On 11
December 2025, the Court published its most recent climate ruling: the Fourth
Section’s unanimous decision in Fliegenschnee and Others v. Austria.
This is the latest in the Court’s mounting number of inadmissible climate cases – after Plan B. Earth, Metabody, Humane
Being, Duarte Agostinho, Carême, Engels, Uricchio and De Conto. The outcome of Fliegenschnee
was to some degree expected – given, not least, that the case was never
communicated to the respondent government. At the same time, it sheds light on
where the climate case-law is headed: in particular, it excludes rights-based
fossil fuel bans, and voices doubt about the applicability of the human right
to property (Article 1, Protocol 1 to the ECHR) to the climate impacts faced by
farmers like the third applicant in this case. Overall, it clarifies that
climate applicants must, from the moment of their first application to the
Court, submit evidence of their affectedness, representativeness, and inability
to achieve redress domestically.
Evidence as key
Fliegenschnee
was brought by
three individuals, as well as an environmental organisation (Global 2000). After
unsuccessfully requesting the Austrian authorities to issue a phased ban on the
sale of fossil fuels, the applicants turned to the ECtHR. Austria’s failure to
mitigate emissions from fossil fuels, they argued, threatens their rights under
Articles 2 and 8 ECHR by exposing them to climate impacts including heatwaves,
drought, and environmental degradation.
The Fourth
Section found that the three individual applicants in this case did not have
victim status. Applying the strict victim status criteria created for climate
mitigation cases in the 2024 KlimaSeniorinnen
Grand Chamber judgment, the judges found that the individual applicants had failed
to provide evidence showing that they had been personally affected by climate
change.
The issue
of evidence – which here concerned proof of impacts on the applicants given
their young age, health conditions or work as farmers – had previously also
proved detrimental to the individual applicants in the Greenpeace Nordic climate case. There, the Court
likewise rejected the individual applicants’ claim to victim status, noting
that it had not received individualized medical certificates confirming a
diagnosis of climate anxiety or its severity for the youth applicants involved
in that case (Greenpeace Nordic, para. 304).
Fliegenschnee thus indicates that evidence linking
a State’s emissions to climate change, and climate change to generalized risks
of climate impacts, does not suffice for individual mitigation-related human
rights claims. Applicants are also expected to supply medical evidence
documenting the severity of their individual affectedness. The next Austrian climate
case, Müllner v. Austria, which documents the individualized
impacts on an applicant living with a heat-sensitive disability, thus arguably
stands to fare better.
Associations’
representative standing is not a given
A second
issue clarified by Fliegenschnee concerns associations’ representative
standing. Representative standing for climate associations has been much discussed since the Grand Chamber recognized
its possibility and granted standing to the Verein KlimaSeniorinnen in 2024. Building
on this, Fliegenschnee shows that representative standing is not
automatic or a sure thing: environmental associations must substantiate their
claim to representative climate standing by submitting information about their
status and those represented by them.
In
Fliegenschnee, the Court applied the KlimaSeniorinnen judgment’s
test of representative standing for climate associations, which contains a set
of criteria concerning the establishment, national link, dedicated purpose, and
representativeness of associations. The applicant legal person, Global 2000,
had asserted that it represented the interests of the general public (para. 4).
However, the Court found that it was unclear whether the applicant association
pursued “a dedicated purpose in the defence of human rights in the context
of the protection of the environment” and represented affected individuals
in Austria, given that it had submitted “no detailed information on its
membership nor its statutes.”
This stands in contrast with the approach taken in Greenpeace Nordic,
where the Court accepted the representative standing of Greenpeace Nordic
despite noting that it “is not a membership organisation” (para. 309). In
addition, the Fliegenschnee applicants could hardly have been expected,
when filing their application in 2023, to submit information documenting their
adherence to the KlimaSeniorinnen judgment’s twin victim status and
standing tests – which, notably, were not created until the following year. Since there were no written submissions in the case, there was no opportunity to expand on this post-KlimaSeniorinnen. Ultimately, however, Fliegenschnee left the issue of representative
standing open, given that the case would have been inadmissible regardless (for
the reasons set out below).
No right
to a fossil fuel ban, but substantiation remains key
After
declaring the applicability of the right to life (Article 2 ECHR)
“questionable” and declining to examine the corresponding claims, the Fliegenschnee Chamber did engage with the scope of Article
8 ECHR. It found that this provision does not
grant a right to the measure sought by the applicants, namely a ban on the sale
of fossil fuels. The Court made reference to the principle of subsidiarity and States’
wide margin of appreciation in choosing the means for achieving their climate
change goals, as previously acknowledged in its climate rulings. Building on
this, it found 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” (para. 33).
This does
not mean that States have no obligations around fossil fuels. In Greenpeace
Nordic, the Court clarified the procedural obligations that States have
when it comes to licensing fossil fuel extraction projects. It held that “the
burning of fossil fuels, including oil and gas, is among the main causes of
climate change” (para. 297).
However, it
seems that the Court’s focus remains on procedural and regulatory obligations,
and that here, too, substantiation and evidence remain key. This is reflected
in the Court’s rejection of arguments about the State’s obligation to devise an
adequate regulatory framework. It considered this point insufficiently
substantiated, despite statements by the government that current measures put
Austria on track to miss its own GHG emissions reduction targets.
Substantiation
also remains key for the issue of exhaustion of domestic remedies. The Fourth
Section noted that, aside from the proceedings concerning the fossil fuel ban, which
was litigated to the Austrian Constitutional Court, no domestic remedial
avenues had been used – although without clarifying what kinds of claims or
remedies it had in mind. It emphasized that the applicants had not alleged a lack
of appropriate remedies or made any complaints concerning access to court (Article 6 ECHR) or the availability of
an effective remedy (Article 13 ECHR).
Uncertain
future for right to property claims
One of the
central innovations of this case was that it called on the Court to engage with
the right to property enshrined in Article 1 of Protocol No. 1 to the
Convention. The third applicant, a farmer, argued that her property had been
endangered because of droughts caused by climate change, which could lead to
crop shortfalls and impact her agricultural productivity. This reflects related
claims made domestically in other Council of Europe Member States.
In this
regard, the Fourth Section was unwilling to contemplate impacts on rights beyond
those already applied to climate change by the KlimaSeniorinnen Grand
Chamber. It noted that the Court “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” (para. 37). And even
if the provision had been applicable, it held, the third applicant lacked
victim status, because she would have needed to be able to show that she was
“directly or indirectly affected by the alleged violation”. Interestingly, the
Court seems to have left open the issue of whether a right to property claim
would require application of the strict KlimaSeniorinnen approach to
victim status, or whether it would instead benefit from the usual standards in
this regard. The Court cited both the KlimaSeniorinnen victim status
test applicable to claims under Articles 2 and 8 ECHR, and pre-KlimaSeniorinnen
case-law applying the standard victim status test.
Conclusion
Given that Fliegenschnee
was never communicated (meaning that no additional written submissions were
made by the applicants, and no government submissions were received), the Court’s
decision hinged on the claims made in the original application form. This
underscores the importance of bringing fully fleshed-out cases to the Court
from the very beginning of an application’s life, without anticipating an
opportunity to clarify or further document claims in a written submissions
phase.
Still, the
case hints at the direction in which the Court’s climate case-law is traveling:
away from evaluating States’ concrete measures and policies, and away from
recognizing a wider palette of rights at stake in the face of climate change
(e.g. the right to property). Nevertheless, and despite the mounting number of
inadmissibility decisions in climate cases, Fliegenschnee does not
exclude success in follow-up cases that bring evidence of affectedness,
representativeness, and inability to achieve redress domestically from the very
beginning.
