Cautious scrutiny: The Federal Climate Change Act case in the German Constitutional Court
| Published date | 01 January 2023 |
| Author | Stefan Theil |
| Date | 01 January 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12746 |
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Modern Law Review
DOI:10.1111/1468-2230.12746
Cautious scrutiny: The Federal Climate Change Act
case in the German Constitutional Court
Stefan Theil∗
In a unanimous decision of 24 March 2021,the Ger man Federal Constitutional Court declared
certain provisions of the Federal Climate Change Act (FCCA) unconstitutional. The Court
upheld the greenhouse gas emission targets for the period until 2030 but found the outlined
review procedure for the following years lacking: it failed to adequately specify targets,thereby
violating the fundamental rights of the applicants. Despite the at times exuberant reception,
this case note argues that the decision stopped well short of a legal revolution.Ultimately, the
Court embraces an orthodox doctrine on positive obligations that emphasises deference to the
legislature on climate change policy. Nonetheless, there are some genuine, albeit subtle legal
innovations:(1) extending legal standing to applicants resident outside of Germany;(2) specifying
general constitutional commitments to tackling climate change through the Paris Agreement,
and (3) relying on a concept of intergenerational equity in the distribution of emission reduction
burdens.
INTRODUCTION
In a unanimous decision of 24 March 2021,the Ger man Federal Constitutional
Court declared certain provisions of the Federal Climate Change Act (FCCA
–Bundes-Klimaschutzgesetz) unconstitutional.1The Court upheld the emission
reduction targets and measures adopted under the Act for the period until 2030
but found the review procedure for the following years lacking. The decision
gave the legislature until 31 December 2022 to enact fresh legislation.2
According to the decision, the FCCA failed to provide a transparent and
adequate review mechanism for specifying the emission reduction targets and
measures after 2030.3A fresh review must be conducted earlier than envisioned
and at more frequent intervals so as to keep pace with the development of
∗John Thornley Fellow in Law,Sidney Sussex College, University of Cambridge.The author would
like to thank John Adenitire,Je King, and an anonymous reviewer for helpful feedback on earlier
drafts. All URLs were last visited 10 February 2022.
1 Federal Constiutional Court, 1 BvR 2656/18, 24 March 2021, NJW 2021, 1723, an abr idged
translation of the decision is available at http://www.bverfg.de/e/rs20210324_1bvr265618en.
html; a translation of the FCCA is available at https://www.gesetze-im-internet.de/englisch_
ksg/index.html.
2ibid at [268];the r ulingis a decision, as opposed to a judgment,because the Court did not conduct
an oral hearing, instead deciding on the basis of the written submissions only.
3ibid at [252] and [256].
© 2022 The Authors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(1) MLR 263–275
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the or iginal work is properly cited.
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