BERLIN – As part of the deal over Germany’s massive defence and infrastructure spending package, the Greens managed to write spending earmarks with a reference to climate neutrality into the country’s constitution.

Champions and critics of climate action alike have been trying to play up the significance of adding in a mention of Germany’s 2045 net-zero goal, although legal experts largely see the change as lacking broader legal significance.

The amendment to Article 143 of the Basic Law, Germany’s constitution, allows for “a special fund with its own credit authorization for additional investments in infrastructure and for additional investments to achieve climate neutrality by 2045, with a volume of up to €500 billion.”

One line in the paragraph specifically sets aside €100 billion in an off-budget special fund for climate projects toward bringing emissions down to net zero, a goal already set down in Germany’s Climate Action Act.

The Greens won this carve-out as the Christian Democrats (CDU/CSU) and Social Democrats (SPD) rushed to loosen Germany’s strict constitutional budget deficit rules, known as the debt brake. Both Greens and Social Democrats hailed the small addendum as a “historic step” during difficult times, with senior SPD lawmaker Matthias Miersch cheerfully claiming: “For the first time, our goal of climate neutrality by 2045 is included in the constitution.”

Most German experts on constitutional law have said the clause only earmarks some of the funding, and is extremely unlikely to have any broader legal implications. But that hasn’t stopped some critics, particularly on the far right, from raising fears that it might allow German courts to make sweeping rulings on carbon emissions, and set Germany’s legal system up for a flood of legal battles.

Franz Josef Lindner, a professor of law at the University of Augsburg, told Germany’s right-wing tabloid Bild that putting an explicit mention of climate neutrality into the Basic Law was a “high-risk” move. He warned that environmentalist groups would cite the clause in lawsuits at Germany’s Constitutional Court.

The Constitutional Court has waded into climate and environmental issues before, particularly in a 2021 ruling that drew widespread attention in Germany. In that case, the environmental advocacy group Deutsche Umwelthilfe (DUH) and several young climate activists had argued that Germany’s climate protection law didn’t go far enough and effectively violated constitutional freedoms by burdening future generations.

The Court agreed, and ordered a heavy rewrite of climate legislation.

But the Court also dealt a major blow to the outgoing government’s climate plans with a 2023 decision that struck down budget manoeuvres that would have put €60 billion in leftover pandemic funding into the climate and transformation fund (KTF). That decision blew a major hole in the budget, and set off months of disputed over austerity measures that ultimately broke apart the coalition.

Another case brought by the DUH in 2024, this time challenging the outgoing German government’s decision to get rid of sector-specific decarbonisation targets in the KSG law, is still pending.

Given that those rulings cited existing German law, constitutional law experts have mostly said that the language in the new amendment is hardly unprecedented and is unlikely to prompt meaningful decisions from the courts.

“The planned addition to our constitution does not lead to a new state objective of climate protection with a commitment to climate neutrality by 2045,” Christian Calliess, professor of environmental and European law at the Free University of Berlin, told Euractiv.

The wording only supplements the new financial provision creating the off-budget infrastructure fund (Article 143h of the Basic Law) in order to earmark some of the funds for climate projects, Calliess added.

“The state objective of environmental protection, which already includes climate protection, is found in article 20a of the constitution. This norm remains unchanged,” he said.

Article 20a of the German Basic Law – which was cited in the landmark 2021 decision – states: “The state shall also protect the natural foundations of life in responsibility for future generations.” It does not mention the year 2045 – this deadline for net zero emissions is specified in the Climate Action Act (KSG), the cornerstone of climate policy in Germany.

Thorsten Müller, an expert on climate law and founder of research institute Stiftung Umweltenergierecht, said that the constitutional amendment has “declaratory character”, which means reiterates a pre-existing legal reality – the German government’s existing obligation to achieve climate neutrality.

In other words: Climate protection is already considered a fundamental government objective for the sake of intergenerational justice, and most policy implications are already spelled out by legislation below the constitutional level.

To Müller, the stir around the passage seems “like someone is afraid that 2045 will really apply”, as he said in partial jest.

In order to hit the net zero target, German lawmakers have some room for manoeuvre, beyond just the €100 billion fund, he said: “Levies, bans and prohibitions can also be forms of climate protection. None of these measures would be affected by 143h.”

Existing German law and the court’s decisions already mean that any attempt to roll back Germany’s climate goals would likely be unconstitutional, according to a report co-authored by Calliess and another leading legal expert. That report was commissioned from the conservative-leaning legal scholars by a group of Christian Democrat lawmakers.

Ironically, that means the best course of action for the conservatives may well be simply leaving much of the outgoing government’s climate policy in place. But that’s the consequence of previous rulings and existing law, not the new amendment.

Calliess and Müller, however, disagreed on the likelihood that activist groups might still trying filing lawsuits citing the 2045 climate neutrality goal in article 143h.

While Calliess said he does not expect a flood of lawsuits, Müller noted some groups might bring cases despite slim chances of success: “There can be different motivations to file a suit: to review the lawfulness of a policy  – or to raise public awareness to a certain issue via legal action”.

But “in the end, the path to net zero must be shaped politically, Müller said. “Law cannot replace that.”

[BTS]