After watering down the 2040 emission reduction target, running the Corporate Sustainability Reporting Directive (CSRD) and the Corporate Sustainability Due Diligence Directive (CSDDD) over by the Omnibus, and now attempting to kill the combustion engine ban, European climate governance has entered the territory of lawlessness. European climate governance is no longer only about the climate. It has become a rule of law issue and should be treated as such.

National courts and the European Court of Human Rights (ECtHR) must continue to protect the rule of law, including when individual politicians, entire national institutions, or even coalitions of states attempt to discredit the judiciary. This becomes even more pressing if the European Court of Justice (ECJ) continues to abstain from robustly scrutinizing the European Union’s compliance with its mitigation obligations.

The Widening Gap Between Law and Politics in Europe

On the one hand, ever-stronger legal tools and court rulings harden climate mitigation obligations; on the other, political commitment to the rule of law and liberal democratic norms deteriorates.

Unprecedented legal frameworks exist to tackle the climate crisis. Not only have the EU and most of its Member States enshrined emissions targets in binding legislation, but numerous courts – from domestic constitutional courts to the ECtHR and the International Court of Justice (ICJ) – have interpreted these obligations and confirmed their human rights relevance. At the same time, democracy and the rule of law have continued to weaken across Europe in the past few years. Notably, in several Member States, the independence of the judiciary has openly been attacked. Even countries long regarded as democratic strongholds are experiencing backsliding, while the EU seems incapable of curbing this decline.

I would like to go one step further: the erosion of the rule of law has reached the EU institutions themselves. Open failures to comply with human rights and international law obligations in relation to climate change, as articulated by the ECtHR and the ICJ, are nothing else than lawlessness, understood as a systematic failure of public authorities to respect, apply, or be constrained by legal norms. Laws and court judgments are only as good as the willingness of public institutions to abide by them.

As Levitsky and Ziblatt warned already in 2018, democracies typically die by a thousand cuts. Climate policy is an illustrative case study of this phenomenon. It is deeply unconvincing to denounce court decisions on climate matters as “judicial activism” (Swiss Parliament), given that they demonstrate a high level of deference to the directly elected branches (see my analysis of KlimaSeniorinnen and Urgenda). What we are witnessing instead is an alarming and increasing readiness among centre-right politicians to rely on right-wing support to behave as if legal constraints no longer apply to them.

Climate Obligations After KlimaSeniorinnen: Europe’s Legal Mandate

A key development highlighting this widening gap between law and politics is the 2024 KlimaSeniorinnen judgment, in which the ECtHR for the first time found that insufficient climate action violates human rights. In that case, brought by a Swiss seniors’ association, the ECtHR held that states have positive obligations to “do [their] part” (para 545). It insisted that each country must quantify a fair-share carbon budget corresponding to 1.5°C and take the necessary implementation action (para 550). In 2025, the ICJ and other international courts and tribunals (here and here) issued advisory opinions underscoring that states (and the EU) are obliged under treaties like the Paris Agreement, international human rights and customary law to “do [their] utmost” to pursue the highest possible climate ambition (ICJ, para 246 & 270) in line with the temperature limit of 1.5°C (ICJ, para 224). In short, the legal imperative for robust climate mitigation in Europe has never been clearer or stronger.

Under EU law, such human rights obligations bind the EU itself, as the European Convention on Human Rights (ECHR) is effectively imported into EU law (Article 6(3) TEU; Article 52(3) Charter of Fundamental Rights (CFR)), as confirmed by the ECJ’s settled case law. This implies that the EU is legally required to align its climate targets with the ECtHR’s standards. This is unsurprisingly also the conclusion of the European Central Bank (ECB) in one of its working papers and the Fundamental Rights Agency (FRA) in a fact sheet on climate change.

In practical terms, following KlimaSeniorinnen, the EU should be setting (interim) emissions targets that reflect what climate science and fairness demand. Indeed, the European Scientific Advisory Board on Climate (ESAB) has advised that a 70% reduction by 2030 and 95% by 2040 would be both “fair” and “feasible” for the EU, far more ambitious than the earlier 55% by 2030 and the effective territorial emission reductions of 85% on territory in the watered down 90% target for 2040. Any lower level of ambition would exacerbate the Union’s exceedance of its fair-share carbon budget aligned with the binding 1.5°C limit, resulting in the accumulation of “carbon debt”, which may in turn result in “carbon take back obligation” and compensation claims.

Far from being radical, judicial intervention merely holds public institutions to the commitments they themselves have made and protects fundamental rights of citizens who will live with the consequences of climate inaction long beyond the duration of any given government. Failing to take all feasible measures and choosing policies that fall short of what expert bodies like the Intergovernmental Panel on Climate Change (IPCC), ESAB, and national scientific advisory bodies deem achievable – now puts the EU and its Member States on the wrong side of the law.

Rollbacks and Regressions: Climate Policy U-Turns

As the law crystallizes into clearer obligations, politics in Europe moves in the opposite direction. As a result, the gap between public actors’ legally circumscribed mandate and political reality is widening.

Two emblematic examples of implementation failures stand out: the EU’s Omnibus regulatory package and the fate of the 2035 combustion engine ban. Under the banner of cutting red tape and boosting competitiveness, the Commission and Parliament gutted key sustainability and corporate accountability rules in late 2025. These Omnibus reforms drastically shrank the scope of companies subject to climate and social reporting and delayed due diligence requirements for human and environmental harms. Crucial provisions – like Article 22 CSDDD requiring companies to adopt and implement transition plans for a sustainable economy – were removed. Importantly, and in line with the willingness to sacrifice law on the altar of political and economic considerations, the European Ombudsman found procedural maladministration in how these deregulatory proposals were prepared.

The second and still ongoing example is the reversal of the combustion engine ban. Originally, it was a flagship component of the European Green Deal. However, in 2023 Germany already obtained a loophole for e-fuels, and by late 2025 the European Commission signaled an even more dramatic climb-down. Amid pressure from major car-manufacturing states (Germany, Italy) and automakers fearful of competition from China, the Commission is now poised to reverse or delay the 2035 engine phase-out. This would mark another significant retreat on specific EU green policies, allowing short-term industrial concerns to override EU law, the ECHR, and international law obligations.

Equally revealing are also the elaborate discourses of delay advanced by politicians from the European People’s Party and by car manufacturers, notably redirecting responsibility via “Not Me”–arguments pointing at others, pushing non-transformative solutions via “Not like this”-arguments, e.g., speaking of an “industrial policy mistake”, and framing the transition as too fast, too costly, too disruptive. Reneging on these implementation measures not only jeopardizes emissions targets but also exemplifies the rule-of-law backsliding. If laws can be unraveled after a mere two years and against all hardening legal obligations pushing in the opposite direction, what is the value of legal commitments?

Courts to the Rescue? Zooming in on Germany and the Transport Sector

Germany and the car industry may serve as an example of the overheating friction between what the law demands and what politicians do. German courts have repeatedly been called upon to rule on (allegedly) inadequate climate policy, especially regarding the persistently high emissions in the transport sector. This is also the background against which we need to read Germany’s intervention against the combustion engine ban.

Europe’s multilayered legal landscape, comprising EU law and the ECHR, was created to keep unlawfulness and the reckless pursuit of national interests in check. However, the German government now tries to invoke EU-level processes for the exact opposite and to escape national judicial enforcement of its mitigation obligations.

Germany’s Climate Protection Act originally set annual CO₂ budgets for sectors like energy, buildings, and transport. Yet the emissions of the transport sector – cars, trucks, etc. – remain nearly unchanged and overshot the target year after year (page 56 onwards). On 30 November 2023, the Higher Administrative Court of Berlin-Brandenburg ruled that the government’s climate policy was unlawful in parts, due to insufficient emissions cuts (see here). The court found that executive inaction violated statutory duties and ordered the federal government to propose an immediate action program to curb emissions in the transport (and building) sector(s).

That courts have been willing to apply and enforce the law should surprise us less than the reaction of the German government. It did not take the necessary measures to comply with domestic law that had earlier been reviewed and confirmed by the German Federal Constitutional Court (GFCC). Instead, Germany watered down the Climate Protection Act’s sectoral targets, moving from a framework in which each ministry can be held accountable to one where emissions are only assessed in aggregate over multi-year periods. This effectively makes it possible to continuously overrun sectoral targets and offset the emissions in one sector by cuts in another. As a result, the laggard sector of transport is shielded from accountability and may effectively continue with its non-compliance.

In response, Greenpeace and Germanwatch filed a new constitutional complaint in September 2024, supported by over 54,000 citizens. They argue that the weakened climate law violates fundamental rights and demand that Germany enact a climate policy consistent with its constitutional duties and introduce sufficient emission reduction steps for transport. This pending case could set an example of ensuring not only compliance with human rights under the German Constitution but also with the ECHR and international law binding on Germany (and the EU).

The German combustion engine saga illustrates how politicians try to circumvent their legal obligations not only nationally but also through EU institutions. It draws attention to how these legal layers interact. Notably, civil law cases against German car manufacturers (here, here and here (under appeal)) referenced the existence of EU-wide rules (such as the Fit for 55 package and the 2035 vehicle standards) as evidence that frameworks are in place.

Politicians’ (and civil servants’) willingness to ignore the law leads to a lack of legal certainty and exposes public and private actors to tremendous liability risks. Climate litigation in Germany and beyond targeted both. And, while several civil law courts essentially held that climate action must come through regulation, they also (implicitly) acknowledged that if European and national frameworks were absent or gutted, the legal calculus might shift. In addition, in Lliuya v RWE, the Higher Court of Hamm opened as a matter of principle the door for damages claims, not only from German citizens but also for those living abroad and suffering climate impacts (see here and here).

The German experience underscores a broader point. When courts are stepping in to enforce climate laws where governments display inertia or backpedaling, this is not an attack on democracy; it is an expression of rule-of-law oversight. Other public institutions, international, European, and national, as well as academics, should join the Ombudsman, the ECB, and the Fundamental Rights Agency in pointing out that these climate obligations exist and that lawlessness is not an option.

Lawlessness, Not Courts, Is the Real Threat

Europe today stands at a crossroads, not only regarding its climate commitments. The continent has never been bound by stronger mitigation obligations or faced more or clearer judicial guidance. Based on international law, human rights, and national statutes, courts – from the ECtHR to the ICJ and (highest) national courts – have indicated that climate inaction has legal limits. This is a logical evolution of the rule of law in the face of the defining challenge of how to deal with the climate crisis.

The creeping disregard for laws and commitments by the political actors entrusted with their implementation leaves courts with little alternative. When politicians fudge the numbers, shift goalposts on car emissions precisely when structural change is required, ignore procedural rules, or more broadly weaken accountability mechanisms, this calls for a moment of introspection: How strong is the EU’s commitment to the rule of law?

A recurring feature of this broader trend is the accusation that courts are overstepping their competences or that climate litigation fuels political polarization. The judiciary is often the last defense against governmental backsliding. This is also why it is one of the first to be attacked by those putting themselves above the law. If courts refrain from stepping in, this is unlikely to improve the situation. On the contrary, denying justice when governments neglect their legal obligations would make judges complicit in subverting democracy and the rule of law.

Ultimately, Europe’s ability to confront the climate crisis will hinge on restoring respect for the rule of law. If there is a silver lining, it is that the legal pressure is not letting up. The coming years could see even more assertive courts defending the rule of law at all levels. But this is a second-best solution. The best solution would be for Europe’s governments and parliaments to internalize the lesson that adhering to the rule of law is the surest path to stability, including climate stability. The problem is not that judges care too much about the climate – it is that many politicians do not seem to care enough, either about the law or our common future.