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17th March 2025
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By ClientEarth environmental democracy lawyer Ewa Dabrowska
The intersection of the triple planetary crisis - climate change, pollution and biodiversity loss - and human rights violations appears more and more visible in jurisprudence all over the world. This raises questions about victim status and legal standing of individuals and NGOs. Last year, two innovative judgement cases were made in the Council of Europe legal system: KlimaSeniorinnen v. Switzerland (no. 53600/20) and Cannavacciuolo v. Italy (no. 51567/14 and three others). ClientEarth intervened in both cases (see here and here). However, the Court reached opposing conclusions on the standing question. So, who can claim to be a victim of the triple planetary crisis?
The 2024 KlimaSeniorinnen case challenges the failure of the Swiss government to adopt the necessary mitigation measures to address the risks arising from climate change. The case was brought by an association and four women, all members of the association and aged over 75. In its judgement, the European Court of Human Rights’ (ECtHR) Grand Chamber declared the individuals’ complaints inadmissible, but confirmed standing of the association.
The second judgment Cannavacciulo, in January 2025, concerned the failure of the Italian state to diligently deal with systematic, decade-long, widespread and large-scale illegal dumping, burying and/or burning of hazardous, special and urban waste, in an area covering 90 municipalities in the Campania region of Italy. This area has around 2.9 million inhabitants. Contrary to the developments in Klimaseniorinnen, the Court granted standing to the individuals and dismissed the applications brought by the associations.
The ECtHR’s traditional approach to “victim status” requires an applicant to show direct impact or at least a real risk of a “direct impact” on them personally and did not allow for an actio popularis. In KlimaSeniorinnen, the Court explained the need for, what it called, “a more appropriate and tailored approach” in the context of climate change on the basis of the “fact that the widely acknowledged inadequacy of past State action to combat climate change globally entails an aggravation of the risks of its adverse consequences, and the ensuing threats arising therefrom, for the enjoyment of human rights” (para. 413).
Therefore, the Court established a new test in relation to individual applicants, which applies to climate change cases and which it described as “especially high”. Under this new test an individual would have to show that:
The individual applicants in KlimaSeniorinnen were held to not satisfy this test.
On the other hand, in Cannavacciulo the Court established an ‘imminent risk’ to life without the need for the applicants to prove that they individually had been subject to the pollution and developed health issues caused by it. They only needed to prove that they reside in the administrative areas designated as polluted. Moreover, the Court found for the first time a violation of the right to life under Article 2 with respect to large-scale environmental pollution.
A key development in KlimaSeniorinnen was the European Court of Human Rights' stance on the standing of associations and NGOs to file cases. In reaching its conclusion, the Court heavily relied on the Aarhus Convention, which was explicitly mentioned in this judgment 52 times. While reiterating that “an association cannot rely on health considerations or nuisances and problems associated with climate change which can only be encountered by natural persons”, the Court considered that “the specific considerations relating to climate change weigh in favour of recognising the possibility for associations, subject to certain conditions, to have standing before the Court as representatives of the individuals whose rights are or will allegedly be affected” (para. 498).
According to this development, NGO’s standing in climate change litigations:
(i) extends the remit of their standing to representing “members or other affected individuals within the jurisdiction”; and
(ii) does not require that those “members or other affected individuals within the jurisdiction”, on whose behalf the case has been brought, have to meet the “victim” status requirements for individuals.
Furthermore, the association must be lawfully established, defend human rights and be qualified to act on behalf its members or other affected individuals. The Court will also take into account other variables like its purpose, non-profit character or interests of the proper administration of justice (para. 502).
The Court explained this development, at least in part, by reference to the fact that “the individual applicants did not have access to a court in the respondent State [and] viewed overall, the grant of standing to the applicant association before the Court is in the interests of the proper administration of justice” (para. 523).
On the other hand, in Cannavacciulo, the Court made clear that the extended standing granted for NGOs in KlimaSeniorinnen was limited to climate change cases and would not be extended beyond that “specific context”, implicitly indicating that complex environmental harm in terms of wide-scale pollution with diffuse effects is not “a common concern of humankind” that requires “promoting intergenerational burden-sharing” (para. 220). The Court added that it could not discern any other “special considerations” or “exceptional circumstances” which would have justified granting standing to the applicant associations (para. 221).
In climate change cases, the Court appears willing to grant standing to associations — even when neither the association itself nor its individual members meet the ‘victim’ test applied to individuals, whether in its traditional or heightened form. However, the Court does not seem prepared to extend this approach to other types of environmental cases. As noted by Judge Krenc in his concurring opinion, it is difficult to see the reasons behind such distinction, since urgency, severity, and grave risk of irreversibility apply undoubtedly as well to widespread and diffuse environmental pollution.
The distinction is equally questionable given that we – as humanity – have already crossed six out of nine planetary boundaries according to the Stockholm Resilience Centre. Widespread pollution can result in planetary overshoot just as climate change.
Moreover, in Klimaseniorinnen the Court relied on the Aarhus Convention, CJEU case law on the implementation of the Aarhus Convention, and a comparative overview of the role and position of legal standing of non-governmental organisations in environmental matters in Council of Europe Member States (par. 491). All of these legal materials concern the standing of NGOs in environmental matters, not only climate change cases.
The Court appears to therefore have reached slightly inconsistent conclusions in terms of legal standing in these two judgments. Nonetheless, both judgements certainly confirm the urgent need to facilitate access to justice for both individuals and civil society organisations in climate and environmental litigations before both national and international courts.
This article is part of the Access to Justice EARL project.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.
