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

Jurisdiction: Administrative Court of Vienna

Principle law(s): Effort Sharing Decision (Decision No. 406/2009/EC on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020)

Side A: GLOBAL 2000 – Friends of the Earth Austria (Ngo)

Side A: Gemeinde Stanz im Mürztal (Government)

Side A: Dipl.-Ing. Peter FliegenschneeDipl.-Ing. Peter Fliegenschnee, Klara Kornelia Butz, Monika Jasansky (Individual)

Side B: Federal Ministry for Digitalisation and Business Location (Government)

Core objectives: Whether individuals can demand the phasing out of fossil fuels based on Austrian laws and EU Effort Sharing Regulation Act.

On August 12, 2021, the applicants (three natural persons, an Austrian municipality, and the NGO Global 2000) submitted an application to the (then) Minister for Digitalization and Business Location. They demanded the Minister to issue an ordinance establishing a gradual ban on the sale of fossil fuels in Austria. In concrete terms, the sale of solid fossil fuels should be banned from January 1, 2025, the sale of fossil heating oil from January 1, 2030, the sale of fossil fuels from January 1, 2035, and the sale of fossil fuels for aviation from January 1, 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. And 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. When issuing the demanded sales ban, the applicants proposed that the Minister should rely on the Austrian Trade Regulations Act. Its Art 69 authorizes the Minister, in order to avoid endangering the life or health of individuals or to prevent environmental pollution, to determine by ordinance which measures tradespeople shall take with regard to the goods they produce or sell. According to the applicants, the Minister could thus, for instance, prohibit operators of petrol stations from selling fossil fuels. Apart from isolated exceptions, individuals are not entitled to demand the issuance of an ordinance by an administrative authority under Austrian law. The applicants thus resorted to international law and derived their right to request the above-mentioned sales ban from EU Secondary Law and fundamental rights. The EU’s Effort Sharing Regulation (2018/842) sets binding reduction targets for its Member States and provides that Austria has to reduce its greenhouse gas emissions by 36% up to 2030. Austria has to comply with this obligation, in particular by enacting laws and ordinances. According to the applicants, the Effort Sharing Regulation (and in particular its Art 4) aims to protect European citizens from the dangers of climate change. Therefore, this obligation gives rise to a subjective right of European citizens - they may require the enactment of ordinances and demand compliance with EU reduction targets. In their argumentation, the plaintiffs referred to earlier case law regarding air pollution control in which the European Court of Justice recognized a subjective right to require the issuing of an ordinance in case of exceeding 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 from 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 April 2022, in the second instance, the administrative court of Vienna addressed whether the plaintiffs could demand the enactment of the ordinance phasing out fossil fuels they sought. With regard to the Effort Sharing Regulation, the court held that the regulation is directed at EU Member states and that subjective rights could principally arise from the regulatory content of the regulation. The court, however, concluded that the regulation’s wording does not show the European legislator’s intent to grant EU citizens subjective rights. Therefore, it held that the applicants do not have subjective rights to demand compliance with the Effort Sharing Regulation or the enactment of the proposed ordinance. In the context of fundamental rights, the court held that legislative and administrative inaction cannot be challenged in court and that it was not competent to order an administrative authority to issue an ordinance. Furthermore, it held that the state’s duty to protect from fundamental rights, in particular from Art 2 of the EU’s Charter of Fundamental Rights, would only apply to localized natural disasters and hazards. Therefore, the applicants could not demand the enactment of an ordinance for phasing out fossil fuels based on fundamental rights. The plaintiffs envisage an appeal against this decision to the Constitutional Court and the High Administrative Court.

Case documents

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