The Belgian Climate Case and rising (sea) levels: Human rights,separation of powers and multi-level constitutionalism

Abstract

On 30 November 2023 the Brussels Court of Appeal of Belgium rendered a remarkable judgment ordering the Belgian federal state, the Flemish Region and the Brussels-Capital Region to reduce their greenhouse gas emissions by 55% versus the level of 1990. Even though an appeal to the Belgian apex Court of Cassation has been lodged in the meantime, this lengthy and carefully reasoned judgment constitutes by no means a run-of-the-mill climate case. The case touches on three fundamental columns of comparative constitutional law: human rights, institutional law and multi-level governance (bottom-up and top-down). From a human rights perspective, the recognition of a positive right to life and privacy in light of climate change and of a vicarious damage concept confirmed Urgenda and Neubauer, whereas the strikingly low standing threshold for natural persons was pioneering. From an institutional perspective, the Court of Appeal explicitly considers separation of powers as a constitutional principle in which judiciary checks and balances can have full effect to safeguard minimum human rights requirements. Moreover, the outspoken judicial threat of a governmental penalty payment for non-compliance was original. In light of bottom-up multi-level governance, the Belgian Climate Case proves unique in its portrayal of climate litigation in federal states with exclusive competence of the state entities. However, the decision to exonerate one state level while condemning three others without mutual distinction is questionable. Ultimately, the Court of Appeal's judgment operates in a top-down multi-level context as well, with a direct discussion on asking a preliminary question to the European Court of Justice (ECJ). The recent KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR) largely confirms and refers to the Belgian Climate Case, yet it could still prove both legally mandatory and pragmatic to have a judicial dialogue with the ECJ as well.

Keywords

Climate change public interest litigation positive human rights separation of powers federalism multi-level constitutionalism

1. Introduction

When bright-faced Belgian law students take their first constitutional law class, they usually hear that the pediment of this body of the law is based on three columns: human rights, institutional law and multi-level governance (bottom-up and top-down). What better than a case on a singular perturbing matter like climate change to shake up these three pillars?

The following contribution will discuss the so-called Belgian Climate Case at the stage after the judgment of the Court of Appeal of Brussels.¹ It starts by giving an overview of the facts and legal proceedings that preceded the Court's judgment.² Next, the most pertinent arguments of the Court are structured and portrayed. Ultimately, I will provide an analysis of the importance of the judgment for the edifice of comparative constitutional law, in relation to human rights, institutional law, federalism and EU law, with an emphasis on the parts that are novel as compared to the existing climate cases.

This scholarly analysis first discusses the human rights angle of the case, with applicants that chose to focus on the positive obligations derived from the right to life and privacy, but with a uniquely low standing threshold for natural persons. Next, it argues that the Belgian Climate Case adds to the separation of powers between the Judiciary, on the one hand, and the Legislature or the Executive, on the other hand, as an incremental balancing act, sliding ever closer to judicial intervention by explicitly announcing the possibility of governmental penalty payments for non-compliance. Ultimately, the contribution is thoroughly grounded within a multi-level context. Top-down, the relationship between the federal and regional levels created material and procedural complications which we encounter for the first time in a federal state with such an exclusive division of competences. Bottom-up, the Court of Appeal made a domestic decision within a strong supranational context. Novel and questionable is the reasoned refusal to ask a preliminary question to the ECJ despite the explicit legal briefs hinting at this and in an evolved EU legal framework of the last years.

2. Relevant facts

The facts of the Belgian Climate Case are, on the one hand, generally known and, on the other hand, very specific and unique.

From one perspective, the facts of the case would not need any additional clarification at all.³ Human activities create greenhouse gas (GHG) emissions that amass in the atmosphere and create a global heating effect. This phenomenon in its turn threatens continued life and existence on this planet. Overwhelming scientific research within the framework of the Intergovernmental Panel on Climate Change (IPCC) suggests that global warming should remain under 1.5 °C in order to avoid catastrophic and irreversible damage. Over the past decades policy makers have made various international agreements and legislation to meet these objectives, yet projections show that this threshold will still not be met. Private citizens and civil society actors have therefore initiated litigation before various national and international courts on the basis of two main arguments. First, the applicants’ human rights to life and privacy, as concretized by international agreements, are infringed by the inability to adequately fight climate change. Second, the failure to meet these requirements triggers civil liability or tort responsibility on behalf of nation states and provokes remedial measures.

From another perspective, the facts of the Belgian Climate Case are completely different than many other climate cases.⁴ This is largely inspired by the fact that Belgium is a multinational, federal state in which various levels are competent for policy areas that pertain to climate change. The Regions (Dutch-speaking Flemish Region, French-speaking Walloon Region and bilingual Brussels-Capital Region) are competent for environment, water policy and spatial planning (Article 6, §1, I and II Special Majority Act on the Reform of State Institutions). The federal government is competent for federal energy policy such as nuclear energy, international coordination and climate incentives (Article 6, §1, VII, second paragraph; Article 16, §4 Special Majority Act on the Reform of State Institutions and former Article 65quater Special Financing Act).⁵ Moreover, both the federal state and the Regions are exclusively competent for these matters on both a legislative and executive level. Because of this amalgamate of competences, the Belgian governmental levels have to coordinate their respective policies on overarching issues, such as climate change, in cooperation agreements. These are treaty-like agreements between the federation and the federated entities. For example, in September 2023 they made a cooperation agreement on the distribution of Belgium’s climate and energy targets for the beginning of the period 2021–2030.⁶

This federal context is not just nice-to-know but goes to the heart of the Belgian Climate Case. The case was initially brought before the Brussels Court of First Instance on 2 June 2015, so nearly a decade ago. To put this into perspective, this was before the first District Court judgment in the Dutch Urgenda case. However, over three years were ‘lost’ to an intermediate procedure on the language of the case. Simply put, since one of the defendants, namely the Walloon Region, has its seat in French-speaking territory, whereas the three other defendants have their seats in bilingual territory (Brussels), the French-speaking Chamber of the Belgian Court of Cassation ultimately ruled that the entire procedure should take place in French.⁷ This case law, which has recently been challenged again, implies that all cases brought against Dutch-speaking Flanders together with French-speaking Wallonia would always take place in French.

On 17 June 2021 the French-Speaking Brussels Court of First Instance could finally reach a verdict on the merits,⁸ with three ‘wins’ and one ‘loss’ for the applicants.⁹ As a first win, the Court of First Instance accepted standing for the more than 58,500 individual applicants supporting the Belgian Climate Case and of the NGO itself.¹⁰ Second, it confirmed that the federal nature of the Belgian state did not exempt the separate state levels from their own responsibility to combat climate change.¹¹ Third, the Court of First Instance effectively found a violation of human rights and tort law.¹² However, as a significant loss, the Court refused to impose any binding emission reduction standards, since this would infringe on the separation of powers: ‘The court could not determine the content of a public authority’s obligations and thus deprive it of its discretion.’¹³ The applicants first waited whether the mere condemnation would be sufficient to jumpstart the federation and federated entities to take action. When this turned out not to be the case, the applicants appealed on 16 November 2021.

3. The reasoning of the Court of Appeal

The Brussels Court of Appeal reached its verdict of 160 pages on 30 November 2023. Despite the precedents within Belgium's neighbouring countries, the outcome still struck like a bomb in the Belgian political landscape. The right to life and privacy of the applicants were again deemed to have been violated and the Court of Appeal this time even imposed concrete minimum measures, namely a reduction of greenhouse gas emissions of 55% versus the level of 1990. Even though lower than the 65% reduction demanded by the appellants, these standards were binding and it implied that this could be judicially enforced.

Regardless of one's opinion on the outcome of the case, the overall quality of the legal reasoning and considerations deserves to be commended.

The reasoning of the judgments stands on two legs. On the one hand there is the human rights perspective. The Court of Appeal quotes the chamber judgment of the ECtHR in the famous Öneryildiz case about a methane explosion on an inhabited household-refuse tip in that ‘a violation of the right to life can be envisaged in relation to environmental issues relating to areas liable to give rise to a serious risk for life or various aspects of the right to life’.¹⁴ Next, it argues that Article 2 ECHR does not impose an obligation of result, but an obligation of means on preventive operational measures to be taken.¹⁵ Contracting states have a certain margin of appreciation under Article 2 and Article 8 ECHR on how they deal with positive obligations that derive from these human rights.¹⁶ However, this margin of appreciation is situated in the relationship between the ECHR and the Member States, not in the relationship between a domestic legislature and a domestic judiciary.¹⁷

In a key consideration the Court of Appeal describes the ECHR as a living instrument which must be interpreted in light of current conditions. This equally implies that it can consider non-binding sources of law or even factual elements such as scientific studies on which there is political consensus at international, European or national level. The Court of Appeal continues in almost legal philosophical fashion that: ‘the fact may inform the law without creating or abolishing it’. To deprive human rights of a direct effect within their positive obligations would be tantamount to denying the holders of those rights access to justice and would undermine the principle of subsidiarity, more specifically its aspect of effective protection.¹⁸

The Court of Appeal seems to anticipate criticism from a separation of powers perspective and stresses the limits of its jurisdiction: In the area of climate change the court can only find violations of Articles 2 and 8 ECHR if the government failed to take appropriate and reasonable steps, that were minimally required, in the light of the best scientific knowledge at the time to prevent them.¹⁹ This was a central argument in both the briefs of the applicants and the reasoning of the court. They calculate with the global residual carbon budget, accepted by Member States such as Belgium, via the Intergovernmental Panel on Climate Change (IPCC). Once the bucket is filled, there are no more alternatives. If humanity just wants a 50% chance – a coinflip – of remaining under the 1.5 °C threshold, these scientific data show that a reduction of 55% greenhouse emissions versus the 1990 level is a bare minimum.²⁰ The principle of separation of powers prohibits the court from determining a rate of GHG-reduction which it would deem ‘desirable or equitable’, but not a level which is necessary or minimally required in accordance with the best available climate science.²¹

As is well known, the competence to fight climate change is not solely exercised by EU Member States such as Belgium. Articles 191 and 192 TFEU contain the EU competences of preserving, protecting and improving the quality of the environment; human beings; natural resources and combating climate change. Nevertheless, the Court of Appeal does not allow the Belgian state and the Regions to ‘hide behind’ the binding framework at the European Union level because these are merely minimum requirements, which therefore allow for the Member States to go beyond that.²² The Court of Appeal is adamant:

For the same reasons, no conclusion can be drawn from the fact that no action for failure to fulfil obligations has been brought against the Belgian State by the European [Union]. As these are minimum requirements which do not prevent EU Member States from pursuing a more ambitious objective, the question […] as to whether European climate legislation complies with the right to life and the right to respect for family life as enshrined in the Charter of Fundamental Rights of the European Union does not arise in the present case. It arises all the less because the European Union is not, to date, a party to the ECHR, even though it follows from ‘articles 2 and 8 of the Treaty on European Union’,²³ from the Court of Justice’s recognition of fundamental rights as general principles of law, and from the Charter of Fundamental Rights, that the right to life is protected within this legal order.²⁴

The Court later continues: ‘also because the validity of the European objectives currently in force and, more specifically, of Directive 2003/87/EC and Regulation (EU) 2018/842 is not called into question, it is not necessary to refer to the Court of Justice for a preliminary ruling the question suggested by the Flemish Region or [...] by the Belgian State.’²⁵ The Court adds that ‘the Belgian State is positioned more favourably than many other European States in terms of its ability to contribute’.²⁶

The Court concludes that the violation of Article 2 of the ECHR exists in the heads of three parties (the federal state, the Dutch-speaking Flemish Region and the bilingual Brussels-Capital Region), to an extent that a reduction of - 55% would not constitute an excessive burden.²⁷ Surprisingly, the Walloon Region was exempted because it had already made significant reductions in the recent past (partly helped by economic circumstances) and because it showed more ambition towards the future with pending draft legislation.²⁸

On the other hand, aside from the discussed human rights perspective, there is the torts perspective.

In accordance with Articles 1382 and 1383 of the old Belgian Civil Code, tort liability is subject to the simultaneous fulfilment of three conditions: the existence of fault, the existence of damage and the existence of a causal link between these two. Even though the applicants shifted their attention towards the human rights angle of their case before the Court of Appeal, the torts aspect of the judgment is also meticulous and well-reasoned. First, the actions and cooperation of the Belgian distinct legislatures (with the exception of the Walloon Region) over the various relevant timespans were deemed careless and therefore faulty.²⁹ Second, ‘the consequences of the reduction in the residual carbon budget still available to limit climate disruption, and the cost of excessively postponing the burden of reducing GHG emissions over time, are certain to be felt by each of the appellants involved’, leading to so-called damage.³⁰ Third, without the faults committed, the eco-anxiety would have been lower, as would have been the moral prejudice, the residual carbon budget would not have been dented to the same extent, the Belgian Climate Case's interests would have been preserved and Belgium would be in a better position to fight effectively, against the risk of global warming.³¹ Tort liability for the federal state, the Flemish Region and Brussels-Capital Region was therefore established.

The Court of Appeal thus concludes that it:

is justified, both in terms of the violation of articles 2 and 8 of the ECHR and of articles 1382 and 1383 of the old Belgian Civil Code, to issue an express injunction to the Belgian State, the Brussels-Capital Region and the Flemish Region to take, in consultation with the Walloon Region, the appropriate measures to ensure that Belgium achieves by 2030 the target of a 55% reduction in GHG emissions from its territory compared with 1990.³²

Still, the Court of Appeal did not (yet) impose a penalty payment in case of non-compliance, but explicitly leaves the option open, for reasons further discussed hereunder.

4. Comments

The Flemish government has already followed through with an ultimate appeal to the Belgian apex Court of Cassation, which cannot rule on the merits of the case but only on the correct application of the law. The content of the briefs is not yet publicly known, yet one might expect that the remainder of the discussion will revolve around the following four elements: (1) positive human rights protection via Articles 2 and 8 ECHR, (2) the respect for the separation of powers, (3) the impact of the case on Belgian federalism and (4) the correlation between the national decision and the EU context.³³ In my comments I will therefore focus on distinguishing aspects of these four elements in the Court of Appeal's judgment.

Human rights: First, the human rights branch of the judgment was not unique in and of itself. It leaned heavily on the Dutch and German precedents of Urgenda and Neubauer.³⁴ Most existing comments on the Belgian Climate Case focus on this aspect and the separation of powers (see hereunder).³⁵ The extent to which human rights, traditionally imposing negative state obligations, can create positive obligations on such a large scale as to combat climate change is important and interesting. However, this contribution prefers to focus on its other implications. The recent judgment of the ECtHR in the KlimaSeniorinnen case and its commentaries will further expand on the human rights significance of climate change litigation.³⁶ Suffice it to state here that the ECtHR applied a similar reasoning regarding Article 8 ECHR than the Belgian Court of Appeal.³⁷ Still, two human rights elements of the Belgian Climate Case need to be stressed as innovative. First, the direct phrasing of the intergenerational damage of climate change to living applicants themselves. Rather than protecting abstract interests of future generations, as was still mostly done by the German Constitutional Court in Neubauer or the ECtHR in KlimaSeniorinnen,³⁸ the Belgian Court of Appeal explicitly accepts moral prejudice with the living applicants at this very moment ‘resulting from awareness of the inadequacy of the means implemented by the Belgian authorities to protect the interests of future generations’.³⁹ This concretizes the immediate vicarious damage brought by climate change to current European applicants, although its direct effects might only fully occur on future people or the (current) Global South. Second, and most importantly, the Court of Appeal confirms the extraordinary legal standing of nearly 60,000 Belgian citizens. The exceptional nature of this procedural leeway is only emphasized by the tense approach towards natural person applicants by the German Constitutional Court in Neubauer, the Dutch Supreme Court in Urgenda⁴⁰ and the ECtHR in the three recent climate cases, to the benefit of climate organizations.⁴¹ One can only speculate on the precise reason why the Court of Appeal accepted standing for so many natural persons: an overall flexible approach within Belgian procedural law, the civil society success of the Belgian Climate Case, etc.? The fact of the matter is that the standing flexibility forms a laconic response to worldwide objections against climate litigation as an actio popularis.

Separation of powers: A second approach towards the judgment is that of the separation of powers, also described as checks and balances.⁴² Various scholars have already engaged with the separation of powers and climate litigation, often stressing that the three branches should also control each other.⁴³ The Belgian Climate Case extends this debate to the concrete form of legal remedies. The Court of First Instance did not wish to grant an injunction on the basis of the separation of powers, as was now overruled by the Court of Appeal. The basic counterargument to a judicial injunction is that politically accountable actors, such as the Legislature or the Executive, should decide on precise and binding targets to be met, rather than the Judiciary. The fact that the Court of Appeal eventually does set binding targets is important but not novel since the Urgenda and Neubauer cases came to the same conclusion.⁴⁴ What is original is that the Court of Appeal makes a similar reasoning in a separation of powers context to the one several national and international apex courts make in the context of human rights limitations. The ultimate step there is whether the human rights limitation is ‘necessary in a democratic society’. Some leeway needs to be given to the government in limiting human rights, yet the ‘essence or core’ of such a right can never be violated.⁴⁵ A similar proportionality scale is applied by the Court of Appeal to the separation of powers principle, whereby the reduction of 55% is an absolute minimum, constituting the core of safeguarding the applicants’ right to life. Even though balanced in its application and supported by a majority of legal scholarship in Belgium, there remains a systematic risk in allowing the court to determine the so-called absolute minimum requirement of a positive human right. The problem is that the judge does not have the overview of all other policy fields and can, nay may, only decide on the case that is brought before it. It is true that the court does not impose specific measures in how the government must reach the target, yet a similar allegory as the residual ‘carbon budget’ can be used here with the ‘government financial budget’. The governmental financial budget is not infinite, but scarce. Once the financial budget runs out, there is no more budget for other pressing matters. One could argue, in a Keynesian fashion, that the government financial budget is actually unlimited. When money runs out the government could simply borrow or print more. However, as the Greek sovereign debt crisis in 2007–2008 showed, even a governmental financial budget reaches its limits at one point.⁴⁶ Many human rights can entail positive obligations with scarce government means that should actually be fulfilled to a certain degree in order to safeguard the ‘core’ of the right to life or privacy. Think for example of the right to housing which could inspire litigation to build more social housing.⁴⁷ Recent global development have even justified the question of whether citizens could initiate a lawsuit in order for their government to spend 2% of the nation's GDP on defence, as enshrined in NATO agreements, in order to certify that their country would be defended by NATO allies in a potential war and therefore to protect their right to life.⁴⁸ Naturally, a court has the power to enforce binding obligations, even from the government. Nevertheless, it should continue to tread carefully when it is tackling so-called wicked problems with large (hidden) budgetary effect. To put it bluntly: Who has the power to decide what kills us: the parliament or the judge? Just like the Belgian Court of First Instance, the ECtHR appears to blow hot and cold on this matter by establishing a human rights violation, yet explicitly referring the execution and enforcement to the Committee of Ministers.^49,⁵⁰

The most innovative part, in light of separation of powers, from a comparative constitutional law point of view, is that the Court of Appeal expressly claims the power to grant penalty payments against the governmental entities after issuing an injunction.⁵¹ Arguably, it hardly occurred to the Dutch and German apex courts in Urgenda and Neubauer that their judgments would not be executed.⁵² Recent rule of law issues in Belgium, especially in executing migration-related judgments, appear to have made the Belgian Court of Appeal sceptical.⁵³ In such a migration case, one week before the annotated judgment was decided, the Brussels Court of first instance even imposed a penalty payment to the government because it looked back with ‘nostalgia’ to a time when ‘a court ruling to which a public administration was a party would be complied with by the latter and in good faith’, adding that ‘such constitutional fair play is at present […] a thing of the past’.⁵⁴ Still, the Court of Appeal in the Belgian Climate Case deemed that there was no proof yet at the moment of the judgment that a penalty payment for non-compliance would immediately be necessary.⁵⁵ In the beginning of October 2024 the Belgian Climate Case NGO announced that it would request the Brussels Court of Appeal to effectively impose penalty payments on Flanders after the formation of a new Flemish Government did not show sufficient signs of complying with the injunction of the Court of Appeal.⁵⁶

Federalism: A third angle of the Belgian Climate Case relates to Belgium as a federal state. As mentioned above, Belgium is a federal state in which powers are divided strictly and exclusively among the federal level and the federated entities. In principle these powers cannot overlap and there is therefore no primacy of the federal level over the federated entities or vice versa. This differs from the German cooperative federalism, where the German Constitutional Court affirmed that the fight against climate change is mainly coordinated by the federal level and implemented by the federated entities.⁵⁷ Still, the Belgian Court of Appeal's reasoning and argumentation appear to contain an inexplicable contradiction in the interpretation of exclusive federalism. On the one hand, the Court of Appeal does not find a human rights or a torts violation by the Walloon Region because of the efforts the latter had already individually undertaken. However, on the other hand, the Court of Appeal does not distinguish between the violations and targets of the federal government, the Flemish Region and the Brussels-Capital Region. ‘The Court also considers that an award against all [these] respondent parties is conceivable, but that constitutional principles concerning the division of powers require that these parties be given the opportunity to determine how the award should be shared.’⁵⁸ It is one or the other; both cannot apply simultaneously. Either the four state entities can be distinguished in having committed violations and to what extent – but then a proportional apportionment against the three condemned state entities is possible. Or none of the entities can be singled out in accordance with the constitutional principles concerning the federal division of competences – but then the Walloon Region could not come out unblemished. As a result, the latest cooperation agreement on the distribution of Belgium’s climate and energy targets would constitutionally have to be renegotiated by all contracting parties (federal state and three regions, including the Walloon Region) even though the Walloon Region is not required to alter its own climate policy. This result is highly uncommon and suggests that the Court of Appeal feels not that comfortable with division of competence issues of which the Belgian Constitutional Court is the most natural judge.

In combination with the described sensitivity of the case being solely argued in French (the language of the Walloon Region), the entirely different economic situation in the Walloon Region, and the fact that the Court of Appeal almost exclusively cites scholarship written in French, this creates an unfortunate and unnecessary atmosphere which apparently led the Flemish minister of Justice and Environment to state in her communication on the appeal to the apex Court of Cassation that ‘a French-speaking judge imposes the collective impoverishment of Flanders’.⁵⁹ A case of such generational importance as the Belgian Climate Case should not revolve around multinational tensions. One can only hope the appeal before the Belgian Court of Cassation would resolve or clarify some of these concerns.

EU multi-level constitutionalism: Fourth, as discussed, the Court of Appeal decided that EU law only offered a minimum threshold and that it was not useful to refer a preliminary question to the ECJ. Legal scholarship already pointed to the irony that the outcome of the Belgian Climate Case (55% reduction target by 2030) seems to be equal to the one that the European Climate Law imposes.⁶⁰ Article 4 of Regulation 2021/1119 of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’) states: ‘In order to reach the climate-neutrality objective set out in Article 2(1), the binding Union 2030 climate target shall be a domestic reduction of net greenhouse gas emissions (emissions after deduction of removals) by at least 55% compared to 1990 levels by 2030.’ Specifically for Belgium, however, the reduction target is set on 47% compared to the levels of 2005 – which are comparable to the levels of 1990 – in the non-ETS sectors (Emissions Trading System).⁶¹ Prior to this, the EU secondary legislation had proven to be primarily relevant in the context of ETS sectors (Emissions Trading System) such as the energy sector and the manufacturing industry. The target set by the Court of Appeal combines ETS and non-ETS sectors. The judgment therefore might go beyond what is currently required by the EU if comparatively less progress is being made in ETS sectors.

In light of this, there would have actually been three reasons for the Court of Appeal to ask a preliminary question to the ECJ. In accordance with Article 267 TFEU, the Court of Justice of the European Union has jurisdiction to give preliminary rulings concerning: the interpretation of the Treaties or the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.

Some legal scholars have already discussed the necessity to ask a preliminary question to the ECJ in the Urgenda cases,⁶² but the Dutch Supreme Court and its Advocate General could still hide behind the fact that this argument was not clearly made by the parties before the cassation procedure,⁶³ which does not apply to the Belgian Court of Appeal case. Moreover, the EU climate framework has only intensified and sharpened since 2019. In Neubauer the issue of a preliminary question did not even surface, arguably since the German Constitutional Court does not directly review EU law when there is minimum harmonization.⁶⁴

In first instance, even accepting that Articles 191–192 and especially Article 193 TFEU⁶⁵ genuinely only put a minimum threshold which the Belgian state could supersede, the Court of Appeal implicitly deems the EU minimum threshold insufficient. The same reproach that the Belgian judge makes towards the Belgian legislatures, the European judge could make to the EU legislature. The Court of Appeal actually does as much towards the EU legislature. It determines the EU climate targets insufficient. Literally stating: ‘These figures confirm, however, that the Belgian authorities were under no obligation to adhere to European targets, and that other countries have taken note of the inadequacy of these targets in the face of climate challenges.’⁶⁶ If the current EU legal framework, which encompasses all relevant policy areas to fight climate change and which is binding for the Belgian state, does not meet the minimum positive obligations deriving from the EU Charter or the ECHR via Article 51 of the EU Charter, the existing EU minimum standard from secondary legislation is also not in compliance with EU primary legislation that equally protects the right to life and privacy. The minimum bar should be raised on the EU level, just like the Court of Appeal did on the national level. Before the adoption of the Effort Sharing Regulations in 2018 the argument could still be made that there were domestic climate policy areas that were not covered by EU law,⁶⁷ but this is no longer the case. It is not possible any more for a domestic court to remain ‘agnostic’ about the EU legal framework on climate change, whilst ruling on the domestic one. In other words, the Court of Appeal of Brussels implicitly deems the current EU legislative framework as invalid without asking a preliminary question to the ECJ. National courts do not have the power to declare acts of EU institutions invalid but have an obligation to first ask– even ex officio –⁶⁸ a preliminary question to the ECJ in light of the Fotofrost case law.⁶⁹

In second instance, critics of the judgment also infer that the abstraction that the Court of Appeal makes of the three pillars of EU climate policy (ETS⁷⁰, land use⁷¹ and effort-sharing in other sectors⁷²) goes against the primacy and efficiency of EU law.⁷³ The underlying argument appears to be that at least parts of this framework concern full harmonization through EU law barring the appeal that Member States can make to Article 53 of the EU Charter of Fundamental Rights in providing additional human rights protection to EU law via the ECHR or their own constitutions.⁷⁴ Moreover, the Court of Appeal judgment will have to be implemented and may directly lead to measures restricting the full effect of the four freedoms in the Belgian legal sphere. The ECJ has rendered opinions in the past on the conflict between EU free movement and national environmental measures and applied the proportionality test.⁷⁵ If a less protective measure would have been less harmful to one of the freedoms, this should be preferred.⁷⁶ Naturally, the Belgian Court of Appeal would continue its reasoning that no less intrusive measures are sufficient to meet the climate changes, implying proportionality, but should it not be up to the ECJ to decide on that, at least as an interpretative matter?

Third, there are clear strategic reasons to put the question before the Luxembourg Court. Recent empirical research confirmed the theory that Belgian judges of apex courts question the ECJ in order to ensure a level playing field all over the EU.⁷⁷ If domestic judges apply a very strict interpretation of EU law, either directly or indirectly, without asking a preliminary question to the ECJ, only that Member State is subject to stricter rules. If the ECJ extends such an interpretation to all Member States the shared burden becomes a lot lighter to bear. It will not come as a surprise that the competitive disadvantage of Belgium is one of the most cited critiques of the Court of Appeal's judgment. A preliminary question could solve this reticence. Moreover, even from the applicants’ point of view it remains unclear why they did not support a preliminary question to the ECJ, as requested by the defendant state and regions. This is probably inspired by a distrust of the applicants towards the CJEU in this matter and a fear to overplay their hand. Strategic climate litigation has mainly focused on the ripple effect across domestic jurisdictions and one negative judgment by the CJEU could set back this gradual progress for years. Nevertheless, the end goal of the movement is arguably not just to strengthen climate measures in a tiny nation like Belgium alone. In 2021 the CJEU still dismissed the People’s Climate Case within the annulment procedure of Article 263 TFEU on the basis of the strict standing doctrine (Plaumann),⁷⁸ to the disappointment of many commentators.⁷⁹ However, the preliminary reference procedure does not have these obstacles. If one can convince a national judge that is flexible on standing – as turned out to be the case in the Belgian Climate Case – the preliminary reference procedure of Article 267 TFEU is the highway to the European Court of Justice and the case recognition and possible precedential value that would come with a positive outcome.⁸⁰ Given the urgency of climate change, taking into account that the Belgian Climate Case has been pending for nearly a decade in one EU Member State alone, and in light of the recent KimaSeniorinnen case, which indirectly impacts the entire Council of Europe, the applicants’ objections against EU preliminary references might falter.

Time will tell, since the Belgian Court of Cassation is doubtlessly a court against whose decisions there is no judicial remedy in light of Article 267, para. 3 TFEU, and which is therefore forced to asked a preliminary reference to the ECJ for EU law interpretation issues, aside from validity issues (unless one of the CILFIT conditions applies⁸¹).⁸²

5. Conclusion

We can conclude with the following. The urgency of anthropogenic climate change has become undeniable. The ECtHR's KlimaSeniorinnen case –which even cites the Belgian Climate Case⁸³ – will likely take most of the headlines, yet the actual implementation of established positive human rights violations will have to occur via the domestic levels, including the national courts. The Belgian Climate Case shows how all the pillars of domestic constitutional law are affected by domestic climate litigation. The Belgian Climate Case spearheads this evolution in standing for natural persons (human rights angle), possibility of governmental penalty payments (separation of powers angle), the division of responsibility in a federal state with exclusive competences (federalism angle) and the discussion on asking preliminary questions to the ECJ (EU multi-level governance angle). The main outstanding question in European climate litigation is the position of the ECJ, which could and should be ascertained by the preliminary question procedure. Even without this, domestic climate cases could be causing a ripple effect across other jurisdictions. Still, ripples might not have the same urgency as tsunamis. More and more the focus is shifting to the rising (sea) levels and the solutions that flow from multi-level constitutionalism. Late Harvard Law Professor Paul Freund once stated that a court ought not be affected by the weather of the day, but by the climate of the era.⁸⁴ This could prove to be true in more ways than one in the Belgian Climate Case.

Footnotes

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Cedric Jenart

Notes

Author biography

Cedric Jenart (LLB, LLM, PhD UAntwerpen; LLM Harvard Law School) is a tenure-track assistant professor in the field of constitutional law at the University of Antwerp. He equally works as an attorney in constitutional litigation at the Brussels Bar and is admitted to the New York Bar. Previously, he was active as a magistrate (auditeur) at the Belgian Council of State. His monograph, Outsourcing Rulemaking Powers, was published by Oxford University Press in 2022 and awarded the quadrennial Frans Van Cauwelaert Prize (human sciences) of the Royal Flemish Academy of Belgium for Sciences and Arts. He is an editorial board member of various public law journals. His contributions have appeared in Dutch, English, French and German in several leading journals and volumes across all branches of comparative and multi-level constitutional law, in particular with regard to state institutions, human rights and federalism.