Introduction

In our two previous newsflashes (newsflash I and newsflash II) on the Belgian Climate Case, we discussed the questions of admissibility and the Plaintiffs’ first claim (violation of Articles 2 and 8 of the European Convention on Human Rights).

In this newsflash, we examine the Plaintiffs’ second claim, which invokes the civil liability of the Belgian institutions regarding their climate policy.

First, we present a detailed examination of Articles 1382 and 1383 of the former Belgian Civil Code. Second, we examine how the Court applies these articles to the facts presented by the parties, exploring each component of civil liability in Belgium law.

Application of the three fundamental components of civil liability: breach, damage and causation

Establishing the fault

Preliminary remarks

The first component of the civil liability under Article 1382 of the former Civil Code requires for the plaintiff to demonstrate a fault. This fault can manifest as a violation of a legal norm or a transgression of the overarching principle of general prudence.

The Plaintiffs assert two grounds for fault against the Defendants: first, their failure to contribute adequately to global efforts aimed at reducing GHG emissions and avoiding perilous global warming both historically and prospectively. Second, the Defendants are accused of not fostering the requisite cooperation at national level essential for effective climate governance. 

The prudent standard

Taking into consideration Belgium’s international commitments and drawing upon the consolidated scientific knowledge in the field of climate change, the Court deems that a sufficiently defined standard of behaviour has been established. This standard serves as a threshold against which the actions or omissions of the Defendants are evaluated to ascertain a breach within the purview of Article 1382.

In their defence, the Defendants contend that their actions or omissions concerning emission reduction have negligible impact on global climate change. This argument, however, is rejected by the Court, which invokes the findings of the Intergovernmental Panel on Climate Change (IPCC). The IPCC report underscores that every emission avoided contributes to the mitigation of global climate change by preserving the global carbon budget. The Court further underscores the application of the principle of equivalence of conditions in the theory of civil liability, emphasising that any breach leading to damage is independently sufficient for a conviction.

The Court scrutinises two relevant periods, 2013-2020 and 2021-2030, to ascertain whether the Belgian state has transgressed the established prudent standard.

• 2013–2020: The Court underscores that it was demonstrated that Belgium was aware that achieving a minimum 25% reduction in emissions by 2020 was imperative to limit global warming to under 2°C. Furthermore, it was established that Belgium was aware that post-2015, with the adoption of the Paris Agreement, a more stringent target of limiting global warming to 1.5°C was adopted, rendering the 25% reduction insufficient. Consequently, the minimum prudent standard for Belgium dictated a 30% reduction target by 2020. A prudent Member State would have initially set a reduction target of at least 25% and promptly increased it to a minimum of 30% following the 2015 accord. The Belgian institutions, except for the Walloon Government who demonstrated sufficient initiatives to increase its targets, fell short of meeting the required standard. This deficiency manifested in their failure to establish sufficiently ambitious reduction targets and in their shortcomings in implementing the necessary measures.

• 2021-2030: The Court reiterates that an initial international agreement established a 40% reduction target by 2030. However, the IPCC reports underscored that these targets alone would prove insufficient in limiting global warming to 1.5 °C. In light of scientifically proven necessities for increased targets, a prudent State would have taken proactive measures to increase the 40% target for 2030. This viewpoint is confirmed by the European Union’s commitment to achieving a 55% reduction by 2030, as evidenced by the Fit-for-55% package. Importantly, this 55% threshold is deemed the strict minimum without any margin for appreciation afforded to Member States. Given that none of the evidence presented by the Belgian institutions, with the exception of Wallonia, was compelling enough to guarantee their attainment of a 55% reduction by 2030, it is deemed that they have fallen short of the prudent standard. Their failure to take substantial measures and their inability to provide sufficient assurances of meeting the prescribed reduction targets constitute a breach of the established standard.

Breach of Articles 2 and 8 of the ECHR

Articles 2 and 8 of the European Convention on Human Rights (ECHR), as demonstrated in the first claim, represent a clearly defined norm of international law and the breach of this norm is deemed by the Court to constitute a fault under Article 1382 of the former Civil Code.

Consequently, a fault related to insufficient climate ambitions has been established for the federal government, the Brussels Region, and the Flemish Region.

Establishing damage: Present, ongoing and future effects 

Having established a fault, the Court examines the second component, the damages.

The Plaintiffs argue that the damage resulting from climate change will only materialise in the fullness of time, pointing out that there is a gap of nearly 40 years between GHG emissions and the full realisation of their heating/warming potential. They contend that Belgian citizens are currently experiencing the latent effects of emissions until 1980, while the effects of emissions between 1980 and 2023 are yet to materialise. 

Additionally, the Plaintiffs highlight the price of delay, emphasising the significant downsides of delaying crucial measures to curb GHG emissions. These delays not only infringe on individual liberties, but also lead to substantial economic costs. Citing a 2020 study, they project annual climate-related expenses of around €9.5 billion, equivalent to 2% of Belgium’s GDP. The resulting budgetary constraints will impact essential services (such as healthcare, education, justice and agriculture), and the Plaintiffs anticipate higher taxes on individuals as a consequence to adapt to climate change. 

Regarding region-specific damages, the Plaintiffs list various impacts, such as floods in Wallonia, sea level rise in Flanders, and increased heatwaves in Brussels. Finally, Klimaatzaak VZW alleges to have suffered moral damage and ecological harm due to its social objective related to protecting current and future generations from climate change. 

In response to the Plaintiffs’ arguments, the Defendants argue that the Plaintiffs primarily aim to prevent potential future harm rather than address existing damage. They also stress the speculative nature of the claimed health and moral damages, citing proactive climate policies. 

The Court acknowledges the Plaintiffs’ argument, recognizing tangible and current impacts on individuals and private assets beyond collective environmental harm. It underscores the reality and escalation of damages, such as heatwaves, droughts, floods, eco-anxiety, and economic costs. The Court also highlights the financial strain on federal and regional budgets, affecting crucial sectors. It concludes that the reduction of the remaining carbon budget and the cost of delaying emissions reduction will definitely impact individuals, as claimed by the Plaintiffs. Additionally, the Court recognizes Klimaatzaak’s ground to claim moral damage, in line with the association’s objectives in protecting the environment.

Assessment of the causal link

After establishing the existence of the fault and damages, the Court assesses the existence of a causal link between the damage and the breach. 

According to the Federal government the impact of its GHG emissions is minimal on a global scale, as reducing this impact would not solve the worldwide issue of climate change. The Regions strongly question the existence of a direct causal link between their regional policies and the alleged damages. 

The Court refers to the reasoning of the Plaintiffs and distinguishes three chronological segments of alleged damages linked to GHG emissions. The Court asserts the first segment, up to 1980, is not directly causally linked to the actions or omissions in question because necessary measures to prevent climate change were not clearly identified before this period.

The second segment, from 1980 to the present, raises questions about the certainty of the causal link between the insufficient ambitions of the Defendants and the current effects of climate change, as other countries with more ambitious climate policies still are suffering the consequences and manifestations of climate change. However, the Court acknowledges a part of the damages is established and actual.

The third segment, concerning current emissions, represents the future damage that can be prevented. The Court emphasises the window of opportunity to address dangerous global warming by 2030, confirming the possibility of limiting the associated risks during this period.

The Court thus concludes that a causal link exists between the identified faults and the various alleged damages, including eco-anxiety, moral prejudice resulting from the lack of measures to protect the interests of future generations, the loss of a chance to avoid the effects of climate change (such as heatwaves, flooding, etc), the aforementioned reduction of the national climate budget compared to what it should have been, and harm to the interests of Klimaatzaak VZW. 

Without the faults, these damages would either not exist, or be less grave – which testifies of a direct causal link between the two. By establishing this causal link, the Court confirms the civil liability of the legislative power under Articles 1382 and 1383 (former) Civil Code.