ECLI:FI:KHO:2023:62

Environmental protection – Climate change – Annual Climate Report – Additional measures – Appealability of an administrative decision – Passivity of the authority – Competence of the court of law

The Government had submitted the Annual Climate Report referred to in the Climate Act to the Parliament.

At the Supreme Administrative Court, the appellants demanded that the decision of the Government be repealed and the matter returned to the Government for preparation again. According to the appeal, the Annual Climate Report had not included an assessment of the additional measures needed to reach the goals as prescribed by law, even though the information on the collapse of the carbon sinks in the land use sector, received before the annual report was issued, had proven that such additional measures were necessary. According to the appellants, by not making the decision as prescribed by law, the Government had at least acted passively so that the legal protection of the party and safeguarding basic rights required an opportunity to appeal the decision of the Government, even if no actual administrative decision had been made in the matter.

The Supreme Administrative Court did not examine the appeal. The Supreme Administrative Court stated that the decision of the Government to submit an Annual Climate Report to the Parliament was not an administrative decision that could be appealed. The Supreme Administrative Court found that assessing the legality of the Government's decision-making procedure as referred to by the appellants could be examined by the Court, if neglecting to make a decision at that stage would lead to a result in violation of the Climate Act, or that the actions of the Government in reality would demonstrate that it had no intention of making the appropriate decisions in order to reach the goals and fulfil the obligations required by law with a sufficiently rapid schedule. The Supreme Administrative Court stated that the Government had not made a decision on the measures required by the reduction of carbon sinks in connection with submitting the Annual Climate Report or decided that such measures were unnecessary or neglected to investigate the matter concerning said measures. Based on the information obtained in the matter, it was also not possible to determine that the decision of the Government at this stage would have meant an illegal neglect of compliance with the objectives and obligations of the Climate Act. The decision of the Government in the matter could not be considered an appealable administrative decision, and therefore the appeal could not be examined.
Votes: 3–2.

Administrative Judicial Procedure Act, section 6; section 8, subsection 1; section 13, subsection 1 and section 81, subsection 2, paragraph 2

Constitution of Finland, section 20; section 21, subsection 1; section 22 and section 46, subsection 1

Climate Act, sections 1, 2 and 7; section 16, subsection 1; section 17, subsection 1 and section 18, subsection 1

Decision concerned

Government, 27 October 2022 no. YM/2022/71

Ruling of the Supreme Administrative Court

The Supreme Administrative Court will not examine the appeal.

Government decision

(1) The Government has submitted the Annual Climate Report 2022 of the Government to the Parliament in its decision referred to in the appeal.

Among other things, the Government has stated the following in its decision:

(2) Every calendar year, the Government submits an Annual Climate Report to the Parliament in accordance with section 18 of the Climate Act. The Annual Climate Report monitors the general development of greenhouse gas emission trends, the sufficiency of the planned measures to achieve the set emission reduction targets for the coming 15 years as well as progress made in implementing the National Adaptation Plan.

(3) According to the proxy estimates provided by Statistics Finland, in 2021, the land use sector turned from a carbon sink into an emissions source for the first time. As a result, Finland´s net emissions increased and exceeded the 2005 level. The emissions grew by four per cent from the previous year.

(4) The transformation of the sink into an emissions source is assumed to be a result of slower tree growth and high amount of felling. Based on scenarios used in the Annual Climate Report, it can be assessed that the measures taken in the emissions trading sector and the effort sharing sector are sufficient to achieve the emission reduction targets. However, a substantial amount of uncertainty is related to the achievement of the targets. Energy price hikes or the development of emissions and sinks in the land use sector have not been taken into account in the scenarios used.

(5) In fact, it is important to review the sufficiency of the measures regularly and also decide on new measures, if necessary. The scenarios used in this assessment of the carbon neutrality goal will be updated in the coming years. This will make it possible to take account of matters such as the energy price development, which has been exceptional during the spring of 2022 as a result of the war in Ukraine in particular. The rapid increase in price of fossil fuels affects the emissions development in several sectors in a way that has not been taken into account in the scenarios now used. Greater uncertainty than the overall emissions development is related to the development of emissions and sinks in the land use sector and whether the sink level assumed here will be realised.

Claims and information at the Supreme Administrative Court

(6) The Finnish Association for Nature Conservation (FANC) and Greenpeace Nordic have demanded in their joint appeal that the Government decision be repealed. The matter must be returned to preparation again in order to comply with the obligations of section 16, subsection 1 and section 17, subsection 1 of the Climate Act, and the objectives referred to in section 2 of the Act.

As their grounds, the appellants have presented the following, among other things:

(7) Pursuant to section 16, subsection 1 of the Climate Act, the Government shall monitor the implementation of the climate policy plans referred to in the Act adequately to determine whether the targets concerning climate change mitigation and adaptation set out in the plans and the objectives referred to in section 2. On the basis of the monitoring, the Government shall, if necessary, decide on the additional measures required to achieve the targets. Pursuant to section 17, subsection 1 of the Act, the Government shall revise the climate policy plans in accordance with the decision concerning additional measures.

(8) In July 2022, the Government approved the Climate Plan for the Land Use Sector 2022 and submitted a report on the plan to the Parliament. The plan was approved six weeks after the information on the carbon sinks in Finland turning into an emissions source had become public. Despite the recommendations of the Finnish Climate Change Panel and the Finnish Environment Institute, the plan did not include measures for repairing the carbon sink. In connection with approving the Climate Plan for the Land Use Sector, the Government only started additional studies and set goals for different processes. However, the quantitative impact of the measures was not assessed from the perspective of realising the objectives of the Climate Act. In addition, the measures consisted of policies, preparation and reports, and no political decisions on their end results have been made. Therefore, the decisions of the Government on additional measures cannot be considered as the decisions on additional measures referred to in section 16, subsection 1 of the Climate Act, with which the goals in accordance with section 2 of the Climate Act could be reached in the current situation. Neither have the measures been included in the Climate Plan for the Land Use Sector in accordance with section 17, subsection 1 of the Climate Act.

(9) The actual impact of the Governments decision-making procedure is created by the actions contrary to the Climate Act in connection with the Annual Climate Report. Pursuant to section 18, subsection 2, paragraph 2 of the Climate Act, the Government must assess the adequacy of the existing and planned measures presented in the climate policy plans with regard to the achievement of the targets set for the following 15 years and assess the need for the additional measures required to achieve them as referred to in section 16, subsection 1. Therefore, the Annual Climate Report of the Government should have included a sufficiently thorough and comprehensive assessment on e.g., the sufficiency of the goals and measures of the Climate Plan for the Land Use Sector in relation to the targets of section 2 of the Act. An assessment of the need for further measures is necessary, but the Government nevertheless estimated that the measures in accordance with the Climate Plan for the Land Use Sector and the Medium-term Climate Change Policy Plan would be sufficient.

(10) The Annual Climate Report 2022 approved by the Government is the first Annual Climate Report in accordance with the new Climate Act. It was drawn up at a time when the exceptional carbon sink collapse was known. The Annual Climate Report notes the situation, but the assessment of the need for additional measures is deficient. According to the Annual Climate Report, based on the scenarios it can be assessed that the measures taken in the emissions trading and effort sharing sectors are sufficient to achieve the emission reduction targets. According to the report, however, a substantial amount of uncertainty is related to the achievement of the targets, and energy price hikes or the development of emissions and sinks in the land use sector have not been taken into account in the scenarios used. In this light, the assessment of the need for additional measures remains unclear.

(11) The Annual Climate Report has not assessed the adequacy of the measures presented in the climate policy plans and the need for additional measures in the manner required by section 18, subsection 1, paragraph 2 of the Climate Act in a way that could initiate a procedure for additional measures in accordance with section 16, subsection 1 and section 17, subsection 1 of the Act. Therefore the Government has, in violation of section 16, subsection 1 of the Climate Act, neglected to discuss and investigate in the Annual Climate Report the need for additional measures required to achieve the climate targets in a situation, in which the need for additional measures was clear in light of the available information and assessments by experts. The gap between the carbon sinks required to achieve the climate policy targets and the carbon sinks in the land use sector in accordance with the 2021 proxy estimates of Statistics Finland is very large-scale and immediate, and it can be considered a "relatively significant need for additional measures" in accordance with the grounds in the Government proposal. Therefore, the Government has neglected its obligation in accordance with said provision to decide on additional measures based on the monitoring and its obligation to revise climate policy plans in accordance with section 17, subsection 1 of the Climate Act.

(12) Pursuant to the transitional provision of section 23 of the Climate Act, the Climate Plan for the Land Use Sector must be updated during the parliamentary term 2027–2031 at the latest. Because the carbon sinks in the land use sector constitute one half of the carbon neutrality target of the Climate Act, in that case the carbon sink targets in accordance with the Climate Act for the years 2021–2030 and by 2035 can no longer be achieved by approving the Climate Plan for the Land Use Sector. Therefore, the opportunity to appeal being delayed to 2027–2031 would make an appeal ineffective with regard to the carbon neutrality target in accordance with the Climate Act, EU obligations and the purpose of the Act as a whole.

(13) The Government has neglected to make a formal decision in accordance with the Climate Act in the case, even if the Act would have required it. The passivity of the Government in the case has had actual and direct legal effects on the use of the appellants' right to appeal.

(14) Even if the passivity of an authority cannot, as a rule, be the subject of an appeal, under certain conditions appealability can be interpreted in a broader sense. According to the preliminary work on the Administrative Judicial Procedure Act, a party's need for legal protection and the obligation to safeguard basic rights may also require the right to appeal in a situation, in which no actual administrative decision has been made. In addition, ignoring a clear requirement in decision-making has been considered comparable to a decision concerning a ruling of inadmissibility.
(15) In legal practice, the field of appealability has been expanding due to the need to safeguard basic and human rights, among other things. For example, the scope of application of Article 6(1) of the European Convention on Human Rights also includes rights other than the subjective rights in the traditional sense, such as decisions related to environmental protection with an impact on the realisation of human rights. Also in favour of an expanded interpretation of the right to appeal, among other things, is that the legal protection in accordance with section 21 of the Constitution is not realised, if it is not possible to appeal the lack of additional measures due to the passivity of public authority. Furthermore, pursuant to section 22 of the Constitution, the public authorities shall guarantee the observance of basic rights and liberties and human rights. The obligation of the state to ensure the effective realisation of rights is also an established principle of the legal practice of the European Court of Human Rights.

(16) The Deputy Chancellor of Justice has stated (OKV/10/50/2019) that the Annual Climate Report is one of the methods used to ensure the opportunities of citizens to influence the decision-making about their own living environment in accordance with the basic right to the environment in accordance with section 20 of the Constitution.

(17) The Ministry of the Environment has found in its statement that the appeal of the appellants should primarily be ruled inadmissible, because the Annual Climate Report that is the subject to appeal is not an appealable administrative decision.

As its grounds, the Ministry of the Environment has presented, among other things, the following:

(18) Even if the decision on the Annual Climate Report is made in the plenary session of the Government, it is not a decision in an administrative matter in accordance with the Administrative Judicial Procedure Act. Other reports by the Government to the Parliament serving the interaction between the highest organs of government do not constitute such, either.

(19) The nature of the Annual Climate Report as a tool of reporting and monitoring is apparent from the preliminary work of both the repealed Climate Act and the current Climate Act as well as the act on its amendment. Under the Government Proposal on the Climate Act issued in 2015, in the Annual Climate Report, the Parliament is provided information every calendar year on the development of emissions, the realisation of emission reduction targets included in the Medium-term Climate Change Policy Plan and potential further measures required to achieve the targets. The body of the Annual Climate Report consists of monitoring information on the emission reduction targets included in the Medium-term Climate Change Policy Plan, and in addition, it takes account of any additional measures that may have been taken to achieve the emission reduction targets. The annual report is equated to the reports submitted to the Parliament referred to in section 46 of the Constitution.

(20) Pursuant to section 21 b of the Climate Act, which entered into force on 1 March 2023, a decision of the Government on climate policy plans is subject to appeal to the Supreme Administrative Court. Therefore, the possibility of appeal applies to the decisions of the Government regarding the approval of climate policy plans referred to in sections 9–12 of the Act as well as the decision referred to in section 17 of the Act on changing the plan.

(21) The Annual Climate Report cannot be equated to the climate policy plans in accordance with sections 9–12 of the Climate Act. The Annual Climate Report is a tool of climate policy reporting and monitoring, and the decision to issue the Annual Climate Report does not have a direct impact on the rights, obligations or interests of any party. The Annual Climate Report enables the parliamentary monitoring of the realisation of climate policy plans. In connection with processing the annual report, the Parliament can assess the realisation of climate policy plans and hear experts.

(22) The Annual Climate Report and its contents are provided for in section 18 of the Climate Act. The intent of the Annual Climate Report is not to comment on the procedure concerning additional measures referred to in sections 16 and 17 of the Climate Act. The decision on additional measures is made based on the monitoring of the realisation of climate policy plans as a separate Government decision in connection with the decision referred to in section 16, subsection 1 of the Climate Act.

(23) The measures set to achieve the targets of section 2 are specified in the climate policy plans. The need for additional measures can be stated in the Annual Climate Report or other monitoring specific to the administrative branch, but the preparation and decision-making related to the measures are not carried out in connection with the annual report. Assessing the need for additional measures in the Annual Climate Report is not a requirement for starting the preparation of the additional measures referred to in section 16, subsection 1 of the Climate Act. The procedure concerning additional measures can be started regardless of the end result of the assessment of the need for additional measures in the Annual Climate Report. Neither does the decision on the Annual Climate Report include a decision not to carry out the procedure on additional measures referred to in sections 16 and 17 of the Climate Act. In fact, the appeal primarily focuses on the sufficiency of the Government's actions, not their legality. Based on the proxy estimates on the emissions of the land use sector in 2021 published by Statistics Finland on 24 May 2022, the Government has started to prepare for additional measures.

(24) The appellants have stated in their rejoinder that, among other things, the achievement of the targets of the Climate Act in the long term as well as the provision of section 16, subsection 1 of the Climate Act concerning sufficient monitoring require that the necessity of additional measures must be assessed regularly. The Annual Climate Report of the Government is a key tool for this purpose. The need for additional measures in accordance with section 16, subsection 1 of the Climate Act has been so clear due to the collapse of the carbon sinks in 2021 that the decision on additional measures should have been made in connection with the Annual Climate Report. A different interpretation would raise the threshold of application of the provision so high that it would become meaningless in practice.

Grounds for the ruling of the Supreme Administrative Court

1. Questions before the Court

(25) It must first be decided in the case, whether the Government decision referred to in section 18, subsection 1, in which the Government issues the Annual Climate Report in accordance with the aforementioned section to the Parliament, can be considered an administrative decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act that can be appealed.

‍(26) If the aforementioned Government decision is not to be considered an appealable administrative decision, it must then be decided in the case whether the Government decision referred to in the appeal nevertheless involves a decision or neglect to make a decision referred to in section 16, subsection 1 and section 17, subsection 1 of the Climate Act that must be considered an administrative decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act that can be appealed.

2. Applicable and related legal norms

(27) Administrative Judicial Procedure Act, section 6, subsection 1 provides that a decision by which an authority has ruled on an administrative matter or ruled an administrative matter inadmissible shall be eligible for judicial review by appeal. Pursuant to subsection 2 of the aforementioned section, a decision relating solely to the preparation or enforcement of a matter shall be ineligible for review by appeal.

(28) Pursuant to section 8, subsection 1 of the mentioned Act, appeals against the decision of a government plenary session shall be made to the Supreme Administrative Court.

(29) Pursuant to section 13, subsection 1 of the Act, an appeal may be filed on the grounds that a decision is unlawful.

(31) The Constitution of Finland, section 20, subsection 1, states that nature and its biodiversity, the environment and the national heritage are the responsibility of everyone. Pursuant to subsection 2 of the section, the public authorities shall endeavour to guarantee for everyone the right to a healthy environment and for everyone the possibility to influence the decisions that concern their own living environment.

(32) Pursuant to section 21, subsection 1 of the Finnish Constitution, everyone has the right to have his or her case dealt with appropriately and without undue delay by a competent court of law or, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.

(33) Pursuant to section 22 of the Constitution, the public authorities shall guarantee the observance of basic rights and liberties and human rights.

(34) Pursuant to section 46, subsection 1 of the Constitution, the Government shall submit to the Parliament annual reports on governmental activities and on the measures undertaken in response to parliamentary decisions, as well as annual reports on State finances and adherence to the budget. Pursuant to subsection 2 of the aforementioned section, other reports shall be submitted to the Parliament, as provided in the Constitution, or in another Act or in the Parliament's Rules of Procedure.

(35) Climate Act, section 1 states that said Act lays down the objectives and framework for the planning of Finland’s climate policy and the monitoring of its implementation. The purpose of the Act is to: 1) enhance and coordinate the planning of the measures aimed at climate change mitigation and adaptation and the monitoring of the implementation of the measures; 2) provide Parliament and the public with better opportunities to take part in climate policy planning and influence it.

(36) Pursuant to section 2, subsection 1 of the Climate Act, the objective of the Act and the climate policy planning system based on it is to contribute to ensuring that greenhouse gas emissions decrease and the removals by sinks increase in the manner provided by paragraphs 1–4 of said subsection and within the periods of time stated. Pursuant to subsection 2 of the mentioned section, the objective of the Act and the climate policy planning system based on it is also to contribute to ensuring that the obligations concerning the reduction and monitoring of greenhouse gases, strengthening of sinks, and adaptation arising from the treaties binding Finland and the European Union legislation are met. Pursuant to subsection 3 of the mentioned section, in addition, the objective of the Act and the climate policy planning system based on it is to: 1) contribute to ensuring sustainable development and justice of the climate measures; 2) contribute to ensuring the prerequisites for the Sámi people to maintain and develop their own language and culture.

(37) Pursuant to section 7, subsection 1 of the Climate Act, the climate policy planning system under this Act comprises the following climate policy plans: 1) Long-term Climate Plan; 2) National Climate Change Adaptation Plan; 3) Medium-term Climate Plan; 4) Climate Plan for the Land Use Sector. Pursuant to subsection 2 of the mentioned section, the climate policy planning system sets out the targets for reducing greenhouse gas emissions, strengthening sinks and climate change adaptation as well as the measures required to achieve the targets in different administrative branches.

(38) Pursuant to section 16, subsection 1 of the Climate Act, the Government shall monitor the adequate implementation of the climate policy plans referred to in sections 9–12 to determine whether the targets concerning climate change mitigation and adaptation set out in the plans and the objectives referred to in section 2 will be achieved. On the basis of the monitoring, the Government shall, if necessary, decide on the additional measures required to achieve the targets.

(39) Pursuant to section 17, subsection 1 of the Climate Act, the Government shall revise the climate policy plans referred to in sections 9–12 in accordance with the decision concerning additional measures referred to in section 16, subsection 1. Revising the plans shall be in accordance with the provisions on the procedure followed in the preparation of the plans laid down in sections 13 and 14.

(40) Pursuant to section 18, subsection 1, the Government shall submit an Annual Climate Report to the Parliament each calendar year. Pursuant to paragraph 1 of the provision, the Annual Climate Report shall contain data on the trends in emissions and removals. Pursuant to paragraph 2 of the subsection, the Annual Climate Report shall contain an assessment of the adequacy of the existing and planned measures presented in the climate policy plans with regard to the achievement of the targets set for the following 15 years and an assessment of the need for the additional measures required to achieve them referred to in section 16, subsection 1.

(41) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (SopS 121–122/2004, hereinafter 'Aarhus Convention'), Article 9(2), states that each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

Pursuant to paragraph 3 of the mentioned Article, in addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

3. Legal evaluation and conclusions

3.1 The planning system, reporting and monitoring in accordance with the Climate Act

(42) The reformed Climate Act (423/2022) entered into force on 1 July 2022. The Supreme Administrative Court states that the basic nature of the Climate Act remained a framework law that provides for the climate policy planning system and the monitoring of its realisation. The Climate Act guides the planning of climate policy. The Act applies to the tasks of state authorities and the municipality in drawing up climate policy plans and ensuring their implementation. The Climate Act does not oblige private parties directly to take climate measures.

(43) A carbon neutrality target for 2035 as well as emission reduction targets for the years 2030 and 2040 in addition to an updated target for 2050 have been recorded in the renewed Climate Act. An objective to increase sinks in order to reach the carbon neutrality target as well as further after 2035 have also been recorded in the Act.

(44) The aim is to ensure the achievement of the targets in accordance with section 2 of the Climate Act with a climate policy planning system provided for in Chapter 2 of the Act. Pursuant to section 7, subsection 2 of the Climate Act, the climate policy planning system sets out the targets for reducing greenhouse gas emissions, strengthening sinks and climate change adaptation as well as the measures required to achieve the targets in different administrative branches. The planning system consists of the Long-term Climate Plan, Medium-term Climate Plan, Climate Plan for the Land Use Sector and National Climate Change Adaptation Plan approved by the Government on a plan-specific basis on the schedule provided for in accordance with sections 9–12 of the Act. When the plans are prepared, the members of the public shall be provided with an opportunity to examine the draft plan and express their opinions on it, and the opinions on the draft plan provided for by law must be requested.

(45) The reporting and monitoring in accordance with the Climate Act are provided for in Chapter 3 of the Act. The Government submits a report to the Parliament on the climate policy plans it has approved. The Government monitors the realisation of the climate plans and the sufficiency of the objectives referred to in section 2 of the Act, decides on any additional measures that may be required in order to achieve the targets in accordance with the plans and section 2 of the Act, and changes the climate plans in accordance with the mentioned decision. In addition, the Government shall submit an Annual Climate Report to the Parliament each calendar year.

3.2 Appealability of the Government decision on the Annual Climate Report

(46) The Annual Climate Report submitted by the Government to the Parliament is provided for in section 18 of the Climate Act. The provision corresponds to section 14 of the repealed Climate Act (609/2015). According to the preliminary work on the mentioned provisions (HE 82/2014 vp and HE 27/2022 vp), the Parliament has an opportunity to use the Annual Climate Report submitted every calendar year to monitor regularly the implementation of the national climate policy, have discussions based on an assessment of the situation and influence climate policy as a whole. The Annual Climate Report would also provide information to actors central to climate policy and the general public on the overall efficiency of climate policy and the implementation of plans. According to the rationale of the repealed Climate Act (HE 82/2014 vp), the Annual Climate Report can be submitted to the Parliament as a part of the Government Annual Report.

(47) In accordance with section 18, subsection 1, paragraph 2 of the Climate Act, the Annual Climate Report must include an assessment of the adequacy of the existing and planned measures presented in the climate policy plans with regard to the achievement of the targets set for the following 15 years and assess the need for the additional measures required to achieve them as referred to in section 16, subsection 1.

(48) Pursuant to section 3 of the Constitution, which regulates the division of governmental tasks and parliamentarism, the legislative powers are exercised by the Parliament. The governmental powers are exercised by the President of the Republic and the Government, the members of which shall have the confidence of the Parliament. The judicial powers are exercised by independent courts of law, with the Supreme Court and the Supreme Administrative Court as the highest instances.

(49) The Supreme Administrative Court finds that the Annual Climate Report is a report referred to in section 46, subsection 2 of the Constitution, submitted to the Parliament as provided in another Act. The Annual Climate Report of the Government, as well as the other reports submitted to Parliament in accordance with the provision mentioned, serve the flow of information and interaction between the Parliament that uses legislative power and the Government that uses governmental power.

(50) Pursuant to section 19, subsection 1 of the Parliament's Rules of Procedure, a notification of the submission of a Government report is made during the plenary session. Pursuant to section 34 of the Rules of Procedure, a committee must process the matters sent there without undue delay and issue a report on them to the plenary session in accordance with the nature of the matter. Pursuant to section 55 of the Rules of Procedure, matters other than bills shall be processed in a plenary session in a single procedure.

(51) In the plenary session on 22 February 2023, the Parliament has approved the statement on the Annual Climate Report 2022 in accordance with the report of the Environment Committee (EK 77/2022 vp – K 24/2022 vp, YmVM 25/2022 vp – K 24/2022 vp). Among other things, the Parliament has required that due to the changed situation picture, the Government hasten the updating of the background calculations for the basic and policy scenario work of climate policy and emphasise the need to ensure the strengthening of sinks and the preconditions for achieving the national carbon neutrality target for 2035 in accordance with the Climate Act with sufficient additional measures to reduce emissions and/or strengthen carbon sinks.

(52) The Supreme Administrative Court finds that the Parliament will take a stand in its reports on the Annual Climate Report, if necessary, on matters such as whether the report contains the information and assessments provided by section 18 of the Climate Act as well as any other information that the Parliament may consider necessary. The Parliament also decides which measures it considers necessary to take based on the report. Pursuant to section 60 of the Constitution, the Ministers are responsible before the Parliament for their actions in office. The preparation and processing of the Annual Climate Report is a part of climate policy in accordance with the process described above that consists of a dialogue between the Parliament and the Government, which is responsible to the Parliament politically.

(53) The Annual Climate Report and the annual information and factors on the sufficiency of climate measures found in it form a key part of the planning system of the Climate Act, and therefore they as such have a central importance as reports in the climate policy decision-making system. The Supreme Administrative Court states that in principle, however, the submission of an Annual Climate Report by the Government to the Parliament or its processing by the Parliament do not contain decisions, the legality of which could be assessed by a court of law.

(54) Based on the grounds stated above in sections (49), (52) and (53), the Supreme Administrative Court finds that the Government decision on submitting the Annual Climate Report to the Parliament is not an administrative decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act that can be appealed.

(55) With an Act that entered into force on 1 March 2023 (108/2023), provisions on appeal, among other things, have been added to the Climate Act. Section 21 b of the Act provides for appealing a Government decision on a climate policy plan. According to the preliminary work on the section (HE 239/2022 vp), the appeal referred to in the provision would not apply to Government decisions on the Annual Climate Report or the appointment of a Climate Change Panel, for instance. Therefore, the Supreme Administrative Court finds that the appealability of the Annual Climate Report should not be assessed otherwise based on the new appeal regulations, either.

3.3 Appealability of the Government decision on other grounds

(56) According to the appellants, the Government has made a decision in the Annual Climate Report it has submitted to the Parliament on matters such as that the Government will not investigate the question of the necessity of the additional measures referred to in section 16, subsection 1 of the Climate Act in order to achieve the targets set in the climate plans or subsection 2 of the Act. Alternatively, the Government has made a decision not to take the additional measures required by section 16, subsection 1 of the Climate Act. According to the appellants, in so doing the Government has made a decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act, which can be appealed. Furthermore, the appellants have found that taking account of sections 21 and 22 of the Constitution, it should be possible to appeal the Government decision even in the case that the Government would be considered to have neglected to make any decision in the matter at all.

(57) The repealed Climate Act (609/2015) did not include provisions on appeal, and no such provisions were included in the Climate Act (423/2022) that entered into force on 1 July 2022, either. In the Act (108/2023) that entered into force on 1 March 2023 as stated above in section (55), provisions on appeal have been added to the Climate Act. The possibility of an appeal applies to Government decisions on approving the climate policy plans referred to in sections 9–12 of the Climate Act as well as the decision referred to in section 17 on changing the plan. In contrast, in the situation according to section 16 of the Climate Act involved here, in which the Government does not make a decision on additional measures, there is no explicit legal protection method included in the Climate Act.

(58) The appealability of an administrative decision is subject to section 6 of the Administrative Judicial Procedure Act as a general provision. According to it, a decision by which an authority has ruled on an administrative matter or ruled an administrative matter inadmissible shall be eligible for judicial review by appeal. According to the detailed rationale of the mentioned section 6 (HE 29/2018 vp), the need of the party for legal protection and the obligation to safeguard basic rights may also require the right to appeal in a situation, in which no actual administrative decision has been made. The Supreme Administrative Court states that the wording of the mentioned section 6 expresses the principle prevalent in the application of administrative law, according to which the passivity of authorities or the delay of processing do not in principle create an appealable decision. Nor does the Administrative Judicial Procedure Act include provisions on an appeal due to passivity or delay. However, the need to safeguard basic rights and the realisation of international obligations in the mitigation of climate change that is crucial to the future of humankind as a whole must be taken into account in particular when assessing the obligation of public authority to safeguard human rights and basic rights. This may, as expressed in the preliminary work on the Administrative Judicial Procedure Act, also require the right to appeal in a situation, in which no actual administrative decision has been made.

(59) The plans in accordance with the Climate Act and their up-to-dateness as well as monitoring are key factors in achieving the climate objectives in accordance with section 2 of the Climate Act. The Supreme Administrative Court finds that, pursuant to section 16, subsection 1, on the basis of the monitoring, the Government shall, if necessary, decide on the additional measures required to achieve the targets set in the climate policy plans and the objectives referred to in section 2. According to the preliminary work on section 16 of the Climate Act (HE 27/2022 vp), the assessment of the monitoring information and additional measures referred to in subsection 1 of the section could be carried out in the Annual Climate Report in accordance with section 18 of the Act or other administrative branch-specific assessments of climate policy plans, which could constitute e.g. assessments of the realisation of the plans or intermediate assessments. According to the preliminary work, the Government would decide on additional measures required to achieve the targets, if necessary, based on the Annual Climate Report or other administrative branch-specific assessment. After this, the Government would decide on changing the climate policy plans in accordance with the provisions of the Climate Act on additional measures.

(60) The Supreme Administrative Court finds that in accordance with section 16, subsection 1 of the Climate Act and its preliminary work, the Government decision on additional measures is legally independent of the Government decision on the Annual Climate Report submitted to the Parliament in accordance with section 18 of the Act. Therefore, the assessment of the necessity of additional measures presented in the Annual Climate Report or the potential lack of such an assessment do not have a direct impact on the obligation imposed on the Government in section 16, subsection 1 of the Climate Act to monitor the realisation of the climate policy plans and, if necessary, decide on the additional measures required to achieve the targets based on the monitoring.

(61) The partially renewed planning system of the Climate Act has applied to the land use sector starting from 1 July 2022. When taking account of the time of making the Government decision on the Annual Climate report, 26 October 2022, the time available for assessing the additional measures in accordance with section 16 of the Act was fairly short with regard to the land use sector. Therefore, under these circumstances neglecting to make the decisions in accordance with sections 16 and 17 of the Climate Act does not create such a conflict with the section 20 of the Constitution on the basic right to the environment, the section 21, subsection 1 of the Constitution on legal protection or the section 22 of the Constitution on safeguarding basic rights so that it should be interpreted as an appealable decision.

(62) On the grounds presented above in section (55), the Supreme Administrative Court states that the appealability of the Government decision in this regard should not be assessed differently based on the appeal regulations of the Climate Act that entered into force on 1 March 2023, either.

(63) Based on what has been presented in section (60) above, the Supreme Administrative Court finds that the Government decision does not constitute a matter referred to in Article 9(2) of the Aarhus Convention that could be considered to constitute the interest of any party in the manner referred to in the Convention. Based on the grounds mentioned in section (61) above, the Supreme Administrative Court also finds that the Government decision does not constitute an act or omission of an authority referred to in Article 9(3), either, that could be in conflict with the regulations of the national environmental legislation and due to which members of the public should have access to a review procedure before a court of law.

(64) The appellants have based their understanding of the appealability of the Government decision especially on the view that the Government should have made a decision on additional measures in connection with the Annual Climate Report when the carbon sinks proved to be significantly smaller than anticipated.

(65) The Supreme Administrative Court states that the principle of rule of law found in section 2 of the Constitution of Finland and the principle of the separation of powers found in section 3 require ensuring the tripartition of governmental power on one hand and taking account of Articles 2, 6 and 8 of the European Convention on Human Rights and sections 20, 21 and 22 of the Constitution, safeguarding the human rights and basic rights of the current and future generations on the other hand.

(66) Based on the best scientific knowledge, climate change is a matter of life and death for humankind that threatens the conditions of living of the current and future generations on Earth, unless rapid and effective measures are taken with regard to maintaining and increasing emission restrictions and carbon sinks. As a result, postponing measures transfers the responsibility to the future and makes it more difficult to achieve the maximum temperature increase of 1.5 degrees set as a goal in the Paris Agreement (Sops 75-76/2016). It is also true that the responsibility for meeting the international obligations rests on the democratically elected political decision-makers. It is the business of courts of law to ensure based on appeals that the decisions of the political decision-makers are legal and that they do not prevent the realisation of human rights and basic rights.

(67) In the Finnish administrative judicial procedure system, in established practice and according to section 6, subsection 1 of the Administrative Judicial Procedure Act, a decision by which an authority has ruled on a matter or ruled a matter inadmissible shall be eligible for judicial review by appeal. According to the established interpretation, it is not possible to react to the passivity of an authority by filing an appeal or take legal action regarding the passivity. The inaction of authorities or failing to make a decision required by law can be addressed by filing an administrative complaint with the supreme law enforcement authorities or other supervisory authorities. In matters referred to in section 20 of the Administrative Judicial Procedure Act, it is possible to institute a matter of administrative litigation in the Administrative Court under the conditions provided for in said Act.

(68) In this case, no decision on measures due to the reduction of carbon sinks has been made in the Annual Climate Report itself or in connection with it when the Government decided to submit the report to the Parliament. Nor has the investigation into the matter concerning this issue been neglected in the manner referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act. Therefore, no appealable decision has been made in the case. A separate provision on appeals is found in the Climate Act in connection with the approval of the plans in accordance with sections 9–12 of said Act.

(69) The Supreme Administrative Court finds that, on the basis of the starting points presented above in sections (58)–(61) and (65) as well as (66), assessing the legality of the Government's decision-making procedure in the manner intended by the appellant could be examined by a court of law in a case, in which failing to make the decision at this stage would lead to an end result in violation of the Climate Act, or the de facto actions of the Government would prove that it has no intention of making the appropriate decisions in order to achieve the targets and obligations required by the Act on a sufficiently rapid schedule.

(70) Based on the Annual Climate Report and the statement issued by the Ministry of the Environment in the case, the Government has started to prepare additional measures, and it has been stated that decisions regarding the sinks, among other things, will be made later. Based on the information received in the matter, it cannot be deduced that the decision of the Government to submit the Annual Climate Report to the Parliament would mean illegally neglecting to comply with the objectives and obligations of the Climate Act. Because the time for assessing the necessity of potential additional measures after the new Climate Act entered into force was quite short, a situation referred to in section (69) above is not involved. On these grounds, the Supreme Administrative Court cannot at this stage examine the appellants' appeal of the Government decision.

3.4 Conclusion

(71) The Supreme Administrative Court finds, on the basis of the aforementioned, that the Government decision referred to in the appeal does not contain a decision that could be appealed. Therefore, under section 81, subsection 2, paragraph 2 of the Administrative Judicial Procedure Act the appeal must be dismissed as inadmissible.

The ruling was delivered by the President Kari Kuusiniemi as well as the Justices of the Supreme Court Mika Seppälä, Tuomas Kuokkanen, Jaakko Autio and Robert Utter. Referendary of the case: Pekka Kemppainen.

Voting opinion

Voting opinion of the dissenting Justice of the Supreme Court Tuomas Kuokkanen, with which Justice of the Supreme Court Mika Seppälä agreed:

"I find that the Government decision contains an appealable ruling. Because the majority has a different opinion on the matter, I do not have the grounds to assess whether the appellants have the right to appeal and whether the appeal should be rejected or approved in that case."

Grounds

I agree with sections 25 and 27–55 of the grounds of the majority decision. I disagree with section 26 on the framing of the question as well as sections 56–71 of the decision. My grounds for section 26 and the decision starting from section 56 are as follows:

1. Questions before the Court

(---)

If the Government decision on submitting the Annual Climate Report to the Parliament is not to be considered an appealable administrative decision as such, after this it must be determined in the case whether the Government decision contains a statement on additional measures that must be considered an administrative decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act that can be appealed.

3.3 Appealability of the Government decision on other grounds

On the starting points of judicial discretion

Based on what has been stated above, the Government decision on submitting the Annual Climate Report to the Parliament is not an appealable administrative decision as such. However, it must also be decided in the case whether the Government decision contains a statement on additional measures that must be considered an administrative decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act that can be appealed. On these grounds, the decision could be considered appealable even though the Climate Act did not include appeal provisions at the time when the Government made the decision subject to appeal.

I find that if an appeal can be examined, the only matter evaluated due to it is whether the Government decision is in violation of the Climate Act. The competence of the Supreme Administrative Court does not include commenting on which measures would be the most appropriate or whether such measures lead in all respects to the international objectives that bind Finland as well as those provided for in the Climate Act. However, when exercising judicial discretion, it is possible to comment on whether the position of the Government is based on the necessary reports and whether it is justifiable with regard to mitigating the climate change or adjusting to it.

Pursuant to section 6, subsection 1 of the Administrative Judicial Procedure Act, the starting point is that an administrative decision by a ruling on an administrative matter has been issued or the administrative matter has been ruled inadmissible shall be eligible for judicial review by appeal. In the detailed Government proposal on the subsection, it is stated that it is not possible to list in a general provision all situations, in which a measure by an authority contains an appealable administrative decision (HE 29/2018 vp). The appealability of a decision must be assessed on a case-by-case basis, based on the starting points set in section 21, subsection 1 of the Constitution, taking account of the need of the party for legal protection as well as the legal effects of the decision and the legal practice. According to the detailed rationale, in the assessment of the appealability of the administrative decision attention is paid especially to whether the decision contains a ruling with a direct impact on the rights, obligations or interests of any party. The lines drawn regarding appealability are affected by the provisions on basic rights, international human rights conventions and the requirements of the EU legislation on access to a court of law.

Climate change is considered a matter of life and death for humankind. There is a scientifically justified unanimous opinion on its general causes and effects. Climate change is caused by the different actions of humans that have increased greenhouse gas emissions and reduced the nature's ability to bind greenhouse gases, especially by reducing the carbon sinks. The Intergovernmental Panel on Climate Change (IPCC) published the Synthesis Report for the Sixth Assessment Report in March 2023. According to it, the average temperature of the Earth has increased by approximately 1.1 degrees from pre-industrial times as a result of anthropogenic greenhouse gas emissions. According to the report, the speed and extent of the changes caused by global warming are unprecedented. The impact and risks of climate change to humans and biodiversity increase the more the warmer climate becomes. For the increase in temperature to abate requires that greenhouse gas emissions are reduced rapidly and for the long term. In addition, removing carbon dioxide from the atmosphere with the help of carbon sinks in particular becomes the more important the slower the emissions are reduced.

The causes of climate change and its consequences affect both the areas of different countries in a variety of ways, as well as nearly all sectors of politics in the societies. Resolving the issues related to climate change requires international cooperation and coordination of the measures of different sectors of the society. It is also a question of how to guarantee the right of future generators to a life with human dignity.

In Finland, the legislation related to climate policy developed gradually at first along with the obligations of international conventions and the EU legislation. In addition, documents of a political nature central to the development of early Finnish climate policy included energy and climate strategies, of which several were created. The purpose of the first Climate Act (609/2015) was to establish a foundation for the planning and implementation of long-term, consistent and cost-effective climate policy in an open and predictable way. The law aimed to ensure the opportunities of citizens to participate and the closer participation of the Parliament in the decision-making of climate policy.

The fundamental goal of the UN Framework Convention on Climate Change (UNFCCC) (SopS 61/1994) and the related legal documents is to stabilise the concentration of greenhouse gases in the atmosphere to a level where human activity does not cause dangerous disturbances in the climate system. The Kyoto Protocol to the UNFCCC (SopS 12–13/2005, amendment 112–113/2020) includes commitments to restrict and reduce the amount of greenhouse gas emissions during the Protocol's commitment periods 2008–2012 and 2013–2020. The objective of the Paris Agreement (SopS 75–76/2016) drawn up in 2015 is to maintain the increase of the average temperature of the Earth clearly under two degrees Celsius, with an aim to limit the increase of the average temperature to 1.5 degrees Celsius compared to pre-industrial times, and strengthen adaptability and climate resilience. The aim is to stop the global growth of emissions as soon as possible, after which the intention is to reduce emissions as quickly as possible. The objective is that by the end of the century, the emissions caused by human activity and the sinks that bind them are in balance.

The European Union has committed to reducing its greenhouse gas emissions by at least 55 per cent by 2030 compared to the level of 1990. In addition, the objective of the EU is to become the first climate-neutral continent by 2050. These objectives are recorded as a part of the European Climate Law (EU) 2021/1119 that was approved in 2021. The EU climate policy and legislation contain several measures and provisions. Regulation (EU) 2018/841 of the European Parliament and of the Council on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry (LULUCF Regulation) is an important instrument of the EU climate policy. The LULUCF Regulation obliges the Member States to maintain the calculated greenhouse gas emission removals in the land use sector at least on the same level as its calculated emissions during the period 2021–2030.

The current Climate Act entered into force on 1 July 2022. The Act provides for the climate policy planning and monitoring as well as national climate objectives. New emission reduction targets for the years 2030, 2040 and 2050 have been added to the Climate Act. The Act has expanded to cover the land use sector, too, and an objective to strengthen the sinks has been added to it. The contents of the Act have been described in more detail in sections 42–45 of the decision.

Mitigating the climate change and adapting to it challenge the traditional problem-oriented regulation and decision-making in administrative law. The decision-making on climate policy does not involve one-dimensional administrative decision-making, in which a clearly defined target of the decision exists and the impact of the decision can be understood unambiguously. Due to the nature of the matter, the planning of climate measures is broad-based and multidimensional. The impact of decisions may not necessarily be visible in the near future; instead, different methods and their combinations must be adapted and monitored constantly. The joint effect of different legal measures is also involved. In that case, even decisions that are not traditionally considered to have binding effects may be significant when they convey an overall view of different measures.

As a new phenomenon related to climate change, organisations have instituted trials against the state and companies in several countries. According to the rationale of the Government proposal on amending the Climate Act, climate trials have in some cases been based on national law and in other cases on the international obligations of the state as well as basic rights and human rights (HE 239/2022 vp, p. 13). According to the grounds for the Government proposal, claims in the trials have included obliging the state to speed up measures to achieve the greenhouse gas emission goals or demonstrating that the national emission reduction goals are insufficient or even that no attempts are made to reach them.

Climate-related trials and supervisory procedures have also been initiated on the international level. Several cases have been instituted in the European Court of Human Rights (ECHR), in which insufficient measures by states have been invoked, among other things. Finland is a party in the ECHR case Cláudia Duarte Agostinho and Others v. Portugal (no. 39371/20), in which a group of Portuguese children and young people have filed a suit against 33 countries for insufficient climate measures in the ECHR. The case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (no. 53600/20) has also been instituted in the ECHR. The appellants include a Swiss association against the climate change. The questions that the Court of Human Rights addressed to the Government of Switzerland involved the European Convention on Human Rights (SopS 18 and 19/1990), Article 2 (right to life), Article 8 (right to respect for private and family life), Article 6 (right to a fair trial) and Article 13 (right to an effective remedy). In addition to the ECHR, the different supervisory bodies of the UN have processed human rights appeals related to the climate.

A reference to international climate trials was also made in the Government proposal on amending the Climate Act (HE 239/2022 vp). According to the proposal, the question has arisen of how legal protection is realised in the decision-making related to climate policy on the national level. Supplementing the Climate Act with provisions on appeal was considered appropriate in the proposal for this reason, too. According to the proposal, neglecting to provide for appeal could cause the pressures to appeal to be channelled elsewhere, such as the European Court of Human Rights.

The Aarhus Convention referred to in section 41 applies, among other things, to the right of the public to participate in decision-making as well as have access to justice in environmental matters. Article 9(2) of the convention is not applicable to the Government decision subject to appeal. Neither does the situation constitute a situation according to Article 9(3). The paragraph 3 mentioned, like the objective recorded in the preamble to the Convention stating that effective judicial mechanisms should be accessible to the public, including organisations, so that its legitimate interests are protected and the law is enforced, reflects the aim of many recent climate trials. Citizens and organisations have instituted trials, because they want to determine in court whether an action or neglect by an authority is in conflict with national legislation.

Based on what has been stated above in this section, it can be concluded that a state governed by law must have mechanisms that provide an opportunity to have a court of law examine measures that can be considered to be related to safeguarding the basic rights of people, such as ensuring a healthy environment with human dignity, in the future, too.

Appealability of the Government decision

According to the appellants, the Government has decided in the Annual Climate Report it has submitted to the Parliament, among other things, that the Government will not investigate the necessity of further measures referred to in section 16, subsection 1 in order to achieve the targets set in the climate plans or section 2 of the Act. Alternatively, according to the appellants, the Government has made a decision not to take any further measures required by section 16, subsection 1 of the Climate Act. According to the appellants, in so doing the Government has made a decision referred to in section 6, subsection 1 of the Administrative Judicial Procedure Act, which can be appealed.

I find that the Government decision as such is a decision in accordance with section 18 of the Climate Act on submitting an Annual Climate Report. Therefore, the Government has not made a decision in accordance with section 17 on further measures in accordance with section 16 by dismissing them or neglecting to investigate a matter as referred to in the appeal.

The repealed Climate Act (609/2015) did not include provisions on appeal, and no such provisions were included in the Climate Act (423/2022) that entered into force on 1 July 2022, either. As stated in section 49 above, provisions on appeal have been added to the Climate Act in the legislation that entered into force on 1 March 2023 (108/2023). The possibility of an appeal applies to Government decisions on approving the climate policy plans referred to in sections 9–12 of the Climate Act as well as the decision referred to in section 17 on changing the plan. However, it has not been provided for in the Act that was previously in force or in the Act that has now entered into force whether it is possible to lodge an appeal in a case, in which the decision specifically referred to in section 17 is not made concerning the further measures in accordance with section 16 of the Act.

As stated above in the section on the starting points of judicial discretion, appealability requires a decision by an authority pursuant to section 6 of the Administrative Judicial Procedure Act. According to the detailed rationale of the mentioned section 6 (HE 29/2018 vp), the need of the party for legal protection and the obligation to safeguard basic rights may also require the right to appeal in a situation, in which no actual administrative decision has been made. I find that the wording of the mentioned section 6 expresses the principle prevalent in the application of administrative law, according to which the passivity of authorities or the delay of processing do not in principle create an appealable decision. Nor does the Administrative Judicial Procedure Act include provisions on an appeal due to passivity or delay. However, when assessing the availability of legal protection in the mitigation of climate change that is crucial to the future of humankind as a whole, the need to safeguard basic rights and ensure compliance with climate-related legal obligations must be taken into account in particular. This may, as expressed in the preliminary work on the Administrative Judicial Procedure Act, also require the right to appeal in a situation, in which no actual administrative decision has been made. The issue must be resolved on a case-by-case basis, taking it into account that this involves a significant exception to the main rule of application of administrative law. The need to make an exception must be sufficiently clear, taking all facts in the case into consideration.

As described above, climate change is a central environmental issue. Climate policy has become more and more highly regulated, and states are also required to take measures to mitigate climate change and adapt to it. The collapse of the so-called carbon sinks in the land use sector in Finland and the resulting problems will be a key challenge in climate policy in the near future. Climate change and responding to it must be considered an issue that is important to everyone, as well as integrally linked to safeguarding the human rights of future generations. I find that this must be considered a weighty reason for the passitivity of the authority being grounds for the possibility of appeal.

I state that when decision-making concerning the environment is linked to a central and serious future threat, the aim must be to guarantee a broad-based right to participate in accordance with section 20 of the Constitution. A key part of the right to participate is the right to appeal, and the right to the environment in section 20 of the Constitution must be interpreted together with section 21 of the Constitution. The possibility of the right to appeal must also be assessed while taking the objective of the Aarhus Convention stated above into account. Pursuant to section 1 of the Climate Act, providing the public with better opportunities to take part in climate policy planning and influence it is one of its key goals. Due to the starting points mentioned, the appealability of the Government decision cannot be interpreted narrowly.

The appealability of the Government decision is also supported by the principle of subsidiarity related to the European Convention on Human Rights, according to which alleged violations of human rights must be primarily processed by national courts of law. The importance of the principle was emphasised by Protocol No. 15 to the European Convention on Human Rights approved in 2013 (SopS 45 and 46/2021). In the Protocol, a mention was added to the preamble of the Convention that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by the Convention.

I find that since the Act does not have actual provisions on the insitution of a matter or the possibility to appeal in case of the passivity of an authority, it is justified to link the possibility to appeal primarily to a decision-making situation provided by law in other ways. In that case, too, it must be required that the contents of the decision-making provided by law have been provided in such a way that they are integrally connected to the passivity of an authority. If such a decision-making situation has not been provided by law, it is possible to secondarily assess the possibilities of bringing the case to a court of law as a matter of administrative litigation, if the conditions on the matter are otherwise met. Provisions concerning an administrative complaint or liability for acts in office may also be significant with regard to legal protection, but they cannot be considered sufficiently effective elements of legal protection as the only methods.

The planning system constituted by the provisions of the Climate Act must be assessed as a whole. The decisions to approve actual plans are made relatively rarely, and as a result, the changes visible during planning periods must be made as additional measures. This emphasises the importance of the decision on additional measures. The factor that starts the planning is political dialogue between the Government and the Parliament that is channelled through the Annual Climate Report. The dialogue as such cannot be subject to appeal. However, in this connection, the Government has a statutory obligation to present its views on the necessity of additional measures in accordance with section 18 of the Climate Act. The Government decision cannot be considered compliant with the planning system of the Climate Act, if a decision on additional measures in accordance with section 16 of the Climate Act was made without a statement on the matter already included in the annual report. For the reasons specified above, I find that even though the decision to submit the Annual Climate Report in itself is not appealable, partial appealability can be based on the statement that no additional measures are needed, included in the report. For the sake of clarity, I state that what has been said concerning appealability does not therefore apply to a statement, according to which additional measures are needed, because the legality of the sufficiency of these additional measures or their overall necessity can only be subject to appeal in connection with a decision on additional measures.

The Annual Climate Report of the Government now under appeal includes a statement on the necessity of additional measures in accordance with section 18 of the Climate Act in the abstract of the report. The statement is brief, but its contents mean that additional measures are not needed yet. In this regard, the statement must be considered to include a decision on the planning system, corresponding to a decision that there is no need to make a decision on the additional measures in accordance with section 16. Also when taking into account what has been stated above, the statement in the Annual Climate Report must be considered as an appealable decision in this regard.

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