Children of Austria v. Austria

Date of Application:	Tue, 21 Feb 2023
Date of Decision:	Tue, 27 Jun 2023
Decision Making Body:	Constitutional Court of Austria
Law Applied:	EU Charter of Fundamental Rights Federal Climate Protection Act (Klimaschutzgesetz 2011), Austria Federal Constitutional Act on Sustainability, Animal Protection, Comprehensive Environmental Protection, Water and Food Security as well as Research, Austria The Federal Constitutional Act on the Rights of Children, Austria
Keywords:	Intergenerational equity, Discrimination, Child's right to wellbeing, Equality, Admissibilty.

Children of Austria v. Austria 

Verfassungsgerichtshof (VFGH) [Constitutional Court] Jun. 27, 2023, 123/2023-12 & 139/2021-11 

At Issue: Whether the Federal Climate Protection Act violates children’s rights under constitutional law or the EU Charter of Fundamental Rights and/or their right to equality before the law. 

Summary: On 21 February 2023, a group of Austrian children filed a complaint with the Austrian Constitutional Court. The applicants alleged that the Federal Climate Protection Act (Klimaschutzgesetz 2011) is, in part, unconstitutional for violating the constitutionally guaranteed rights of children and the fundamental right to equality before the law. The Austrian Constitutional Court rejected the application as inadmissible by decision of 27 June 2023. According to the Court, the scope of the application was too narrow, and repealing the contested provisions would not have eliminated the underlying unconstitutionality. Relying on its earlier case law, the court, therefore, considered the application as inadmissible. Further, the court held that repealing the contested phrases would have given the contested provision of the Federal Climate Protection Act a different content. Repeal would thus amount to an act of legislation by the court, which is prohibited due to the separation of powers principle. 

Background 
The Federal Climate Protection Act was adopted in 2011 to implement emission reduction obligations under European law. The Annexes to the Act set out the maximum levels of greenhouse gas emissions by sector for 2008-2012 and 2013-2020. However, the Act does not stipulate any emissions reduction targets after 2020. The lack of binding greenhouse gas emission reduction targets leads to persistently high emission levels on Austrian territory. In light of this, the applicants alleged the unconstitutionality of Art 3 para 2 of the Federal Climate Protection Act for (a) establishing commitment periods that only extend to 2020, (b) stipulating a pure negotiation obligation regarding the development of effective GHG reduction targets (instead of a mandate to take action) and (c) providing retrospective (instead of preventive) emergency measures in case of an exceedance of GHG ceilings established under international or EU law. In concrete terms, the applicants brought forward that Art 3 para 2 of the Federal Climate Protection Act violated children’s rights and their right to equality before the law. In eventu, the applicants further demanded the repeal of parts of Art 3 para 1 of the Federal Climate Protection Act.  

Rights of Children 
The Federal Constitutional Act on the Rights of Children implements the UN Convention on the Rights of the Child on the national level; it grants subjective rights (“constitutionally guaranteed rights”) to children, i.e., persons under the age of 18 years. Under Art 1, every child has the right to have his or her best interests protected. This includes protection and care, the best possible development and the safeguarding of child interests; in addition, Art 1 requires consideration of intergenerational equity. This commitment to intergenerational equity can also be found in the Federal Constitutional Act on Sustainability, Animal Protection, Comprehensive Environmental Protection, Water and Food Security as well as Research. This state objective that does not grant subjective rights but shall guide the interpretation of other legal sources. 

The plaintiffs alleged that climate change triggers positive obligations under Art 1 of the Federal Constitutional Act on the Rights of Children as it poses an imminent danger to the well-being of present and future generations. Thus, Austria is obligated to take adequate measures to protect child well-being against the disastrous impacts of climate change and restrictions of freedom related to drastic emission reduction measures needed in the future. Such need for drastic emission reduction is evident as – according to the plaintiffs – the scope of state obligations under Art 1 of the Federal Constitutional Act on the Rights of Children is to be interpreted through the latest scientific findings as well as EU and international legal requirements. These sources allow calculating of a national CO2 budget based on the internationally agreed 1.5°C target. Said CO2 budget, in turn, constitutes a “finite resource” in the sense of the Federal Constitutional Act on Sustainability. Thus, it is to be managed sustainably, and its consumption should respect the interests of future generations. 

In a nutshell, the applicants argued that constitutional law requires (a) the non-exceedance of the national CO2 budget and (b) equitable distribution of the remaining budget between generations in order to prevent a violation of the plaintiffs’ constitutionally guaranteed rights to (child) well-being. The plaintiffs asserted that Art 3 para 2 of the Federal Climate Protection Act does not meet these requirements and therefore violates Art 1 of the Federal Constitutional Act on the Rights of Children, which is to be interpreted in light of the Federal Constitutional Act on Sustainability. 

The applicants reached a similar conclusion based on the Charta of Fundamental Rights of the European Union (CFR). According to Art 51 CFR, the Charta’s scope is principally opened as adopting the Federal Climate Protection Act constitutes an implementation of GHG reduction targets determined under EU law. Art 24 CFR stipulates that children shall have the right to such protection and care as is necessary for their well-being. Under EU law, children thus have a right to protection of their well-being, similar to the national right. The European rights of the child under Art 24 CFR are to be interpreted in light of Art 37 CFR, which, in turn, refers to the principle of sustainable development. In a manner comparable to the Federal Constitutional Act on Sustainability, Art 37 CFR imposes an obligation to manage resources in an equitable and fundamental rights-respecting manner. This includes Austria’s remaining CO2 budget, which is to be distributed equitably between generations to protect the rights of the child under Art 24 CFR. 

Right to Equality before the Law 
The application also relied on the right to equality before the law for asserting the unconstitutionality of Art 3 para 2 of the Federal Climate Protection Act. This fundamental right entails a principle of fair burden sharing; in particular, it prohibits the realisation of the welfare of all (or the majority) at the expense of the few. The applicants alleged that Art 3 para 2 of the Federal Climate Protection Act violated the right to equality before the law for two reasons. First, the provision infringes the general principle of objectivity (“allgemeines Sachlichkeitsgebot”), inherent to the right to equality before the law. Second, they alleged that Art 3 para 2 of the Federal Climate Protection Act entails unequal treatment of children compared to adults, which cannot be justified. 

The general principle of objectivity requires that legal norms serve the public interest and seek to realise it with appropriate, necessary and proportionate means. If this is not the case, the legal norm is not objective and thus unconstitutional. According to the applicants, the Federal Climate Protection Act must thus meet two requirements: First, individual norms must be suitable (“appropriate”) to achieve the Act’s general objective, enabling the coordinated implementation of effective climate protection measures and ensure a rapid reduction of GHG emissions. Second, burdens associated with reducing GHG emissions must be distributed evenly between members of society. The Federal Climate Protection Act does not meet these requirements: Art 3 para 2 of the Act violates the principle of fair burden sharing as the lack of binding reduction pathways causes a rapid consumption of the remaining CO2 budget, which could be used up entirely already in 2025. Consequently, the GHG reduction burden is transferred to younger generations and not equitably distributed between all members of society. In addition, the applicants noted that it is impossible to achieve the Act’s objective (to comply with international and EU mitigation obligations) without legally binding GHG reduction pathway. Art 3 of the Federal Climate Protection Act hinders the adoption of a legally binding pathway in providing a pure negotiation obligation paired with references to past commitment periods only. Overall, Art 3 thus undermines the objective of the Federal Climate Protection Act. 

The applicants further alleged that Art 3 para 2 of the Federal Climate Protection Act provides for unequal treatment of children compared to adults. This is because the current formulation and design of the Federal Climate Protection Act (especially the lack of legally binding reduction pathways) allow for rapid consumption of the remaining CO2 budget (probably until 2025). Consequently, the burdens associated with emission reduction are largely transferred to the future and, thus, to younger generations. Younger generations are treated unequally compared to older generations as they bear the brunt of restrictions of freedom associated with emission reduction, especially as restrictions of freedom will be more severe the more time passes without action. According to the plaintiffs, such unequal treatment is not justified and thus violates their right to equality before the law. 

https://climatecasechart.com/non-us-case/children-of-austria-v-austria/ 

Summary provided courtesy of the Sabin Centre 

 

Court documents: 

Complaint translated into english 

Decision 1 translated into english 

Decision 2 translated into english 

Summary of decision translated into english 

Full Case Detail: Summary of decision translated into english 

Related CRC articles

• 2. Right to non-discrimination (CRC Article 2)
• 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
• 6. Right to life, survival and development (CRC Article 6)
• 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
• 27. Right to an adequate standard of living (CRC Article 27)

The applicants rely on rights in domestic and regional law, including the rights to equality, to have one’s best interests considered paramount.  

Involvement of children in hearings

• Other

It is not clear from the papers or otherwise whether the children did not depose to affidavits or provide oral evidence. The application was decided in a closed session.

Intergenerational rights

The applicants say: 

“As will be shown in the following, children - and thus the applicants - have a constitutionally guaranteed right to the safeguarding of the best interests of the child in the sense of individual rights to protection and care, the best possible development and the safeguarding of their interests with special consideration of intergenerational justice.” 

 

In the decisions (English translation) G 123/2023-12 and G 139/2021-11: 

There are 7 references to intergenerational rights / justice (7 in G123 and 0 in G139). 

Future generations

In the application (English translation): 

Para 5.1.1.1(c), page 34: 

“The principle of sustainable development - as well as § 1 of the Federal Law on Sustainability - includes requirements "which aim to take into account the exhaustibility of resources and the absorptive capacity of the environment, also in the interest of future generations, and to decouple economic growth and environmental pollution". 

In the decisions (English translation) G 123/2023-12 and G 139/2021-11: 

There are 2 references to future generations (2 in G123 and 0 in G139). 

Outcome of decision for the applicants

• Relief sought by applicants NOT granted

The application was dismissed as inadmissible.

Did outcome of decision develop the law

• Yes

Although the application was dismissed, the applicants raised arguments in relation to children which may influence future cases. The most notable are:

• The idea that the remainder of the “carbon budget” should be split equitably between current and future generations, taking into account the fact that current generations have already used much of the budget.
• The argument that the principle of intergenerational equity is both a substantive right as well as interpretive principle.
• The notion that preventative measures form part of the duty of the state to protect the right to a healthy and sustainable environment.
• Reliance on the child’s right to well-being in both domestic and international law as the basis for the state’s positive duty to manage resources sustainably and equitably.
• Relies on the right to equality, incorporating the principle of fair burden sharing, to say that children are facing discrimination for having to bear the bulk of the GHG reduction burden.

Involvement of NGO/law firm in application

Kromer Law Office 

Vienna 

Fridays for Future Austria 

Available information on how children got involved in the litigation

About the applicants 

Age range of litigants

• 8-12
• 13-17

Number of children or youth involved

12