EHRM, 18-11-2025, nr. 40054/23

Article 10 § 1 of the Federal Constitution (Bundes- -Verfassungsgesetz) lists the areas that fall within the legislative and executive competence of the Federal Government (Bund). The relevant part reads as follows:

Article 10

The Austrian Trade Act (Gewerbeordnung) governs the exercise of commercial activities. Under the heading ‘Protective provisions’, section 69 of the Trade Act provides as follows:

Section 69a of the Trade Act further provides:

The Environmental Impact Assessment Act (Umweltverträglichkeitsprüfungsgesetz — ‘the EIAA’) requires environmental impact assessments with the participation of the public for certain large-scale projects. In 2004 the EIAA was amended to improve public participation in environmental matters ahead of Austria's ratification of the Aarhus Convention (see paragraph 16 below; see also the explanatory notes to the draft amendment, Erläuterungen zur Regierungsvorlage 648 BlgNR, 22. GP, p. 1). The newly added section 19(1)(7) of the EIAA now grants standing as a party to EIAA proceedings to ‘environmental organisations’, which, by a decision of the Federal Minister for Climate Action, Environment, Energy, Mobility, Innovation and Technology, have been recognised as meeting the requirements laid down in section 19(6) of the EIAA. That provision reads as follows:

The status of ‘environmental organisation’ under the EIAA is also used to grant participation rights in proceedings under other sectoral laws, such as the Waste Management Act (Abfallwirtschaftsgesetz) and the Trade Act (see paragraph 10 above).

In a decision of 15 March 1986 (G60/82), the Constitutional Court repealed a provision of the Trade Act (see paragraphs 10 above) which set out certain energy efficiency standards for products, services and equipment used in trade. The Constitutional Court held that the provision had been enacted on the sole basis of the legislative competence for matters relating to trade and industry under Article 10 § 1(8) of the Federal Constitution. However, that competence was limited to typical trade-law measures (Maßnahmen typisch gewerberechtlicher Art), such as measures to protect trade and to prevent dangers directly emanating from trade for employees, customers, consumers, other businesses or other persons directly affected such as neighbours. The contested provisions stated that energy-saving standards could not be classified as typical trade measures, as the failure to meet such standards did not pose particular risks usually prevented by trade regulations. In terms of their objective, content and effect, such measures went beyond her functions in the fields of trade-specific hazard prevention and trade regulation and security.

On 28 May 2015 the Supreme Administrative Court delivered a judgment in a case (Ro 2014/07/0096) in which the appellants had asked a regional authority to introduce comprehensive traffic measures to comply with the emission limits for fine particulate matter (Feinstaub). The authority rejected the request as inadmissible for lack of standing, arguing that the appellants had no individual and enforceable legal right to specific measures under the Austrian Air Emission Protection Act (Immissionsschutzgesetz — Luft) or the underlying EU law on air quality. The Supreme Administrative Court held that according to EU law and the case-law of the Court of Justice of the European Union, member States had an obligation to provide effective remedies for rights guaranteed by EU law. Where an individual right to the issuance of a regulation could be derived from EU law, the situation was comparable to when the national legal system recognised such a right. The principle of effet utile (effectiveness of EU law) required national authorities to issue an ordinance when the conditions were met or to refuse the request when they were not. In the particular case, the Supreme Administrative Court did not consider the regional authority's reasoning that neither the Air Emission Protection Act nor Austrian law generally granted an individual right to request an ordinance sufficient to justify the refusal of such a request when it was well-founded in EU law.

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’) entered into force on 30 October 2001 and was ratified by Austria on 17 January 2005. A detailed description of the relevant legal provisions of the Aarhus Convention on the participation of the public, including through non-governmental organisations, in environmental matters may be found in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 141-43).

The Paris Agreement — adopted at the United Nations Climate Change Conference (COP21) in Paris on 12 December 2015 and ratified by Austria on 5 October 2016 — is an international treaty setting out the overarching goal of GHG emissions reduction owing to — as acknowledged in its preamble — ‘the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge’ (see also Verein KlimaSeniorinnen Schweiz and Others, cited above, § 136).

The Paris Agreement provides, in so far as relevant, as follows:

Article 2

Article 3

Article 4

The Court notes at the outset that the general principles applicable to complaints under the Convention concerning climate change have been set out by the Grand Chamber in its judgment in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 410-503, 506-20 and 538-54).

In particular, the Court reiterates that, in order to claim victim status under Article 34 of the Convention in the context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change, an individual applicant needs to show that (a) he or she is subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and (b) that there is a pressing need to ensure the applicant's individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (see ibid., §§ 487-88). An association can be recognised as having locus standi to lodge an application under Article 34 of the Convention for complaints concerning climate change when it can demonstrate that it is (a) lawfully established in the jurisdiction concerned or has standing to act there, (b) pursues a dedicated purpose in accordance with its statutory objectives in the defence of human rights of its members or other affected individuals within the jurisdiction concerned — including against threats arising from climate change — and (c) is genuinely qualified and representative to act on behalf of members or other affected individuals within that jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention (ibid., § 502).

The Court reiterates that in order for Article 2 to apply in the context of climate change, there needs to be a serious, genuine and sufficiently ascertainable threat to life, containing an element of material and temporal proximity of the threat to the harm complained of by the applicant. The applicability of Article 2 would thus only be triggered if such a serious risk of a significant decline in a person's life expectancy owing to climate change has been established (ibid., § 513). The Court has previously recognised that Article 8 encompasses a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life (ibid., § 519). However, in this context, the question of ‘actual interference’ or the existence of a relevant and sufficiently serious risk entailing the applicability of Article 8 essentially depends on the assessment of criteria similar to those used to examine the victim status of individuals and the locus standi of associations (see paragraph 25 above). These criteria are therefore also determinative for establishing whether Article 8 rights are at stake and whether this provision applies (see ibid., §§ 502 and 520).

As to the content of States' obligations in the context of climate change, the Court notes that — in the light of the above-mentioned right for individuals to enjoy effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life — the State's obligation under Article 8 is to do its part to ensure such protection. The State's primary duty in this context is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change (ibid., §§ 544-45).

However, the Court also emphasises that, in accordance with the principle of subsidiarity, the national authorities have the primary responsibility to secure the rights and freedoms defined in the Convention, and in doing so they enjoy a margin of appreciation, subject to the Court's supervisory jurisdiction (ibid., § 541). In the specific context of climate change, a distinction must be drawn between the scope of the margin as regards, on the one hand, a State's commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect, and, on the other hand, the choice of means designed to achieve those objectives (ibid., § 543). While a reduced margin of appreciation applies for States regarding the former aspect, they are accorded a wide margin of appreciation as regards the latter, namely their choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources (ibid.).

The Court has further clarified that an examination of whether a State has remained within its margin of appreciation in principle entails an overall assessment of whether the competent domestic authorities have had due regard to the need to (a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments; (b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies; (c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (see sub-paragraphs (a)-(b) above); (d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and (e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures. A shortcoming in one particular respect alone will not necessarily entail that the State would be considered to have overstepped its relevant margin of appreciation (ibid., §§ 550-51).

Turning to the present case, the Court observes that the applicants' complaints under Articles 2 and 8 of the Convention were directed against the Federal Minister's refusal, confirmed by the Austrian courts (see paragraphs 6 and 8 above), to order a measure they had requested under section 69 of the Trade Act (see paragraphs 4, 5, 10 and 23 in fine above), and rested on the assumption that they had an individual right to the issuance of an ordinance under the Trade Act (see paragraph 4 in fine above). The Court reiterates the need for a serious, genuine and sufficiently ascertainable threat to life for the applicability of Article 2 (see paragraph 26 above) and the especially high threshold for fulfilling the victim status criteria in cases involving harm or risk of harm resulting from alleged failures by the State to combat climate change (see Verein KlimaSeniorinnen Schweiz and Others, cited above, § 488). It is questionable whether the alleged shortcomings by the respondent State in its measures to combat the adverse effects and threats of climate change on human health had such life-threatening consequences for the applicants such as to trigger the applicability of Article 2 of the Convention (compare ibid., § 536). The Court therefore considers it appropriate to examine the applicants' complaints under Article 8 of the Convention alone (ibid., § 537).

The Court notes at the outset that while the individual applicants alleged that the adverse effects of climate change endangered their lives and health generally — especially owing to their medical conditions and ages (see paragraph 4 above) — they have provided neither any details as to whether and how they have been affected personally nor any evidence to substantiate the alleged vulnerabilities that would render them particularly at risk. As concerns the second and third applicants, the grounds based on which they considered themselves affected by climate change are, on the face of it, insufficient to meet the criteria for victim status of individuals addressed above (see paragraph 25 above). The 28-year-old second applicant complained that her health was endangered by the effects of climate change because of her young age and her thus lengthy exposure to those effects in the future. However, the Court recently found that even where applicants are considered to belong to a group particularly susceptible to the effects of climate change, such as older people, a particular level and severity of adverse consequences affecting them must be established to give rise to a pressing need to ensure their individual protection (see ibid., §§ 527 and 531–535). The third applicant has not put forward any particular vulnerability that would lead the Court to conclude that there was a high intensity of her exposure to the adverse effects of climate change and a pressing need to ensure her individual protection (ibid., §§ 487-88 and 520). As concerns the first applicant, he has not submitted to the Court any evidence in support of his alleged medical conditions, including heart disease, a previous pulmonary infarction and a heart attack. The Court thus does not consider that the first, second and third applicants have shown that they satisfy the victim-status criteria set out above (see the case-law cited in paragraph 25 above), and consequently concludes that they cannot claim to be victims within the meaning of Article 34 of the Convention as regards risks allegedly arising from the effects of climate change. Accordingly, their complaints under Article 8 of the Convention must be declared inadmissible pursuant to Article 35 §§ 3(a) and 4 of the Convention for being incompatible ratione personae with the provisions of the Convention.

As concerns the fourth applicant, the Court observes that it is not only an association incorporated under Austrian law but also one that is recognised as an environmental organisation under section 19(6) of the EIAA (see paragraphs 12–13 above). The Court is satisfied that, in principle, this recognition under Austrian domestic law is sufficient to show that the fourth applicant is lawfully established within that jurisdiction and has standing to act there, and that it pursues a dedicated purpose, based on its statutes, for the protection of the environment (see the requirement in section 19(6)(1) of the EIAA, paragraph 12 above). Whether the fourth applicant also, as required under the Court's case-law (see paragraph 25 above), has a dedicated purpose in the defence of human rights in the context of the protection of the environment and whether it can be regarded as representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention is, however, unclear as no detailed information on its membership nor its statutes have been submitted to the Court. In any event, the Court does not consider it necessary to decide whether the fourth applicant enjoys locus standi to bring the complaints at issue as they are inadmissible for the following reasons.

Having regard to the general principles summarised above (see paragraphs 26–29 above), the Court cannot subscribe to the fourth applicant's view that Article 8 of the Convention grants a right to the particular measure sought here, that is a ban on the sale of fossil fuels or other equally effective measures by the Federal Minister for Economic and Digital Affairs under the Trade Act. It is inherent in the principle of subsidiarity and the wide margin of appreciation accorded to States with respect to the choice of means to achieve their climate change goals (see paragraph 28 above) that Article 8 cannot be read to guarantee a right to a particular mitigation measure by a specific State body under a certain sectoral law of an applicant's choice. This is even less so where, as in the present case, according to the national law as interpreted by the domestic courts (see paragraphs 6, 9, 10 and 14 above), the measure lies outside the competence of the particular authority engaged.

The Court also notes that in its application to the Court, apart from referring to the 2023 report by the Austrian Environment Agency (see paragraphs 22–23 above), the fourth applicant did not substantiate how, in its view, the respondent State had failed to devise a regulatory framework setting the requisite objectives and goals in the context of climate change, or why the existing regulatory activity was to be considered insufficient. While the Court accepts that the Environment Agency, a government-owned expert organisation, has concluded that with existing measures Austria will not be capable of complying with its GHG emissions reduction targets by 2030, the applicant's mere reference to that finding is insufficient for the overall assessment that the Court must carry out in this context (see paragraph 29 above). In this connection, the Court attaches particular weight to the fact that the fourth applicant did not state that it had attempted to initiate any remedies other than requesting a measure from the Federal Minister of Digital and Economic Affairs under the Trade Act, or that there had been a lack of appropriate remedies by which to pursue its complaint.

In view of the foregoing, the Court concludes that the fourth applicant's complaints under this head are manifestly ill-founded and must thus be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

The third applicant complained that her economic existence as a farmer, and consequently her right to protection of her property under Article 1 of Protocol No. 1 to the Convention, had been endangered because of droughts caused by climate change. She argued that droughts would lead to an increase in crop shortfalls and a decrease in her agricultural productivity.

The Court notes that it has so far not applied Article 1 of Protocol No. 1 in the context of climate change and that its applicability does not follow from the current case-law. Even if Article 1 of Protocol No. 1 were applicable in the context of climate change, the third applicant's complaint under Article 1 of Protocol No. 1 would suffer from the same defect as her complaints under Article 8 of the Convention. Despite the Court's established case-law to the effect that, in order to be able to lodge an application under Article 34 of the Convention, an individual must be able to show that he or she was directly or indirectly affected by the alleged violation, or that he or she runs the risk of being directly affected by producing reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur (see The J. Paul Getty Trust and Others v. Italy, no. 35271/19, § 225, 2 May 2024; Mittendorfer v. Austria (dec.), no. 32467/22, § 28, 4 July 2023; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014), the third applicant has failed to discharge this burden. The Court further reiterates that, in the particular context of climate change, an especially high threshold has to be met to fulfil the criteria for victim status under Articles 2 and 8 of the Convention (see Verein KlimaSeniorinnen Schweiz and Others, cited above, § 488).

Accordingly, this complaint must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

Declares the application inadmissible.

Done in English and notified in writing on 11 December 2025.

Simeon Petrovski

Deputy Registrar

Lado Chanturia

President