Brussels Court of First Instance Judgment (unofficial English translation by the Climate Litigation Network using DeepL Translate)

Similar to the Urgenda case in the Netherlands, the Klimaatzaak -- "climate case" -- was brought by an organization of concerned citizens, and 58,000 citizen co-plaintiffs, arguing that Belgian law requires the Belgian government's approach to reducing greenhouse gas emissions to be more aggressive. The suit named the Belgian State, the Walloon Region, the Flemish Region, and the Brussels-Capital Region as defendants. Specifically, plaintiffs called for reductions of 40% below 1990 levels by 2020 and 87.5% below 1990 levels by 2050.

From February 2019 through March 2020, the parties submitted their main conclusions and final conclusions. In their main conclusions, the plaintiffs seek a Court injunction directing the government to reduce emissions 42 to 48% in 2025 and at least 55 to 65% in 2030. Oral arguments were heard from March 16 to 26, 2021. 

On June 17, 2021, the Brussels Court of First Instance held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but declined to set specific reduction targets on separation of powers grounds. 

The Court first analyzed whether the claim was admissible, and, in doing so, whether the plaintiffs established that the proceedings would provide a benefit to them. Article 17 of the Judicial Code excludes actions brought in the general interest that only indirectly benefit the plaintiff. The Court found that both the 58,000 co-plaintiffs and the Klimaatzaak organization have a personal interest in the action. The citizen co-plaintiffs have a direct, personal interest because they seek to hold Belgian authorities responsible for the climate consequences on their daily lives, and the fact that other Belgian citizens may also suffer damages does not transform their interest into a general one. The Klimaatzaak organization has a direct, personal interest in part because environmental organizations have a privileged status to sue to defend the environmental from harm.

The Court found the federal state and the three regions jointly and individually in breach of their duty of care for failing to enact good climate governance. The Court found that despite being aware of the certain risk of dangerous climate change to the country's population, the authorities failed to take necessary action, meaning that they failed to act with prudence and diligence under Article 1382 of the Civil Code. Further, by failing to take sufficient climate action to protect the life and privacy of the plaintiffs, the defendants were in breach of their obligations under Articles 2 and 8 of the European Convention on Human Rights.

However, the Court declined to issue an injunction ordering the government to set the specific emission reduction targets requested by the plaintiffs. The Court found that the separation of powers doctrine limited the Court's ability to set such targets, and doing so would contravene legislative or administrative authority. Neither European nor international law required the specific reduction targets requested by the plaintiffs, and that the scientific report that they relied on, while scientifically meritorious, was not legally binding. The specific targets, therefore, were a matter for the legislative and executive bodies to decide. 

On November 17, 2021, Klimaatzaak appealed the judgment of the Brussels Court of First Instance. The appeal is primarily aimed at the Tribunal's refusal to set specific binding targets related to the reduction of greenhouse gas emissions over time. Klimaatzaak notably argues that the Brussels Court of First Instance has confused two distinct sources of liability in its analysis of Article 1382 of the Belgian Civil Code in that it confined itself to taking as a reference only the emission reduction targets laid down by rules of positive international, European and Belgian law, and refrained from analyzing the authorities' conduct in the light of their knowledge of the danger and of what needed to be done to help prevent or limit it. Klimaatzaak also asks the Court of Appeal to repeal and correct what they argue are factual or legal errors in the judgment of June 17, 2021. The defending Governments are expected to reply to this petition and the Brussels Court of Appeal will review the factual and the legal components of the case in the course of the appeal procedure.

After a written round of conclusions that will take sixteen months, the case was heard from September 14 to October 6, 2023.

The Court of Appeal of Brussels handed down its decision on November 30, 2023. The Court confirmed the finding of breaches established at first instance (except in the case of the Walloon Region), but in addition, ordered the condemned authorities to reduce their GHG emissions. Unlike the judge at first instance, the Court therefore considers that using its power of injunction against public authorities does not necessarily infringe the principle of separation of powers, provided that the judge does not take the place of the authorities in choosing the means to remedy violations. Competent Belgian public authorities (the Federal State, Flemish Region and the Brussels-Capital Region) have been ordered to reduce their GHG emissions of 55% compared to the 1990 level by 2030. The grounds of this decision are based on the breach of human rights (articles 2 and 8 of the ECHR) and civil liability rules (articles 1382 and 1383 of the (Former) Civil Code). 

However, the Court reformed the first instance judgment towards the Walloon Region by establishing that this authority is already playing its role in the fight against climate change. Therefore, the Court observes that there is no breach of human rights or civil liability rules on the part of the Walloon Region. The Court suspended its ruling on the question of the penalty payment and the production of the GHG emissions reports, depending on the official figures to be produced for the period 2020-2024 by the convicted authorities. The parties have 3 months to lodge a final recourse with the Court of Cassation.

VZW Klimaatzaak v. Kingdom of Belgium & Others

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

VZW Klimaatzaak v. Kingdom of Belgium & Others - judgment

Filed

Belgium

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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.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

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

People who are less able to respond to the effects of climate change due to having limited financial or physical assets

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.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

The processes through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts. Due diligence is the idea that reasonable precautions should be taken to avoid causing harm to people, the environment, or society. It also involves identifying and mitigating risks before they occur.

Financial actors and resources that are primarily directed towards climate change mitigation, adaptation and compensation.

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

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Using laws and the legal system more broadly to protect vulnerable entities

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Coastal zone and marine-related actions and measures to adapt and increase resilience to climate change

Actions and measures to adapt and increase resilience of societies and the economy to climate change.

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

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

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

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

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

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.

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

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.

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.

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

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

Electrical energy generated from mechanical devices driven by flowing fresh water.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Work that is productive and delivers a fair income, security in the workplace and social protection for all, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity.

People whose health, both mental and physical, makes them more vulnerable to the effects of climate change

People who have left their homes, whether through force, voluntarily, or a mixture of both

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

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

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

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

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

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

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

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

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

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

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

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.

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.

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

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.

VZW Klimaatzaak v. Kingdom of Belgium & Others - judgment

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance