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Clifford Chance

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Belgian climate policy is negligent and a violation of human rights, says Brussels Court

In a landmark case, the Brussels Court of First Instance has condemned the Belgian federal government and the three regional governments for a deficient climate policy.

In parallel with similar cases in other countries (for instance, Australia, the Netherlands, France, Germany and Poland), an important and symbolic lawsuit regarding the state's environmental liability has come to a provisional conclusion before the Belgian courts. On 17 June 2021, following seven years of legal battle, the VZW Klimaatzaak ('NGO Climate Case') has obtained a favourable decision from the Brussels Court of First Instance condemning the Belgian State and its regions for their negligent climate policy. This judgment sends a clear signal to Belgian policy makers in what can be considered as a landmark case for several reasons.

Firstly, not only was the NGO's claim declared admissible but so was that of 50,164 other natural persons who joined the lawsuit as claimants. For the first time, it was acknowledged that each of those individuals has a direct and personal interest in a more rigorous climate policy, on the basis that there is a real risk of adverse consequences resulting from climate change if such policy is not being pursued. On a side note, the claim made on behalf of 82 trees was declared inadmissible because (perhaps unsurprisingly) trees are not considered to be legal subjects.

Secondly, the judgment establishes that the federal state and the three regions (Wallonia, Flanders and Brussels) are jointly and severally liable for their climate policy's shortcomings. According to the Court, the complex structure of the Belgian State cannot be invoked to justify non-compliance with the climate obligations that rest on the policy-makers.

Lastly, this ruling is historic because the Court finds that the four governments behaved negligently within the meaning of Article 1382 of the Belgian Civil Code when developing their climate policy. In addition, the Court also found a violation of Articles 2 (right to life) and 8 (right to privacy) of the European Convention on Human Rights.

Despite these findings, the Court did not go as far as the Dutch judges in the Urgenda case in the Netherlands.1  Indeed, the Court dismissed the NGO Climate Case's demand for concrete targets to be imposed on the defendants. The Court notably refused to impose such targets in the light of the separation of powers, maintaining that it is for the legislative and executive branches of the State, and not the judiciary, to define what constitutes an adequate climate change policy. In other words, the Court essentially sent the policy makers back to the drawing board, just like the German Constitutional Court did earlier this year regarding the German Climate Change Act.2

NGO Climate Case has already indicated that it is determined to appeal this aspect of the verdict and to strive for concrete climate targets to be imposed, as in the Urgenda case. In addition, the non-profit organisation is also appealing to the European Court of Human Rights in Strasbourg, arguing that the Belgian legal system is not providing an effective remedy since, according to the NGO, the case will not likely be heard by the Brussels Court of Appeal for approximately 9.5 years.

On the other hand, it seems unlikely that the Belgian government(s) will appeal against this judgment as no specific obligations have been imposed on them. That being said, the judgment remains binding notwithstanding any appeal, which means that something should be done to remedy the breaches identified by the Court. Several politicians have already announced their intention to tighten up climate policy, but as no deadline has been set by the Court, it is unclear when this will result in concrete new legislative proposals.

Overall, whilst the judgment is significant, it remains to be seen how far judges will be willing to go either in the appeal proceedings or in other similar cases: if the failure by the authorities continues, will the judiciary abandon the separation of powers argument and impose concrete injunctions on the State to ensure an effective climate change policy? Time will tell.

The whole verdict can be accessed here via the official website of the NGO Climate Case.

https://www.cliffordchance.com/briefings/2021/05/esg--dutch-court-s-landmark-decision-on-climate-change--human-ri.html