2022, you informed us that the parties were invited to submit a memorandum on the admissibility and the merits of the case by the deadline of 5 December 2022,
which should in particular address the issues set out in the document attached to your letter.
By letter of 27 September 2022, you gave us the opportunity to append a separate statementof facts to our memorandum.
Within the time limit set by the Court, the Government of Switzerland hereby submits its comments as follows:
Table of contents
I.

Preliminary comments ......................................................................................................... 2

II.

Statement of facts................................................................................................................. 4

III.

Domestic law and practice................................................................................................... 4

A.

International Law ................................................................................................4a)

United Nations Framework Convention on Climate Change (UNFCCC) ...........4b)Paris Climate Agreement (Paris Agreement) .....................................................5

Federal Office of Justice (FOJ)
Alain Chablais, Dr. iur.
Bundesrain 20
3003 Bern
Phone +41 58 467 62 86
alain.chablais@bj.admin.chwww.ofj.admin.ch
BJ-D-C98C3401/248

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

c)
B.

Domestic law ......................................................................................................5a)Federal Constitution of the Swiss Confederation of 18 April 1999 (Swiss
Const.) ................................................................................................................5b)Federal Act of 20 December 1968 on Administrative Procedure (APA).............5c)

Federal Act on the Consultation Procedure of 18 March 2005 (CPA)................6d)Federal Supreme Court Act of 17 June 2005 (FSCA) ........................................6e)Federal Act of 23 December 2011 on the Reduction of CO2 Emissions (CO2Act) (Status as of 1 January 2022) .....................................................................7

C.
IV.

Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters (Aarhus Convention) ..............5

Domestic practice ...............................................................................................9

Subject matter of the dispute: Greenhouse Gas Emissions Abroad (Reply to Question1)........................................................................................................................................... 10

V. Admissibility ............................................................................................................................. 11A.

Failure to comply with the six-month time limit .................................................11

B.

Jurisdiction and Accountability (Reply to Question 2) ......................................11C.

Victim status (Reply to question 3) ...................................................................14a)“Victim” status of the Applicant association (first Applicant) .............................14b)“Victim” status of the Applicants 2 to 5 .............................................................15c)Conclusion........................................................................................................19D.

Applicability of the provisions of the Convention (reply to question 4) .............20a)Applicability of Articles 2 and 8 of the Convention ...........................................20(b) Applicability of Article 6 of the Convention .......................................................23(c) Applicability of Article 13 of the Convention .....................................................24d)
VI.

Merits ................................................................................................................................... 25

A.

VII.

Conclusion as to the applicability of the provisions of the Convention .............25
Articles 2 and 8 of the Convention (reply to question 5)...................................25a)State discretion and factors to be taken into account.......................................25b)

Relevance of the concept of harmonious interpretation of the Convention withother norms of international law .......................................................................26c)

Doctrine of the living instrument and the need to combat climate change .......30

d)Compatibility of Switzerland’s commitments with Articles 2 and 8 of theConvention .......................................................................................................31

B.

Article 6 para. 1 of the Convention (reply to question 6) ..................................39

C.

Article 13 of the Convention (reply to question 7) ............................................42

Just Satisfaction ................................................................................................................. 44A.

Non-pecuniary harm .........................................................................................44

B.

Pecuniary damages..........................................................................................45

C.

Costs and Expenses ........................................................................................45

VIII. Article 46 of the Convention (reply to question 8)........................................................... 46
IX.

Conclusions ........................................................................................................................ 47

I.

Preliminary comments

1.

This memorandum reiterates the main line of argument developed by the Government
in its comments on admissibility and the merits of 16 July 2021 (hereinafter:

2/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31”Observations of 16.07.2021”) and in its Additional Observations and on the request forjust satisfaction of 18 November 2021 (hereinafter: “Observations of 18.11.2021”), summarising the same and supplementing certain points, while incorporating the replies tothe eight questions asked by the Court.
2.

By way of introduction, the Government stresses that global warming is a global phenomenon that undoubtedly constitutes one of the greatest challenges facing humanity.
Its effects are already being felt in many parts of the world and will be more noticeable
in the coming years and decades. Given the seriousness of the current situation and theworrying prospects for the future, there is a real urgency to the need to adopt and implement a series of effective measures to combat this phenomenon and to minimise its effects. Only resolute action by all states, combined with changes in behaviour by private
actors and by all citizens, will enable us to find lasting solutions to this immense challenge.

3.

Switzerland has long recognised the importance of the problem of global warming andhas committed itself to combatting it at different levels and in different ways. As an Alpine country, Switzerland is particularly affected by climate change. The Swiss Federal
Council and Parliament have shown their determination to reduce Switzerland’s greenhouse gas emissions by means of a revision of the CO2 Act and a series of measures(see Statement of facts in Annex).

4.

The Swiss Government is aware that, in any democratic society, it is perfectly legitimate
for members of the public to call on states to do more to combat global warming or for
criticism to be directed at authorities suspected of inaction in this area. This can only
enrich the debate, help to find solutions and, ultimately, lead authorities towards identifying the best balance in defining the measures to be taken. However, the Convention
system, of which the right of individual application is the cornerstone, is not intended to
become the place where national policies to combat global warming are decided, in accordance with the principle of subsidiarity introduced in the preamble to the Convention
following the entry into force, on 1 August 2021, of Article 1 of Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms(CETS No. 213). Defining and choosing the measures to be taken is indeed a matter for
the Government, Parliament and people of Switzerland.

5.

The Swiss political system, with its democratic mechanisms, offers sufficient options foraccommodating such demands. A “judicialisation” of these processes, in which rulingsof an international court would prescribe higher targets or stronger measures for theGovernment, Parliament or even the Swiss people when they vote in a referendum, as
was the case with the complete revision of the CO2 Act (see Statement of facts in Annex), could only create tensions from the perspective of the separation of powers andthe principle of subsidiarity. It would also run the risk of circumventing the democratic
debate and complicating the search for politically acceptable solutions. Finally, it should
be recognised that the Court is not intended to act as the supreme court of environmental or climate disputes and is not competent to enforce compliance with international
treaties or obligations other than the Convention.

3/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

6.

The Government also points out that the present case, by its nature, is not suitable foran examination on the merits by the Court of the Convention's substantive safeguards
in respect of climate change. It deals with technical procedural issues, since no domestic court has ruled on the merits of the allegations of violation of Articles 2 and 8 of theConvention. In accordance with the principle of subsidiarity, it is therefore not for the
Court, in place of the domestic authorities, to rule on the substantive obligations under
the Convention relating to climate change and to assume the role of a de facto court offirst instance. This is all the more true if one takes into account the evidentiary difficulties usually encountered in environmental cases (cf. Pavlov and Others v. Russia,
11 October 2022, no. 31612/09, para. 62) and the need to base the decision on soundscientific knowledge. The preceding recitals also raise questions about the legitimacy of
judicial decisions.

II.

Statement of facts

7.

The Government refers to the separate Statement of Facts prepared at the express request of the Court (Annex to the memorandum).

8.

The Government takes the view that the factual situation to be taken into account in thepresent case is, in principle, the factual situation existing at the time of the decision of
the Federal Administrative Court (hereafter: FAC) of 27 November 2018. The facts occurring up to that point have been taken into account in full ex officio by the FAC in its
decision and have thus been the subject of a full judicial review (cf. FAC decision A2992/2017 of 27 November 2018, Annex 17 to the Application). If one takes into account the fact that the Federal Supreme Court (hereinafter: FSC) has limited jurisdiction
to depart from the facts established by the FAC (cf. Art. 105 of the Federal Supreme
Court Act [FSCA]1), it is possible to adopt the date of the FSC’s decision of 5 May 2020
as decisive (cf. FSC’s decision of 5 May 2020, published in SCD 146 I 145, Annex 19 to
the Application). It is in any event certain that the facts which occurred after 5 May 2020
could not have been examined by the Swiss courts. This also applies to the development of scientific knowledge since the decisions of the Federal Administrative Court andthe Federal Supreme Court, respectively: It would indeed be unfair to accuse Switzerland of breaches of the Convention on account of the consequences of greenhouse gas
emissions revealed by scientific studies published after the aforementioned decisions.

III.

Domestic law and practice

A.

International Law
a)

9.

1
2

United Nations Framework Convention on Climate Change (UNFCCC)2

The United Nations Framework Convention on Climate Change, concluded in New Yorkon 9 May 1992, was approved by the Swiss parliament on 23 September 1993 and the
instrument of ratification was deposited by Switzerland on 10 December 1993. The UNFCCC entered into force for Switzerland on 21 March 1994. Reference is made in particular to Articles 2 (Objective), 3 (Principles) and 4 (Commitments) of the UNFCCC.

SR 173.110 – Federal Supreme Court Act of 17 June 2005 (FSCA) (admin.ch)
SR 0.814.01 – United Nations Framework Convention on Climate Change of 9 May 1992 (with Annexes) (admin.ch)

4/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31b)
10.

Paris Climate Agreement (Paris Agreement)3

The Climate Agreement, concluded in Paris on 12 December 2015, was approved by
the Swiss parliament on 16 June 2017 and the instrument of ratification was depositedby Switzerland on 6 October 2017. The Paris Agreement entered into force for Switzerland on 5 November 2017. Reference is made in particular to Articles 2, 3, 4, 14 and 15of the Paris Agreement.
c)

Convention on Access to Information, Public Participation in Decision-Making andAccess to Justice in Environmental Matters (Aarhus Convention)4

11.

The Convention on Access to Information, Public Participation in Decision-Making andAccess to Justice in Environmental Matters, concluded in Aarhus on 25 June 1998, wasapproved by the Swiss parliament on 27 September 2013 and the instrument of ratification was deposited by Switzerland on 3 March 2014. It entered into force for Switzerland
on 1 June 2014. Its purpose is to guarantee the rights of access to environmental information, public participation in decision-making and access to justice in environmental
matters (Article 1). States Parties undertake to take the necessary legislative, regulatoryor other measures for public participation and access to justice, as well as proper enforcement measures, to establish a clear, transparent and consistent framework (Art. 3,
para. 1).

B.

Domestic law
a)12.

Neither the Constitution nor federal law in general contain provisions establishing a rightto a healthy environment. However, the Constitution contains a number of fundamental
rights which play a role in the protection of the environment. It also lays down the principle of sustainable development, grants the Swiss Confederation comprehensive competences in the area of environmental protection and defines the objectives of Switzerland’s energy policy. In addition, it provides for political rights that facilitate very broad
participation of citizens in public debate and in the development of environmental policies: Reference is made, inter alia, to Articles 10 (Right to life and personal freedom),
13 (Right to privacy), 29a (Guarantee of access to the courts), 33 (Right of petition), 34(Political rights), 73 (Sustainable development), 74 (Protection of the environment), 89(Energy policy), 136 (Political rights), 138 (Popular initiative for the complete revision of
the Constitution), 139 (Popular initiative requesting a partial revision of the Constitution),
160 (Right to submit initiatives and motions) and 190 (Applicable law) of the Constitution.
b)

13.

3
4
5
6

Federal Constitution of the Swiss Confederation of 18 April 1999 (Swiss Const.)5

Federal Act of 20 December 1968 on Administrative Procedure (APA)6The APA applies to the procedure in administrative matters that are to be dealt with bydecisions of federal administrative authorities of first instance or on appeal (Art. 1 (1)APA). In particular, it provides as follows:

SR 0.814.012 – Paris Agreement of 12 December 2015 (Climate Agreement) (admin.ch)
SR 0.814.07 – Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters(Aarhus Convention) (admin.ch)
SR 101 – Federal Constitution of the Swiss Confederation of 18 April 1999 (admin.ch)
SR 172.021 – Federal Act on Administrative Procedure (APA) (admin.ch)

5/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

Art. 25aRuling on real acts
1
Any person who has an interest that is worthy of protection may request fromthe authority that is responsible for acts that are based on federal public law
and which affect rights or obligations that it:a. refrains from, discontinues or revokes unlawful acts;
b. rectifies the consequences of unlawful acts;
c. confirms the illegality of such acts.
2
The authority shall decide by way of a ruling.
Art. 44
Principle
Any ruling shall be subject to an appeal.
Art. 48
Right of appeal
1
A right of appeal shall be accorded to anyone who:
a. has participated or has been refused the opportunity to participate in proceedings before the lower instance;b. has been specifically affected by the contested ruling; andc. has an interest that is worthy of protection in the revocation or amendmentof the ruling.
2
Persons, organisations and authorities who are granted a right of appeal by another federal act shall also be entitled to appeal.
c)
14.

The CPA regulates the main aspects of the consultation procedure. It applies to consultation procedures initiated by the Federal Council, a department, the Federal Chancellery, a unit of the Federal Administration or a parliamentary committee (Art. 1 CPA).
Reference is made in particular to Art. 2 (Purpose of the consultation procedure), Art. 3(Subject matter of the consultation procedure), Art. 4 (Participation), Art. 8 (Procedurefor opinions) and Art. 9 (Transparency) CPA.
d)

15.

Federal Act on the Consultation Procedure of 18 March 2005 (CPA)7

Federal Supreme Court Act of 17 June 2005 (FSCA)8The FSCA governs in particular the procedure before the FSC. In particular, it provides
as follows:
Art. 82
Principle
The Federal Supreme Court shall decide on appeals:a. against rulings in cases governed by public law;b. (...)c (...)
Art. 86 Lower courts in general1
An appeal is admissible against rulings:
a. of the Federal Administrative Court;b. (...)c. (...)
d. the cantonal authorities of last instance, provided an appeal to the Federal
Administrative Court is not possible.
2
The cantons shall appoint higher courts to act as authorities immediately preceding the Federal Supreme Court, unless another federal act provides that7
8

SR 172.061 – Federal Act of 18 March 2005 on the Consultation Procedure (Consultation Procedure Act, CPA) (admin.ch)
SR 173.110 – Federal Supreme Court Act of 17 June 2005 (FSCA) (admin.ch)

6/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

an appeal may be lodged with the Federal Supreme Court against a decision ofanother judicial authority.
Art. 89
Right of appeal
1
Any person may lodge an appeal in matters of public law who:
a. took part in the proceedings before the lower authority or was deprived of
the opportunity to do so;b. is particularly affected by the contested decision or enactment; andc. has an interest that is worthy of protection in the revocation or amendmentof the ruling.
2 The following are also entitled to appeal:a. the Federal Chancellery, the Federal Departments or, to the extent provided
by federal law, their subordinate units if the contested act is apt to violate
federal legislation within their area of responsibility;b. the competent body of the Federal Assembly in matters of employment offederal personnel;
c. municipalities and other public law bodies that invoke the violation of guarantees recognised by the cantonal or federal constitution;d. persons, organisations and authorities to whom another federal act grants aright of appeal.
3
In matters relating to political rights (Art. 82 let. c), any person who has the rightto vote in the matter in question is entitled to appeal.
Art. 95
Swiss law
An appeal may be filed for violation of:a. Swiss law;b. international lawc. (...)
d. (...)
e. (...)
Art. 106
Application of the law
1 The Federal Supreme Court applies the law ex officio.
2
It shall only examine a violation of fundamental rights and provisions of cantonal
and intercantonal law if the appellant has invoked and substantiated this objection.
e)Federal Act of 23 December 2011 on the Reduction of CO2 Emissions (CO2 Act)9(Status as of 1 January 2022)
Art. 1Aim
1This Act is intended to reduce greenhouse gas emissions and in particular CO2
emissions that are attributable to the use of fossil fuels (thermal and motor fuels)
as energy sources with the aim of contributing to limiting the global rise in temperature to less than 2 degrees Celsius.
2
The Federal Council designates the greenhouse gases.
Art. 3
Reduction target
1
Domestic greenhouse gas emissions must be reduced overall by 20 per cent ascompared with 1990 levels, by 2020. The Federal Council may set sector-specificinterim targets.

9

SR 641.71 – Federal Act on the Reduction of CO2 Emissions (CO2 Act) (admin.ch)

7/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31
1bis

Greenhouse gas emissions must be reduced by a further 1.5 per cent annuallyby 2024 compared with 1990 levels. The Federal Council may specify sectoral interim targets.
1ter
At least 75 per cent of the reduction in greenhouse gas emissions in accordance with paragraph 1bis must be achieved through domestic measures.
2…
3
The total volume of greenhouse gas emissions is calculated on the basis of thegreenhouse gases emitted in Switzerland. Emissions from the use of aviation fuelon international flights are not taken into account.
3bis
The Federal Council shall determine the extent to which emission allowancesfrom states or communities of states with ETSs recognised by the Federal Council
shall be taken into account in order to achieve the reduction target in accordancewith paragraph 1.
4
The Federal Council may set reduction targets for individual economic sectors
by agreement with the parties concerned.
5
It shall at the due time submit proposals to the Federal Assembly on the reduction targets for the period after 2020. It shall consult the parties concerned beforehand.
Art. 4
Measures
1
The reduction target should in the first instance be achieved through measures
under this Act.
2
Measures that reduce greenhouse gas emissions in accordance with other legislation should also contribute to achieving the reduction target. These measures inparticular include those in the fields of environment and energy, agriculture, forestry and timber industry, road traffic and the taxation of mineral oil, as well as
voluntary measures.
3
Voluntary measures also include undertakings by consumers of fossil thermal
and motor fuels voluntarily to limit their CO2 emissions.
4
The Federal Council may assign suitable organisations to support and carry out
voluntary measures.
Art. 5Counting emission reductions achieved abroad

The Federal Council may take appropriate account of reductions in greenhousegas emissions that have been achieved abroad when calculating emissions under
this Act.
Article 39 Enforcement
1 The Federal Council shall implement this Act and issue the implementing provisions.
Before doing so, it shall consult the cantons and interested groups.
1bis

(…)
(...)
3
(...)
4
(...)
5
(...)
2

Article 40 Evaluation
1
The Federal Council periodically evaluates:a. the effectiveness of the measures under this Act;b. the necessity of additional measures.
2

In doing so, it also considers climate-relevant factors such as demographic,
economic and traffic growth.

8/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31
3
4

16.

It bases its assessment on statistical surveys.
It submits regular reports to the Federal Assembly.

The main measures under the current CO2 legislation are as follows10:-

The CO2 levy (Art. 29 et seq.)
The Buildings Programme (Art. 9 and 34)
The Emissions Trading Scheme (Art. 15 et seq.)
CO2 emissions regulations for new passenger cars (Art. 10 et seq.)
Obligation for importers of motor fuels to compensate for their CO2 emissions(Art. 26 et seq.)
Technology Fund (art. 35)
The Climate Programme – Training and Communication (art. 41)

17.

With regard to the national climate legislation up to the end of 2020 and on the basis of
the two federal decisions, reference is made to the Statement of facts in the Annex,
sections 1.2.1 and 2.1.

C.

Domestic practice18.

Under 25a APA, any person who has an interest that is worthy of protection may request from the authority that is responsible for acts that are based on federal public law
and which affect rights or obligations that it refrains from, discontinues or revokes unlawful acts, rectifies the consequences of unlawful acts or confirms the illegality of suchacts (paragraph 1). The authority shall decide by way of a ruling (paragraph 2). In SCD
146 I 145, relied upon before the Court, the FSC noted the following (recorded):“The concept of acts within the meaning of Art. 25a APA must be interpreted broadly and includes the real acts not only where they are individual and concrete, but also where they are
general and abstract (at 4.2). Beyond the wording of the law, omissions by the authorities
may also be contested (at 4.1). Despite the broad understanding of this term, the question
may arise as to whether – as in the present case – a series of state measures may be required on a specific issue on the basis of Art. 25a APA. According to Swiss constitutional law,requests to give a specific form to current policy areas are generally made through democratic mechanisms (at 4.3). The existence of rights under Art. 25a APA presupposes that thepersonal legal sphere of the Applicant is affected to a certain extent (at 4.1 and 4.4). "

19.

10

As a general rule, any person may at any time apply to a Swiss authority to make a request and obtain a decision from the authority concerned. In Switzerland, the Federal
Office for the Environment (hereinafter: FOEN) and the Swiss Federal Office of Energy(hereinafter: SFOE) are responsible for the development and preparation of legislativeand other measures within the framework of Switzerland’s Long-Term Climate Strategy.
Both offices are attached to the Federal Department of the Environment, Transport, Energy and Communications (hereinafter: DETEC). As a general rule, any request for information or for a decision, any suggestion or, more broadly, any correspondence concerning environmental protection and, in particular, global warming, must be addressed
to DETEC. The latter must issue a decision within the meaning of Article 5 APA, if applicable in conjunction with Article 25a APA. Such decisions may then be the subject

For more detailed information see the CO2 Act or Climate: In brief (admin.ch)

9/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

of an appeal to the Federal Administrative Court pursuant to Article 31 of the Act on theFederal Administrative Court of 17 June 2005 (FACA)11. Decisions handed down by theFederal Administrative Court in this area may then be appealed to the Federal Supreme
Court pursuant to Articles 82 (a) and 86 (1) (a) FSCA.
20.

As the Government will demonstrate in its subsequent comments (see section 140below), appeals from individuals or associations are regularly brought before the Swiss
courts on issues relating to risks to the environment arising from human activities. They
have thus had the opportunity to express their views on such issues on several occasions.

IV.

Subject matter of the dispute: Greenhouse Gas Emissions Abroad (Reply to
Question 1)

21.

According to the Court’s established case-law, "the international system of protection
established by the Convention functions on the basis of applications, be they governmental or individual, alleging violations of the Convention, and therefore does not enable the Court to either take up a matter irrespective of the manner in which it came to its
knowledge or even, in the context of pending proceedings, to seize on facts that havenot been adduced by the applicant – be it a State or an individual – and to examine
those facts for compatibility with the Convention (...). That finding reflects one of the fundamental principles of procedure under international and domestic (civil and administrative) law: ne eat judex ultra et extra petita partium (“not beyond the request”), it being
understood that the petitum is the complaint submitted by the applicant. This finding
suggests that the scope of a case “referred to” the Court in the exercise of the right ofindividual application is determined by the applicant’s complaint or “claim” – which is theterm used in Article 34. (Radomilja and Others v. Croatia of 20 March 2018 [Grand
Chamber], no. 37685/10 and 22768/12, paras. 108 and 109).

22.

The petition and the submissions of the Applicant in the domestic proceedings clearlystate that they are limited to emissions in Switzerland. There is no initial omission or obscurity to be removed by the Applicant in this regard (see the judgment in Radomilja
and Others v. Croatia, supra, para. 122).

23.

In this regard, the Government emphasises that the Applicant never raised any argument concerning emissions abroad in its initial application of 26 November 2020 (seeApplication Form, p. 6 and 7, No. 8, 9 10 [“domestic GHG emissions”]; Supplementary
Submission, section 17 [“domestic emissions”]). It is only in its Additional Observationsof 13 October 2021 (Observations on the law, paras. 113 et seq. and 119 et seq.; Observations on the facts, section 2.10.3) that it relied on these emissions.

24.

In addition, the procedure at the national level related to the domestic reduction targets
and measures at the national level (see Request for the issuance of a ruling dated
25 November 2016, sections 1.b, 3.a and 4 of the prayers for relief and figures in para.
3, 10, 44, 85, 121, 131, 272, 321, 324, Annex 14 to the Application; cf. DETEC decisionof 25 April 2017, letter B, Annex 15 to the Application; FAC decision A-2992/2017 of
27 November 2018, at 5.2, Annex 17 to the Application; FSC decision of 5 May 2020,
letter A, published in SCD 146 I 145, Annex 19 to the Application). In addition, the Appellant explicitly argued that Switzerland should11

SR 173.32 – Federal Administrative Court Act of 17 June 2005 (FACA)

10/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

reduce its own emissions within its territory in order to be able to contribute to the overall reduction in emissions (see Request for the issuance of a ruling dated 25 November 2016, para. 48, Annex 14 to the Application).
25.

The Government also notes that much of the Applicant’s argument is based on the provisions of the Paris Agreement on Climate Change (Paris Agreement)12, which deals
with domestic contributions and domestic measures (cf. Art. 4.2 of the Paris Agreement;
cf. ch. 33 infra).

26.

In view of the foregoing, the Government considers that emissions abroad are not the
subject of this dispute. It raises an objection of inadmissibility in this respect and asks
the Court not to take these arguments into account, since they were neither raised in
the domestic proceedings (failure to exhaust remedies) nor raised before the Court
within the six-month time limit then applicable under Article 35 of the Convention (failure
to comply with the six-month time limit).

V. Admissibility
A.

Failure to comply with the six-month time limit

27.

This application was filed on 26 November 2021, i.e. more than 6 months after the
FSC’s decision of 5 May 2020. It is true that, in the context of the COVID-19 pandemic,
the Court published a statement on its website stating that any applicant would havenine months from the date of the final domestic decision to lodge an application where
the six-month period begins, runs or expires between 16 March 2020 and 15 June 2020(see Annex 1 to the Application). However, the Government recalls that the six-month
period provided for in Article 35 (1) of the Convention is a statutory period, expressly
provided for by the Convention, which cannot generally be extended by judicial means.
Moreover, the Applicants, represented by lawyers, were in no way confronted with a situation of force majeure in Switzerland during the period in question and that they were
perfectly capable of referring the matter to the Court within the statutory period of 6months. The Government maintains the arguments presented in its Observations of
16 July 2021 (paras. 26 to 30) and invites the Court to declare the Application inadmissible for failure to comply with the six-month time limit.

B.

Jurisdiction and Accountability (Reply to Question 2)

28.

It follows from what has been set out above that greenhouse gas emissions abroad are
not the subject of this dispute (cf. section 21 et seq. supra). Should the Court nevertheless decide that these emissions form part of the present dispute, the Government
would argue as follows on the question of jurisdiction:

29.

The jurisdiction of a State, within the meaning of Article 1 of the Convention, is primarily
territorial (see, for example, Bankovic and Others v. Belgium and 16 Other States of
12 December 2001 [Grand Chamber], no. 52207/99, para. 59-61 and 67). To date, theCourt has accepted two main cases in which circumstances might lead to the Contracting State exercising its jurisdiction outside its own borders. These are, first, “the authority and control of a state agent” and, second, “effective control over an area” (M.N. and
Others v. Belgium of 5 March 2020 [Grand Chamber], no. 3599/18, para. 103-105 andthe cited references; Al Skeini and Others v. United Kingdom of 7 July 2011 [Grand
Chamber],12

SR 0.814.012 – Paris Agreement of 12 December 2015 (Climate Agreement) (admin.ch)

11/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

no. 55721/07, paras. 131 to 140; H.F. and Others v. France of 14 September 2022
[Grand Chamber], no. 24384/19 and 44234/20, paras. 186-187). In addition to these
two main theories, the Court has also recognised that the jurisdiction of a State party
may arise from the acts or omissions of its diplomatic or consular officials, but also thatspecial procedural circumstances may justify the application of the Convention outside
the respondent State's territory (M.N. and Others v. Belgium, supra, paras. 106-107 andreferences cited; H.F. and Others v. France, supra, para. 188). Finally, “[t]he mere factthat decisions taken at national level had an impact on the situation of persons resident
abroad is also not such as to establish the jurisdiction of the State concerned over those
persons outside its territory" (Bankovic and Others, cited above, para. 75). (M.N. and
Others v. Belgium of 5 March 2020 [Grand Chamber], no. 3599/18, para. 112; H.F. and
Others v. France, supra, para. 200). Article 1 of the Convention and the case-law of the
Court do not accept the concept of “cause and effect” jurisdiction.
30.

In the present case, the Government considers that the criteria developed for exceptional recognition of the existence of extraterritorial jurisdiction by Switzerland have notbeen met. Firstly, Switzerland obviously does not exercise any effective control over the
territory of third countries where greenhouse gas emissions, which are allegedly attributable to Switzerland, occur. Emissions abroad take place on the territory of third
countries over which Switzerland has no influence, due to the sovereignty of thesecountries under public international law. Secondly and thirdly, it is not a case of the authority and control of a State official or of the acts or omissions of its diplomatic or consular agents. Fourthly, the Government does not see any particular procedural circumstances that would justify the application of the Convention to Switzerland in relation togreenhouse gas emissions produced abroad. Therefore, the Government considers thatemissions abroad do not fall under the jurisdiction of Switzerland.

31.

The only question that may possibly arise here is whether the Court has jurisdiction to
examine whether Switzerland has complied with any obligations it may have to takemeasures within its own jurisdiction and powers to reduce greenhouse gas emissions
abroad (cf. Rantsev v. Cyprus and Russia, judgment of 7 January 2010, no 25965/04,
para. 207). However, it should be borne in mind that the Court does not accept a “cause
and effect” notion of jurisdiction (M.N. and Others v. Belgium, supra, para. 112). It heldthat the mere reliance on the capacity of a State to act does not suffice to constitute a
special feature capable of triggering an extraterritorial jurisdictional link. (cf. H.F. and
Others v. France, cited above, para. 199). Moreover, in Soering v. United Kingdom, theCourt pointed out that "the Convention does not govern the actions of States not Parties
to it, nor does it purport to be a means of requiring the Contracting States to impose
Convention standards on other States. (...) In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State byreason of its having taken action which has as a direct consequence the exposure of anindividual to proscribed ill-treatment.” (Soering v. United Kingdom judgment of
7 July 1989, no. 14038/88, paras. 86 and 91; Sanchez-Sanchez v. the United Kingdomof 3 November 2022 [Grand Chamber], no. 22854/20, para. 85). The former Commission, for example, decided that an injury caused by an Italian mine acquired by Iraq andplaced on Iraqi territory "can not be seen as a direct consequence of the failure of the
Italian authorities to legislate on arms transfers. [...] It follows that the 'adverse consequences' [...] are 'too remote' to attract the Italian responsibility” (cf. Commission decision Tugar v. Italy of 18 October 1995, No 22869/93).

12/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

32.

In view of the foregoing, the Government considers that emissions occurring abroadcannot be regarded as a direct consequence of the alleged omissions of the Swiss authorities. The Swiss authorities do not have direct control over sources and emissions.
The acts of the states in which the source of these emissions originate, as well as theacts of private actors, constitute the direct and decisive cause of the emissions complained of by the Applicants. It is therefore up to these states to take appropriate
measures to reduce these emissions. Therefore, the adverse consequences of Switzerland’s alleged omissions are too remote to engage Switzerland’s responsibility (seeTugar v. Italy, supra). Moreover, there is not a sufficient nexus present for an issue toarise from the perspective of positive obligations under the Convention (cf. e contrario in
Fadeyeva v. Russia of 9 June 2005, no. 55723/00, para. 92).

33.

More generally, the Government recalls that the regime of the UNFCCC, the Kyoto Protocol and the Paris Agreement is based on the principle of territoriality and holds countries responsible only for emissions occurring within their own territory. It does not include emissions abroad, whether grey emissions introduced into products or emissions
due to investments abroad. The application of the principle of territoriality in international instruments to combat global warming also ensures that emissions are counted
only once.

34.

Even if the grey emissions introduced into products and the emissions caused by investments abroad cannot be attributed to Switzerland, Switzerland nevertheless also
strives to reduce these emissions. Climate compatibility tests known as PACTA (Paris
Agreement Capital Transition Assessments) enable financial institutions, for example, to
see the level of emissions their money generates in Switzerland and abroad and then to
reduce them in a targeted manner.13 Sustainable consumption and purchasing decisions made by private and public stakeholders make it possible to significantly reduce
the environmental and climate impact in Switzerland and abroad. Important topics of theFederal Council’s Sustainable Development Strategy include, for example, the transformation towards sustainable food systems in Switzerland and abroad, promoting the circular economy and corporate responsibility in Switzerland and abroad. The Confederation is actively involved in the development of this strategy and thus in promoting the circular economy and resource efficiency.14

35.

The obligation of importers of fuels to compensate for CO2 emissions should also bementioned.15 They are required to compensate for a certain proportion of the CO2 emissions generated by transport. They can do so by carrying out their own projects or bypurchasing certificates. Compensation may be carried out through compensation projects in Switzerland and abroad. At present, there are 10 international treaties in respectof this. In addition, Switzerland also tries to indirectly reduce emissions abroad by offering incentives. Switzerland is thus far from inactive in this area, but this subject-matterdoes not fall within the scope of the Convention.

36.

In view of the above, and in reply to question 2, the Government considers that greenhouse gas emissions abroad do not fall within the jurisdiction of

13
14
15

Cf. Testing for climate goal alignment (admin.ch)
Cf. Sustainable Development Strategy (admin.ch)
Cf. CO2 Compensation (admin.ch) and Obligation of importers of motor fuels to compensate for CO2 emissions (admin.ch)

13/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

Switzerland and are not attributable to Switzerland. They cannot therefore engage Switzerland’s responsibility under the Convention. The adverse consequences of Switzerland’s alleged omissions are too remote to engage Switzerland’s responsibility. There is
not enough of a nexus for an issue to arise in terms of positive obligations under theConvention. For the avoidance of any ambiguity, the Government recalls that it does not
dispute that Switzerland has jurisdiction in the Applicants' case over emissions produced on Swiss territory.
37.

With regard to a possible development of case law to take account of the particularities
of climate change (question 2.1), it should be borne in mind that Article 1 of the Convention is not subject to interpretation in accordance with the doctrine of the "living instrument" (cf. Bankovic and Others v. Belgium and 16 Other States, supra, para. 63-66).
The Government considers that the wording of Article 1 of the Convention cannot be interpreted in such a way as to extend jurisdiction to greenhouse gas emissions abroad.
Such an interpretation would be too broad and would clearly go beyond the intent of theHigh Contracting Parties to the Convention. It would also create problems with regard to
the principle of state sovereignty and the role of the Court. While acknowledging the urgency of combating global warming and the immense challenges it poses, the limitations of the Convention’s system cannot be ignored.

C.

Victim status (Reply to question 3)a)“Victim” status of the Applicant association (first Applicant)38.

By invoking Articles 2 and 8 of the Convention, the Applicant association claims that it isa direct victim under Article 34 of the Convention (Additional Submission, para. 35 etseq.). With regard to Articles 6 and 13 of the Convention, the Applicant association argues that it was a party to the national proceedings and that it is therefore clearly a victim in this context (cf. Additional Submission, para. 41).

39.

According to the settled case-law of the Court, associations are normally recognised as
victims only if they have been directly affected by the measure in question. The Convention does not envisage the possibility of an actio popularis. The cases in which the
Court granted victim status to associations concerned Article 6 para. 1 of the Convention. Certain rights of the Convention (e.g. Articles 2, 3 and 5) are not, by their nature,capable of being exercised by an association, but only by its members (cf. Yusufeli
llçesini Güzelleştirme Yaçatma Kültür Varliklarini Koruma Derneği v. Turkey of 7 December 2021, no. 37857/14, para. 36-41). An association is not, in principle, in a situation where it may invoke health reasons to allege a violation of Article 8 of the Convention (cf. Greenpeace E.V. and Others v. Germany of 12 May 2009, No. 18215/06).

40.

The Government emphasises that in the present case, the FAC left open the questionof whether the applicant association has the right to submit the request to DETEC andsubsequently to lodge an appeal (cf. FAC decisions A-2992/2017 of 27 November 2018, at 1.2, Annex 17 to the Application). Similarly, the FSC left open the questionof whether the Applicant association had the right of appeal (cf. FSC decision
1C_37/2019 of 5 May 2020, para. 1, Annex 19 to the Application).

41.

The Government recalls that the Applicant association is a legal entity. Because of thatnature, it cannot claim to be itself the victim of a violation

14/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

of the right to life (Art. 2 ECHR) or of the right to respect for private and family life (Art. 8
ECHR). In particular, it may not invoke health problems (cf. Greenpeace e. V. and Others v. Germany, supra; Aly Bernard and 47 others as well as Greenpeace- Luxembourgv. Luxembourg of 27 June 1999, no. 29197/95, observations on the law, para. 1). In
view of the above, the Applicant association is likewise unable to claim to have been thevictim of a violation of Articles 6 and 13 of the Convention.
42.

In fact, the Applicant association is not relying on its own rights, but on the rights of its
members under Articles 2 and 8 of the Convention. In addition, it should be noted that
all women of pensionable age (i.e. those over 64 years of age) can become members of
the association and that the average age of the members is 73 (cf. Additional Observations of 13.10.2022, Observations on the Law, para. 26). However, not all people of retirement age are particularly at risk in relation to heatwaves, but specifically those over
the age of 75 (see section 48 infra).

43.

The Government emphasises that the FSC’s decision in no way prevents the Applicant
association from working towards achieving its objectives (cf. Ordre des avocats défenseurs et avocats près la Cour d’appel de Monaco v. Monaco of 21 May 2013, no34118/11, para. 58 with reference; Nencheva and Others v. Bulgaria of 18 June 2013,
no. 48609/06, para. 92).

44.

In view of the above, the Applicant association is not personally injured nor is it a “victim” within the meaning of Article 34 of the Convention. It itself did not suffer the alleged
consequences, either directly or indirectly, or seriously, of the omissions of which Switzerland is accused. Accordingly, the Government invites the Court to declare the complaints of the Applicant association incompatible ratione personae with the provisions of
the Convention and to declare this part of the application inadmissible pursuant to Article 35 (3) (a) and 4 of the Convention.

b)“Victim” status of the Applicants 2 to 5
Articles 2 and 8 of the Convention

45.

According to the case-law of the Court "... the supervisory mechanism of the Convention cannot allow actio popularis (...). Moreover, neither Article 8 nor any other provisionof the Convention specifically guarantees general protection of the environment as such(...). According to the jurisprudence of the Court, the crucial factor in determining
whether, in the circumstances of a case, environmental damage has resulted in a violation of any of the rights guaranteed by Article 8, paragraph 1, is the existence of an adverse effect on a person’s private or family sphere, and not simply the general degradation of the environment (...)." (judgment Di Sarno and Others v. Italy of 10 January 2021, no. 30765/08, para. 80 with references).

46.

Referring to Articles 2 and 8 of the Convention, the Applicants 2 to 5 claim that they are
direct and potential victims of a violation of these Articles (cf. Additional Submission,para. 33 and 34). In support of their status as “direct victims”, they claim that they havebeen suffering and continue to suffer from the effects of heat. They allege that at eachheatwave they were and continue to be exposed to a real and serious risk of mortality
and morbidity which is higher than the general population (see Additional Submission,para. 33). In support of their status as “potential victims”, they argue that failure to reduce greenhouse gases in accordance with the limits of the

15/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

Paris Agreement will significantly increase their risk of heat-related mortality and morbidity (cf. Additional Submission, para. 34).
47.

In the present case, the Federal Supreme Court held in May 2020 that the Applicants –like the rest of the population – have not suffered effects on their rights under Articles 2
and 8 of the Convention with the necessary degree of intensity as a result of the allegedomissions. It considered that their request should be classified as an actio popularis andthat it is therefore inadmissible under Article 25a APA, which only guarantees the protection of individual rights. It also concluded that they do not have the status of victim
within the meaning of Article 34 of the Convention (cf. SCD 146 I 145, at 5.4 and 5.5). In
support of this conclusion, the Federal Supreme Court relied on the scientific knowledge
available at the time (cf. IPCC Special Report “Global warming of 1.5°”) and stressedthat it must be assumed that the Paris Agreement value of “well below 2 degrees Celsius” will not be exceeded in the near future (cf. SCD 146 I 145, at 5.3 and 5.4). In viewof the above, the alleged omissions do not affect the Applicants 2-5 with the intensity
required to qualify them as direct victims of the alleged violations of Articles 2 and 8 of
the Convention. The mere possibility that this value may be exceeded in the more distant future is not in fact sufficient (cf. SCD 146 I 145, at 5.4). In reaching this conclusion,
the FSC took into account the case law of the Court and explicitly referred to various
judgments (Ouardiri v. Switzerland of 28 June 2011, no. 65840/09; Kolyadenko andOthers v. Russia of 28 February 2012, nos. 17423/05, 20534/05, 20678/05, 23263/05,
24283/05 and 35673/05; Di Sarno and Others v. Italy; supra; Hardy and Maile v. theUnited Kingdom of 14 February 2012, no. 31965/07).

48.

The Government notes that heatwaves (temperatures above 30°C for several days andnot falling below 20°C at night) may pose a health risk and may even be fatal for the elderly or those suffering from (chronic) diseases, pregnant women or young children(Federal Office of Public Health FOPH > Healthy Living > Environment & Health > Heat[last visit 03.11.2022]; See also FOEN, The heatwave and the drought of summer2018). Another study shows that excess mortality in summer 2019 was highest in thegroup of people aged 85 and over. This study includes persons aged 75 years andolder as being at risk. The study also mentions that various studies in Switzerland andabroad show that preventive measures have helped to reduce the risk of heat-related
mortality (cf. Martina S. Ragettli/Martin Roosli, Health effects ofheatwaves in Switzerland and the significance of preventive measures - heatwave-related fatalities in thesummer heatwave of 2019 – and a comparison with the summer heatwaves of 2003,
20152018,Final Report, July 2020). It should be borne in mind, however, that not all
heat-related deaths can be attributed to global warming. One study reveals, for example, that about one third of heat-related deaths can be attributed to anthropogenic climate change (cf. Vicedo-Cabrera, A.M., Scovronick, N., Sera, F. et al. The burden ofheat-related mortality attributable to recent human-induced climate change. Nat. Clim.
Chang. 11, 492-500 (2021). https://doi.org/10.1038/s41558-021- 01058-x).

49.

In view of the above, the Government considers that the Applicants belong to a group of
the population that, like other groups (e.g. pregnant women, young children or people
with chronic diseases), is more at risk from the effects of heatwaves. However, it is important to

16/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

note that, in the category of older persons, development of risk is age-sensitive, so that
it is incorrect to assume that all people of retirement age are automatically more at risk.
Moreover, older women do not appear to be significantly more at risk than men of thesame age. In this context, the Government recalls that the Applicants must demonstratethat they themselves, as individuals, are directly affected by the alleged violations (noactio popularis). With regard to the alleged adverse effects invoked by the Applicants 2
to 5 (cf. Additional Submission, para. 7 et seq., para. 33), the intensity of these effects
must first be taken into account:50.

In their personal statements (cf. Annexes 4-7 to the Application), the Applicants claimthat they have adapted their lifestyle to heat (“Mediterranean living”, cf. Statement ofApplicant 5, annex 7 to the Application). For example, in the event of high temperatures,
they would remain at home, use the air conditioner or fan, lower the blinds, avoid outdoor activities (see annexes 4-7 to the Application). The Government stresses that such
behavioural adjustments during the warmest days of the year are very common phenomena. It is well known that a large proportion of the population takes similar
measures in the event of high temperatures. The fact that Applicants 2-5 may themselves be more sensitive to this situation than other persons of the same age in thesame situation does nothing to change this fact. Moreover, the Applicants, as well as all
women over the age of 75, are not the only population group affected by the consequences of climate change. These consequences affect humans, animals and plants,
even if not every person necessarily reacts in the same way (cf. FAC decisions A2992/2017 of 27 November 2018, para. 7.4.2 and 7.4.3, Annex 17 to the Application).
However, it cannot be ruled out that climate change impacts other than heatwaves –such as the occurrence of a natural hazard such as a landslide or flood – may particularly affect some people.

51.

Applicant 2 claims to wear a pacemaker and to have fainted once in the summer of2015 due to the heat (cf. Additional Submission, para. 8; medical certificate of 15 November 2016, Annex 8 to the Application). However, she does not claim that her wearing of a pacemaker was the result of the alleged omissions and inadequate actions. In
addition, it follows from the medical certificate that heat was only one of the triggers ofher syncope.

52.

Applicant 3 asserts that she suffers from cardiovascular problems, that she is profoundly impaired in her physical capacity by the heatwaves, that she is confined to herhome during periods of high temperatures and that she needs medication (cf. Additional
Submission, para. 9; medical certificate of 19 October 2016 and 11 February 2019, Annex 9 and 10 to the Application). medical certificate of 23 September 2021, annex 5 tothe observations of 13 October 2021, which did not yet exist at the time of the proceedings at national level). However, she does not claim that her cardiovascular problems
are the result of the alleged omissions and inadequate actions. In addition, her alleged
impairment of physical capacity and required medication are formulated in very vague
terms.

53.

Applicants 4 and 5 allege that they suffer from respiratory diseases (cf. Additional Submission, para. 33). However, they do not argue that the respiratory diseases that they
already claim to suffer from are due to alleged omissions and inadequate actions. Applicant 4 argues that the heatwaves aggravate her symptoms

17/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31(cf. Additional Submission, para. 10), but does not demonstrate to what extent this aggravation is the result of the alleged omissions and insufficient actions.
54.

With regard to the status of “potential victim”, it should be recalled that the Court has
held that only in exceptional circumstances may the risk of a future violation confer on
an individual Applicant the status of “victim”, but that this is subject to submission of reasonable and convincing evidence of the likelihood of a violation occurring which relates
to him personally; mere suspicions or conjectures are insufficient in this regard (Aly Bernard and 47 others as well as Greenpeace-Luxembourg v.Luxembourg, supra, Observations on the Law, para. 1).

55.

In this case, it should be recalled that according to the Intergovernmental Panel on Climate Change (IPCC), global warming is likely to reach 1.5 °C between 2030 and 2052 if
it continues to increase at the current rate (high confidence level). More specifically, the
IPCC expects global warming to reach 1.5 °C around 2040 if it continues to increase at
the current rate.16 Global warming of 2 °C would occur even later. The Paris Agreement,
as well as the international climate protection system, are therefore based on forecaststhat the value of “well below 2 degrees Celsius” will not be exceeded in the near future.
It is thus accepted, at the time when the domestic courts handed down their decisions,that there is a certain period of time to prevent global warming exceeding this value (cf.
in particular Articles 3 and 4 of the Paris Agreement). However, it is beyond questionthat there is need to act now, and that is precisely what the Federal Council and Parliament are doing (see Statement of facts in Annex). The IPCC’s Sixth Assessment Report(AR6), which was issued in 2021/22, and thus after the domestic court rulings, does notchange these findings, but clarifies: In order to meet the 1.5°C target, global CO2 emissions must be reduced by 48% by 2030 compared to 2019 and by 80% by 2040. By theearly 2050s, greenhouse gas emissions are expected to reach net zero in all sectors
and regions. In addition, it emphasises decisive measures such as the transformation of
the energy system towards 100% renewable energy, the end of subsidies for fossil fuels
and the reduction of emissions in industry and construction. The report also indicatesthat differences in per capita greenhouse gas emissions reflect income inequalities
across regions of the world and among private households. The richest 10% of privatehouseholds contribute between 34% and 45% of greenhouse gas emissions.

56.

In view of the above, there is no real risk for Applicants 2-5 that, in the near future, theirrights under Articles 2 and 8 of the Convention will be violated. Applicants no. 2-5 havenot produced any evidence or even plausible and convincing indications of the likelihood of a violation of which they would personally suffer the effects such that theywould be considered potential victims. Recognising potential risks for the future creates
uncertainty and raises the question of whether the Applicants, who are women alreadyover the age of 80 (years of birth: 1931 (Applicant 2 is deceased), 1937, 1941, 1942),
will themselves be individually affected by the effects invoked at such time as

16

IPCC Special Report“ Global warming of 1.5°”, 2018, p. 4 and 81.

18/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

global warming reaches 1.5°C in 2040, as predicted above. The more distant the dateon which damage occurs, the more uncertain the occurrence of the damage and its impact on the affected persons.
57.

Although the Government appreciates the suffering that the Applicants may experience,
it considers that the present Application is manifestly an actio popularis and that Applicants 2-5 cannot be considered victims, within the meaning of Article 34, of the alleged
violations. Recognising them as direct or potential victims in this case would make itvery difficult, if not impossible, in future to deny any person belonging to one of themany categories of people most at risk the right to obtain, at any time, judicial review ofthe measures taken to combat global warming. Consequently, the Government invites
the Court to declare the Applications of the Applicants 2-5 concerning Articles 2 and 8of the Convention incompatible ratione personae with the provisions of the Convention
and to declare that part of the Application inadmissible pursuant to Article 35 para. 3 (a)and 4 of the Convention.
Articles 6 and 13 of the Convention

58.

Referring to Articles 6 and 13 of the Convention, Applicants 2-5 argue that they wereparties to the domestic proceedings and that, therefore, they are clearly victims in thiscontext (cf. Additional Submission, para. 41).

59.

The Government accepts that the Applicants 2-5 were parties to the domestic proceedings. It therefore considers that they may be considered victims, within the meaning of
Article 34 of the Convention, in the context of the alleged violations of Articles 6 and 13of the Convention (cf. Gorraiz Lizarraga and Others v. Spain, supra, para. 36, concerning Article 6 of the Convention).

60.

It should be recalled, however, that according to the case law of the Court, the affirmation of the status of victim does not entail the applicability of Articles 6 and 13 of theConvention. This question must be examined separately (cf. Gorraiz Lizarraga and Others v. Spain, supra, para. 33 et seq. and 40 ff.; Balmer-Schafroth and Others v. Switzerland of 26 August 1997 [Grand Chamber], no. 67/1996/686/876, para. 24 et seq. and
42).

c)

Conclusion

61.

In view of the above, the Government considers that the Applicant association (Applicant 1) cannot be considered a victim of a violation of the Convention and that that partof the Application must be declared inadmissible. With regard to the Applicants 2-5,
they likewise cannot be considered victims of a violation of Articles 2 and 8 of the Convention. That part of the Application must therefore also be declared inadmissible. On
the other hand, the Applicants 2-5 may claim to be victims of a violation of Articles 6
and 13 of the Convention. Consequently, only this part of the Application is admissible,
subject to the objection of inadmissibility ratione temporis raised by the Government (cf.
section 27 supra).

19/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

D.

Applicability of the provisions of the Convention (reply to question 4)a)Applicability of Articles 2 and 8 of the Convention
Lack of sufficient causal link

62.

With regard to the interference with the rights guaranteed by Articles 2 and 8 of theConvention, the Applicants argue that they have suffered and continue to suffer fromthe effects of heat and that they run a real and serious risk of mortality and morbidity
with each heatwave (see Additional Submission, para. 33).

63.

The Government considers that the Applicants have not established a causal link between the alleged omissions of Switzerland and the aforementioned interference. It
points out that global warming is a global phenomenon and that only resolute action by
all States, combined with changes in behaviour on the part of private actors and all citizens, will make it possible to find lasting solutions to this immense challenge. Greenhouse gas emissions are caused by the community of states. In addition, states emit
different quantities of greenhouse gases. Given Switzerland’s low greenhouse gas intensity today (cf. Statement of facts in the Annex, section 1.2.3; the omissions of which
Switzerland is accused are not of such a nature as to cause, on their own, the suffering
claimed by the Applicants and to have serious consequences for their private and family
life (but see, Fadeyeva v. Russia, supra, para. 92). The Government maintains that additional measures by Switzerland to reduce its greenhouse gas emissions would nothave a “real prospect of altering [global warming] or mitigating the harm [caused by
global warming]” within the meaning of the aforementioned case law of the Court (cf.
O’Keeffe v. Ireland of 28 January 2014 [Grand Chamber], no. 35810/09, para. 149 withreference).

64.

Thus, there is no sufficient link between pollutant emissions and the State to raise theissue of Switzerland’s positive obligation under Articles 2 and 8 of the Convention.
Applicability of Article 2 of the Convention denied

65.

The Court reaffirmed that Article 2 of the Convention concerns not only cases of humandeath resulting from the use of force by state officials, but also imposes, in the first sentence of the first paragraph, a positive obligation on states to take all necessary
measures to protect the lives of persons under their jurisdiction. According to the Court,that obligation must be construed as applying in the context of any activity, whether
public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous, such as the operation of wastecollection sites (Öneryildiz v. Turkey, no. 48939/99, 30 November 2004 [Grand Chamber], para. 71). Brincat and Others v. Malta of 24 July 2014, no 60908/11 and 4 Others,para. 80).

66.

The State’s duty to safeguard the lives of persons under its jurisdiction has been interpreted to include both the substantive and procedural aspects and, in particular, thepositive obligation to adopt regulatory measures and to adequately inform the public of
any life-threatening situation and to ensure that all circumstances of such deaths are investigated by the courts (Öneryildiz, supra, paras. 89-118). With regard to the substantive aspect, the Court held that,

20/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

in the particular context of dangerous activities, special emphasis must be placed on
regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing,setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks. Among thesepreventive measures, particular emphasis should be placed on the public’s right to information, as established in the case-law of the Convention institutions. In any event, therelevant regulations must also provide for appropriate procedures, taking into accountthe technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels(Öneryildiz, supra, paras. 89-90; Budayeva and Others v Russia, no 15339/02,
20 March 2008, para. 130).
67.

Where the victim has survived and does not allege any intention of the perpetrator to
kill, the test to be applied to a claim under the procedural aspect of Article 2 of the Convention is to determine, “firstly, whether the person was the victim of an activity, whether
public or private, which by its very nature put his or her life at real and imminent risk
and, secondly, whether he or she has suffered injuries that appear life-threatening as
they occur. Other factors ... may also come into play (...)." (Nicolae Virgiliu Tanase v.
Romania of 25 June 2019 [Grand Chamber], no. 41720/13, para. 140). "Where the realand imminent risk of death stemming from the nature of an activity is not evident, thelevel of the injuries sustained by the applicant takes on greater prominence In suchcases a complaint falls only to be examined under Article 2 where the level of the injuries was such that the victim’s life was put in serious danger” (ibid., para. 142).

68.

In the present case, the Government considers that, although the reality of the dangers
associated with global warming is clear, the Applicants have nevertheless failed todemonstrate the existence of an “immediate” risk to their lives (cf. Öneryildiz, supra,
para. 100). The severity of the negative effects of global warming on the Applicants (cf.
section 51 et seq. supra; e.g. being confined to the home, health problems) does notreach the level of intensity required to render Article 2 of the Convention applicable. The
Government therefore considers that Article 2 of the Convention is not applicable in thiscase (cf. SCD 146 I 145, at 5).
Applicability of Article 8 of the Convention left open

69.

The Court has already had occasion to point out that Article 8 of the Convention does
not apply whenever a deterioration of the environment occurs: no right to nature preservation is included as such among the rights and freedoms guaranteed by the Convention or its Protocols (Ivan Atanasov v. Bulgaria of 2 December 2010, no. 12853/03,
para. 66). This fact has been noted several times by the Parliamentary Assembly of theCouncil of Europe, which has asked the Committee of Ministers to consider the possibility of supplementing the Convention in this respect (cf. Ivan Atanasov v. Bulgaria, supra, para. 66; most recently by Recommendation 2211 (2021) “Anchoring the Right to a
Healthy Environment: need for enhanced action by the Council of Europe”).

70.

According to the case-law of the Court, the obligations arising from Article 8 of the Convention apply only if there is a direct and immediate link between the disputed situationand the applicant’s home or private or family life. The first question is whether the environmental pollution complained of by the applicant can be regarded as
21/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

affecting adversely, to a sufficient extent, the enjoyment of the amenities of his home
and the quality of his private and family life (cf. Ivan Atanasov v. Bulgaria supra, para.
66; see also Hatton and Others v. the United Kingdom judgment of 8 July 2003 [Grand
Chamber], no. 36022/97, para. 96; Greenpeace e.V. and Others v. Germany, supra).
71.

The Court stressed that “[...] the adverse effects of environmental pollution must attain acertain minimum level if they are to fall within the scope of Article 8 of the Convention(...). The assessment of that minimum is relative and depends on all the circumstancesof the case, such as the intensity and duration of the nuisance, and its physical or mental effects. The general context of the environment should also be taken into account.
There would be no arguable claim under Article 8 if the detriment complained of was
negligible in comparison to the environmental hazards inherent to life in every moderncity. (cf. Fadeyeva v. Russia, supra, para. 69; Dubetska and Others v. Ukraine of
10 February 2011, no 30499/03, para. 105, and Grimkovskaya v. Ukraine of 21 July
2011, no 38182/03, para. 58; Cordella and Others v. Italy of 24 January 2019, no.
54414/13 and 54264/15, para. 157).

72.

Taking into account the evidentiary difficulties typically encountered in environmental
cases, the Court has paid particular, but not exclusive, attention to the findings of domestic courts and other competent authorities in establishing the factual circumstancesof the case, analysing domestic legal provisions assessing hazardous pollution levels
and conducting environmental studies commissioned by the authorities. The Court has
also stressed that it cannot rely blindly on the decisions of national authorities, especially when they are manifestly inconsistent or contradictory. In such a situation, it mustassess the evidence as a whole. The Court has also taken into account domestic legal
provisions assessing hazardous pollution levels and environmental studies commissioned by the authorities. Further sources of evidence for consideration in addition to
the applicant’s personal accounts of events, will include, for example, his medical certificates as well as relevant reports, statements or studies made by private entities (cf.
Pavlov and Others v. Russia, supra, para. 62; Dubetska and Others v. Ukraine, supra,
para. 107).

73.

In a number of cases where it found that Article 8 of the Convention was applicable, theCourt considered the proximity of the applicants' homes to pollution sources as one of
the factors (cf. Pavlov and Others v. Russia, supra, para. 63).

74.

In the present case, since the Court has recognised that serious environmental harm
may affect a person’s well-being and deprive him or her of the enjoyment of his or herhome in such a way as to harm his or her private and family life, the Government is of
the opinion that Article 8 of the Convention may, in principle, apply in the context of climate change. It is a well-known fact that accelerating global warming is an extremely
worrying phenomenon for mankind and that it results from man-made CO2 emissions.
Global warming is undoubtedly likely to affect the quality of life of individuals, even if
their health would not be seriously endangered.

75.

In the present case, and in light of the changes in behaviour made by the Applicants 2-5(“Mediterranean living”), the Government considers, however, that22/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

global warming has not reached a level sufficient to have a tangible effect on the privateand family lives of the Applicants. The minimum severity threshold required to be able
to consider that Article 8 of the Convention is applicable has not been reached (cf. Calancea and Others v. Republic of Moldova (Dec.), 6 February 2018, no 23225/05, para.
27 and 32; e contrario Dubetska and Others v. Ukraine, supra, para. 119). In addition,
the Applicants 2-5 fail to demonstrate that the heatwaves have an impact on their psychological state which reaches the minimum threshold of severity (cf. Additional Observations dated 13.10.2022, Observations on the law, para. 48).
76.

Contrary to the cases concerning air pollution (see e.g. Pavlov and Others v. Russia,
supra, para. 58-71), the Applicants in the present case do not argue that greenhousegas emissions and the concentration of greenhouse gases in the air are directly harmful
to their health. They argue that these emissions are causing global warming and heatwaves which, in turn, are harmful to their health. Unlike the Applicants in the Pavlov
case, who were exposed to high levels of air pollution on a daily basis and for a long period of time, the Applicants are not exposed to heatwaves on a daily basis, even if thenumber of heatwave days increases (cf. Federal Statistical Office, Climate Data: winterdays, frost days, summer days, tropical days, tropical nights and days of precipitation,
1959-2021). The Applicants are thus not being constantly affected in their daily lives. In
addition, preventive measures, which can significantly reduce the risk of mortality during
heatwaves, are simple and do not reach the threshold of severity required to render Article 8 of the Convention applicable (cf. section 48 supra).

77.

The Government is therefore not convinced that Article 8 of the Convention applies inthis case, but considers that the matter may be left open in the light of subsequent developments.

(b)

Applicability of Article 6 of the Convention

78.

According to the case law of the Court, “(...) for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right”
which can be said, at least on arguable grounds, to be recognised under domestic law.
The "dispute" must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of theproceedings must be directly decisive for the right in question; tenuous connections orremote consequences are not sufficient to bring Article 6 § 1 into play (...)" (Taşkin, supra, para. 130; Balmer-Schafroth and Others v. Switzerland, supra, para. 32).

79.

In the present case, the Federal Supreme Court noted that the Applicants relied on theright to life pursuant to Article 10 (1) of the Swiss Constitution in order to derive a subjective claim to have the alleged omissions of the State stopped and to implement themeasures requested by them. The Federal Supreme Court held that the Applicants'
constitutional right was not affected in a legally relevant manner by the alleged omissions (SCD 146 I 145 at 6.2). Indeed, the Applicants' rights are not affected with the degree of intensity required arising from Article 10 (1) Swiss Const. and Articles 2 and 8 of
the Convention. They do not have the status of victim within the meaning of Article 34 of
the Convention (cf. SCD 146 I 145, at 5.4). Their application must be classified as anactio popularis and is inadmissible pursuant to Article 25a APA, which only guarantees
the protection of individual rights (cf. SCD 146 I 145, at 5.5). In view of the foregoing,
the Government considers that the Applicants cannot arguably claim that there is a dispute over a right recognised under domestic law. Consequently,

23/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

they cannot infer the above-referenced claim from Article 10(1) Const. and have no subjective right to a finding of the alleged illegality of the alleged omissions (cf. SCD 146 I
145, at 6.2).
80.

Furthermore, the Federal Administrative Court considered that the actions and othermeasures requested by the Applicants, such as the opening of the preliminary phase of
the legislative procedure and the provision of information to the public, are not such as
to contribute immediately to the reduction of CO2 emissions in Switzerland. The actions
and other measures requested by the Applicants are therefore not capable of reducing
extreme heatwaves. Under these circumstances, it cannot be said that the dispute before DETEC was genuine and serious and that the outcome of the proceedings would
have been directly relevant to the law in question. Consequently, DETEC was not required to consider the Applicants' request pursuant to Article 6 para. 1 of the Convention (cf. FAC decision A-2992/2017 of 27 November 2018, para. 8.3 and 8.4, Annex 17
to the Application).

81.

The Government supports the decisions and considerations of the domestic courts. It
further emphasises that the Applicants have not established a sufficient link between
the alleged omissions and the rights invoked. Moreover, they have not identified ordemonstrated that there is a serious and, above all, immediate threat to the rights they
have invoked. Furthermore, the actions requested are not such as to contribute immediately to the reduction of CO2 emissions in Switzerland. Consequently, neither the threat
nor the actions sought present the degree of probability which makes the outcome ofthe dispute directly decisive for the rights invoked by the Applicants. The link between
the alleged omissions and the rights invoked by the Applicants is therefore too tenuous
and remote.

82.

It should also be pointed out that neither the Federal Constitution of the Swiss Confederation of 18 April 1999 (SR 101)17 nor Swiss federal legislation provides for an individual right to a clean, healthy and sustainable environment.

83.

Moreover, Article 6 of the Convention does not guarantee a right of access to a court
having jurisdiction to invalidate or replace a law emanating from the legislature (Guide
to Article 6 of the European Convention on Human Rights, Right to a Fair Trial [civil aspect], 31 December 2020, para. 90). In the present case, the Applicants are in factseeking to obtain the replacement of the CO2 Act by a law providing for stricter
measures. It is therefore the general interest of climate protection that is the subject andissue of the dispute and not a dispute over a civil right of the Applicants (cf. Association
Greenpeace France v. France (Dec.), no 55243/10, 13 December 2011).

84.

In view of the above, the Government considers that Article 6 of the Convention is notapplicable in the present case. It therefore calls on the Court to declare this application
inadmissible.

(c)

Applicability of Article 13 of the Convention

85.

The Court interprets Article 13 of the Convention as requiring a remedy only for claims
which may be considered “arguable” under the Convention (see Hatton and Others v.
the United Kingdom, supra, para. 137).

17

SR 101 – Federal Constitution of the Swiss Confederation of 18 April 1999 (admin.ch)

24/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

86.

The Government notes that the measures requested by the Applicants are largely similar to the preliminary work under the legislative procedure (cf. SCD 146 I 145, at 4.3.).
In fact, the Applicants are seeking to have the CO2 Act replaced by a new law providing
for stricter measures. In this context, the Government recalls that Article 13 of the Convention does not go so far as to require States to put in place an appellate remedy
whereby individuals may denounce, before a national authority, the laws of a Contracting State as being contrary to the Convention or contrary to equivalent national legal
standards (Guide on Article 13 of the European Convention on Human Rights, Right toan effective remedy, 30 April 2021, para. 66). Nor does Article 13 of the Convention allow a general policy to be challenged as such (Hatton and Others v. the United Kingdom, supra, para. 138).

87.

In addition, the Government refers to the considerations concerning the applicability of
Article 6 of the Convention (section 79 et seq. supra). It emphasises that the Applicantscannot defensibly claim that there is a dispute over a right recognised under domestic
law. They have not demonstrated that there is a serious and, above all, immediate
threat to the rights invoked. Their rights under Articles 2 and 8 of the Convention are notaffected in a legally relevant manner. Furthermore, the actions requested are not suchas to contribute immediately to the reduction of CO2 emissions in Switzerland. Consequently, neither the threat nor the actions sought present the degree of probability whichmakes the outcome of the dispute directly decisive for the rights invoked by the Applicants. The link between the alleged omissions and the rights invoked by the Applicantsis therefore too tenuous and remote. Therefore, Article 13 of the Convention is not applicable in this case. Thus, the Government invites the Court to declare the complaint
concerning Article 13 of the Convention inadmissible.

d)Conclusion as to the applicability of the provisions of the Convention

88.

In summary, the Government considers that Article 2 of the Convention is not applicableand that the question of the applicability of Article 8 of the Convention may be left open.
As to the applicability of Articles 6 and 13 of the Convention, the Government considers
that these Articles are not applicable in the present case.

VI.

MeritsA.

Articles 2 and 8 of the Convention (reply to question 5)89.

If the Court were to decide that Articles 2 and 8 of the Convention were applicable, theGovernment would express its views on the merits as follows:a)State discretion and factors to be taken into account90.

In environmental and industrial matters, the Court has repeatedly stressed that it is notentitled to substitute its own point of view for that of the local authorities as to the bestpolicy to adopt, so that it has always given States a “broad” margin of appreciation, particularly in difficult social and technical areas (Hatton and Others, supra, para. 100-101;Tătar v. Romania of 27 January 2009, no. 67021/01, para. 108; Zammit Maempel v.
Malta of 22 November 2011, no. 24202/10, para. 66). It was in the light of that wide discretion that the Court confined itself, in certain cases, to verifying that the national authorities had not committed a ’manifest error of appreciation in choosing

25/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

means of achieving a fair balance between competing interests (Hardy and Maile v.
United Kingdom, supra, para. 222 and 231; Fadeyeva, supra, para. 102 and 105). As
for the choice of measures, “an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources” (Budayeva v.
Russia, supra, para. 135). Moreover, the Court has always held that, where the State isrequired to take positive measures, the choice of means is in principle a matter of themargin of appreciation of the Contracting State. There are different avenues to ensure
Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means (Kolyadenko andOthers v. Russia, supra, para. 160; Brincat and Others v. Malta, supra, para. 101). According to the case-law of the Court, the extent of the margin of appreciation is not thesame in each case. It varies depending on the context. As regards the positive obligations deriving from Article 8 para. 1 of the Convention, in striking the required balance
the aims mentioned in the second paragraph may be of a certain relevance (Pavlov andOthers v. Russia, supra, para. 75).
91.

As to the factors to be taken into account, it should be stressed that global warming
poses unprecedented and highly complex issues and challenges. The problem includes
difficult social and technical issues. Its treatment requires the study of scientific data
and a risk assessment. Choosing the best ways to combat global warming is a delicate
matter and must take into account many different and even conflicting interests.
Measures to protect the climate may also restrict fundamental rights and individual freedoms. It is therefore necessary to find the most appropriate solutions after balancing all
the interests involved. Operational choices require prioritisation, including the allocationof resources. In accordance with the principle of subsidiarity, the wide range ofmeasures to be taken is a matter for national governments and parliaments and, in thecase of Switzerland, which has a system of direct democracy, it is also a matter for thepeople.

92.

In the light of the foregoing, the Government considers that the State should be given
an ample margin of appreciation in the present case.

b)

Relevance of the concept of harmonious interpretation of the Convention with othernorms of international law

93.

The Court has already clarified that it “(...) has never considered the provisions of theConvention as the sole framework of reference for the interpretation of the rights andfreedoms enshrined therein. On the contrary, it must also take into account any relevant
rules and principles of international law applicable in relations between the Contracting
Parties (...). The Court further observes that it has always referred to the “living” natureof the Convention, which must be interpreted in the light of present-day conditions, andthat it has taken account of evolving norms of national and international law in its interpretation of Convention provisions (...).” (Demir and Baykara v. Turkey of 12 November 2008 [Grand Chamber], no. 34503/97, paras. 67-68).

94.

It should be stressed, however, that the role of the Court is to apply and interpret theConvention and not other norms of international law (see Articles 19 and 32 para. 1 of
the Convention). The Convention does not guarantee a right to a healthy environment,
and the instruments enumerated by the Court do not provide any legal basis for the extension of the Convention guarantees as requested by the Applicants.

26/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

95.

The concept of harmonious interpretation cannot be used to fill an alleged gap in the international legal framework on climate. In this regard, the Government is of the opinion
that the main objective of the application is, in fact, to attempt to circumvent the Paris
Agreement by seeking to construct an international judicial review of the measures
adopted by Switzerland to limit greenhouse gases. However, the fact is that during thenegotiations on the Paris Agreement, the Parties indeed considered the possibility ofproviding the Agreement with a binding mechanism for individual monitoring of the commitments of the States, but ultimately decided not to do so. In accordance with Article
14 of the Agreement, they have in fact entrusted the Conference of the States Parties
with the task of carrying out a periodic global review in order to assess the collective
progress achieved. They have also opted for the establishment of a facilitation-oriented
implementation monitoring mechanism that operates in a transparent, non-accusatory
and non-punitive manner as provided for in Article 15 of the Agreement.

96.

In the light of the principles of international law, it is thus clear that the monitoring mechanism set up by the Paris Agreement cannot be replaced by a contradictory and punitive judicial mechanism based on another treaty, namely the Convention. In addition,
most of the States Parties would escape such a judicial mechanism as they are not parties to the Convention, which would, at the very least, be inequitable. The Court itself,
moreover, very recently recalled, in the context of the Convention on the Rights of Persons with Disabilities, that its task is to ensure that the text of the European Convention
on Human Rights is complied with. It is the Convention which the Court can interpretand apply; it does not have authority to ensure respect for international treaties or obligations other than the Convention (Caamaño Valle v. Spain, no 43564/17,
11 May 2021, para. 53-54).

97.

In view of the above, and generally speaking, the Government believes that there areother instruments that are more likely to deal with environmental protection and related
issues.

98.

While the Court should take the listed instruments into account when interpreting theguarantees of the Convention, the following should be borne in mind:99.

The international legal framework on climate is the result of negotiations between sovereign states. It provides for a collective objective and individual obligations, leaving various elements to the discretion of states:• The objective of the UNFCCC is to “stabilize greenhouse gas concentrations in theatmosphere at a level that prevents dangerous anthropogenic interference with theclimate system.” (International climate policy: the Climate Change Convention(admin.ch)). The UNFCCC does not impose global or country-specific emission reduction targets.
• The general objective of the Paris Agreement (Article 2.1(a)) is a temperature target, i.e.
a general objective that does not impose any explicit quantitative restrictions on greenhouse gas emissions or a global carbon budget.
• The Paris Agreement established a number of legally binding obligations for the parties (see Article 4.2, first sentence, 4.8, 4.9, 4.13 and 13.7). However, most of theseobligations are procedural in nature and require parties to submit certain types of information at certain times or

27/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

regular intervals or to report or rendering an accounting in accordance with theagreed rules. Moreover, there is no doubt that the Paris Agreement does not create
any subjective rights that individuals may invoke, but that the obligations set out
therein are addressed only to the High Contracting Parties that have ratified this instrument.
• Having said that, it should not be forgotten that not all the provisions of the Paris
Agreement necessarily set out legally binding obligations for the States Parties. For
example, a number of substantive mitigation provisions are formulated as recommendations and not as legal obligations18. Nor does the Paris Agreement establish
an autonomous monitoring mechanism, and all of its provisions are not necessarily
suitable for judicial review by the courts19. As the Parties to this Agreement have notreached agreement on these issues during the negotiations, there is some uncertainty as to the exact legal scope of certain provisions, including amongst commentators.
• By way of example, the central obligation of the Paris Agreement set out in Article
4.2, first sentence, provides that "Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.” This is
the only legally binding mitigation obligation (“mitigation”) and is of a strictly procedural nature. In other words, it does not require States Parties to implement their
NDCs. In this respect, it is interesting to note that during the negotiation of the Paris
Agreement, a proposal for wording requiring the States Parties to "achieve” their objectives was rejected20.
• Article 4.2, 2nd sentence, for its part, simply requires the Parties pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. The
potentially binding nature of the second sentence of Article 4.2, which provides that“the Parties (and not “each Party”) shall pursue domestic mitigation measures withthe aim of achieving the objectives of such contributions”, is far from established andremains controversial. For one sub-section of legal scholars, this sentence only establishes a code of conduct, but its implementation itself is not legally binding, nor
has the Party obliged itself to achieve the objective. The States Parties are, however,
not entirely free to determine their measures as they are required to design
measures that enable them to achieve this objective21. This means, in particular, that
the States Parties must engage in legislative and political processes with a view toestablishing, administering and implementing such measures. Whether or not thisprovision is binding, it appears that it can only constitute a standard of conduct andnot an obligation to achieve results22. In the opinion of the Swiss Government, Article
4.2, 2nd sentence thus expresses a certain standard of conduct (or due diligence),
which corresponds to what a responsible State should do under normal conditions, ina given situation, with the best available and feasible means. If a State fails to do so,e.g. by refusing to initiate (or stopping) a legislative

18
19
20
21
22

DANIEL BODANSKY, The Legal Character of the Paris Agreement, p. 6.
BODANSKY, supra, p. 1-2.
BODANSKY, supra, p. 1-2.
BODANSKY, supra, p. 7-8.
Cf. JULIA HÂNNI, Menschenrechtlicher Schutz infolge Klimawandels - Voraussetzungen und Herausforderungen / Dargestellt am Beispiel
der EMRK, in EuGRZ 2019, vol. 1-6, p. 4.

28/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

and political process intended to establish and implement those mitigation measures,
this could constitute a breach of its duty of care.
• The Government considers that standards of conduct such as those contained in articles 4.2, 2nd sentence and 4.3 of the Paris Agreement are not legal rules that require specific or specific means or measures to achieve a particular objective. The
concept of “the highest possible level of ambition” on the other hand reflects a standard of conduct that the parties must comply with. This duty of due diligence in designing the NDCs is a means of assisting the Parties in structuring their respective
responsibilities. In order to act swiftly, States must therefore take all appropriate
measures in accordance with their capacities to progressively achieve the protectionof the interests or rights concerned. In other words, each successive NDC must embody the highest level of ambition of one party – it must do its utmost to progressively achieve the objective of the Paris Agreement, i.e. to keep the global temperature rise well below 2 °C and to continue efforts to limit this rise to 1.5 °C.
• In addition to the standards of conduct set out in the Paris Agreement, the standardsof conduct resulting from the IPCC scientific reports should be taken into account23.
The IPCC, or Intergovernmental Panel on Climate Change, which is based in Geneva and currently has 195 member states, is the United Nations body responsible
for assessing the scientific aspect of climate change. The IPCC reports provide thescientific data necessary for States to be able to determine their mitigation measures
so that the objective set out in Article 2 (a) of the Paris Agreement can beachieved24. The performance of States Parties to the UNFCCC is measured on thebasis of those IPCC reports. The Committee has already established six of them.
• In summary, it should be acknowledged that, by ratifying the Paris Agreement, Switzerland has undertaken to meet a number of formal commitments (see supra). Theseare positive obligations and standards of conduct which, in the opinion of the Government, are likely to shed some light on the reasonable and appropriate measuresthat Switzerland must take to effectively protect the rights set out in Articles 2 and 8of the Convention. However, Switzerland has not undertaken that the NDCs it hasestablished and updated will be subject to international judicial review. The Paris
Agreement does not contain any legally binding obligations to this effect. Article 14
limits itself to establishing every five years a global implementation review by the
Conference of States Parties in order to assess the collective progress made inachieving its purpose and long-term goals, but does not create any external evaluation mechanism to assess the individual performance of each State Party. Thus, theCourt cannot assign itself such a role – in a way establishing itself as a supreme environmental court – where the States Parties to the Paris Agreement have deliberately opted not to introduce one.
100. With regard to the other instruments listed by the Court, the following should be noted:• The International Law Commission’s draft articles on prevention of transboundary
harm from hazardous activities (2001) address harm

2324https://www.ipcc.ch/languages-2/english/
See HÄNNI, supra, p. 10 and 12.

29/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

across borders. It is not transboundary harm that is at the heart of this case, but thealleged harm that the Applicants claim in Switzerland due to greenhouse gas generating activities taking place on Swiss territory.
• With regard to Regulation (EU) 2021/1119 of the European Parliament and of theCouncil of 30 June 2021 (“European Climate Act”), it should be noted that Switzerland is not a member state of the European Union. In addition, the regulation is dated
30 June 2021. It is therefore subsequent to the assessment of the case by the FAC
and the FSC.
• The UN General Assembly Resolution “Right to a Clean, Healthy and Sustainable
Environment”, A/76/L.75, 26 July 2022 is not legally binding. In that resolution, “[t]heinternational community has reaffirmed that a healthy environment is an essential
prerequisite for the full enjoyment of human rights, thus sending a strong political signal. (...) Although the UN General Assembly’s resolution is not legally binding, it isexpected to set positive developments in motion, such as greater commitment at political level to environmental issues, the stricter accountability of states, and coherent
policy making in environmental and human rights matters. " (Switzerland’s contribution to recognising the human right to a clean, healthy and sustainable environment(admin.ch)).
101. It should also be noted that the CM/Rec(2022)20 Recommendation was adopted by theCommittee of Ministers on 27 September 2022. In this non-binding instrument, theCommittee of Ministers recommends that governments of member states “reflect on thenature, content and implications of the right to a clean, healthy and sustainable environment and, on that basis, actively consider recognising at the national level this right as ahuman right that is important for the enjoyment of human rights and is related to otherrights and existing international law” (OP 1). Within the Council of Europe, the CDDH
Drafting Group on Human Rights and the Environment (CDDH-ENV) is currently examining the need for and feasibility of an additional instrument or instruments in the field of
human rights and the environment.
102. The Resolution of the UN General Assembly and the Recommendation of the Committee of Ministers of the Council of Europe show that the debate on the subject is progressing and that the subject of human rights and the environment is being developed.
However, there are still many open issues on which there is no consensus. In this context, the Government recalls once again that the Convention does not guarantee a rightto a healthy environment and the instruments listed by the Court in question 5.3.2 do
not provide any legal basis for extending the guarantees of the Convention as requested by the Applicants.
c)

Doctrine of the living instrument and the need to combat climate change

103. The Court t has always referred to the “living” nature of the Convention, which must be
interpreted in the light of present-day conditions, and that it has taken account of evolving norms of national and international law in its interpretation of Convention provisions(Demir and Baykara v. Turkey, supra, para. 68). However, Article 1 of the Convention is
not subject to interpretation in accordance with the doctrine on the living instrument (cf.
section 37 supra).

30/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

104. While acknowledging the urgency and the great challenges posed by global warming,the limitations of the Convention’s system cannot be ignored. The Convention did notguarantee a right to a healthy environment and such a right cannot be created without anew protocol to the Convention. The jurisdiction of the Court is limited to interpreting
and applying the rights guaranteed by the provisions of the Convention and its Protocols (cf. Article 32 para. 1 of the Convention; Pavlov and Others v. Russia, supra, concurring opinion of Judge Serghides, para. 18). Moreover, the doctrine of the living instrument does not allow the Convention’s guarantees to be interpreted in a way that undermines the basic principles of the system, such as the principle of subsidiarity. Lastly,
the doctrine of the living instrument cannot be invoked to justify a radical change in the
Court’s jurisprudence that would ignore the situation prevailing in the High Contracting
Parties.
105. In addition, Council of Europe member states are aware that the Convention does notguarantee a right to a healthy environment and are addressing the issue. They are currently examining the need for and feasibility of an additional instrument or instruments inthe field of human rights and the environment within the CDDH-ENV (see supra).
106. The developments in the interpretation of fundamental rights at national level referred toby the Court concern the Netherlands and Germany and not Switzerland. Moreover,they concern only two States Parties to the Convention. Moreover, the jurisprudence ofthe national courts on this issue is divergent and there is no consensus on the matter.
For example, the Swiss Federal Supreme Court upheld DETEC’s decision not to proceed in this case. The Constitutional Court of Austria rejected the application of Greenpeace and Others as inadmissible.25 On the other hand, the higher courts of the Netherlands26, Ireland27, France28 and Germany29 have ordered their respective governments
to take new or intensify measures to urgently and significantly reduce their emissions inorder to protect people from the effects of global warming. A number of other States
have not yet developed domestic jurisprudence on the subject. Finally, the situations in
the different States differ and the recitals of the courts of one State cannot be transposed as such to other States.
107. The need to combat climate change does not justify ignoring the limitations of the Convention system. It is relevant only if an issue relating to the right to life and to privateand family life arises.
d)Compatibility of Switzerland’s commitments with Articles 2 and 8 of the Convention

108. In the present case, the Applicants accuse Switzerland of failing to take sufficient preventive measures to contain global warming. In particular, they complain about the failure of Switzerland to comply with its positive obligations under Articles 2 and 8 of theConvention read in the light of the

25
26
27

28
29

Judgment of the Austrian Constitutional Court in the case of Greenpace and Others v. Austria, 20 September 2020, available at Austrian
Const.Ct. Decision G 144 2020 of 30. September 2020.pdf
Judgment of the Supreme Court of the Netherlands in Urgenda, no. 19/00135, 20 December 2019; https://www.urgenda.nl/wp-content/uploads/ENG-Dutch-Supreme-Court-Urgenda-v-Netherlands-20-12-2019.pdfEnglish translation available at
Judgment of the Supreme Court of Ireland in Friends of the Irish Environment v. The Government of Ireland and Others, no. [2020] IESC 49,
31 July 2020; Available at https://www.courts.ie/view/judgments/681 b8633-3f57-41b5-9362-8cbc8e7d9215/981c098a-462b- 4a9a-99415d601903c9af/2020 IESC 49.pdf/pdf.
Judgment of the Paris Administrative Court, nos. 1904967, 1904968, 1904972 to 1904976/4-1,3 February 2021; available at http://paris.tribunal-administratif.fr/content/download/179360/1759761/version/1/file/1904967190496819049721904976.pdf.
Judgment of the German Constitutional Court, no. 1 BvR 2656/18, 24 March 2021; press release available in English at https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html

31/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

commitments made under the Paris Agreement, the precautionary principle, the best
scientific evidence available, the evolving standards of national and international law
and the emerging consensus (cf. Additional Submission, para. 56). Under these obligations, Switzerland should do its utmost to make its contribution to avoiding that the
global temperature does not exceed the target of 1.5 °C increase in warming (see Additional Submission, para. 57). According to the Applicants, Switzerland has failed to takethe necessary measures to effectively protect them against the risks arising from climate change (see Additional Submission, para. 59).
109. The Government refers to the case law of the Court, which states that the case is addressed from the perspective of a positive obligation on the State to take reasonable
and appropriate measures to protect the rights of the Applicants under Article 8 (1) of
the Convention, or from the perspective of interference by a public authority to be justified under paragraph 2, the applicable principles are relatively close to each other.
(Tătar v. Romania, supra, para. 87). ”In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of thecommunity as a whole, and in any case the State enjoys a certain margin of appreciation.” (Cordella and Others v. Italy, supra, para. 158; Lopez Ostra v. Spain, supra, para.
51).
110. The positive obligation to take all reasonable and adequate measures to protect the rights
which the Applicants derive from Articles 2 and 8 of the Convention implies, first and foremost, the primary duty of States to put in place a legislative and administrative framework
aimed at effectively preventing damage to the environment and human health (c, supra,
para. 129-132; Tătar v. Romania, supra, para. 88). When it comes to dealing with complex
environmental and economic policy issues for a State, in addition, special emphasis must
be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk which may result from this. This obligationmust govern the licensing, setting up, operation, security and supervision of the activity andmust make it compulsory for all those concerned to take practical measures to ensure theeffective protection of citizens whose lives might be endangered by the inherent risks (Oneryildiz v. Turkey, supra, para. 90). It should also be pointed out that a governmental decision-making process concerning complex issues of environmental and economic policy
must necessarily involve appropriate investigations and studies in order to allow them tostrike a fair balance between the various conflicting interests at stake (Hatton and Others,
supra, para. 128). There is no doubt about the importance of public access to the findingsof these studies as well as to information to assess the danger to which it is exposed (see,mutatis mutandis, Guerra supra, para. 60, and McGinley and Egan supra para. 97). Finally,
the individuals concerned must also be able to appeal to the courts against any decision,action or omission if they consider that their interests or observations have not been sufficiently taken into account in the decision-making process (Tătar, supra, para. 88; Hatton,
supra, para. 128; Taşkin and Others v. Turkey of 10 November 2004, no. 46117/99, paras.
118-119; Ökçan and Others v. Turkey, 28 March 2006, no 46771/99, para. 43).
111. In the present case, it is necessary to determine whether the State, in guaranteeing theApplicants' rights, has struck, within the limits of its discretion, a fair balance

32/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

between the competing interests of the Applicants and the community as a whole, as
required by Article 8 (2) of the Convention (cf. Pavlov and Others v. Russia, supra,
para. 78). In assessing whether the respondent State had complied with the positive obligation under Art. 2 of the Convention, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legalityof the authorities' acts or omissions, the domestic decision-making process, including
the appropriate investigations and studies, and the complexity of the issue, especiallywhere conflicting Convention interests are involved (Boudayeva v. Russia, supra, para.
136). In this assessment, not only mitigation measures but also adaptation measures
should be taken into account.
112. The Government emphasises that Switzerland has put in place a legislative and administrative framework aimed at reducing CO2 emissions and is endeavouring to adapt it to
the development of scientific knowledge and political and legal circumstances. Under
Swiss law, there is thus a range of measures to reduce CO2 emissions and thesemeasures are compatible with the objective of the Paris Agreement (see Statement offacts in Annex).
113. In summary, under the sole legally binding obligation of the Paris Agreement on mitigation, Switzerland is complying with its commitment by submitting its NDC within thegiven deadline. At the level of standards of conduct, including those resulting from the
IPCC reports, it has, on the one hand, made every effort to integrate its NDC into its national legislation (Art. 4.2, 2nd sentence) and to revise its objective in time to reflect its
highest level of ambition (Art. 4.3). In its recent communication, it stated that, domestically, its emission reductions by 2030 will mainly be achieved, which will further
strengthen Switzerland’s transition to a low-carbon economy. Given Switzerland’s low
greenhouse gas intensity today, the NDC represents a high level of ambition for 2030.
In this respect, it should be borne in mind that Switzerland’s greenhouse gas emissions
account for around 0.1% of global emissions and that Switzerland’s per capita emissions (2020: 5.04 tonnes CO2eq per inhabitant) are below the global average (seeStatement of facts in Annex, section 2.1.6).
114. The facts set out above and in the Statement of facts in the Annex clearly show that
Swiss climate policy is not rigid, but that it is able to adapt to new scientific recommendations and constantly increase the level of its ambitions. This dynamic thus meets therequirement of “progression” expected from States (cf. Art. 3 and Art. 4.3 of the Paris
Agreement). Moreover, the actions taken by Switzerland demonstrate a willingness to
be within the range indicated by the IPCC to contribute to stabilisation at 1.5 °C.
115. In 2019, Switzerland also strengthened its long-term climate target in order to comply
with the IPCC recommendations to keep the temperature increase below 1.5 °C by
2100. The Federal Council has decided that, by 2050, Switzerland must no longer be
emitting more greenhouse gases into the atmosphere than can be absorbed by naturaland artificial reservoirs.30. This target of net zero by 2050 serves as the starting point for
Switzerland’s long-term climate strategy, which was approved by the Federal Council
on 27 January 2021.31

30
31

Federal Council Press release of 28 August 2019, Federal Council aims for a climate-neutral Switzerland by 2050 (admin.ch)Long-term Climate Strategy to 2050 (admin.ch)

33/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

116. With regard to the rejection of the new CO2 Act by the vote of 13 June 2021, it should
first be recalled that democracy, the rule of law and human rights are important pillars of
the state. The rejection of the new CO2 Act does not mean that the Swiss people do notwant to fight climate change resolutely. Rather, the tools provided for in the draft of the
new law are what voters have rejected. Despite the negative result of the referendum
on the new CO2 Act, the Swiss climate target set in the Swiss NDC remains unchanged.
Only the measures aimed at implementing the objective will need to be reviewed.32 TheFederal Council therefore quickly looked for new solutions and presented a revised CO2
Act (see statement of facts in Annex).
117. The Government considers that the range of mitigation measures to reduce CO2 emissions, as derived mainly from the CO2 Act currently in force (including the extension, following the vote on 13 June 2021, of certain measures and the greenhouse gas emission reduction target until the end of 2024), as well as the new solutions to be found forthe period after 2024 (see Statement of Facts in the Annex, section 1.2.1, 2.1.1 et seq.),
fall within Switzerland’s margin of appreciation. In view of the complexity of the task, thechoice of means to combat global warming is difficult and must respond to many different interests. Measures to protect the climate may restrict the freedoms of individuals,
have an impact on the economic well-being of the country, and the most sensible solutions need to be found after balancing all the interests involved. Switzerland and its people are better placed than the Court to make that choice. The Government is fully awarethat it needs to act swiftly to ensure climate protection.33 However, it is not too late andthere is still time to make this choice (cf. SCD 146 I 145 at 5). Since Switzerland has fulfilled and undertakes to fully fulfil the commitments it undertook when ratifying the Paris
Agreement, it has not exceeded and will not exceed its margin of appreciation. There
would be no justification for the Court to substitute its view for that of the Swiss Government, Parliament and people on the choice of means to combat global warming.
118. In addition, the measures taken by Switzerland to reduce CO2 emissions are effective
and emissions in Switzerland have decreased (see statement of facts in Annex).
-

32
33
34

International target (under the Kyoto Protocol): ”Within the framework of the
Kyoto Protocol, industrialised countries, including Switzerland, have committed
themselves to an international climate target. Thus, Switzerland must reduce its
emissions between 2013 and 2020 by an average of 15.8% compared to 1990.
This objective has been achieved. On the one hand, emissions fell by an average of 11% over this period. On the other hand, under the Kyoto Protocol, shortfalls in reductions can be achieved through climate protection projects abroad.
The Confederation receives the necessary reduction certificates from the Climate Cent Foundation. The performance of carbon sinks may also be taken into
account to achieve this objective. "34 It should be noted, however, that the final
statement at the international level

Federal Council Press Conference of 13 June 2021, Federal Councillor Simonetta Sommaruga, 13.06.2021 – Press conference of the Federal
Council – YouTube
Federal Council Press Conference of 13 June 2021, Federal Councillor Simonetta Sommaruga, 13.06.2021 – Press conference of the Federal
Council – YouTube
Greenhouse Gas Inventory 2020: Switzerland narrowly misses its climate target (admin.ch)

34/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

will be established following the review of the April 2022 Greenhouse Gas Inventory by an international panel of experts of the United Nations.35-

National reduction target (under the CO2 Act): At the national level, Switzerland’s
greenhouse gas emissions were to be reduced by 20% by 2020 compared to1990. This current CO2 Act target was only marginally missed, with a reductionof 19% achieved according to the 2020 Greenhouse Gas Inventory published by
the FOEN. In order to reduce emissions, climate protection measures must be
strengthened in all sectors36.

119. In this context, it should be borne in mind that the costs of preventing CO2 emissions in
Switzerland are high due to the limited availability of cost-effective measures in the
short term. Energy production in Switzerland is practically carbon-free and there arevery few heavy industries. The potential for reducing emissions lies mainly in the housing and transport sectors. This remaining potential, however, has long conversion periods (see Statement of facts in Annex, section 1.2.3). However, for reasons of fairness, it
is important to recognise past efforts and reward pioneering countries.
120. Moreover, the Court recalled that even where national authorities have failed to comply
with certain aspects of the domestic legal regime, domestic legality is one of the factors,
but not the main one, to be taken into account in assessing whether the State has fulfilled its positive obligation; the state may choose other means it deems appropriate toensure “respect for private life”. (Pavlov and Others v. Russia, supra, para. 92). In thiscontext, the Government stresses that not only mitigation measures but also adaptation
measures should be taken into account.
121. The Federal Council recognised the need to adapt to the effects of climate change at an
early stage and took measures (see Statement of facts in Annex, section 1.2.2; see also
Adaptation to climate change (admin.ch)). Various studies in Switzerland and abroadshow that measures to prevent the adverse effects of heat on health have helped to reduce the risk of heat-related mortality. In Switzerland, heat-related excess mortality in2018 and 2019 was significantly lower than in the summers of 2003 and 2015. This indicates that government action and public awareness of heat-related health risks have
improved the situation37, although there is still untapped potential in this area.
122. The cantons are responsible for protecting the population against heat. The cantons ofGeneva, Vaud, Valais, Fribourg, Neuchâtel and Ticino have drawn up heatwave plans
for this purpose, which they can activate before a heatwave. The other cantons are also
taking measures as necessary, but have not developed specific heatwave plans (seeStatement of facts in Annex, section 1.2.2).

35
36
37

2020 target achievement review (for the years 2013 to 2020) (admin.ch)
Greenhouse Gas Inventory 2020: Switzerland narrowly misses its climate target (admin.ch) (last visited 14 November 2022)
Martina S. Ragettli & Martin Roosli, Hitze-Massnahmen-Toolbox 2021. Ein Massnahmenkatalog für den Schutz der menschlichen Gesundheitvor Hitze. 2021, SwissTPH, Basel. Im Auftrag des BAG, p. 5 (accessible at https://www.bag.admin.ch/dam/bag/it/doku- ment/nat-gesundheitspolitik/klimawandel/hitzewelle/tipp/Massnahmenkatalog%20Beh%C3%B6rden%20.pdf.down-load.pdf/Massnahmenkatalog fuer Behoerden.pdf
)

35/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

123. The Federal Office of Public Health (hereinafter: FOPH) lists three golden rules for action during heat waves: 1) Avoid physical exertion; 2) Avoid the heat – cool down 3)
drink a lot – eat light (cf Protection against heatwaves – three golden rules to follow inthe event of a heatwave (Flyer) (admin.ch)). These rules and the measures invoked by
the Applicants (e.g. staying at home, using the air conditioner or fan, lowering theblinds, avoiding outdoor activities, cf. Annexes 4-7 to the Application) apply only during
heatwaves and not every day of the year. Moreover, the severity of these measures islimited.
124. Adaptation measures are important because there are consequences of climate changethat can no longer be avoided. They are also important because Switzerland cannot
stop global warming on its own. If other countries do not also contribute, global warming
will continue and adaptation measures will become even more important for Switzerland, whose greenhouse gas emissions account for only about 0.1 percent of global
emissions.
125. The Government is of the opinion that the legislative and decision-making process that led
to Switzerland’s measures to reduce greenhouse gas emissions is characterised by a very
high degree of openness and full transparency. It also allows for the systematic inclusion ofscientific surveys and studies as well as a very broad participation of all interested parties.
The organisation of the referendum on 13 June 2021 enabled the Swiss people to vote on
the new CO2 Act. Since then, the Federal Council has re-examined the issue in order totake account of the will of the people and propose measures that are perceived as less punitive in order to achieve the emission reduction targets, which remain unchanged. A fairbalance has thus been constantly sought between the different competing interests atstake, in accordance with the requirements arising from the relevant case law of the Courtin the light, in particular, of the principles set out in the Aarhus Convention.
126. The Government notes, however, that the Aarhus Convention does not specifically provide for the inclusion of scientific studies as part of public participation. It also recallsthat the Aarhus Convention only entered into force for Switzerland on 1 June 2014.
Thus, Switzerland was not yet bound by the provisions of the Aarhus Convention at thetime when the current CO2 Act and its implementing provisions entered into force.
127. In Switzerland, the legislative and decision-making process is closely monitored by thecompetent Federal Offices. This is also the case in the area of combating global warming, where it is essential that decisions are based on the best scientific knowledge. In
particular, the existing procedure ensures that specialised experts are integrated into
the legislative process. In practice, this involves drafting the legal provisions on the basis of specialist sources: The Federal Council Dispatch of 1 December 2017 on thecomplete revision of the CO2 Act for the period after 2020 and the Explanatory Reporton the Ordinance on the Reduction of CO2 Emissions38 refer in particular to the IPCC
reports of 2014 and 2018, the reports of the Organisation for Economic Co-operation
and Development (OECD) in connection with the use and provision of financial resources for climate protection purposes, and38

SR 641.711 – Ordinance of 30 November 2012 on the Reduction of CO2 Emissions (CO2 Ordinance) (admin.ch)

36/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

the strategic recommendations of “Advisory body on climate change(OcCC). The OcCC
was established in 1996 by DETEC and the Federal Department of the Interior. Its mandate was renewed in 2018 and ended at the end of202139. Its main task is to make recommendations of a strategic nature on climate change issues and Swiss climate policy
from a scientific point of view to politicians and the administration. In addition, theabove-referenced Federal Council Dispatch refers to the data and information provided
by the National Centre for Climate Services (NCCS). The NCCS develops and provides
climate services, such as the provision of data, information and options for action, as
well as support for their use and interpretation. All documents, declarations or expert
opinions must be made available to the general public if they are mentioned in theabove-referenced explanatory report.
128. More generally, there are other ways in Switzerland for the public to participate in thelegislative process, in particular through the CPA. The CPA provides for broad public
participation in decision-making procedures (Art. 3 CPA). The consultation procedure
applies in particular to amendments to the Federal Constitution as well as draft legislation or ordinances. Dispensing with the consultation procedure is only possible in special cases and if it is objectively justified (Art. 3a CPA). Anyone and any organisation
may participate in a consultation procedure and submit an opinion. Scientific studies
and contributions may also be submitted. The competent authority must assess the results of the consultation and summarise them in a report (Art. 8 para. 2 CPA). It is thenmade available to the public (Art. 9 CPA).
129. Furthermore, according to the principle of transparency enshrined in art. 6 (1) of theFederal Act of 17 December 2004 on the Freedom of Information in the Administration(FOIA)40, any person has the right to inspect official documents and to obtain information about the content of official documents. Thus, all studies and other surveys on
climate issues produced or held by the Federal Administration are in principle available
to the public upon request.
130. The Government does not share the Applicant’s argument that the rights of vulnerable
groups can hardly be protected by democratic means because democratic decisions
are taken in accordance with the majority principle (cf. observations of the Applicant on
the legal aspects of 13 October 2021, para. 174). In that regard, he recalled that minorities, whether linguistic, religious, cultural, political or social, enjoyed extensive protection under the Swiss legal system. In Switzerland, therefore, democracy is not conceived as a system that merely imposes rule by the majority, but as a requirement for
the integration and respect of minorities. In this context, the importance of the triad ofhuman rights, democracy and the rule of law, as well as the separation of powers andthe principle of subsidiarity should be borne in mind. Excessive “judicialisation” could
create tensions with regard to these values and principles (cf. Observations of the
Swiss Government dated 16 July 2021, para. 4). More generally, the Government considers that courts, whether national or international, have neither the competence nor
the technical expertise to formulate a climate policy or formulate concrete measures tocombat39
40

Cf.OcCC – Advisory Body on Climate Change
SR 152.3 – Federal Act of 17 December 2004 on Freedom of Information in the Administration (Freedom of Information Act, FOIA)

37/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

greenhouse gas emissions. This task falls to the constitutionally competent authorities,
which are obliged to adopt legal rules in accordance with the legislative procedures inforce and the administrative, budgetary and other measures necessary to achieve theemission reduction targets to which the State has subscribed. In Switzerland, it is also
the case that the optional referendum provided for in Article 141 of the Constitution allows the people, under certain conditions, to vote on legislative measures drawn up by
the Government and adopted by Parliament, including measures to combat CO2emissions. These constitutional realities are inescapable and must be taken into account by
the courts.
131. The Applicant also relies on the precautionary principle in its arguments. In this regard,
it should be noted that the status of this principle in international law is not clear andwhether the principle is established as a rule of international law or not is controversial.
Moreover, even if the Court refers to this in some judgments (cf. Tătar v. Romania, supra, para. 109 on the precautionary principle), this principle and its possible implications
for human rights are not consolidated in the case law of the Court in application of theConvention (in this sense, see dissent of Judge Pettiti and six colleagues, final paragraph, in Balmer-Schafroth and Others v. Switzerland, supra). The reference to the precautionary principle in the Tătar judgment was thus very clearly linked to the fact thatthe respondent state failed to take measures after the environmental accident of
30 January 2000. It should also be recalled that in the Hardy and Maile case, the Court
disregarded the precautionary principle even though the Applicants had expressly requested that Article 8 of the Convention be interpreted in the light of this principle(Hardy and Maile supra, para. 186).
132. The Government believes that the precautionary principle can shed some light on thepositive obligation of States under Articles 2 and 8 of the Convention. However, it is toovague for it to be able to really direct decision-making in substance. For example, thelevel of risk of serious or irreversible disturbances or the recommended threshold for
determining whether there is absolute scientific certainty are not established with sufficient clarity, even by using the precautionary principle. In addition, the precautionary
principle is not sufficient to give specific contours to the obligation of states not to delay
the adoption of measures, as it is too general for this. If the Court should neverthelesstake the precautionary principle into account in the present case, the Government is of
the opinion that Switzerland has fully complied with the requirements of this principle. It
has taken precautionary measures to predict, prevent or mitigate the causes of climatechange and to limit its adverse effects. It has never used the lack of absolute scientificcertainty as a pretext for delaying the adoption of such measures. It has anticipated theforeseeable consequences of climate change at an early stage and regularly adapts its
targets in line with the latest scientific data (see Statement of facts in Annex).
133. With regard to the principle of intergenerational equity, the Government stresses that it
is not established as a rule of international law. Moreover, the Applicants have notthemselves invoked that principle, which also concerns the interests of future generations. It notes that the Applicants are a part of the present generation. They are not entitled to assert the rights of future generations before the Court, nor are they able to doso. The status of victim can only belong to existing people and not to future generations.
In addition, these proceedings concern the issue of whether the Applicants’ Convention
rights38/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

have been violated. The Government considers that the principle of intergenerational
equity cannot help to answer this question, such that it is irrelevant in the present case.
If the Court should nevertheless take into account the principle of intergenerational equity in the present case, the Government is of the opinion that Switzerland has fullycomplied with its requirements. The measures taken by Switzerland to protect the climate respect the interests of present and future generations in an equitable manner.
134. It follows from the above that Switzerland has fulfilled its obligations under the guarantees of the Convention invoked by the Applicants. It has adopted appropriate regulations and enacted adequate and sufficient measures to achieve the objectives for combating global warming (see Statement of facts in Annex). It has also put in place effective adaptation measures. Consequently, the Government invites the Court to declarethe objection concerning Articles 2 and/or 8 of the Convention inadmissible on the
grounds that it is manifestly unfounded.
B.

Article 6 para. 1 of the Convention (reply to question 6)

135. If the Court is of the opinion that Article 6 of the Convention is applicable, the Government takes the following position on the merits:
136. The right to a fair trial, guaranteed by Article 6 para. 1 of the Convention, must be interpreted in the light of the principle of the rule of law, which requires the existence of aneffective judicial remedy allowing civil rights to be asserted (see, inter alia, Ali Riza v.
Switzerland of 13 July 2021, no. 74989/11, para. 72; Al-Dulimi and Montana Management Inc. v. Switzerland [Grand Chamber] of 21 June 2016, no. 5809/08, para. 126,
ECHR 2016, Eşim v. Turkey of 17 September 2013, no. 59601/09, para. 18, and Běleš
and Others v. Czech Republic of 12 November 2002, no. 47273/99, para. 49, ECHR
2002- IX). Every person is entitled to have a court hear any dispute relating to their civilrights and obligations. Thus, Article 6 para. 1 of the Convention enshrines the right to a
court, of which the right of access, that is the right to institute proceedings before courts
in civil matters, constitutes one aspect only (see, inter alia, Howald Moor and others v.
Switzerland, nos. 52067/10 and 41072/11, para. 70, 11 March 2014, and Golder v.
United Kingdom, 21 February 1975, para. 36, no 18).
137. However, the right of access to a court is not absolute, but may be subject to limitations;these are permitted by implication since the right of access by its very nature calls forregulation by the State, which enjoys a certain margin of appreciation in this regard.
That being stated, those limitations must not restrict or reduce a person’s access insuch a way or to such an extent that the very essence of the right is impaired. In addition, such limitations will not be compatible with Article 6 para. 1 if they do not pursue alegitimate aim or if there is not a reasonable relationship of proportionality between themeans employed and the aim sought to be achieved (Naït-Liman v. Suisse [GC], no.
51357/07, 15 March 2018, para. 114 and 115; Ali Riza, supra, para. 73 and cited references). Furthermore, the limitations applied are only compatible with Article 6 para. 1 of
the Convention if they pursue a legitimate purpose and if there is a reasonable proportionality between the means employed and the intended purpose (Ali Riza, supra, para.
74 and cited references).
138. In the present case, the Applicants allege that Article 6 of the Convention has been violated because the domestic courts have upheld the decision of DETEC not to hear thecase and have not examined the merits of the case (cf. Additional Submission, para. 42
et seq.).
39/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

139. The Government points out, first of all, that the Applicants benefited from two judicial
proceedings. They appealed to the FAC and the FSC, both of which carefully examinedthe case and issued duly reasoned decision (cf. FAC decision A-2992/2017 of 27 November 2018, Annex 17 to the Application; FSC decision of 5 May 2020, published in
SCD 146 I 145, Annex 19 to the Application).
140. As a general matter, it should be noted that the Swiss courts are regularly seized of appeals from individuals or associations concerning issues related to risks to the environment arising from human activities (for nuclear energy, see e.g. FAC 139 II 185, FAC
140 II 315, FSC 2C 206/2019 of 25 March 2021 or further FAC decision A-5762/2012 of
7 February 2013; for air protection, see e.g. FAC 2009/1). It should be noted that federal administrative procedure is not particularly formalistic. Pursuant to Article 12 APA, it
is mainly governed by the investigative principle, according to which the authorities establish the relevant facts ex officio. It also requires the authorities to apply the law ex officio (cf. art. 62 (4) APA).
141. In order for an authority to consider a request made on the basis of Article 25a APA,
several conditions must be met. According to that provision, any person who has an interest that is worthy of protection may request from the authority that is responsible foracts that are based on federal public law and which affect rights or obligations that it refrains from, discontinues or revokes unlawful acts, rectifies the consequences of unlawful acts or confirms the illegality of such acts (para. 1). The authority shall decide by wayof a ruling (paragraph 2). According to the Federal Supreme Court, the concept of realact (Realakt) within the meaning of Article 25a APA must be interpreted broadly. It includes not only individual and specific acts, but also general and abstract acts (cf. SCD
146 I 145 at 4.2). In addition to the wording of Article 25a APA, the omissions of the authorities may also be challenged. An omission by state authorities may only be unlawful
if there is a specific obligation for the authorities to act. The right to obtain a decision
pursuant to Article 25a APA does not exist if the legislator has intentionally excluded legal protection against a real act or if sufficient legal protection is possible by othermeans (subsidiarity). Delineation from the actio popularis requires a careful analysis ofwhether the Applicant is more affected than the population in general(cf. SCD 146 I 145
at 4.1 with references). The existence of rights under Article 25a APA presupposes thatthe person making the request is to a certain extent affected in his or her personal legal
sphere. In order to do so, the infringement of personal rights must be of a minimum intensity (cf. SCD 146 I 145, at 4.1 and 4.4 with references). Article 25a APA defines theinterest in legal protection specific to the dispute (streitlagenspezifisches Rechtsschutzinteresse) by an objective and a subjective standard: on the one hand, in objective
terms, the real act must affect rights and obligations; on the other, in subjective terms,
the Applicant must assert a legitimate interest in the decision being issued. The two criteria, even if they point in the same direction, must be carefully distinguished (cf. SCD
146 I 145 at 4.4 with references).
142. The Government points out that, even in the absence of a formal decision and thus ofan act subject to legal challenge, the Swiss legal system provides for the possibility ofbringing an action before the courts on the basis of substantive documents and of obtaining a review of the merits, provided that the conditions for admissibility are met. This
option works in practice, including in environmental litigation, and must therefore be regarded as an effective means. A case in point is SCD 140 II 315, which concerns a

40/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

decision on physical acts under the supervision of the Swiss Federal Nuclear Safety Inspectorate IFSN (Accident Prevention, Mühleberg Nuclear Power Plant). In that case,
the FSC concluded that the admissibility conditions, namely the interest worthy of protection and the fact that one’s rights or obligations were affected, were met. Another example in which the Federal Supreme Court found that the admissibility requirements
were met is SCD 143 I 336, which concerned legal protections against the closure of arefuse collection point of a municipal subdivision. Moreover, even when the FSC refused to consider the case or dismissed the appeal, it almost always sought to explain
which legal remedies were available in practice or should have been followed by theAppellants. Other relevant decisions of the Federal Supreme Court include SCD 97 I
591, SCD 121 I 87, SCD 128 II 156 and SCD 130 I 369. There is thus a long-standing
practice which attests to the real and effective nature of the ability of citizens to bringproceedings before the courts for the purpose of verifying the legality of a material act,
sometimes referred to as an "act without legal effect".
143. Generally speaking, the requirements laid down by procedural law for an authority toenter into proceedings serve to ensure the proper administration of justice. The requirement that the Applicant’s personal legal sphere must be affected to a certain extent
arises from the fact that Article 25a APA is a means of individual legal protection. This
allows a delimitation from an actio popularis. This requirement is widely acknowledged
and is also applied by the Court. It also contributes to respect for the separation of powers (see infra). It cannot be considered that it restricts access to a court in such a waythat the substance of the individual’s right to a court would be affected. In addition, there
is a reasonable relationship of proportionality between this requirement and the objectives pursued.
144. Despite the broad interpretation of the notion of a real act within the meaning of Article
25a APA, the question may arise as to whether – as in the present case – a series ofstate measures may be required in a specific area on the basis of Article 25a APA. According to Swiss constitutional law, requests to give a specific form to current policy areas are generally made through democratic mechanisms (at 4.3). (SCD 146 I 145, at
4.3). The political rights pursuant to Articles 34 and 136 of the Federal Constitution areavailable to citizens for this purpose. These rights include the right to initiate a popular
initiative for a total or partial revision of the Federal Constitution (Art. 138 et seq. Swiss
const.) and the right of petition (Art. 33 Swiss const.). In addition, any member of theFederal Assembly, any parliamentary group, any parliamentary committee or any canton may submit an initiative to the Federal Assembly (Art. 160 para. 1 Swiss const.). In
addition, the members of both Councils and those of the Federal Council may submit
motions relating to an item of business under discussion (Art. 160 para. 2 Swiss const.).
145. In view of the above, it must be assumed that the requirement that the person submitting a motion must be affected to a certain extent in his or her personal legal sphere
contributes to compliance with the separation of powers and the principle of subsidiarity.
In Switzerland, it is not up to the judiciary to make political decisions. This task resides
with the legislative and executive powers. By virtue of Article 190 Const., the Federal
Supreme Court cannot, in any event, order a correction or tightening of the requirements laid down by the legislator in the CO2 Act or emission-reduction measures. As wesaw in the vote of 13 June 2021, the issue of climate policy and the necessary implementing measures is

41/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

complex and it is difficult to find the balance needed to achieve majority agreement.
146. The careful examination carried out by the FSC with regard to the formal criterion of theinterest in legal protection, as well as the characteristics of Switzerland’s own politicalsystem, show that courts cannot play a decisive role in the issue of climate change. It is
certainly not up to the courts themselves to decide what measures to take. In the opinion of the Government, it was therefore rightly the view of the Federal Supreme Court
that the Applicants' concerns should not be addressed by judicial, but rather by politicalmeans. Their appeal did not serve the purpose of individual legal protection, but was
aimed at obtaining an abstract review of the current climate protection measures andthose planned for the period up to 2030. This factor led the FSC in particular to classify
the appeal as an actio popularis, which is incompatible with the means of individual legal protection (cf. SCD 146 I 145 at 5.5 and 8). Contrary to the Applicants' allegations(cf. Additional Observations of 13 October 2021, Observations on the Law, para. 173),
this conclusion is not arbitrary.
147. Article 25a APA allows individuals in particular to challenge the omissions of the authorities, which also constitute a real act, provided, of course, that the conditions set out inthis provision are met. Those conditions serve legitimate purposes, namely the proper
administration of justice, the effectiveness of domestic judicial decisions by preventing
actio popularis and guaranteeing individual legal protection, or indeed the separation of
powers. However, the conditions have not been satisfied in the present case. Since thedecisions of the FAC and the FSC are neither arbitrary nor manifestly unreasonable, it
is not up to the Court to challenge their conclusions.
148. The conditions set out in Article 25a APA limit access to a court only to the extent necessary to achieve the legitimate aims. There is therefore a reasonable relationship of
proportionality between the means employed and the legitimate aims pursued. The rightof access to a court has not been restricted in substance.
149. In view of the above, the Government considers that the Applicants had at their disposal
an effective legal remedy enabling them to assert their civil rights. It therefore invites the
Court to declare the Application concerning Article 6 of the Convention inadmissible on
the grounds that it is manifestly ill-founded.
C.

Article 13 of the Convention (reply to question 7)

150. If the Court is of the opinion that Article 13 of the Convention is applicable, the Government takes the following position on the merits:151. "According to the consistent case law of the Court, Article 13 requires an domestic remedy only for applications which can be considered “arguable” under the Convention (...).
(Athanassoglou and Others v. Switzerland of 6 April 2000 [Grand Chamber], no.
27644/95, para. 58). In the Athanassoglou and Others v. Switzerland case, the Court
found that “[t]he applicants' complaint under Article 13, like that under Article 6 § 1, wasdirected against the denial under Swiss law of a judicial remedy to challenge the Federal Council's decision. The Court has found that the connection between that decisionand the domestic-law rights to protection of life, physical integrity and property invokedby the applicants was too tenuous and remote to attract the application of Article 6 § 1(.). The reasons for that finding likewise lead to the conclusion, on grounds of remoteness, that in relation to the Federal Council's decision as such no arguable claim of violation of Article-2 or Article 8 of the Convention and, consequently, no entitlement to a
remedy under Article 13 have been made out by the applicants.

42/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

In sum, as in the Balmer-Schafroth and Others case the Court finds Article 13 to be inapplicable." Athanassoglou and Others v Switzerland, supra, para. 59).
152. The Court also recalled that the safeguards of Article 6 para. 1 are in principle stricter
than, and absorb, those of Article 13 (cf. Ullens de Schooten and Rezabek v Belgium,
nos. 3989/07 and 38353/07, 20 September 2011, para. 52).
153. In the present case, the Applicants allege that their right to an effective remedy has
been violated because the national authorities have not examined the merits of their appeal (see Application Form, p. 9).
154. The Government recalls that the Applicants had the opportunity to appeal to the Federal
Administrative Court and the Federal Supreme Court and that they thus benefited fromtwo levels of appellate review. It also emphasises that states may provide rules governing the conditions of admissibility of an appeal. In this case, the statutory requirementthat the Applicants' rights must be affected with a certain degree of intensity does notrender their appeal ineffective (see section 140 et seq. supra). The requirement of aneffective remedy does not imply that the appellate body must necessarily consider the
merits of the claim, let alone grant the Appellant’s prayers for relief.
155. The Applicants also had - and still have - the possibility of bringing liability proceedings
against the Swiss Confederation on the basis of the Federal Act on the Liability of theConfederation, the members of its Authorities and Civil Servants (FALC)41 and of seeking, in this context, compensation for the harm they believe they have suffered as a result of the global warming allegedly caused by the authorities' failure to act. This legal
remedy would have enabled them – and would still allow them now – to obtain a possible negative decision that would have been – or might be – issued by the competent authority examined by the FAC and then, if necessary, by the Federal Supreme Court. In
the context of such liability proceedings, complaints of violations of the Convention may
be formulated and submitted to the courts for consideration.
156. By way of example, reference is made to the decision of the Federal Supreme Court(FSC) of 11 April 2006 (SCD 132 II 305) concerning the responsibility of the Confederation for its management of the so-called “mad cow” crisis. Admittedly, the FSC ultimately did not find the alleged omissions to be unlawful with regard to the precautionary
principle, but the decision shows that liability proceedings, with a serious examination of
the merits, are possible under the FALC where there is an alleged inaction by the authorities with regard to the precautionary principle and the scientific knowledge available
at the time.
157. In view of the above, the Government considers that the Applicants had at their disposal, by means of a combination of existing remedies, an effective remedy within themeaning of Article 13 of the Convention concerning the alleged violations of Articles 2
and 8 of the Convention. Thus, it invites the Court to declare the complaint concerning
Article 13 of the Convention inadmissible on the grounds that it is manifestly ill-founded.

41

SR 170.32 – Federal Act of 14 March 1958 on the Liability of the Confederation, its Authorities and its Civil Servants (Liability Act, FALC) (admin.ch)

43/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

VII.

Just SatisfactionA.

Non-pecuniary harm

158. The Applicant association does not claim compensation for non-pecuniary damages.
Applicants 2-5 each request CHF 10,000 for non-pecuniary damages (see para. 2-5 of
the Request for Just Satisfaction of 13 October 2021).
159. With regard to possible non-pecuniary damages under Articles 2 and 8 of the Convention, the Government recalls that greenhouse gas emissions are caused by the community of States. The distribution of greenhouse gas emissions among States must therefore also be taken into account when calculating compensation for a possible violationof Articles 2 and 8 of the Convention. Given the low intensity of the greenhouse gases
produced by Switzerland today, the omissions of which Switzerland is accused are notsuch as to cause the non-pecuniary harm claimed by the Applicants under Articles 2
and 8 of the Convention. There is therefore no sufficient causal link between the violation found and the non-pecuniary harm alleged by the Applicants, and Switzerland cannot therefore be required to pay compensation under Articles 2 and 8 of the Convention.
160. Furthermore, the Government denies that the Applicants were left in uncertainty andwithout adequate protection. The national courts have examined the actions brought by
the Applicants and dismissed them on the basis of detailed decisions. In addition, Switzerland has taken many measures to protect the population from heat.
161. With regard to non-pecuniary damages under Articles 6 and 13 of the Convention, theGovernment notes that the proceedings took a total of approximately three and a halfyears (filing of the application with DETEC on 25 November 2016 and final decision of
the Federal Supreme Court on 5 May 2020), which does not represent an excessive
length of time in view of the fact that two judicial bodies issued decisions following DETEC’s decision. Moreover, Applicants 2-5 were not alone in these proceedings. They
were assisted by the Applicant Association and Greenpeace Switzerland, which supports the Association and its members and guarantees the procedural costs, so thatthey do not incur any financial risk to themselves (see KlimaSeniorinnen – (ainees-climat.ch),, last visit on 17 November 2021). Greenpeace also initiated and helped implement the Senior Women for Climate Protection project. It also engages in substantial
dialogue with them (see Climate Justice – Greenpeace,last visit on 28 November 2022).
162. In view of the above, as well as various relevant factors, such as the age of the Applicants 2-5, the state of health of the Applicants 2-5, the duration of the situation at issue(see enumeration of these factors in Fadeyeva v. Russia, supra, para. 138), the seriousness of the alleged damage, Switzerland’s low greenhouse gas intensity, the number of periods of heat as well as the measures taken by Switzerland to protect the population from heat, the Government considers that, in the present case, a finding of a violation of the Convention would – if necessary – constitute sufficient compensation for
the non-pecuniary harm suffered by the Applicants (cf. Cordella and Others v. Italy, supra, para. 187; Tătar v. Romania, supra, para. 132; Di Sarno and Others v. Italy, supra,
para. 122; see also Pavlov and Others v. Russia, supra, dissenting opinion of Judges
Elosegui and Roosma).

44/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

B.

Pecuniary damages

163. The Applicant does not seek compensation for pecuniary damages. Therefore, the Government invites the Court not to award any amount in this regard.
C.

Costs and Expenses

164. Before the Chamber, the Applicant is claiming a total amount of CHF 324,249.25.- (incl.
VAT) for costs and expenses of proceedings at national level and before the Court.
165. The Swiss Government refers to the case law of the Court pursuant to which, to beawarded costs and expenses the injured party must have incurred them in order to seek
prevention or rectification of a violation of the Convention, to have the same establishedby the Court and to obtain redress therefor (F.R. v. Switzerland of 28 June 2001, No.
37292/97, para. 49). It must also be shown that the costs were actually and necessarily
incurred and that they are reasonable as to quantum (Philis v. Greece (No. 1) of 27 August 1991, No. 12750/87, 13780/88, 14003/88, Series A No. 209, p. 25, para. 74). In order to determine the reasonableness of the costs claimed, the Court bases itself on thenumber of hours worked and the rate claimed (Iatridis v. Greece of 8 July 1999, No
31107/96, ECHR 2000-XI, para. 57; “Iza” Ltd. and Makrakhidze v. Georgia of 27 December 2005, no. 28537/02, paras. 67-68.).
166. Rule 60 of the Rules of Court thus provides that the applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the timelimit fixed for the submission of the applicant’s observations on the merits unless the
President of the Chamber directs otherwise (para. 2) If the applicant fails to comply withthe requirements set out in the preceding paragraphs the Chamber may reject theclaims in whole or in part (para. 3).
167. With regard to the costs of representation, while the Applicant attached a fee note (without an address) to its request for just satisfaction of 13 October 2021, it has not provided an invoice or other document showing that it was in fact invoiced for the amountin question and that it therefore effectively incurred those costs. Similarly, it has notshown that it paid the costs of the proceedings itself. It follows from the request for justsatisfaction only that the costs and expenses contained in the fee note were or will be
invoiced in accordance with the contractual obligations between the Applicant party andthe attorneys (see para. 13), but the invoices or contractual obligations were not submitted to the Court. Indeed, it is clear from the website of KlimaSeniorinnen that “Greenpeace Switzerland supports us and guarantees the procedural costs, so that there is nofinancial risk for the association and its members. (see KlimaSeniorinnen – (ainees-climat.ch),last visit 17 November 2021). Similarly, Greenpeace’s website states that theorganisation “launched the Senior Women for Climate Protection Project and helped set
it up. We also engage in a lot of dialogue and guarantee financing for climate action.
(see Climate Justice – Greenpeace, last visit on 28 November 2022). It was also Greenpeace that, following the success of the Dutch foundation Urgenda in 2015, commissioned a law firm to examine Swiss law and the feasibility of taking legal action (see Climate Justice – Greenpeace, last visit on 17 November 2021). In view of the foregoing,
and in the absence of any evidence showing that the Applicant has actually borne thecosts and expenses in question, the Government invites the Court not to award the applicant any amount for costs and expenses.

45/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

168. In the event that the Court should, contrary to all expectations, find that the Applicants'
claims meet the requirements of Rule 60 of the Rules of Court, the Government of Switzerland considers that the amount claimed by the Applicant is manifestly excessive. According to the fee note, the attorneys spent more than 278 hours (CHF 77,980:
CHF 280 = 278.5 hours) for proceedings before the federal administrative authorities. In
addition, the attorneys spent more than 104 hours (CHF 29,176:
CHF 280 = 104.2 hours) for the proceedings before the FAC even though they were already largely familiar with the subject matter of the proceedings. The attorneys also
spent more than 126 hours (CHF 35,532: CHF 280 = 126.9 hours) for the proceedings
before the FSC. Finally, the attorneys spent more than 534 hours (CHF 149,730:
CHF 280 = 534.75 hours) for the proceedings before the Court. The Government notesthat although the issues raised in the present case may be complex – as argued by the
Applicant's lawyers – it can be assumed that they, having spent more than 500 hours
on the case at the national level, had detailed knowledge of the case and the issues
raised concerning the Convention. The Government considers that the number of hours
spent throughout the proceedings is manifestly excessive.
169. In addition, the Government disputes the need for the Applicant to be represented by
two lawyers.
170. In view of these considerations, the Government considers, in the alternative, that an
amount of CHF 13,000.00 would be appropriate to cover all costs and expenses incurred at national level and before the Court. Should the Court grant only part of the application, the Government invites the Court to reduce that amount appropriately.
VIII. Article 46 of the Convention (reply to question 8)
171. The Applicant requests the Court to order Switzerland to adopt the necessary legislative
and administrative framework to do its share to prevent a global temperature increaseof more than 1.5 °C above pre-industrial levels and to set a binding deadline for Switzerland to implement such a framework (cf. Request for Just Satisfaction dated 13 October 2021, para. 19 and 20).
172. As a matter of principle, it is for the State in question to choose, under the supervisionof the Committee of Ministers, the general measures to be adopted in its domestic legal
order in order to put an end to the violation found by the Court and to remediate its consequences as far as possible. Alternatively and exceptionally, the Court may indicate
the type of general measures which the State in question could take to put an end to theestablished situation (cf. Cordella and Others v. Italy, supra, para. 179 with references).
173. In the present case, the Government considers that there are no special circumstances
which would justify the indication of general measures by the Court. In view of all thecircumstances of the case, and in particular the complexity and democratic legitimacy ofthe measures required to reduce greenhouse gas emissions, it is not appropriate to provide the Government with detailed prescriptive recommendations as requested by the
Applicants. In addition to the technical complexity of the issues at stake, the delicate
balance to be struck between the various interests at stake in order to achieve the objectives of climate and environmental protection also justifies the granting of a wide
margin of appreciation to the Swiss Government (cf. section 90 et seq.) and should, inthe final analysis, also lead

46/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

the Court to refrain from indicating general measures in order to comply with the principle of subsidiarity. Finally, the present case does not suggest that there are structuralproblems or systemic deficiencies in Switzerland.
174. In the alternative, and in the event that the Court nevertheless wishes to indicate detailed recommendations, the Government considers that these recommendations
should be limited to access to justice, that is to say, the procedural framework that Switzerland should establish to enable domestic courts to consider complaints of violationsof the Convention made by individuals. The Convention system is not intended to become the venue where national policies to combat global warming are decided (cf. section 95 supra). Under no circumstances is it for the Court to set targets for reducing
greenhouse gas emissions, to indicate concrete mitigation measures or a deadline for
adopting a legislative and administrative framework. The setting of reduction targets
and concrete mitigation measures requires specific knowledge and is not within thecompetence of the Court. Moreover, scientific knowledge may change over time so thatthe reduction target set by the Court would no longer be relevant. A prudent approach
limited to indicating the minimum procedural framework would also avoid placing theCommittee of Ministers in a difficult position when supervising the enforcement process.
175. In light of the foregoing, the Government considers, first of all, that it is not for the Court
to address the general instructions requested by the Applicant to the Swiss Government. Should the Court nevertheless decide to indicate general measures in the form ofprescriptive instructions, these should be strictly limited to the procedural aspects of the
case.
IX.

Conclusions

On the basis of the above considerations, the Government of Switzerland invites the Court to:• declare application no. 53600/20 Verein KlimaSeniorinnen Schweiz and Others v. Switzerland inadmissible as a matter of principle-

for failure to comply with the six-month period;for incompatibility ratione personae due to the Applicant association’s lack of victim status;- for incompatibility ratione personae due to lack of victim status of the Applicantsnos. 2-5 with regard to their complaints concerning Articles 2 and 8 of the Convention;- for incompatibility ratione materiae with the provisions of the Convention;- because it is manifestly ill-founded.
• In the alternative, to find that there has been no breach of the guarantees invoked by the
Applicants.
• In the event of a finding of a violation of the Convention, not to award any amount to therequesting party as just satisfaction and not to indicate general measures to Switzerland. If
the Court should nevertheless choose to award the applicant an amount for costs and expenses, the Government invites the Court to award it a maximum total amount47/48

**** Unofficial translation of the original French document ****
Case number: BJ-E-26.09.2022/31

of CHF 13,000.00 in this regard, which amount would have to be reduced if only part of therequest were allowed.
Yours faithfully,

Federal Office of Justice (FOJ)
Alain Chablais KOEDXK
05.12.2022
Info: admin.ch/esignature | validator.ch

Alain Chablais
Agent of the Swiss Government

Annex: Statement of facts

48/48