Case Law Database

Lemme et. al., v. Bayern (Constitutional claim)

Date of Application:	Wed, 30 Jun 2021
Date of Decision:	Tue, 18 Jan 2022
Decision Making Body:	Federal Constitutional Court, Germany
Law Applied:	Germany Federal Climate Protection Act of 2019 (KSG) Paris Agreement United Nations Framework Convention on Climate Change
Keywords:	Mitigation, Future Generations
	Full Case Details - Download Full Judgment (pdf)

Marlene Lemme, et. al., v. State of Bayern (constitutional claim)

At Issue: The inadequacy of a climate protection law in the State of Bayern.

Summary: On June 30, 2021, youth plaintiffs Marlene Lemme, David Schiepek, Lukas Schulz, Stefan Emmerichs, Julius Papst, Kaspar Seßner, Friedl Seßner, Andreas Mäckler, Clara Göppel-Ramsurn, and Lucie Göppel-Ramsurn, supported by environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany), brought a constitutional claim against the state of Bayern (Bavaria) for the inadequacy of its adopted climate law. The plaintiffs relied on the German Constitution (Basic Law) and the Paris Agreement, as transposed in the Federal Climate Protection Act (KSG), to request the state legislature to set a GHG emissions reduction pathway towards achieving climate neutrality by 2045, necessary to comply with the KSG and the overarching 1.5°C temperature target. This case is part of a series of eleven separate constitutional complaints supported by DUH against ten federal states, following the Constitutional Court’s Neubauer decision in 2021.

The law under review, Bavaria’s 2020 Climate Protection Act (BayKlimaG) aims to: (i) reduce greenhouse gas emissions by 55% compared to 1990 levels, to 5 tons per inhabitant per year by 2030; and (ii) achieve climate neutrality by 2050. From 2030 onwards, the state is also required to offset any emissions above the permitted levels. To achieve these goals, the state set up a climate protection program. The plaintiffs claim that the law lacks provisions for setting annual emission levels, specifications on sector-specific targets, deadlines for the climate protection program, and compliance monitoring. Plaintiffs argued that these measures were insufficient to achieve the overall federal targets of the Federal Climate Protection Act.

The plaintiffs relied on the Constitutional Court’s decision in Neubauer v. Germany, following which Germany adjusted its climate goals at the federal level. Plaintiffs argued that codification of a legally binding reduction path is also required at the state level, as states bear co-responsibility for protecting lives and civil liberties, including safeguarding the natural foundations of life for future generations, within their own sphere of competence. Plaintiffs argued that the Bavarian law falls short of these constitutional requirements. Plaintiffs asserted a violation by the state of its duty to protect, and invoked their constitutional rights, to defend themselves against considerable future restrictions on their freedoms which – in view of rapidly progressing climate change – are to be considered inevitable and are already reflected in the inadequate action of the legislature of Bavaria.

On January 18, 2022, the First Senate of the Federal Constitutional Court did not admit the eleven complaints for adjudication, on the basis of a lack of adequate prospects. Widely in alignment with its decision in (Neubauer v. Germany, the Court acknowledged that greenhouse gas reduction burdens cannot be unilaterally offloaded onto the future. However, in the cases at hand, complainants’ fundamental rights were not violated preemptively, because the state legislatures are not subject to a CO2 emissions budget, which, according to the Court in (Neubauer v. Germany, is a prerequisite for such an effect. Rather, it is the federal German legislature that is bound by the CO2 budget, but has a prerogative with respect to its implementation. As regards the federal states, the Court clarified that they too are responsible for climate protection, in particular by virtue of Article 20a of the Basic Law.

Summary provided courtesy of the Sabin Centre.

Marlene Lemme, et al. v. State of Bayern (subsidiary claim) - Climate Change Litigation

Case documents

Petition (German) 30 June 2021

Decision (German)

Related cases

This case forms part of a group of similar cases brought in different German states in 2021 supported by environmental organization Deutsche Umwelthilfe (DUH: Environmental Action Germany. They rely on the Neubauer case, challenging the inadequacy of climate protection laws on State level. They were all dismissed for the same reasons in 2022. The cases are:
- Tristan Runge, et al. v. State of Saxony
- Leonie Frank, et. al v. State of Saarland
- Emma Johanna Kiehm, et al. v. State of Brandenburg
- Otis Hoffman, et al. v. State of Mecklenburg-Vorpommern
- Alena Hochstadt, et al. v. State of Hessen
- Jannis Krüßmann, et al. v. Nordrhein-Westfalen (NRW)
- Cosima Rade, et al. v. Baden-Württemberg (BaWü)
- Matteo Feind, et al. v. Niedersachsen
- Luca Salis, et al. v. State of Sachsen-Anhalt

Involvement of children in hearings

Written presentation

The children are introduced to the court in the application, which is written by the lawyers. Their names, ages and their interest in the matter is set out (Indirect).

Intergenerational rights

In the application (unofficial translation):

“Applicant 2) (David Schiepek) is 19 years old and lives in Dinkelsbühl, Middle Franconia. For him, the social aspect of the climate crisis is particularly important. Global warming above 1.5°C not only increases global inequality, as the population in the Global South is already more affected by climate change, but is also a question of intergenerational justice. If the political leaders do not act now to limit climate change to 1.5° C, he is afraid that it will damage his and the future.”

“They complain that the BayKlimaG does not contain a minimum structure to ensure an appropriate burden on fundamental rights across generations.”

Future generations

In the application: (unofficial translation):

Preface: “Within the federal structure of the constitution of the Basic Law, the Länder bear an essential (co-)responsibility for the protection of the natural foundations of life, their safeguarding for future generations and for guaranteeing civil liberties within the scope of their own sphere of competence.”

Under merits:

“The principle of proportionality entails the obligation of the legislature to divide the remaining CO2 budget in such a way that the associated loss of freedom continues to be reasonable despite increasing climate protection requirements and that future generations do not have to bear the burden of reduction unilaterally.89 For if the majority of the reduction burden is left to future generations, it will no longer be avoidable for them to put the brakes on emissions – combined with serious losses of freedom.”

“The Basic Law does not allow the majority of the reduction burden to be shifted to later points in time and future generations.98”

“Although the legislature is in principle free to choose the means of fulfilling its constitutional obligation to protect the climate, to safeguard international freedom and to fulfil its duties to protect future generations, it must nevertheless provide a framework – foreseeable and also implementable – in order to create the corresponding planning horizon.”

Outcome of decision for the applicants

Relief sought by applicants NOT granted

On 18 January 2022, the application was dismissed by the Federal Constitutional Court for the following reasons: (unofficial translation)

“2. There are no grounds for acceptance pursuant to § 93a.2 of the Federal Constitutional Court Act. The constitutional complaints have no prospect of success.

a) This applies to the complaint of a violation of fundamental rights in their dimension that secures freedom over time.

b) To the extent that the complainants invoke duties of protection under fundamental rights, their constitutional complaints also have no prospect of success. The Federal Constitutional Court has already established that, in view of the statutory provision already in place at the federal level, a violation of the duties of protection vis-à-vis the complainants under Article 2.2 sentence 1 and Article 14.1 of the Basic Law against the dangers of climate change cannot currently be established (cf. BVerfG, loc. cit., paras. 143 et seq.). It is not apparent that the lack of a state climate protection law could change this.”

Did outcome of decision develop the law

Involvement of NGO/law firm in application

Deutsche Umwelthilfe

Age range of litigants

0-7
8-12
13-17
18-25

Number of children or youth involved

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