Does the European Court of Human Rights (ECtHR) ClimateSeniors ruling of 9 April 2024 open the door to collective claims for damages in Switzerland?

Under Swiss law, there are currently only very limited options for collective legal protection. The only real form is the collective action under Art. 89 of the Swiss Code of Civil Procedure (ZPO), which, however, is only aimed at injunctive relief, removal or a declaratory judgement, but not at damages or satisfaction. The Parliament has been discussing an expansion of collective legal protection for over a decade.

Following objections from the business community, the draft to strengthen collective legal protection was scrapped in the general revision of the Civil Procedure Code (ZPO) and collective legal protection has been put on the back burner. While many European countries and the EU have expanded collective legal protection, Switzerland in comparison is lagging far behind.

Now, for the first time, the Court has recognised the legitimacy of environmental organisations to lodge complaints in the context of climate change and climate protection as a human right. Based on this, does Switzerland have to grant organisations the right to sue under civil law?

The National Council’s Legal Affairs Committee has asked the Federal Council to clarify this issue. The Federal Department of Justice and Police FDJP denied this in its response of 7 October 2024 and argued that the Court’s ruling only concerned administrative law and administrative proceedings at national level. In addition, the legal nature of the right of appeal for associations (recognised by the Court) differs from the right of action for associations under private law. The Court had granted the association a right precisely because, in such a complex matter, there was no de facto or even legal possibility for individuals to bring an action. In the case of collective redress in private law, individual claims are bundled together and can still be asserted individually in court. The FDJP concludes that the ClimateSeniors judgement does not require Switzerland to provide for a representative action in private law or to extend the existing representative action, either in the area of climate protection or in other areas.

The Court regularly limits itself to examining violations of the Convention and leaves it up to the nation states to decide how they wish to remedy these violations. In this respect, the Court will not establish any new national remedies, legal remedies or even legal principles. However, this does not preclude the Court from finding a new violation of the Convention if private individuals or organisations have no legal means of enforcing their climate rights and related claims for damages.

The Convention does not provide for the institute of actio popularis (popular action). However, the Court defines the term ‘victim’ in accordance with Article 34 of the Convention in an autonomous manner and independently of domestic regulations on the right to bring an action (para. 462) and, in addition to persons whose rights have been violated by a law, also includes persons who are merely potentially affected (para. 469 et seq.). It recognises that collective action by associations and other interest groups is one of the few means by which the voice of those who are clearly disadvantaged in terms of their representation can be heard (para. 489).

The Court has previously held that Articles 2 and 8 ECHR may apply in environmental cases irrespective of whether the pollution was directly caused by the State or whether the State’s responsibility arose from its failure to regulate private industry adequately (see para. 435 with reference to Hatton and Others v. the United Kingdom [GC], individual application no. 36022/97, para. 98, ECHR 2003-VIII).

The Court therefore considers it appropriate to recognise in this specific context that it is important to enable associations to seek redress in order to claim the protection of the human rights of persons who are or may be affected by the adverse effects of climate change, rather than relying solely on proceedings brought by individuals on their own behalf (para. 499). Where associations are subject to restrictions on their standing before national courts, the Court may, in the interests of the proper administration of justice, also take into account whether and to what extent their members or other affected persons have had access to a court in the same or related proceedings (para. 503).

If Article 2 (right to life) is already affected if state action (or inaction) in connection with climate change creates a real and imminent threat to life (para. 513), then this applies all the more if state action or inaction has caused or favoured an impairment of health. Equally, every person has the right to be effectively protected by the state authorities from serious adverse effects of climate change on their life, health, well-being and quality of life in accordance with Article 8 ECHR (right to private and family life).

Illnesses as a result of incorrect state behaviour therefore give rise to claims for damages. If a violation of Article 2 or 8 ECHR by state bodies is established by the European Court of Human Rights, the state concerned is obliged under Article 41 ECHR to pay the injured party appropriate compensation to compensate for the damage caused by the human rights violation. Compensation includes both material and non-material damages (e.g. compensation for pain and suffering).

In summary, it can therefore be stated that the European Convention on Human Rights empowers both organisations and affected private individuals to assert their rights before national courts in the event of state climate violations and omissions. If the authorities do not respond to such individual or popular complaints, Switzerland is at risk of being condemned by the Court of Justice and obliged to pay compensation.

Collective legal protection is thus not generally being lifted from the baptism and it is still denied to consumers or organisations fighting together against producers and corporations; in special constellations, however, where human rights violations are committed by state action or omission, recourse to the courts remains a crack wide open.

Attn. Martin Hablützel