The decision of the Federal Constitutional Court of 24 March 2021 on the Federal Climate Change Act is already considered historic. The First Senate ruled that the legislation was insufficient, especially with regard to emission reductions from 2031. The complainants’ rights of freedom were violated to the extent that the emission levels permitted in the Federal Climate Change Act until 2030 jeopardised “practically every type of freedom protected by fundamental rights” of the complainants after that time. The Act was declared unconstitutional in parts and the younger generation was granted a right not to have to bear the consequences of climate change alone. The President of the Federal Constitutional Court, Professor Stephan Harbarth, spoke about the Court’s order and its far-reaching consequences as part of the event series First-Hand Information on Economic Policy at ZEW Mannheim on 26 October 2021.

Picture of Professor Stephan Harbarth (right) in conversation with ZEW President Professor Achim Wambach (left).
Professor Stephan Harbarth (right) spoke at ZEW Mannheim about the decision of the Federal Constitutional Court on the Climate Change Act and its far-reaching consequences.

The European Organization for Nuclear Research (CERN) in Geneva operates a particle accelerator in which charged particles collide with each other. Physicists aim to achieve new insights into the structure of matter through these collisions. In February 2010, the implementation of these test series was the subject of a constitutional complaint before the Federal Constitutional Court. The complainant feared “the destruction of the earth” by small black holes. At the beginning of his talk at ZEW, Stephan Harbarth referred to that unsuccessful constitutional complaint – with good reason: Eleven years later, the Court again dealt with the question of when individuals can claim protection of their fundamental rights against global dangers from the state. In contrast to the “emergence of world-ending black holes”, the existence and effects of man-made climate change are “theoretically sufficiently substantiated, empirically proven” and “basically undisputed”, Harbarth said at the beginning of his talk. In the matter of the Climate Protection Act, the Court could therefore base its decision on the findings of climate science.

Equally fundamental to the order was Article 20a of the Basic Law. From a constitutional perspective, the state has an active obligation to protect the climate. Harbarth emphasised, probably to the surprise of non-lawyers, that the Federal Constitutional Court had not found any infringement by the state in its climate decision. The legislature had in principle fulfilled its obligation with the Climate Change Act at the time.

“Drastic restrictions on freedom after 2030”

However, the law violated the principle of proportionality. The legislator is obliged to distribute opportunities for freedom proportionately across the generations, i.e. to protect future freedom today. The Climate Change Act, in the version in force at the time of the ruling, would have led to a significant part of the remaining CO2 budget being used up by 2030. As a result, “drastic restrictions on freedom after 2030 were to be expected”, for example in the area of consumer habits or mobility, Harbarth said.

At the end of his talk, the President of the Constitutional Court emphasised that the decision was essentially based on “tried and tested legal principles”. However, the idea of intertemporal protection of freedom was rather innovative. When making decisions in the present, the effects on future generations must also be taken into account. Nevertheless, much research is needed to answer the question of whether this idea can be applied to other intergenerational conflicts, such as social security systems or national debt. The climate decision was in any case “strongly influenced by the scientific facts of climate change and the objective constitutional duty to protect against its harmful effects,” Harbarth said.

“One must always take the long-term perspective”

Picture of Prof. Harbarth (right) during the discussion with ZEW President Prof. Achim Wambach (on the left side)
ZEW President Professor Achim Wambach pointed out the common ground between economics and jurisprudence.

In the discussion following the talk, ZEW President Professor Achim Wambach pointed out a common ground between economics and jurisprudence: “For economists, the intertemporal protection of freedom is an open door.” Economic calculations, for example regarding pensions, have shown that one must always take “the long-term perspective.” When it comes to climate protection, one must also consider that “the future generation will have more resources at its disposal if the economy grows.”

Wambach then focused on the relationship between national law and EU law. With regard to the current tensions in the EU resulting from the decision of the Polish Constitutional Court, Harbarth said: “What we see in Poland is a systematic programme to dismantle the rule of law.” He made it clear that the ruling on the ECB’s PSPP bond-buying programme could in no way be used to back up Polish jurisprudence. In contrast to the Polish Constitutional Court, the Federal Constitutional Court criticised in its PSPP decision that there was too little rule of law at the EU level. Referring to the decision of the Federal Constitutional Court in this context would be far-fetched.

Date

27.10.2021

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