decision

Fliegenschnee et al. v. Federal Ministry for Digitalisation and Business Location, Austria - decision

Litigation

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application

Fliegenschnee et al. v. Federal Ministry for Digitalisation and Business Location, Austria - application

Filing Year For Action

On August 12, 2021, three natural persons, an Austrian municipality, and the NGO Global 2000 applied to the Minister for Digitalization and Business Location. They demanded issuing an ordinance that establishes a gradual ban on the sale of fossil fuels in Austria. The sale of solid fossil fuels should be banned from 1 January 2025, the sale of fossil heating oil from 1 January 2030, the sale of fossil fuels from 1 January 2035, and the sale of fossil fuels for aviation from 1 January 2040. In support of their claim, the applicants argued that they were directly affected by the climate crisis, which mainly results from burning fossil fuels - a practice that needs to be halted to protect life, health, and the environment. 
One of the applicants asserted that climate change-induced heat waves posed a significant health risk due to pre-existing conditions; another applicant brought forward that she would severely suffer from the impacts of climate change due to her young age. The applicant municipality, in turn, stated that due to its location in the Alpine region, it was exposed to a significant risk of landslides during heavy rainfall events, which endangered the lives and health of its citizens. The fourth applicant, a farmer, argued that climate change-induced drought and resulting crop failures endangered her livelihood and caused ecological harm. 

The applicants relied on EU Secondary Law, fundamental rights, and the Austrian Trade Regulation Act to support their claim:
The Minister should rely on Art 69 of the Austrian Trade Regulations Act to issue the demanded sales ban. The latter provision authorizes the Minister to determine measures tradespeople shall take regarding the goods they produce or sell to avoid risks to health and life or environmental pollution. According to the applicants, the Minister could, for example, prohibit operators of petrol stations from selling fossil fuels by relying on Art 69 Trade Regulations Act. 
The applicants further argued that their right to request the above-mentioned sales ban grounds in EU Secondary Law and fundamental rights. The EU’s Effort Sharing Regulation (2018/842) sets binding GHG reduction targets for its Member States - according to the applicants, it aims at protecting the life and health of European citizens and thus confers subjective rights to them. European citizens may thus demand “their” member state to comply with EU reduction targets and adopt respective measures. The applicants supported their claim by relying on earlier case law regarding air pollution control in which the European Court of Justice recognized a subjective right to require issuing an ordinance in case of exceedance of limit values. (See Janacek v. Bayern, ECLI:EU:C:2008:447, ClientEarth v. The Secretary of State for the Environment, Food and Rural Affairs, ECLI:EU:C:2013:805). 
In addition, the applicants derived their right to demand the issuance of an ordinance from fundamental rights, in particular Art 2 and 8 of the European Convention on Human Rights, which oblige the state to take measures against climate change. 

In the first instance, the Federal Minister dismissed the application for lack of competence. In her decision, the Minister argued that the requested measure, namely a transition from fossil to clean energy, was not covered by its constitutional competences, and that she was thus not authorized to issue the requested ordinance. According to the Minister, Art 69 of the Austrian Trade Regulation Act only concerns the prevention of threats specific to the trade and industry sector. It cannot be invoked for higher-level objectives such as the transition to green energy. 

In the second instance, the administrative court of Vienna addressed whether the plaintiffs could demand the enactment of an ordinance on the phasing out of fossil fuels. The court held that the Effort Sharing Regulation is directed at EU Member States and that subjective rights could principally arise from the regulatory content of the regulation. However, the regulation’s wording does not show the European legislator’s intent to grant EU citizens subjective rights. Therefore, the applicants are not entitled to demand compliance with the Effort Sharing Regulation or the enactment of the proposed ordinance. 
Regarding fundamental rights, the court held that legislative and administrative inaction could not be challenged and that it was not competent to order an administrative authority to issue an ordinance. Furthermore, positive obligations arising from fundamental rights only apply to localized natural disasters and hazards. The applicants could not demand the enactment of an ordinance for phasing out fossil fuels based on fundamental rights. 

In the last instance, the Constitutional Court dismissed the complaint. The court did not find a violation of the applicants’ right to their lawful judge as a decision on the merits was rightfully denied by lower instances: The administrative court of Vienna had rightly concluded that a subjective right to demand the issuing of ordinances could not be derived from the EU Effort Sharing Regulation. Further, fundamental rights do not require granting a right to demand the issuing of ordinance based on Art 69 Trade Regulations Act. Fundamental rights, particularly Art 2 and 8 of the European Convention of Human Rights, give rise to positive obligations in case of severe environmental threats. The state enjoys a wide margin of discretion in fulfilling its positive obligations; a violation only occurs if suitable measures are missing entirely or if the measures adopted are not suitable to achieve the objective pursued. 
Fundamental rights do not entail the applicants’ right to demand the issuing of an ordinance. Hence, their claim was dismissed. 