Comparing cases in Germany and the Netherlands
Written by Christina Eckes and featured in Verfassungsblog, 10 May 2021
On 29 April 2021, the Bundesverfassungsgericht (BVerfG) published its decision that the Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz), establishing national climate targets and annual emission amounts allowed until 2030, violates fundamental rights. The case is part of a growing body of climate cases, in which courts oblige States to reduce emissions more quickly. In the Netherlands, Ireland, and France, judges recently decided that national executives/legislatures failed to take legally required actions.
Do the judges in these cases undermine separation of powers as a time-honoured achievement of modern constitutional democracies in order to force the political branches to take urgently necessary actions?
I argue that this is not the case. Constitutional democracies are committed to an understanding that democratic legitimacy is not necessarily improved by greater majoritarianism. By allocating different functions to the three branches, executive, legislature, and judiciary, separation of powers aims to ensure that the tension between law and majoritarian politics is perpetuated and that neither law nor politics dominates the other. The judiciary has the important function of protecting individual autonomy as a crucially necessary element. After briefly introducing the BVerfG’s climate decision and the Dutch Urgenda case, I reflect on how the courts in these cases exercised their function and gave effect to human rights as a ‘right to justification’.
