27 September 2018
Thirty-six individuals and one youth organisation have filed an application for annulment with the EU’s General Court claiming that EU legislation on greenhouse gas (GHG) emissions is unlawful because it fails to prevent climate change. The application also includes an action for damages in respect of property, income and health.
The applicants are from EU countries Portugal, Germany, France, Italy, Romania and Sweden, as well as non-EU countries Kenya, and Fiji. They are mostly families affected by climate change. For example, the Guyo family suffer health consequences connected with extreme heatwaves on the Kenya-Ethiopia border, while in Portugal, the Conceição family’s beekeeping business has been negatively affected by climate change. In addition, Sáminuorra, a Swedish Association of Young Saami, have joined the action as climate change affects many aspects of their way of life, including reindeer herding.
The EU legislation being challenged1 sets a 2030 target to reduce GHG emissions by 40 % of 1990 levels. The applicants’ central argument is that this target is not ambitious enough to respect the EU’s commitments under the Paris Agreement and breaches the applicants’ fundamental rights to life, health, occupation and property.
But before deciding on the substance of the case, the General Court of the EU must first decide if the application is admissible under Article 263(4) TFEU. In other words, the general court will decide if the applicants have standing by way of being directly and individually concerned by the EU legislation in question.
The CJEU’s interpretation of the direct and individual concern criteria represents a major barrier to access to justice for individuals wishing to challenge EU acts on environmental grounds. Direct concern requires that the act affect the applicants’ legal situation, while individual concern requires the applicants to be affected because of a factual situation that differentiates them from all other persons. Last year the Aarhus Convention Compliance Committee found this interpretation to be in breach of the access to justice provisions of the Aarhus Convention, in particular because the field of environmental decision-making generally affects the public at large.
The applicants have taken the unusual step of publishing their pleadings in this case, which gives us much-appreciated insight into their arguments. They argue that the criterion of direct concern is fulfilled because the breach of their fundamental rights constitutes a change in their legal situation. With regard to individual concern, their argument is two-fold. The first arguments stay within the logic of the CJEU’s interpretation of individual concern. While every individual enjoys the same fundamental rights, climate change affects these rights in a unique way for each person. The second argument challenges the entire premise of the CJEU’s interpretation of individual concern, arguing that the criterion of individual concern is fulfilled if the act being challenged affects the applicant in an individual capacity. The rationale for convincing the Court to abandon its traditional interpretation rests on a number of limbs. Notable examples are described below.
First, the original wording of Article 263 TFEU referred only to challenging “decisions”. This was later changed to “acts”, which includes legislation. Therefore, there is no logic in applying a test which was intended to control standing to challenge decisions addressed to a limited number of people, to acts which, by their nature, affect the general public. The application of the standing criteria must reflect the general nature of the acts that can be challenged. Second, the CJEU’s traditional interpretation of individual concern leads to a gap in judicial protection, since the more widespread the effects of an act are, the less likely they are to be capable of a challenge before the EU courts. In this respect, the wide-scale consequences of acts which fail to combat climate change are a perfect illustration of this problem. Third, the internal logic of the CJEU’s interpretation is questioned, since economic actors are often granted standing to challenge acts that affect their competitive position, despite that other competitors are affected in the same way. Fourth, the CJEU’s interpretation of individual concern is not sustainable in the light of its insistence that it is the sole arbiter of EU law, including the Charter of Fundamental Rights. Finally, the applicants argue for an interpretation of individual concern that is consistent with the right to effective judicial protection in Article 47 of the EU Charter of Fundamental Rights. Having introduced these general arguments, the pleadings go onto explain in detail how each family is affected by the emissions legislation.
The compelling nature of these arguments on access to the EU courts is highlighted by the urgent need to combat climate change with ambitious and efficient EU measures. They deserve to be addressed at length by the General Court at the hearing and in its final judgment. And the legal discussion will be all the more interesting and relevant given the diversity among the applicants.
 1) Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 (OJ 2018 L 76, p. 3); Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 (OJ 2018 L 156, p. 26); and Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/ 2013/EU (OJ 2018 L 156, p. 1). (In their application, the applicants refer to Regulations 2018/842 and 2018/841 in the versions adopted by the Council on 14 May 2018, before signature and publication in the Official Journal.)
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.