Legal deep dive into the Belgian Climate Case – Part I, the Climate Case and the admissibility of the claim

1. The context of the Belgian climate case

The case began in 2015 when non-profit organization Klimaatzaak, joined by nearly 60,000 individuals (hereafter called ‘the Plaintiffs’), challenged the four public Belgian authorities (the Belgian federal government, the governments of the regions of Brussels, Flanders and Wallonia hereafter called ‘the Defendants’) in front of the judicial courts, citing inadequate climate measures. 

Seeking a 48-65% greenhouse gas (GHG) reduction by 2030, the Plaintiffs argue that the insufficient action of the respective Defendants in the fight against climate change violates: 

• human rights, in particular the right to life and the right to respect for private and family life (Articles 2 and 8 of the ECHR);

• Articles 1382 and 1383 of the former Belgian Civil Code, which form the legal basis for extracontractual liability. 

In the initial 2021 judgment, Brussels Court of First Instance essentially agreed with the Plaintiffs’ reasoning and acknowledged the Belgian state and the regional governments were responsible for their lack of efforts related to climate change, violating the rights of the plaintiffs. However, the Court of First Instance refrained from imposing binding emission reduction targets, referring to the separation of powers.

3. The preliminary part of the procedure – admissibility and power of jurisdiction

In its reasoning, the Court starts by addressing questions of admissibility and the jurisdictional power. Key developments in this part of the judgment pertain to both the jurisdictional power and the admissibility of the Plaintiffs’ claims.

a. The power of jurisdiction 

As concerns the Court’s jurisdictional power, the Defendants argue that the claim lacks the necessary subjective right, a prerequisite for introducing a judicial action.

The Court, however, rejects this argument and affirms its jurisdictional power to hear the case.

The Court starts with the claim based on Article 1382 and seq. of the former Civil Code. Contrary to what the Defendants try to argue, the Court asserts that the appellants’ claim extends beyond merely establishing fault, as they repeatedly provide evidence of damage and express the intent to prevent further harm. Both reparation of damage and prevention of future damage are linked to the fault. The Court also clarifies that the question of whether the damage is sufficiently proven is a substantive matter, not one of admissibility.

In addition, when addressing the Defendants’ argument on Articles 2 and 8 of the ECHR, the Court emphasizes that national courts have jurisdiction over disputes concerning civil and political rights. It rejects a restrictive interpretation, affirming that the court’s jurisdiction encompasses infringements of subjective rights, even when authorities act with discretionary powers.

The Court reiterates that extracontractual liability of authorities are under the power of jurisdiction of the judicial courts if they relate to subjective rights. The fact that an authority must behave, and act as a normally careful and diligent authority constitutes a sufficient specific legal obligation. Any person has a subjective right to reparation where an authority has breached this duty of care. Therefore, disputes about rights under the ECHR fall within the power of jurisdiction of the Court.

b. Admissibility requirements and the Defendants’ claims

The Belgian judicial code requires any judicial action to present an interest that is present, direct, and individualized. Declarative actions are allowed in severe and serious threats to rights. Declarative actions are actions where the plaintiffs only ask for a declaration or confirmation of rights without any other measures.

The Defendants call for dismissal, asserting that the claim is an actio popularis pursuing the prevention of pure ecological damage, which is not allowed in Belgian law. 

The Court rejects the argument on interest and considers that the Plaintiffs do have an interest in bringing this case to the Court. 

Invoking the Aarhus Convention, the Court recalls the imperative nature of public access to justice in environmental matters, emphasizing that such access is a mandate of the treaty. In this context, national provisions must not restrict access to justice or be interpreted in that way.

Building on its argument, the Court references Articles 2 and 8 of the ECHR, declaring that the rights under these provisions are infringed by the authorities' insufficient action on climate change. 

Furthermore, the Court emphasizes the distinction between environmental associations and individuals when assessing the admissibility criteria. According to the Court, such environmental associations should be granted the ability to initiate legal actions based on moral damages.

The Court rejects the argument that there is no personal, direct damage demonstrated by the Plaintiffs. On the contrary, the Court acknowledges that damages due to climate change exist. It does so by relying on the scientific consensus on the consequences of human activities on climate and the call for urgent action.

c. Individual plaintiffs

The Court also accepts the admissibility of the claims from the individual claimants, pointing to the sufficiently described potential impact of climate change. Some consequences are already unmistakably clear in Belgium. According to the Court, the predictions for Belgium in 2100 are also sufficient proof of the potential damaging impact of climate change. Individual damages such as food and water supply issues, infrastructure damage and impacts on physical health are mentioned.

The Court affirms that the individualized criteria are met, given the judicial certainty of the consequences of climate change and the extent of the related risks. Therefore, any physical person has an interest in bringing a claim against the public authorities for the failing climate policy or for failing to meet the admissibility requirement, especially in the light of the Aarhus Convention.