Legal deep dive into the Belgian Climate Case – Part IV, Sanctions and penalties

In our last three newsflashes, we analysed the Court’s decision on the Belgian Climate Case:

• The first one analyses the admissibility of the claim (Part I). 

• The second one deals with the violation of Articles 2 and 8 of the European Convention of Human Rights (ECHR) raised by the Plaintiffs (Part II)

• The third one discusses the second claim, the violation of Articles 1382 and 1383 of the Belgian Civil Code (Part III). 

In this fourth and final newsflash, we will provide you with the details of the final decision of the Court and the sanctions imposed on (three of) the Defendants.

a.  Separation of powers

The Court again addressed the possible breach of the separation of powers raised by the Defendants, citing doctrine and authoritative authors and confirmed the principle that the judicial power is authorised to prevent as well as to remedy any infringements of subjective rights, even when made by public authorities. However, doctrine on the separation of powers prohibits the judicial power from adopting, reforming or annulling governmental acts. The Court cannot take the place of the authorities and impose the necessary measures to reach the imposed objective. 

The Judicial Code prohibits the Court from imposing judgments with a general or regulatory scope, applying to a broad and undefined category of people. The Court reiterates that this prohibition must be interpreted with reference to its primary objective: preventing judges from adopting legislative decisions. 

The Court stresses that the 55% reduction is absolutely necessary to reach the climate objectives. The Federal Government and the Regions retain their autonomy in choosing policies, tools and measures to achieve this objective.

c.  The injunction linked to the identified violations

The Court also justifies the injunction by linking it to the identified violations:

• Articles 2 and 8 of the ECHR: These articles do not provide for any specific sanctions in the event of a breach. However, Article 13 of the ECHR secures the granting of an effective remedy before a national authority to everyone whose Convention rights and freedoms have been violated. An injunction is therefore the most appropriate, possibly even the only remedy for a breach of Articles 2 and 8, specifically in the context of environmental law. 

• Articles 1382 and 1383 of the former Civil Code: The link with Articles 1382 and 1382, establishing the civil liability, is more complex since a part of the damages has not fully materialised (see Part III of the series of newsflashes). 

The question of whether an injunction preventing future damages is appropriate is still open for discussion in the legal doctrine. The Court, in this case, takes a stand on the issue, ruling that damages extend to the future when it is certain that the damages will occur. According to the Court, an action seeking to prevent or reduce future harm, even though the fault has already been committed and the damage is inevitable, is considered permissible.

3. Conclusion

To conclude the newsflash series on the Belgian Climate, we would like to end with a few points for further reflection: 

On the admissibility of climate claims by individuals: The Court affirms the admissibility of the individual climate claims, given the judicial certainty of the consequences of climate change for everyone and the extent of the related risks. This judgment rules that the individual plaintiffs had a sufficient personal and direct interest to take legal action as required by the Judicial Code. Based on this reasoning, any physical person could have a legal interest in bringing a claim against public authorities or even companies for failing to live up to climate policy or to take action following EU or national law. It can be expected that this climate case will give rise to other climate case litigations including with respect to the upcoming reporting obligations for companies. Failing to report, or incorrect reporting could therefore have serious consequences.

On the separation of powers and climate change accountability: The first important difference with respect to the initial judgment lies in the recognition that the separation of powers can no longer serve as a shield against judicial intervention. Authorities cannot hide behind this separation of powers to escape accountability and liability for their climate policies or lack thereof. In contrast to the initial ruling, the Belgian Court of Appeal has set a precedent, subjecting the government's climate actions and inactions to judicial scrutiny. Serious shortcomings or deviations from established environmental goals expose governments to potential litigation and will lead to an elevation in the governments’ commitments to climate action.

On the significance of scientific consensus as a minimum baseline: The Court's ruling confirms the widely accepted scientific consensus, exemplified by the Intergovernmental Panel on Climate Change (IPCC) reports and its importance as an assessment tool for the (in)actions of a liable party, be it a government or another party. The scientific consensus serves as a robust benchmark for determining the minimum standards to which authorities must adhere. The IPCC reports play a key role in this assessment. They are updated periodically, which means that the assessment is not fixed but is an evolving matter. This dynamic approach ensures that as scientific findings evolve, so do the obligations imposed on authorities, aligning governance with the ever-changing landscape of knowledge and progress. Signing the international climate agreements is not without its obligations. It brings with it the individual responsibility to fight global warming.

On the difficulty of effective climate measures: Climate warming is clearly a complex (legal) matter, partly due to its global scale and the multitude of causes and parties involved. The judgment in the Belgian Climate Case does not make things any easier. The implementation of climate measures is not straightforward in a federal policy and may become even more complex with the ruling. The Court imposes a national reduction target although competences in climate matters are regional. To achieve the injuncted reduction, all parties will have to work together. However, the Defendants can only be held accountable to the extent of their share in the climate efforts which has yet to be determined. In addition, not all Defendants were convicted as Wallonia is considered by the Court to be on track with its climate objectives. The Court calls on the Defendants to negotiate and to determine, within the limits of their powers, what share each of them will invest to achieve the reduction target, as well as what resources and measures will be used to achieve this.