Issue: Whether the Federal Climate Protection Act violates children’s rights under constitutional law or the EU Charter of Fundamental Rights and/or their right to equality before the law.
On February 21, 2023, a group of Austrian children filed a complaint with the Austrian Constitutional Court. The applicants alleged that the Federal Climate Protection Act (Klimaschutzgesetz 2011) is, in part, unconstitutional for violating the constitutionally guaranteed rights of children and the fundamental right to equality before the law.
The Federal Climate Protection Act was adopted in 2011 to implement emission reduction obligations under European law. The Annexes to the Act set out the maximum levels of greenhouse gas emissions by sector for 2008-2012 and 2013-2020. However, the Act does not stipulate any emissions reduction targets after 2020. The lack of binding greenhouse gas emission reduction targets leads to persistently high emission levels on Austrian territory.
In light of this, the applicants alleged the unconstitutionality of Art 3 para 2 of the Federal Climate Protection Act for
- Establishing commitment periods that only extend to 2020.
- Stipulating a pure negotiation obligation regarding the development of effective GHG reduction targets (instead of a mandate to take action).
- Providing retrospective (instead of preventive) emergency measures in case of an exceedance of GHG ceilings established under international or EU law.
In concrete terms, the applicants brought forward that Art 3 para 2 of the Federal Climate Protection Act violated children’s rights and their right to equality before the law. In eventu, the applicants further demanded the repeal of parts of Art 3 para 1 of the Federal Climate Protection Act.
The Federal Constitutional Act on the Rights of Children implements the UN Convention on the Rights of the Child on the national level; it grants subjective rights (“constitutionally guaranteed rights”) to children, i.e., persons under the age of 18 years. Under Art 1, every child has the right to have his or her best interests protected. This includes protection and care, the best possible development and the safeguarding of child interests; in addition, Art 1 requires consideration of intergenerational equity. This commitment to intergenerational equity can also be found in the Federal Constitutional Act on Sustainability, Animal Protection, Comprehensive Environmental Protection, Water and Food Security as well as Research. This state objective does not grant subjective rights but shall guide the interpretation of other legal sources.
The plaintiffs alleged that climate change triggers positive obligations under Art 1 of the Federal Constitutional Act on the Rights of Children as it poses an imminent danger to the well-being of present and future generations. Thus, Austria is obligated to take adequate measures to protect child well-being against the disastrous impacts of climate change and restrictions of freedom related to drastic emission reduction measures needed in the future.
The applicants reached a similar conclusion based on the Charter of Fundamental Rights of the European Union (CFR). Under EU law, children thus have a right to protection of their well-being, similar to the national right.
Younger generations are treated unequally compared to older generations as they bear the brunt of restrictions of freedom associated with emission reduction, especially as restrictions of freedom will be more severe the more time passes without action. According to the plaintiffs, such unequal treatment is not justified and thus violates their right to equality before the law.