How can freedom and security be reconciled?

Federal Constitutional Court

Press release No. 31/2021 from April 29, 2021

Decision of March 24, 2021
1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

With a decision published today, the First Senate of the Federal Constitutional Court decided that the regulations of the Climate Protection Act of December 12, 2019 (Climate Protection Act ) on national climate protection targets and the annual emission quantities permitted up to the year 2030 are incompatible with fundamental rights insofar as sufficient standards for the further emission reductions from 2031 are missing. Otherwise, the constitutional complaints were rejected.

The Climate Protection Act obliges to reduce greenhouse gas emissions by 55% by 2030 compared to 1990 and defines the reduction paths applicable until then through sector-related annual emissions (Section 3 (1) and Section 4 (1) sentence 3 KSG in conjunction with Annex 2) . Admittedly, it cannot be established that the legislature has violated its fundamental rights to protect the complainant from the dangers of climate change, or against the climate protection requirement of Article 20a of the Basic Law. The complainants, some of whom are still very young, are violated in their rights of freedom by the challenged provisions. The regulations irreversibly postpone high emissions reduction burdens to periods after 2030. The fact that greenhouse gas emissions must be reduced also follows from the Basic Law. The constitutional climate protection goal of Art. 20a GG is specified to limit the increase in the global average temperature to well below 2 ° C and, if possible, to 1.5 ° C compared to the pre-industrial level, in accordance with the so-called “Paris target”. In order to achieve this, the reductions still required after 2030 will have to be achieved more urgently and at short notice. Virtually any freedom is potentially affected by these future emission reduction obligations, because almost all areas of human life are still associated with the emission of greenhouse gases and are therefore threatened by drastic restrictions after 2030. The legislature should therefore have taken precautions in order to safeguard fundamentally secured freedom in order to alleviate these high burdens. The legal requirements for the continuation of the reduction path for greenhouse gas emissions from 2031 onwards are not sufficient for the timely transition to climate neutrality that is required. The legislature is obliged to regulate the updating of the reduction targets for greenhouse gas emissions for periods after 2030 up to December 31, 2022 in more detail.

Facts:

The Climate Protection Act responds to the need for increased climate protection efforts, as seen by the legislature, and is intended to protect against the effects of global climate change (§ 1 sentence 1 KSG). According to § 1 sentence 3 KSG, the basis is, on the one hand, the obligation under the Paris Agreement, which came into force on November 4, 2016, according to which the global average temperature should rise to well below 2 ° C and, if possible, to 1.5 ° C compared to the pre-industrial level and on the other hand the commitment of the Federal Republic of Germany to pursue greenhouse gas neutrality by 2050 as a long-term goal. According to Section 3 (1) KSG, greenhouse gas emissions will be gradually reduced by at least 55% by the target year 2030 compared to 1990. Section 4, Paragraph 1, Clause 3 of the KSG in conjunction with Annex 2 regulates the permissible annual emissions in various sectors that correspond to the reduction quota for the target year 2030. The law does not contain any regulation beyond 2030. Rather, in accordance with Section 4 (6) KSG, the federal government shall set annual decreasing emission quantities in 2025 for further periods after 2030 by means of a statutory ordinance.

With their constitutional complaints, the complainants primarily assert that the state, with Section 3 (1) and Section 4 (1) sentence 3 KSG in conjunction with Annex 2, does not have sufficient regulations for the immediate reduction of greenhouse gases, especially carbon dioxide (CO2), which are necessary to stop the warming of the earth at 1.5 ° C or at least at well below 2 ° C. This is necessary because if the temperature rises by more than 1.5 ° C, millions of human lives and the exceeding of tipping points with unforeseeable consequences for the climate system would be at stake. With the reduction of CO regulated in the Climate Protection Act2Emissions could be the “CO2-Rest budget “are not adhered to. The complainants, some of whom live in Bangladesh and Nepal, base their constitutional complaints primarily on fundamental rights to protect obligations under Article 2, Paragraph 2, Clause 1 of the Basic Law and Article 14, Paragraph 1 of the Basic Law, on a fundamental right to a decent future and a fundamental right to the ecological subsistence level , which they derive from Art. 2 Para. 1 GG in conjunction with Art. 20a GG and from Art. 2 Para. 1 GG in conjunction with Art. With regard to the future burden of emission reduction obligations for periods after 2030, which the complainants referred to as "emergency braking", the complainants generally refer to the rights of freedom.

Key considerations of the Senate:

The constitutional complaints are partially successful.

I. Insofar as the complainants are natural persons, their constitutional complaints are admissible. The two environmental associations, on the other hand, are not entitled to appeal. On the basis of Art. 2 Para. 1 GG in conjunction with Art. 19 Para. 3 GG and Art. 20a GG in the light of Art. 47 GRCh as “advocates of nature”, they claim that the legislature has no suitable measures to limit the Climate change and thereby disregarded binding EU law requirements for the protection of the natural foundations of life. The Basic Law and constitutional procedural law do not provide for such a right to lodge a complaint.

II. It cannot be ascertained that protection obligations under Article 2, Paragraph 2, Clause 1 of the Basic Law and Article 14, Paragraph 1 of the Basic Law have been violated due to the dangers of climate change.

The protection of life and physical integrity according to Article 2, Paragraph 2, Clause 1 of the Basic Law includes protection against adverse effects from environmental pollution, irrespective of whom and by what circumstances it threatens. The state's duty to protect, which follows from Article 2, Paragraph 2, Sentence 1 of the Basic Law also includes the obligation to protect life and health from the dangers of climate change, for example from climate-related extreme weather events such as heat waves, forest and wildfires, hurricanes, heavy rain, floods, avalanches or landslides , to protect. It can also establish an objective legal obligation to protect with regard to future generations. Since property, for example agricultural land and real estate, can be damaged as a result of climate change due to rising sea levels or droughts, the basic right to property from Article 14 (1) of the Basic Law also includes the state's duty to protect against the property dangers of climate change.

A violation of these protective obligations cannot be determined in view of the legislature's scope for compliance. A protection concept that does not pursue the goal of climate neutrality would be obviously unsuitable for the protection against the dangers of climate change, which is required by law; global warming could then not be stopped because every increase in CO2-Concentration in the atmosphere contributes to global warming and once CO has entered the atmosphere2 remains there as far as possible and can hardly be removed again for the foreseeable future. It would also be completely inadequate to let climate change run free and to implement the basic rights protection mandate solely through so-called adaptation measures. Neither is the case here. As a result, it cannot be ascertained that the legislature has exceeded its decision-making latitude by taking the “Paris target” as a basis, according to which the increase in the global average temperature is to be limited to well below 2 ° C and, if possible, to 1.5 ° C is. It is also important here that additional protection through adaptation measures is possible in principle to protect fundamental rights from the dangers of climate change.

It can remain open whether fundamental rights to protect the German state also oblige the complainants living in Bangladesh and Nepal to take action against these threatened and already existing adverse effects of global climate change. Because the violation of a fundamental right to protection duty could not be determined in the result either.

III. However, fundamental rights are violated by the fact that the emission quantities permitted up to 2030 in accordance with Section 3 Paragraph 1 Clause 2 and Section 4 Paragraph 1 Clause 3 KSG in conjunction with Annex 2 significantly reduce the emission possibilities that remain after 2030 and thereby practically any fundamentally protected Freedom is at risk. As an intertemporal safeguarding of freedom, the fundamental rights protect the complainants from a comprehensive threat to freedom by unilaterally shifting the greenhouse gas reduction burden abandoned by Art. 20a GG into the future. The legislature should have taken precautions to ensure a freedom-friendly transition to climate neutrality, which has so far been lacking.

1. The challenged regulations unfold an encroaching preliminary effect on the freedom comprehensively protected by the Basic Law. The possibilities to make use of this freedom in a way that is directly or indirectly related to CO2Emissions come up against constitutional limits because CO2-Emissions contribute largely irreversibly to global warming according to the current state of affairs, but the lawmakers constitutionally cannot simply accept ad infinitum climate change. Regulations that are now CO2Allowing emissions create an irreversible legal threat to future freedom, because every CO2-Emissions volume that is permitted today, reduce the remaining emission possibilities in accordance with Art. 20a GG; accordingly, CO2-related use of freedom will be exposed to ever stronger restrictions, also constitutionally required. Although CO2-related use of freedom to halt climate change will be essentially prevented at some point anyway, because global warming can only be stopped if anthropogenic CO2-Concentration in the earth's atmosphere no longer increases. Extensive consumption of the CO2-Budgets as early as 2030 exacerbates the risk of serious loss of freedom, because the time span for technical and social developments is becoming shorter, with the help of which the conversion from the CO2-Emissions-related way of life could be carried out on climate-neutral behavior in a way that preserves freedom.

The constitutionality of this not merely factual but legally mediated preliminary effect of current emission volume regulations presupposes, on the one hand, that it is compatible with the objective legal climate protection requirement of Art. 20a GG. Interventions in fundamental rights can only be justified under constitutional law if the underlying regulations correspond to the elementary basic decisions and general constitutional principles of the Basic Law. This also applies here in view of the preliminary effect on fundamental rights protected freedom. Article 20a of the Basic Law is also one of the principles to be observed. On the other hand, the constitutional justification presupposes that the emission volume regulations do not lead to disproportionate burdens on the future freedom of the complainant.

2. At present it cannot be determined that Section 3 (1) sentence 2 and Section 4 (1) sentence 3 KSG in conjunction with Annex 2 violate Article 20a of the Basic Law.

a) Art. 20a GG obliges the state to protect the climate and aims to achieve climate neutrality. Climate protection does not have unconditional priority over other issues, but rather, in the event of a conflict, has to be brought into balance with other constitutional interests and principles. Because of the irreversibility of climate change, which is largely irreversible, behavior that led to the constitutional climate protection target exceeding the temperature threshold can only be justified under strict conditions - for example to protect fundamental rights. At the same time, the relative weight of the climate protection requirement increases in the context of advancing climate change.

The climate protection obligation from Art. 20a GG does not contradict the fact that climate and global warming are global phenomena and therefore the problems of climate change cannot be solved by the climate protection contributions of a state alone. The climate protection mandate of Art. 20a GG has a special international dimension. Art. 20a GG obliges the state to look for a solution to the climate protection problem, especially on a supranational level. The state could not evade its responsibility by referring to greenhouse gas emissions in other countries. Conversely, the specific reliance on the international community of states results in the constitutional necessity to actually take own measures for climate protection and not to set any incentives for other states to undermine the necessary cooperation.

The open norm content of Art. 20a GG and the explicitly formulated reference to legislation do not preclude a constitutional review of compliance with the climate protection requirement; Art. 20a GG is a justiciable legal norm that is supposed to bind the political process in favor of ecological issues with a view to the future generations particularly affected.

By declaring the Paris target in § 1 sentence 3 KSG as the basis, the legislature, in exercising its concretization mandate and its concretization prerogative, allowed the climate protection goal of Art. 20a GG to be substantiated to the effect of increasing the global average temperature to well below 2 ° C and if possible to 1.5 ° C compared to the pre-industrial level. This is also the basis for the constitutional examination.

b) Taking into account the legislature's leeway, it cannot currently be determined that the provisions of Section 3 (1) sentence 2 and Section 4 (1) sentence 3 KSG in conjunction with Annex 2 violate the constitutional climate protection requirement from Article 20a of the Basic Law.

The constitutionally relevant temperature threshold of well below 2 ° C and preferably 1.5 ° C can in principle be converted into a global CO2-Calculation of the remaining budget, which can then be distributed among the states. The Intergovernmental Panel on Climate Change (IPCC) has specific global CO for different temperature thresholds and different probabilities of occurrence due to a quality assurance procedure with disclosure of the remaining uncertainty2- Named residual budgets. On this basis, the German Advisory Council on the Environment has also determined a specific national remaining budget from 2020 that would be compatible with the Paris target. Due to the uncertainties and assessments contained herein, the budget size determined cannot currently provide a numerical measure for constitutional control. The legislature has room to make decisions. However, he is not allowed to fill this out at will. If there is scientific uncertainty about environmentally relevant causal relationships, Art. 20a GG imposes a special duty of care on the legislature. After that, reliable indications of the possibility of serious or irreversible impairments must be taken into account.

No breach of this duty of care can currently be determined. It follows that estimates by the IPCC on the size of the remaining global CO2- Remaining budgets to be considered, although there are uncertainties involved. The emission quantities regulated in Section 4 (1) sentence 3 KSG in conjunction with Annex 2 would largely use up the remaining budget determined by the Advisory Council for Environmental Issues on the basis of the estimates of the IPCC by the year 2030. However, compared to the uncertainties currently contained in the calculation of the remaining budget, the degree of misconduct did not provide a sufficient basis for a constitutional complaint.

3. Section 3 (1) sentence 2 and Section 4 (1) sentence 3 KSG in conjunction with Annex 2, however, do not meet the requirement resulting from the requirement of proportionality, the constitutionally necessary reductions in CO according to Article 20a of the Basic Law2-To distribute emissions up to climate neutrality in a forward-looking manner over time in a way that preserves fundamental rights.

a) Thereafter, one generation must not be allowed to undergo large parts of the CO under a comparatively mild reduction burden2- To use up budgets if, at the same time, this would leave the following generations with a radical burden of reduction and expose their lives to extensive loss of freedom. In the future, even serious losses of freedom to protect the climate may be proportionately and constitutionally justified; precisely because of this, there is then a risk of having to accept a considerable loss of freedom.Because the course for future burdens on freedom has already been set by the current regulation of permissible emissions, the effects on future freedom must be proportionate from today's perspective. The objective legal protection mandate of Art. 20a GG also includes the need to handle the natural foundations of life so carefully and to leave them for posterity in such a state that subsequent generations could not only keep them at the price of radical self-abstinence.

The greenhouse gas reduction burden constitutionally required after 2030 will be considerable. It is not possible to determine whether it is so drastic that, from today's perspective, it would be associated with unreasonable impairments of fundamental rights. The risk of serious burdens, however, is high and can only be brought into line with the fundamental freedoms that will be affected in the future if this is combined with precautions to cope with the burdens of reduction that are imminent after 2030 in a way that is gentle on fundamental rights. This also requires initiating the transition to climate neutrality in good time. What is specifically required is that transparent measures for the further development of greenhouse gas reduction are formulated at an early stage, which provide orientation for the necessary development and implementation processes and give them a sufficient level of development pressure and planning security. Under constitutional law, it is essential, on the one hand, that further reduction measures are set in good time beyond the year 2030 and at the same time sufficiently far into the future. On the other hand, additional annual emission quantities and reduction measures must be specified in such a differentiated manner that a sufficiently concrete orientation is created.

b) The legislature has constitutionally inadequately regulated the updating of the greenhouse gas reduction path in Section 4 (6) sentence 1 KSG. It is true that it cannot be demanded that the decreasing quantities of emissions be specifically determined by the time the climate neutrality target for 2050 is achieved. However, it is not enough to simply oblige the federal government to make a further stipulation once - in 2025 - by means of an ordinance. Rather, it would at least have to be regulated at what time intervals further specifications are to be made transparently. The procedure regulated in Section 4 (6) KSG also does not ensure that the further reduction path can be identified in good time. It seems doubtful that the first further definition of annual emission quantities in periods after 2030 would come in time in 2025. Even beyond this initial stipulation, the timeliness is not guaranteed because Section 4 (6) sentence 1 KSG does not guarantee that the stipulations extend far enough into the future. The legislator would have to give the legislator more far-reaching stipulations, provided he sticks to his involvement; In particular, he would have to oblige him to make the first further stipulations before 2025 or at least stipulate to him by statutory regulation much earlier how far into the future the stipulations in 2025 must extend. If the legislature takes over the continuation of the reduction path in full, it must regulate everything necessary well enough into the future in good time.

c) Paragraph 4 (6) of the KSG has not yet met the constitutional requirements of Article 80 (1) of the Basic Law and the principle of legal reservation. In any case, the legislature itself must determine the size of the annual emission quantities to be determined for periods after 2030 or provide more detailed requirements for their specific determination by the ordinance.