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

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. 

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

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Actions or measures to adapt freshwater systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

This sector involves the distribution, treatment, and conservation of water resources.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

This sector involves activities to move goods and people, alongside the storage of products.

Geohazards are adverse geological phenomenon's that are capable of causing widespread damage or loss to property, life and the environment, such as earthquakes, volcano eruptions and tsunamis. Climate change can increase the frequency and severity of some geohazards, such as landslides, and soil erosion.

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

Target

Policy instrument

Risk

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience