The German Constitutional Court on the Federal Climate Change Act

Abstract

In a unanimous decision of 24 March 2021, the German 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. The procedure provides only infrequent opportunities for updates and revisions and failed to adequately specify targets, thereby violating the fundamental rights of the applicants. Despite the at times exuberant reception, the case note argues that the decision stopped well short of proclaiming 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 and modest 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. Overall, we are left with a mixed picture. The Court lays some doctrinal groundwork for an assertive review of climate change policy, but the standard of review is deferential, and the legal implications are modest.