Belgian federal and regional governments condemned by the Brussels Court of First Instance for negligent climate policy
23/06/2021

In April 2015, the NGO Climate Case (Affaire climat/Klimaatzaak; the “NGO”) lodged a lawsuit against the federal government as well as the governments of the three regions (Flanders, Wallonia and Brussels-Capital) arguing that the four governments are falling short of their climate commitments.

On 17 June 2021, the Brussels French-Speaking Court of First Instance (the “Court”) released a landmark decision, in the context of an increasing number of climate change claims and decisions worldwide (see e.g. in Australia, France, the Netherlands, Italy, Poland), ruling that the governments breach Article 1382 of the Belgian Civil Code and Articles 2 and 8 of the European Convention on Human Rights (“ECHR”) by failing to take all necessary measures to prevent the impacts of climate change on the Belgian population. However, as opposed to Dutch courts in the Urgenda case, the Court refused to order an injunction to meet stricter targets for the reduction of greenhouse gas emissions due to the principle of separation of powers.

The NGO already announced its willingness to appeal the judgment and to bring the case before the European Court of Human Rights (“ECtHR”).

Four Belgian governments blamed by the NGO Climate Case for lacking a real climate policy

The NGO argued before the Court that “there is no real Belgian climate policy”, on behalf of 8.000 Belgian citizens and 50.000 other Belgian citizens who voluntarily intervened in the proceedings (together, the “Applicants”).

The lawsuit was based on two legal grounds. First, the Applicants invoked the governments’ breach of Articles 1382 and 1383 of the Belgian Civil Code and claimed that they have neglected their duty to

exercise due caution and diligence in their climate policy. Second, the Applicants alleged that, through their negligence, the governments breached the claimants’ right to life and their right to private and family life that are enshrined in Articles 2 and 8 of the ECHR and Articles 6 and 24 of the UN Convention on the Rights of the Child (the “UNCRC”).

The Applicants asked the Court to recognise that the governments did not, by 2020, decrease the global volume of annual greenhouse gas emissions originating on Belgian territory by 40% (or at least 25%) compared to the 1990 level. The Applicants then requested an injunction from the Court to have the Belgian governments further reduce greenhouse gas emissions originating on the Belgian territory by 2025, 2030 and 2050 by taking all necessary measures to reach the following targets: a reduction by 48% (at least 42%) compared to 1990 by 2025; a reduction by 65% (at least 55%) compared to 1990 by 2030 and zero net emissions reached in 2050.

After several time-consuming procedural issues related to the language of the proceedings, the case was finally heard before the Court from 16 to 26 March 2021 and the decision was rendered on 17 June 2021.

The Court has jurisdiction to determine whether the governments have engaged in wrongful conduct in pursuing their climate policy

The Court first explained that this case intends to establish whether the governments have failed to correctly implement their climate policy and to order them to prevent harmful consequences that this negligent policy will cause on the current and future Belgian population. In such case, the Court has jurisdiction to assess the existence of a fault on the part of governments under Article 1382 of the Belgian Civil Code and does not violate the principle of separation of powers by doing so.

Environmental NGO and Belgian citizens have standing (but trees do not)

The Court then assessed the admissibility of the application in light of Article 9.3 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters adopted on 25 June 1998 in Aarhus (hereafter, the “Aarhus Convention”) which states that: “In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

According to the Court, the application falls into the scope of this article insofar as the issue in this case is to assess the existence of a fault required by Articles 1382 and 1383 of the Belgian Civil Code with regard to the obligations of public authorities in environmental matters.

The Court then looked at “the criteria (...) laid down in its national law” and applied Articles 17 and 18 of the Belgian Judicial Code, which require the Applicants to demonstrate that they have a personal, direct, actual and existing interest in the case.

The Court first recognised the personal and direct interest of the 58.000 Belgian citizens in holding governments liable under Article 1382 of the Belgian Civil Code due to the real threat of dangerous climate change, which poses a serious risk to current and future generations living in Belgium and elsewhere that their daily lives will be profoundly affected. Alongside other sources, the Court expressly mentioned the findings of the 2018 IPCC special report, the 2007 EC Green Paper and the 2017 study of the European Environment Agency which all highlight the severe consequences of global warming. The Court finally clarified that the fact that other Belgian citizens may also suffer damage from climate change is not sufficient to deprive the Applicants of their personal interest in the case.

As for the NGO, the Court implemented the case law of the Belgian Supreme Court according to which an environmental protection association has the personal and direct interest required by Article 17 of the Belgian Judicial Code to bring a claim for compensation on the basis of Article 1382 of the Belgian Civil Code, if it believes that damage has been caused to the environment whose defence it has set itself as its statutory object. The personal interest of such NGO is to seek reparation for moral damage caused by the infringement of the collective interests for which it was founded and which it aims to protect. According to the Court, the action brought by the NGO Climate Change falls within its statutory object aimed at combating climate change, so that it can justify a personal and direct interest in this case.

The Court expressly drew a distinction with French law which recognises the existence of an ‘ecological damage’, i.e. a damage caused directly to the environment independently of its repercussions on people and property (see the 3 February 2021 decision of the Administrative Court of Paris). Such ‘ecological damage’ is not recognised under Belgian law and differs from the prejudice to the collective interest the NGO is defending.

Alongside thousands of the Belgian citizens, two lawyers also filed an intervention application on behalf of 82 “long-life” trees. The Court found their voluntary intervention to be inadmissible as trees are not “subjects of rights” under Belgian law (i.e. beings capable of having and exercising rights and obligations). As they are not recognised as having legal personality, trees are not entitled to bring a legal claim.

Belgian governments neglect their duty to exercise due caution and diligence in pursuing their climate policy

The Applicants argued before the Court that the governments have failed to adopt appropriate measures, whether legislative or executive, to prevent dangerous global warming and its consequences for fundamental rights. The Applicants therefore based their claim on the rules on liability for wrongful conduct which are provided in Article 1382 of the Belgian Civil Code.

The Court first confirmed the possibility under Belgian law to hold public authorities liable under Article 1382 of the Belgian Civil Code provided that the Applicants demonstrate the existence of a fault. In the Court’s opinion, the violation of international standards (without direct effect) would identify as a fault to the extent that the violation identifies as a breach of the general duty of care (i.e. the Belgian authorities do not behave as normally prudent and diligent authorities).

The Court found that the federal government and the governments of the three Belgian regions failed to comply with their duty to exercise due caution and diligence in pursuing their climate policy. The Court’s ruling is based on three findings:

  • Failure to meet international, European and national targets for reducing greenhouse gas emissions and combatting global warming.

The Court stressed that the four Belgian authorities are fully aware of the danger of exceeding the global warming threshold of 1.5 or 2°C before the end of the 21st century, gave their assent to international binding acts and adhered to the findings of the IPCC. While the Court recognised that the four Belgian authorities did, jointly or individually, adopt legislative, regulatory, political and technical acts in order to adapt their efforts in reducing greenhouse gas emissions to the evolution of the climate science, the Court stressed that these acts did not reach the targets that Belgian governmental authorities set for themselves.

Although the governments were not able to communicate definitive figures for 2019 and 2020, the Court noted that in 2019 the overall volume of annual greenhouse gas emissions from the Belgian territory had not decreased by 20% compared to the 1990 level. Therefore, Belgium does not comply with the objective set by the 2012 Doha Amendment to the Kyoto Protocol. As to European targets, the Court noted that (as of October 2020) Belgium has only achieved a reduction of 11% compared to 2005, which does not meet the 15% target set by the EC Decision 406/2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the European commitments up to 2020.

As to the targets set for 2030, the Court noted that the reduction of greenhouse gas emissions by 35% compared to 2005 levels imposed by the EU Regulation 2018/842 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 will not be met. Besides, the federal government set the target of reducing the emissions by 80 to 95% by 2050 compared to 1990 levels. Experts already preview that these targets will neither be met.

  • Lack of good climate governance.

The Court noted that climate policy is a shared competence, i.e. a competence which is exercised by both the federal government and the governments of the three regions of the country. In the Court’s opinion, the country’s federal structure requires “healthy and loyal cooperation” between the different authorities and such cooperation is part of the general duty of diligence imposed on each of the four governments given the urgency of the climate crisis and the importance of international and European commitments given by Belgium.

However, state bodies themselves recognise that the cooperation between the federal government and the three regions is currently deficient and that there is no good climate governance in Belgium. In the absence of a better coordinated and concerted Belgian climate strategy, each government is failing to comply with its general duty of care.

  • Systematic and repeated instructions and warnings of the European authorities.

Finally, the Court noted that – every year since 2011 – the European Union raised concern about the difficulties for Belgium meeting its climate objectives and defining a coordinated action between all levels of authority.

According to the Court, these three factors led to the conclusion that the four governments, despite being fully aware of the risk of dangerous climate change for the Belgian population, did not act with prudence and diligence and are thus liable under Article 1382 of the Belgian Civil Code.

Belgian governments violate claimants’ fundamental rights by refraining from taking all necessary measures to prevent the impacts of climate change on their life and private life

The Applicants also alleged that, through their negligence, the Belgian authorities violate the claimants’ right to life and their right to private and family life that are enshrined in Articles 2 and 8 of the ECHR and Articles 6 and 24 of the UNCRC.

The Court explained that, in the current state of climate science, there is no longer any doubt about the existence of a real threat of dangerous climate change having a direct adverse effect on the daily life of present and future generations of Belgian inhabitants. Examples include rising of North Sea levels and increasing health problems. The Court outlined that Articles 2 and 8 of the ECHR impose on public authorities a positive obligation to take necessary measures to repair and prevent harmful consequences of global warning which threatens their life and private and family life – which, at this time, the four governments do not.

Regarding these necessary measures, the Court drew a distinction between mitigation measures, which aim at preventing the danger from materialising (e.g. measures reducing greenhouse gas emissions) and adaptation measures which aim at attenuating the effects of the danger (e.g. measures protecting the territory against rise in sea levels). However, the Court stressed that national authorities are entitled to a wide margin of appreciation in determining the measures to be taken.

The Court also reaffirmed the case law established by the Dutch Supreme Court in the Urgenda Case by stating that the global dimension of global warming does not exempt Belgian authorities from their obligations arising from Articles 2 and 8 of the ECHR.

As opposed to Articles 2 and 8 of the ECHR, the Court says it could not infer from Articles 6 and 24 of the UNCRC any positive obligation on the part of the signatory states, as the text leaves the authorities full latitude to meet the objectives they set out. The Applicants could thus not directly invoke these provisions before domestic courts.

The Court refuses to order an injunction to meet stricter targets for the reduction of greenhouse gas emissions

As explained above, the Applicants requested injunction from the Court to have the Belgian governments further reduce greenhouse gas emissions originating on Belgian territory by 2025, 2030 and 2050 by taking all necessary measures to reach the following targets: a reduction by 48% (at least 42%) compared to 1990 by 2025; a reduction by 65% (at least 55%) compared to 1990 by 2030 and zero net emissions reached in 2050.

The Court denied this request for two reasons. First, Belgium is not required under European or international law to meet the targets referred to by the Applicants. As explained above, the only binding target is the one established by the EU Regulation 2018/842 which imposes a reduction of 35% by 2030 compared to 2005 levels. Other governmental declarations or strategic plans mentioned by the Applicants do not constitute a source of legally binding obligations for public authorities. Second, the jurisdiction of the Court is limited to the finding of a deficiency on the part of the public authorities, but does not extend to setting itself Belgium’s targets for the reduction of greenhouse gas emissions. To decide otherwise would violate the principle of separation of powers.

This is a key difference with the Urgenda judgment from the Dutch Supreme Court, which imposed increased targets for the reduction of greenhouse gas emissions to the Dutch State. The statement from the Belgian Court is that when Belgium set climate change related targets to itself, it is in breach of Belgian law and human rights law when it does not reach these targets, without going further than the mere compliance with these targets, and also without imposing any specific measure aiming at reaching these targets. As a consequence, it remains to be seen whether claims imposing specific targets on private companies, like the one that was recently decided against Shell in the Netherlands, would be supported by this recent case law.

NGO Climate Case to appeal the decision and to bring the case before the European Court of Human Rights

In its press release published on 17 June 2021, the NGO welcomes the decision but announces its willingness to appeal the decision before the Brussels Court of Appeal and to bring the case before the ECtHR (potentially even before a decision in appeal, by arguing that there would not be a proper effective remedy to be exhausted in Belgium first, because of the backlog of cases before the Brussels Court of Appeal). Inspired by German and Dutch decisions, the NGO wants the judicial power to impose stricter targets for the reduction of greenhouse gas emissions.

Could this duty of care be extended to companies?

It remains to be seen whether Belgian courts may consider that, similar to public authorities, private companies would breach their general duty of care by failing to take sufficient measures to reduce the impact of their activities on climate change.

On 26 May 2021, a Dutch court has reached this conclusion in the Shell case, where the District Court of The Hague ordered Royal Dutch Shell to reduce its global carbon emissions by 45% by 2030 compared with 2019 levels – that is, the emissions of the Shell group, its suppliers and its customers. The Shell decision is the very first time a court has intervened to force a company to reduce its carbon emissions and bring its strategy in line with the Paris Agreement. In a previous decision, in Urgenda, The Hague courts (upheld by the Dutch Supreme Court) were also the first to order a state to meet stricter targets for the reduction of greenhouse gas emissions.

The Shell case was brought by the Dutch arm of Friends of the Earth (Milieudefensie) and over 17,000 citizens, among other claimants. The Dutch District Court has concluded that Shell’s climate plan is not “concrete” enough and that meeting the goals of the Paris Agreement is not only up to governments. The court agreed that Shell cannot solve the global climate crisis on its own but that does not absolve it of responsibility to curb the emissions it can control and influence. Companies have a human rights obligation to take further action and Shell must bring its emissions and those of it suppliers and customers in line with the Paris Agreement. Importantly, Judge Larisa Alwin ruled that this decision will require a change of policy from the company which could “curb the potential growth of the Shell group”. The Dutch District Court based its considerations on the unwritten standard of care laid down in the Dutch Civil Code, which provides that acting in conflict with what is generally accepted according to unwritten law is unlawful.

The court’s decision was made notwithstanding Shell’s expressed aim to become carbon neutral by 2050 and the majority of Shell’s shareholders having voted in favour of the company’s new energy transition strategy at its AGM earlier this month. Another shareholder resolution from campaigners Follow This, calling on Shell to prove that its absolute emission reductions are aligned with the Paris Agreement, did not pass, receiving around 30% of shareholder support.

Shell has indicated that it plans to appeal the decision.

A number of commentators have said they expect the “historic” ruling to set a global precedent and that other companies across the globe could face similar lawsuits. Others caution against an approach that could lead to the sell-off of high emitting assets to less responsible operators.

Whether the Shell decision is indeed the “watershed moment” and “tipping point” in climate litigation that some have heralded, time will tell. But what is certain is that it is the latest in a series of cases and investor decisions that – together – have very significant implications for companies’ climate strategies, not just in the oil & gas or energy sector.

In the Belgian Climate Case, the Court reminded the governments of their duty to respect international, European and national targets for reducing greenhouse gas emissions, but refused to order an injunction to meet stricter targets on the basis of the principle of the separation of powers. Such principle would not apply in potential cases involving private companies. Under the current Belgian law rules, we are of the opinion that citizens and environmental associations are not entitled to claim that private companies would have the same legal responsibility as governments in the fight against climate change. Companies might not be held liable provided that they respect the applicable legislation and they act in the same manner as prudent and diligent undertakings would do in the same business sector or in similar circumstances.

NGOs and other activists are nevertheless likely to test these waters in the near future. Companies are therefore induced to continue improving their sustainability programmes as a matter of priority and to document their contribution to the global fight against climate change.

 

Key contacts

Xavier Taton - Partner, Brussels Tel: +32 2 501 94 72 - [email protected]

Lieve Swartenbroux - Partner, Brussels Tel: +32 2 501 94 88 - [email protected]

Guillaume Croisant - Managing Associate, Brussels Tel: +32 2 501 93 45 - [email protected]

Charlotte Peiffer - Junior Associate Tel: +32 2 501 90 70 - [email protected]

Zie ook : Linklaters LLP

[+ http://www.linklaters.com]


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