Access to courts in the EU and climate litigation
By Aydın Clara Orberk, 13 minutes
Are you familiar with the court structure and access to courts in the EU? With the creation of the EU and the recent Charter of Fundamentals rights of the EU, individuals may seek access for infringements to their rights not only before national courts but also before the European Court of Justice. This article covers access conditions to European courts, firstly, and exemplifies the access conditions by introducing climate litigation cases, secondly.
The creation of a European judicial branch
The emergence of the European legal order required the creation of European courts. Hence, a European judicial branch subsumed under the Court of Justice of the European Union (CJEU) was founded to rule on matters of Union law. Today, it is composed of the General Court (GC) and the hierarchically higher European Court of Justice (ECJ).
They deal with different matters: member states and EU institutions are allowed to go directly to the ECJ, while legal and natural persons are non-privileged applicants and thus must go to the GC first. Then, judgments by the GC can be appealed before the ECJ. Lastly, the ECJ also hears preliminary questions from national courts.
Preliminary rulings illustrate well the interplay, or dialogue between EU courts and national courts: when national courts have doubts about the interpretation or validity of EU law, they must halt the proceedings and refer a preliminary question to the ECJ, which has a monopoly on the authoritative interpretation of EU law. The ECJ then answers the questions in a preliminary ruling such that the national court can continue the proceedings and apply the law as interpreted by the ECJ. Twenty-seven judges sit in the ECJ, one from each member state.
The CJEU is thus not to be confused with the European Court of Human Rights (ECtHR), which operates within the framework of the Council of Europe, an alliance of 47 (46 at the time of writing, given Russia’s expulsion) countries signatories to the European Convention on Human Rights (ECHR). While the ECtHR rules on human rights violations, the CJEU rules on European Union law.
The Grand Chamber of the ECJ, credit: Aydın Clara Orberk
Possible plaintiffs (i.e. persons going to court) before the CJEU include natural and legal persons, member states, and the European institutions, such that the CJEU can also rule on conflicts between the European Institutions, but the focus of this article is access to court for individuals. The procedures which can arise before the CJEU can be classified into direct and indirect actions. The above-mentioned preliminary reference procedure (article 267 TFEU) is an indirect way to access European courts since it consists in going before a national court, demanding that the national court halt the proceedings and refer the case to the ECJ to obtain clarifications on European law matters.
Direct actions, in turn, include actions for the annulment of an act, actions for a failure to act, and actions for damages under the non-contractual liability of the EU (i.e. liability which does not follow from a contract). But to have locus standi, i.e. to be allowed access to courts, individuals must fulfill certain conditions. How does that look, concretely?
A concrete example: The ‘People’s climate case’
One such direct action for annulment under Art. 263 TFEU was brought forward in 2018. With the People’s climate case, ten families from Europe and abroad (Kenya, Fiji) together with a Swedish association representing indigenous Sami people asked the CJEU to strike down current European legislation on greenhouse gas (GHG) emission reductions in favour of higher GHG cuts. Each family proved how they risked losing their traditional livelihoods to climate change: for instance, in Germany, full acres of land and a farm in which four generations’ lives of work have gone are increasingly threatened by rising sea levels, severe droughts have cut harvests in half in France and heat waves are killing the bees in Spain.
According to them, the goal of a 40% decrease in GHG emissions by 2030 (compared to 1990 levels) laid down in this legislation was insufficient to prevent them from suffering climate damage (NB, this was prior to the European Green Deal, the developments of which you can read about here). They thus wanted current legislation to be annulled as illegal so that newer legislation would provide for higher GHG cuts essential for their livelihoods. They based their claim on the illegality of legislation by referring to it violating their fundamental human rights (such as the right to life, and the right to property), as well as the Paris agreement.
The Paris Agreement
The Paris Agreement is an international treaty by parties to the United Nations Framework Convention on Climate Change. With it, 174 nations agreed to keep rises in global temperature well below 2 degrees above pre-industrial levels, and preferably 1.5 degrees to secure a ‘likely’ (66–100%) chance of averting dangerous climate change. (Note that our earth is 1.1 degrees hotter compared to preindustrial times currently).
But while the agreement itself has a legal form, countries are not obliged by law to achieve the emission reduction targets each country determined for itself (nationally determined contributions, or NDCs) - they are only obliged to make and communicate them.
Yet, many climate litigation cases - climate litigation encompasses a growing body of lawsuits aiming to advance climate change mitigation efforts from governments or companies - also partly base their argument on the Paris agreement, given its overall legal form.
To remedy what the People’s Climate Case plaintiffs deemed a failure of the Union to prevent the effects of climate change, they demanded instead that the court issue an injunction (i.e. an order) for the Council of the European Union and the European Parliament to adopt all measures which are necessary to reduce GHG emissions by 50-60%.
credit: The People’s Climate Case
Thus, to sum up, they demanded action for annulment of current climate legislation which they deemed insufficient and claimed damages under Art. 340(2) TFEU, in the form of an order directed at the Council and the Parliament to adopt stricter GHG emission targets of 50% to 60%. The GC and the ECJ, to which the applicants appealed, both dismissed the case as inadmissible, which means the merits or actual arguments of the case were not examined by the court because the individuals were deemed not to have locus standi, i.e. not to fulfil the conditions of access in the first place.
There are three ways of having locus standi before the ECJ as individuals in such a procedure. First, the act whose legality is challenged must be addressed to them. For instance, when the commission fined Facebook, the decision was addressed to Facebook such that Facebook could directly challenge the legal act before the court. But it is hardly ever the case that applicants challenge an act that is addressed to them. Two legal concepts are crucial in the second option: direct concern and individual concern. This latter concept is extremely difficult to fulfil, as will be explained below. The third option entails only the concept of direct concern, but only in cases where the measure that is challenged is of regulatory nature, i.e. not passed by parliament, and of general application.
In the climate case, the challenged acts were the Emission Trading Directive, the GHG Regulation, and the LULUCF Regulation, all legislative acts. The families were obviously not the addressees of these acts either. Thus, only the second option could be worth a shot. For direct concern, they had to argue that the measures directly affected their legal situation. For instance, their rights to live and their right to enjoy their property would be impacted, as explained above. But the individual concern, as defined in the Plaumann case, entails that ‘the decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguished individually just as in the case of the person addressed.’
Basically: Applicants must show that they are part of a closed class of persons (in the present) (first sub condition), which also does not change anymore in the future (see the closed group figure below - no persons are expected to be able to enter it in the future) (second sub condition) - and legal and business interests are not deemed to give rise to individual concern.
It thus becomes apparent just how difficult it is to pass this Plaumann test: the CJEU has set the barriers for court access for natural or legal persons very high. Thus, even though the families explained at length how global warming affected their livelihoods, which the CJEU recognised was the case, it did not find that they were individually concerned: according to the Court, the families were not in a closed class of persons at present, to begin with since other individuals might be suffering from the effects of global warming on their livelihoods, too; nor would the group be closed in the future, since global warming will increase and more people will see their livelihoods threatened. Accordingly, the applicants lacked locus standi and the case was dismissed as inadmissible, i.e. the court refused to further analyse it and proceed to the merits, the essential issues at stake.
The Plaumann test: appropriate access to justice?
The ‘individually concerned’ criteria coined in the Plaumann case were relaxed for a short time: in the Jégo-Quéré v Commission case, the judges deviated from the Plaumann test in favour of a more realistic test: a test whether a measure ‘either restricted the rights of the applicant or imposed obligations on the applicant ’. But the Plaumann jurisprudence was quickly reaffirmed. One other noteworthy exception is the Codorníu case, and legal scholars have referred to it as demonstrating a twisted take when it comes to standing. In Codorníu, it was ruled that the applicant had an individual concern because an individual right, a trademark, was adversely affected by a legislative act. In the People’s Climate Case, by contrast, an infringement of fundamental rights was deemed insufficient. That the loss of a specific acquired right such as a trademark seemingly ranks higher as the infringement of a universal fundamental right - the right to life - in the Court’s view was criticized as a questionable outcome. This situation also seems to be in tension with the EU’s adherence to the Aarhus convention which provides, notably, access to justice in environmental matters (the right to review procedures to challenge public decisions regarding environmental law), and the Aarhus Convention Compliance Committee indeed has found that the EU does not comply with it.
Further, the applicants had appealed the ruling of the GC by arguing that it ‘erred on account of the failure to adopt the settled case-law on locus standi in order to guarantee the legal protection of fundamental rights’. Indeed, when compared to standing requirements in national courts across Europe, the CJEU’s individually concerned criteria is much harder to pass. Similar climate lawsuits had been successful in the Netherlands - in a trailblazing legal saga which started in 2015 before the District Court of The Hague, the Dutch Supreme Court upheld in 2020 an order to the government to reduce GHG emissions by 25% by 2020 - and partially successful in France, Germany or Belgium, in which no order to reduce GHG emissions was imposed but current climate policies were deemed to violate fundamental human rights. More on the aforementioned groundbreaking Dutch climate cases (also referred to as the ‘Urgenda cases’, short for Urgent Agenda, after the name of the Foundation who was one of the plaintiffs) led by a Limburg lawyer working in Maastricht can be found here.
Going back to EU law, the idea to revise Plaumann is not alien either: Advocate-General Jakobs had already proposed to relax the ‘individually concerned’ test in the UPA case. He stated that the case law was out of line with liberal developments across the EU and advanced, instead, a new standing test based upon establishing that a measure has ‘substantial adverse effect’ on the applicant.
Plaumann undeniably too restrictive in climate actions
The fact that the applicants were denied standing because climate change affects everyone, current and future generations appeared paradoxical: the more widespread the harm, the less chance for individual concern, and thus the more restricted the access to the courts. While locus standi for individuals before the CJEU is already hard for individuals, it is by nature impossible in climate actions. Individual legal protection in climate actions before the CJEU will thus likely stay fruitless until the criteria set in stone throughout various case law (Plaumann, Jégo-Quéré, UPA, Cordonui) are revised. Despite the entry into force of the Charter for Fundamental Rights which gave a human rights dimension to the CJEU, the Strasbourg European Court of Human Rights seems to remain the sole human rights court for now.
Indeed, the ECtHR is currently dealing with another climate litigation case. In Duarte Agostinho and others v. Portugal and others, the young claimants claim that their rights to life and private life, articles 2 and 8 ECHR, are violated. They also make a discrimination claim under article 13 ECHR, arguing that their generation will disproportionately suffer from climate change. Unexpectedly and interestingly, the court from its own motion requested the parties to also comment on article 3 ECHR, the right not to be tortured or suffer inhuman and degrading treatment, as well as the right to property found in art 1 of Protocol No. 1 to the Convention. To state the obvious, the ECtHR cannot order GHG emission reductions from any State party to the Council of Europe, it can only award damages and declaratory judgements by recognising that the rights of plaintiffs have been violated, but this nonetheless bears symbolic value which is not insignificant for climate policies not to be considered politically costly anymore, and it remains to be seen how the case develops.
Towards a human right to a healthy environment?
Legal developments worldwide support environmental justice: Indian courts, for instance, recognise the right to a healthy environment, and last year the United Nation’s Human Rights Council too near-unanimously recognised access to a healthy and sustainable environment as a fundamental human right in its Resolution 48/13, a significant step even if acts adopted by the HRC only hold political value. The consequences of the emergence of a right to a healthy environment could be significant for the outcome of future climate litigation cases. The EU pioneered in data protection by recognising data protection as a fundamental human right (Article 8 Charter) but a right to a healthy environment is not enshrined in European fundamental rights law yet, which explains why the climate litigation cases always aim to bring forward evidence of infringements of fundamental human rights such as the right to life.
To conclude, access to the CJEU for individuals is threefold and difficult to fulfil unless an act is directly addressed to the individual. Accordingly, and especially in regards to climate actions in which Plaumann locus standi is virtually impossible, there have been calls to revisit the Plaumann locus standi test. Further, while the Charter could have meant that the CJEU would also become a human rights court, it is clear that access to courts for individuals with human rights violation claims remains difficult and virtually impossible for human-rights-based climate claims since global warming cannot affect a closed group of people. Strategic climate litigation is a way to seek environmental justice by evidencing violations of fundamental rights, and even though the People’s case before the CJEU was dismissed on grounds of standing, a few cases around the globe have been successful: courts seem increasingly receptive to the framing of climate claims as human rights claims. Some legal academics put forward that climate change is an issue that traditional politics are badly equipped to tackle because of powerful lobbies, climate scepticism and the irreversible, yet cumulative and slow nature of harms linked to global warming - from this viewpoint, climate litigation could be a way to spur climate action when politics appear deadlocked.
Further information:
If you are curious about the People’s Climate Case, you can find an insightful 4-page long brief by Allen & Overy here: https://www.jdsupra.com/legalnews/the-people-s-climate-case-declared-5405948/
For an analysis of the Dutch Urgenda cases and other climate litigation cases and a discussion of the legitimacy of climate litigation and arising tensions with the trias politica - notably, of the doctrine that the principle of the separation of powers can in no circumstance be an obstacle to the effective protection of fundamental rights by the judicial power - see here:
https://issuu.com/emaaslawreview/docs/elsa_maastricht_law_review_emaas_6th_edition_focus (p.7)
