Belgium's Green Awakening: Brussels Court Sets Precedent in Climate Litigation | Fieldfisher
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Belgium's Green Awakening: Brussels Court Sets Precedent in Climate Litigation



On 30 November 2023, the Brussels Court of Appeal issued a landmark judgment, ruling that the Belgian federal state and the Flemish and Brussels regions acted unlawfully by failing to take sufficient climate mitigation action. In particular, it found that these governments violated their duty of care and the rights to life and private life under the European Convention on Human Rights.

Why this proceeding?
The Brussels Court of First Instance had already established in 2021 the abovementioned violations. However, that Court refused in first instance to impose upon the governments specific emissions reduction targets. Notably, it held that the extent and pace of Belgium's reduction in GHG emissions and the Belgian internal distribution of the efforts to be made in this direction were the result of political arbitration in which the judiciary could not interfere.

The plaintiffs, composed of Belgian citizens and the NGO Klimaatzaak, appealed this decision to obtain a judgment in which not only a violation would be established, but also consequences would be coupled to that violation in terms of specific and obligatory emissions reduction targets under penalties in case of failure.

What is the result in Belgium?
The Court of Appeal went so far as to impose on 3 of the 4 defendants (excluding the Walloon government, hereby taking into accounts its efforts and effects on GHG emissions) a specific emission reduction target of 55% by 2030 compared to 1990. The Court also reserved the possibility of imposing a monthly penalty of €1M on the said Belgian authorities, depending on pending official emission reduction figures between 2022-2024 and the updated National Energy and Climate Plan. So far, Belgium is failing to submit an adequate NEKP, even after missed deadlines. The Flemish region – via its Energy Minister – does not have the intention to subscribe to the same EU-imposed reduction percentage as what was accepted by the other governments. This court case now increases the pressure by imposing even further reduction percentages (incl. for ETS sectors) than what is required for Belgium from an EU perspective.

What is the result globally?
This Court ruling is part of a large number of climate cases spreading worldwide. Out of all these cases, this ruling is only the second in which an explicit emissions reduction rate is imposed on governments. How the governments should achieve this remains a matter of policy, in which the Court does not intervene. The recurring question remains: is imposing a GHG emissions reduction rate - beyond what the EU imposes - in itself an intervention in policy that goes against the principle of separation of powers?

Another typical question in this context is: what difference can Belgium make when it comes to a global problem like climate change? The Court is clear on this. Referring to a similar reasoning by the German Constitutional Court (which in turn arrived at this reasoning with references to rulings in the Netherlands, New Zealand and the US), it ruled as follows (auto translation):

"As emphasised by the Neubauer judgment of 24 March 2021 [...], the fact that the climate and global warming are global phenomena and that the problems caused by climate change cannot be resolved by the action of a single State does not preclude the obligation formulated at national level to protect the climate. Similarly, each federated entity is, in principle, individually responsible […]."

Thus, it is confirmed that judges in certain jurisdictions look across borders in this context, building narratives that can have a crucial impact on the outcome of the other pending cases. This Belgian climate case could therefore be a building block for future court cases abroad, as well as for court cases at the regional and international levels. Finally, last but not least, following the recent example in the Netherlands, this case may also lead to caselaw against Belgian corporate actors that allegedly fail to take sufficient climate action.

To be continued…