Foley et al v Sweden (Aurora case) 

Date of Application:	Fri, 25 Nov 2022
Date of Decision:	Wed, 19 Feb 2025
Decision Making Body:	Nacka District Court (Sweden)
Law Applied:	European Convention on Human Rights
Keywords:	Government framework, Access to justice, ECHR, Equality, Health, Family

Anton Foley & others v Sweden (Aurora case) 

2022 

At Issue: The adequacy of Sweden’s climate change mitigation policy, in possible violation of human rights protected by the ECHR. 

On November 25, 2022, a group of over 600 young people born between 1996 and 2015 filed a class action lawsuit against the Swedish state, arguing that Sweden’s action on mitigating climate change is inadequate and thus in violation of their rights under the European Convention of Human Rights (ECHR). The complaint was lodged after two letters were sent to the Swedish state, one in May 2022 (to which the sitting Minister for Climate and Environment replied) and one in November 2022 following a change in government in October 2022 (to which there was no reply), where the plaintiffs outlined their requests. Specifically, the plaintiffs argue that the risk of the negative impacts of climate change constitutes interferences with their rights to life, private and family life, and non-discrimination under articles 2, 8, and 14 of the ECHR, respectively, as well as the right to property under article 1, protocol 1 of the ECHR. These interferences are argued to constitute rights violations since Sweden is failing to do its fair share to reduce the greenhouse gas (GHG) concentration in the atmosphere to keep warming below 1.5°C as compared to pre-industrial levels, by not undertaking immediate and adequate procedural and substantive measures to continuously reduce GHG emissions and enhance GHG sinks, thus failing to adequately protect the plaintiffs from adverse impacts of anthropogenic climate change. In particular, the plaintiffs argue that climate change impacts in the period leading up to 2100 will be serious, especially in relation to impacts on human health, and that they are expected to be particularly affected by these impacts because expect to be alive at that time, based on the average life span in Sweden. In terms of specific impacts, the plaintiffs cite longer and more intense heatwaves causing both mild and severe health effects, shorter and more temperate winters leading to the increased spread of diseases through ticks, and changes to precipitation patterns leading to health impacts stemming from flooding, among others. 

The plaintiffs question both procedural and substantive aspects of Sweden’s mitigation policy. With respect to the former, the plaintiffs argue that the state has failed to adopt sufficient and adequate procedural measures by not investigating, in line with the best available science: (i) the extent of Sweden’s fair share to reduce emissions continuously, (ii) how the fair share is to be achieved in a manner that is economically and technically feasible, and (iii) how Sweden can contribute to reduce consumption-based GHG emissions abroad, GHG emissions caused by Swedish legal persons abroad, and GHG emissions from LULUCF, as well as protecting and restoring natural carbon sinks like forests, wetlands, and oceans. The emissions in question for points (i) and (ii) are those from industrial processes, product use, fossil fuel-based energy, agriculture, and waste (IPEJA emissions). 

As regards their substantive claims, the plaintiffs argue that the state has failed to take sufficient and adequate measures to: (i) continuously implement Sweden’s fair share, based on the investigations mentioned above, (ii) reduce IPEJA emissions between 2019 and 2030 by at least 9.4 or 6.5 million tons CO2-eq annually, primarily national emissions insofar as possible, and to ensure safe atmospheric GHG concentrations after 2030 under any circumstances, (iii) reduce national IPEJA emissions between 2019 and 2030 by at least 3.1 or 2.2 million tons CO2-eq annually and to ensure safe atmospheric GHG concentrations after 2030 under any circumstances, (iv) secure that GHG emissions reductions within one category is not achieved through increasing emissions in another category under any circumstances, and (v) continuously compensate annual emissions that exceed the permissible emissions, by reducing the net emissions by an equivalent amount in the following period under any circumstances, starting in 2019. 

Ultimately, based on these arguments, the plaintiffs ask the court to order the state to implement its fair share of GHG emissions reductions to keep global warming below 1.5°C, by adopting sufficient and adequate procedural and substantive measures to ensure that emissions are continuously reduced and that GHG are absorbed through natural carbon sinks, in order to limit the risk of negative impacts of climate change on them. The procedural and substantive measures requested mirror the complaints listed above. 

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Anton Foley and others v Sweden (Aurora Case) - Climate Change Litigation (climatecasechart.com) 

Summary provided courtesy of the Sabin Centre 

 

Court documents (only available in Swedish): 

First letter sent to the government (10 May 2022) 

Second letter sent to the government (7 November 2022) 

Summons application (25 November 2022) 

Expert fair share report (25 November 2022) (English) 

Reply from the former Minister for Climate and Environment (1 June 2022) 

Decision  

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)
• 12. Right to express views freely and have these taken into account (CRC Article 12)
• 16. Right to privacy, family, home, communications and reputation (CRC Article 16)
• 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
• CRC Optional Protocols

The plaintiffs argue that the risk of the negative impacts of climate change constitutes interferences with their rights to life, private and family life, and non-discrimination under articles 2, 8, and 14 of the ECHR, respectively, as well as the right to property under article 1, protocol 1 of the ECHR. 

Summons par 233. Reference to Sacchi case. 

Summons Par 246. “The right to health or a clean and tranquil environment is not expressly protected by Article 100 wording, but it is clear from the case-law of the European Court of Human Rights that environmental hazards and threats, emissions and emissions of various kinds, as well as their impact on health, may limit the private and family life and home, with the consequence that they are unable to enjoy their rights under Article 8 in full.” 

Summons Par 240. “The right to life does not arise only in situations where the action of the State or the failure to act has led to death, but also in situations where someone has been subjected to risk of death, whereby the state has a positive obligation to protect life within the jurisdiction. The positive obligation covers situations where external factors constitute a life-threatening.” 

Summons Par 253. “Age as a ground for discrimination in relation to the State's inadequate measures to prevent Climate change can be divided into two different groups. First, people who belong to a specific age group are discriminated against. Second, people who are born during a specific period (birth cohort) are discriminated against.” 

Summons Par 263. “Measures should provide effective protection in particular for children and other vulnerable. In addition, measures must promote respect for human dignity and protect the best interests of the child.” (Barnets bästa)

Cited CRC articles

• 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)

Par 232 Summons. The applicants refer to the Duarte case and mention specifically that the applicants in that case held the position that the relevant sections in the ECHR must be interpreted through, among others, article 3 of the CRC (the best interest principle). 

Involvement of children in hearings

• Written presentation

The children are represented as a group by Aurora. Their submission to the court is made in the form of a summons in the voice of a legal representative.

Intergenerational rights

Summons Par 309. “The principle of intergenerational justice means that both the quality and the availability of natural resources, and efforts to protect them, shall be shared fairly among present and future generations. The principle has its origins in the first principle of the Stockholm Declaration, and is clarified in the third principle of the Rio Declaration principle, which states that the right to development must be fulfilled in a way that allows for that the needs of current and future generations for development and a good environment are met fair. The principle thus means that past, present and future generations have a equal rights to the land and its resources. Nature and its resources must therefore be preserved in such a way as to that young and future generations can also enjoy them. Intergenerational justice has been taken into account in the case law of the International Court of Justice.”

Future generations

In Swedish = “framtida generationer” 

Summons Par 228. “Another important decision was delivered by the German Constitutional Court. The Constitutional Court, also referring to the judgment in the Urgenda case, stated that a failure to take sufficiently comprehensive climate action in the near future will lead to a need for more far-reaching measures in the future, which would lead to to huge future restrictions on fundamental rights and freedoms of the young people who are young today. By judgment of 24 March 2021, the Court found that the the German state had a duty to protect the fundamental rights of future generations by legislating to reduce emissions early and specifying the total emissions may be during specific periods.338 The Court emphasised that if the German did not plan for time-bound emissions, the emission reduction burden on the future generations will be too large to be in line with their fundamental freedoms.” 

Summons Par 314. “The Swedish state borrows resources from future generations to satisfy today's needs. It is not in line with the concept of sustainable development or principle of intergenerational justice”.

Outcome of decision for the applicants

• Relief sought by applicants NOT granted

The court ruled the case inadmissable. 

Judges say that the judiciary cannot order executive to take specific actions, relying on the separation of powers doctrine. 

They say the youth have lack of standing. The case is brought by individuals, not an organisation. No individualised harm can be proved. The matter is not heard on the merits.  

Did outcome of decision develop the law

• Not sure

This is the first ruling on climate change by Sweden’s highest court.

Involvement of NGO/law firm in application

NGO: 

Aurora 

 

Amicus curiae: 

Swedish Institute for Human Rights 

Available information on how children got involved in the litigation

Vi är Aurora, nu stämmer vi staten! | Auroramålet 

Documentary on Aurora out now! | Auroramålet (xn--auroramlet-75a.se) 

Swedish Youth Lodge Class-Action, Rights-Based Climate Lawsuit Against Their National Government 

Age range of litigants

• Other (Under 25)

Number of children or youth involved

600