Collective Action in Human Rights Climate Claims before the European Court of Human Rights after KlimaSeniorinnen: Fliegenschnee and Others v. Austria

By Prof. Dr. Birgit Peters

Introduction

The Fliegenschnee and Others v. Austria case is not the only inadmissibility decision in climate matters following the European Court of Human Rights’ (ECtHR, or the Court) landmark ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. The number of inadmissible cases is growing. Just consider recent examples such as Greenpeace Nordic v. Norway, Uricchio v. Italy and 31 Others, De Conto v. Italy and 32 others and Engels and Others v. Germany. This development is largely due to the Court’s restrictive interpretation of the victim requirement in KlimaSeniorinnen, which very few claimants are likely to satisfy (see my previous post here and the criticism voiced here, here and here).

The Case

In Fliegenschnee, the applicants, three individuals and an organisation registered and recognised as ‘environmental organisation’ under the Austrian Environmental Impact Assessment Act, applied to the Austrian administration for a decision (ordinance) under the Austrian Trade Act, seeking a ban on the sale fossil fuels or other equally effective measures in Austria. They argued that the underlying law, namely the Trade Act, obliged Austrian States to undertake specific measures against climate change, such as a ban on fossil fuels, in order to protect their rights under the ECHR, especially Articles 2 and 8 ECHR in regard to risks to human life and health (Fliegenschnee, § 4). The case was filed before the historical judgment of the ECtHR was handed down in KlimaSeniorinnen. Accordingly, applicants had no opportunity to argue their case in light of the victim criteria established in that judgment. In the decision rendered on 18 November 2025, the Court denied both the individual applicants’ victim status (Fliegenschnee, § 31) and that of the collective applicant (Fliegenschnee, § 32) based on the criteria established in KlimaSeniorinnen.

Findings on Collective Action in Climate Cases

Collective action in the Fliegenschnee Case

Since the decision has been discussed by many commentators here, here and here, the focus of this contribution lies on one aspect of the case that has escaped attention: the Fliegenschnee findings on the victim status of environmental organisations. The fourth applicant in this case was a recognised environmental organisation under the Austrian Environmental Impact Assessment Act. It submitted it had standing relying on Article 9 § 3 of the Aarhus Convention (Fliegenschnee, § 21) and represented the interests of the general public in the proceedings (Fliegenschnee, § 4). For readers unfamiliar with the Aarhus Convention: Article 9 § 3 of the Aarhus Convention grants individuals and associations with an interest, as defined in Article 2 § 5, access to court in all cases concerning the implementation of national environmental law. The European Court of Justice has interpreted this provision as extending to European law. Accordingly, within the European Union (EU), associations in the sense of Article 2 § 5 of the Aarhus Convention must be granted with access to court in order to challenge compliance with European environmental law.

In Fliegenschnee, the applicant association claimed before the ECtHR that Austria had violated the so-called Effort Sharing Regulation by failing to ban the sale of fossil fuels through an ordinance under the Austrian Trade Act. The Regulation obliged Austria to reduce its emissions by 30% by 2030. According to the association, this violated its individual rights under Austrian environmental law (Fliegenschnee, § 4). However, the applicant association did not argue that it had been denied access to Austrian courts – or, indeed, that any other right under the European Convention on Human Rights (ECHR) had been violated. On the contrary, it had been able to pursue the matter all the way up to the Austrian Constitutional Court. The case therefore raises the question whether the Aarhus Convention could nevertheless provide the organisation with a legal interest amounting to a human rights violation under the ECHR system, particularly in climate litigation.

The Aarhus Convention in Environmental Case Law of the ECHR and its Application in Climate Cases

The Aarhus Convention is no stranger to the ECHR regime. The ECtHR has relied on it in several environmental cases (see for example Taşkin and Others v. Turkey, Tătar v. Romania, Demir and Baykara v. Turkey; Di Sarno and Others v. Italy; further cases are discussed in my contribution here). In particular, the Court has used the Convention to articulate positive, procedural obligations that flowed from Articles 8, 6, 2 or even 3 of the ECHR. However, under the ECHR regime, the Aarhus regime may only be invoked if a violation of an ECHR right is at stake. Claimants must therefore demonstrate that the case concerns the violation of an ECHR right (see my analysis here). In KlimaSeniorinnen, the Court revisited this jurisprudence. Following an extensive analysis that addressed the differences between climate change and traditional environmental cases, the ECtHR underlined the inapplicability of the Aarhus Convention in climate cases. As paragraph 501 of the KlimaSeniorinnen judgment states:

‘The Court must, however, be mindful of the difference between the basic nature and purpose of the Aarhus Convention, which is designed to enhance public participation in environmental matters, and that of the Convention, which is designed to protect individuals’ human rights. It must also bear in mind the specific features of climate-change litigation (see paragraphs 410-422 above) and the difference between climate change and the more linear and localised (traditional) environmental issues which the Aarhus Convention is designed to address. Moreover, in so far as the Aarhus Convention provides for a very broad standing of associations where the existence of an effect on the “public concerned” is assumed to exist (provided that the association is duly established under domestic law), the Court must be mindful of the fact that its own approach cannot result in an acceptance of actio popularis which, as a matter of principle and established case-law, is not provided for in the Convention system.’

Others have already explained why these findings are – at the very least – questionable. Three reasons may be briefly restated here. First, environmental concerns clearly encompass climate change, which concerns human-induced changes in atmospheric composition. The Court’s suggestion that climate issues are distinct from environmental ones is therefore doubtful. Second, excluding the Aarhus regime was unnecessary in KlimaSeniorinnen, since the case concerned legislative decision-making. The Aarhus Convention distinguishes between administrative and legislative decision-making and only applies to executive decision-making (see the preamble of the Aarhus Convention). Nevertheless, the Aarhus Convention also applies where executive decisions are adopted in an abstract manner, i.e. as regulations or similar arrangements (see Articles 7 and 8 of the Aarhus Convention). Third, many climate decisions are executive in nature (plans, programmes, regulations). Any suggestion that all climate decisions are of a legislative nature, is therefore overly broad. The Aarhus Convention thus could continue to apply to executive climate decisions, including within the ECHR regime.

Standing of Associations in Climate Cases

Now, the Fliegenschnee decision offers another opportunity to recapitulate the question on how to navigate the standing of associations in environmental and climate cases after KlimaSeniorinnen. Two interpretations of the Court’s findings appear possible. First, one might read KlimaSeniorinnen as meaning that associations have standing in climate cases only if they claim a violation of ECHR rights under the criteria established in that judgment. Second, KlimaSeniorinnen could be understood as addressing standing for associations in cases of legislative decision-making, thereby complementing the Court’s earlier case law on standing in cases concerning administrative decision-making.

Both KlimaSeniorinnen and Fliegenschnee support the first interpretation. In KlimaSeniorinnen the Court departed from its general jurisprudence according to which associations may claim violations of Convention rights only when they are directly affected and when the right in question is capable of being exercised by the organisation itself (KlimaSeniorinnen, § 474, citing Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey, § 41). Where an organisation acts on behalf of individual claimants, the organisation cannot, in principle, claim a violation of the human rights of the individual victims represented by it (KlimaSeniorinnen, § 496). Environmental organisations were traditionally subject to the same requirements: they were only allowed standing in cases where they were denied own rights under the convention. In environmental matters, the Court nevertheless acknowledged their great importance and role as ‘watchdogs’ in a democratic society and allowed them to invoke procedural rights, i.e. violations of Article 10 ECHR concerning access to information (Vides Aizsardzības Clubs v. Latvia) or Article 6 ECHR concerning access to justice at the national level (Collectif national d’information et d’opposition à l’usine Melox – Collectif stop Melox et Mox v. France).

There is no clear reason why this approach should not also apply to climate-related cases involving administrative decisions – for example concerning adaptation measures. At the same time KlimaSeniorinnen established a new, collective mode of standing for associations in cases of legislative omissions. The ECtHR recognised associations as natural claimants in cases involving common goods, such as the climate (KlimaSeniorinnen, § 489). It therefore allowed  ‘recourse to legal action by associations for the purpose of seeking the protection of the human rights of those affected, as well as those at risk of being affected, by the adverse effects of climate change’ (KlimaSeniorinnen, § 499). This collective route was particularly significant because the Aarhus regime does not provide equivalent access to court in legislative proceedings. The Court adopted this approach because it had simultaneously restricted individual standing so significantly, that collective action by associations remained one of the few viable avenues for climate-related human rights claims (see my take on this here; further critique, for example by Reich, here).

A Litmus Test in Fliegenschnee?

Now, the Fliegenschnee decision could be viewed as a litmus test for whether environmental organisations may still rely on the Court’s earlier jurisprudence, such as in Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey. In Fliegenschnee, the applicant association, recognised as environmental interest organisation in the sense of Article 2 § 5 of the Aarhus Convention, claimed standing on the basis of that convention. However, it did not allege a violation of any ECHR rights applicable to it. Instead, it relied on an overall breach of European environmental law and thus the general interest protected by Article 9 § 3 of the Aarhus Convention. There was no violation of a primary ECHR right at stake. Accordingly, even under the Court’s traditional environmental jurisprudence, the association would have been denied standing, as it was not able to prove that it was victim of an ECHR violation.

The Court could have dismissed the application on this basis alone. Instead, it turned to the KlimaSeniorinnen standard in the case, even though the challenged measure was an administrative decision (ordinance). This suggests the Court intends to apply the Sonderweg taken in KlimaSeniorinnen broadly across climate cases. In line with the criteria formed in KlimaSeniorinnen, the Court agreed that the association (1) was lawfully established, i.e. had standing to act under Austrian law and (2) possessed a dedicated purpose to protect the environment (Fliegenschnee, § 32). However, the Court questioned whether the organisation fulfilled the third criterion established in KlimaSeniorinnen, i.e. the capacity to defend the human rights of their members (Fliegenschnee, § 32). In doing so, the Court indirectly indicated that recognition as an environmental interest organisation under the Aarhus Convention is not sufficient. Such organisations too, must demonstrate that they fulfil the KlimaSeniorinnen criteria, and represent members whose human rights were affected by climate change.

But the Court did not delve deeper into that argument. Instead, it turned to the merits of the case and found that the application did not directly challenge Austria’s climate legislation. Rather, applicants had asked for specific measures to address climate change under the Austrian Trade Act, i.e. a ban on the sale of fossil fuels, or other equally effective measures. Referring to the principle of subsidiarity and the wide margin of appreciation afforded to member States, the Court noted that the Convention does not prescribe specific policies. Rather, since KlimaSeniorinnen, the positive obligations of member States under Article 8 ECHR required States to have an overall regulatory framework in place that addressed mitigation (KlimaSeniorinnen, § 418), but no specific measures (Fliegenschnee, § 33). They were thus obliged to adopt ‘a climate law’ that set a sufficient target to mitigate the ‘fair share’ of CO2 emissions attributable to the relevant member State, but no specific mitigation measures.

Conclusion

Fliegenschnee therefore further blurs a matter that needed clarification after KlimaSeniorinnen was rendered: whether or not the jurisprudence of the Court with regard to environmental interest organisations continues to apply in climate proceedings. This outcome is disappointing. There may well be situations in which environmental interest organisations can bring applications before the Court when their own rights are affected: for example, where their rights to information (Article 10 ECHR), access to remedies (Article 13 ECHR), or access to justice (Article 6 ECHR) are at stake. All of these rights could be affected in the context of climate change-related decision-making. Finally, since KlimaSeniorinnen concerned legislative omissions, it remains premature to treat that judgment as a general barrier to the Court’s jurisdiction in well-founded cases involving alleged violations of Convention rights in the context of administrative climate decisions.