At Issue: Compel federal and regional governments to reduce greenhouse gas emissions.

Summary:
Similar to the Urgenda case in the Netherlands, the Klimaatzaak -- "climate case" -- was brought by an organization of concerned citizens, and 58,000 citizen co-plaintiffs, arguing that Belgian law requires the Belgian government's approach to reducing greenhouse gas emissions to be more aggressive. The suit named the Belgian State, the Walloon Region, the Flemish Region, and the Brussels-Capital Region as defendants. Specifically, plaintiffs called for reductions of 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050.

From February 2019 through March 2020, the parties submitted their main conclusions and final conclusions. In their main conclusions, the plaintiffs seek a Court injunction directing the government to reduce emissions 42 to 48% in 2025 and at least 55 to 65% in 2030. Oral arguments were heard from March 16 to 26, 2021.

On June 17, 2021, the Brussels Court of First Instance held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but declined to set specific reduction targets on separation of powers grounds.

The Court first analyzed whether the claim was admissible, and, in doing so, whether the plaintiffs established that the proceedings would provide a benefit to them. Article 17 of the Judicial Code excludes actions brought in the general interest that only indirectly benefit the plaintiff. The Court found that both the 58,000 co-plaintiffs and the Klimaatzaak organization have a personal interest in the action. The citizen co-plaintiffs have a direct, personal interest because they seek to hold Belgian authorities responsible for the climate consequences on their daily lives, and the fact that other Belgian citizens may also suffer damages does not transform their interest into a general one. The Klimaatzaak organization has a direct, personal interest in part because environmental organizations have a privileged status to sue to defend the environmental from harm.

The Court found the federal state and the three regions jointly and individually in breach of their duty of care for failing to enact good climate governance. The Court found that despite being aware of the certain risk of dangerous climate change to the country's population, the authorities failed to take necessary action, meaning that they failed to act with prudence and diligence under Article 1382 of the Civil Code. Further, by failing to take sufficient climate action to protect the life and privacy of the plaintiffs, the defendants were in breach of their obligations under Articles 2 and 8 of the European Convention on Human Rights.

However, the Court declined to issue an injunction ordering the government to set the specific emission reduction targets requested by the plaintiffs. The Court found that the separation of powers doctrine limited the Court's ability to set such targets, and doing so would contravene legislative or administrative authority. Neither European nor international law required the specific reduction targets requested by the plaintiffs, and that the scientific report that they relied on, while scientifically meritorious, was not legally binding. The specific targets, therefore, were a matter for the legislative and executive bodies to decide.

On November 17, 2021, Klimaatzaak appealed the judgment of the Brussels Court of First Instance. The appeal is primarily aimed at the Tribunal's refusal to set specific binding targets related to the reduction of greenhouse gas emissions over time. Klimaatzaak notably argues that the Brussels Court of First Instance has confused two distinct sources of liability in its analysis of Article 1382 of the Belgian Civil Code in that it confined itself to taking as a reference only the emission reduction targets laid down by rules of positive international, European and Belgian law, and refrained from analyzing the authorities' conduct in the light of their knowledge of the danger and of what needed to be done to help prevent or limit it. Klimaatzaak also asks the Court of Appeal to repeal and correct what they argue are factual or legal errors in the judgment of June 17, 2021. The defending Governments are expected to reply to this petition and the Brussels Court of Appeal will review the factual and the legal components of the case in the course of the appeal procedure.

After a written round of conclusions that will take sixteen months, the case was heard from September 14 to October 6, 2023.

The Court of Appeal of Brussels handed down its decision on November 30, 2023. The Court confirmed the finding of breaches established at first instance (except in the case of the Walloon Region), but in addition, ordered the condemned authorities to reduce their GHG emissions. Unlike the judge at first instance, the Court therefore considers that using its power of injunction against public authorities does not necessarily infringe the principle of separation of powers, provided that the judge does not take the place of the authorities in choosing the means to remedy violations. Competent Belgian public authorities (the Federal State, Flemish Region and the Brussels-Capital Region) have been ordered to reduce their GHG emissions of 55% compared to the 1990 level by 2030. The grounds of this decision are based on the breach of human rights (articles 2 and 8 of the ECHR) and civil liability rules (articles 1382 and 1383 of the (Former) Civil Code).

However, the Court reformed the first instance judgment towards the Walloon Region by establishing that this authority is already playing its role in the fight against climate change. Therefore, the Court observes that there is no breach of human rights or civil liability rules on the part of the Walloon Region. The Court suspended its ruling on the question of the penalty payment and the production of the GHG emissions reports, depending on the official figures to be produced for the period 2020-2024 by the convicted authorities. The parties have 3 months to lodge a final recourse with the Court of Cassation.

Summary provided courtesy of the Sabin Centre.

Court documents:

Summons in Dutch

Unofficial English summary of plaintiff's arguments

Brussels Court of First Instance Judgment (unofficial English translation)

Court of Appeal decision (in Dutch)

Appeal judgment (unofficial English translation)

In the judgment of the court of first instance:

Its report states in particular: "The importance of children's rights in the context of climate change is explicitly recognised in the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC), where States are required to take action to protect all children from the real and foreseeable adverse effects of climate change. The importance of children's rights in the context of climate change is explicitly recognised in the Paris Agreement under the United Nations Framework Convention on Climate Change, where States are called upon, in taking action to address climate change, to respect, promote and take into account their respective obligations regarding, inter alia, children's rights and intergenerational equity.

In the application for appeal:
112. Several European countries have already adopted similar or more stringent emission reduction targets … Following the recent judgment of the Bundesverfassungsgericht, which pinpointed the disregard of the intergenerational dimension of climate policy by the federal climate law ('Bundesklimaschutzgesetz')84, Germany has revised upwards the percentage of GHG emissions reduction for 2030 inscribed in this law. At the end of August 2021, this percentage increased from 55% to at least 65%.