3rd June 2019
On 8 May 2019, the General Court rejected as inadmissible what has become known as “The People’s Climate Case.” The Court reasserted its established and well-settled case law on standing, known as the “Plaumann” test, and held that the applicants here were not individually concerned for the purpose of Article 263(4) TFEU, which sets standing requirements before the Court of Justice of the EU (CJEU).
The applicants, families from several European countries, as well as outside the EU, and the Swedish Saami Youth Association, challenged parts of several pieces of EU legislation adopted by the European Parliament and Council of the EU to comply with the “nationally determined contributions” under the Paris Agreement. They claimed that setting the target to reduce greenhouse gas emissions by only at least 40% by 2030 as compared to 1990 levels was too low to prevent the climate crisis and, therefore, breached their fundamental rights to life, health, occupation and property.
The General Court reasserted that, for an applicant to be individually concerned, the contested act had to affect them in a way that differentiates them from all other persons. The infringement of their fundamental rights is not sufficient in itself to establish that their action is admissible. According to the Court, a contrary ruling would run the risk of rendering the requirements of article 263(4) TFEU meaningless, in case the alleged infringement does not distinguish the applicants individually, just as in the case of the addressee of the contested act. The Court rejected the argument that the applicants are “all individually concerned given that although all persons may in principle each enjoy the same right (such as the right to life or the right to work), the effects of climate change and, by extension, the infringement of fundamental rights is unique to and different for each individual”. The General Court acknowledged that “it is true that every individual is likely to be affected one way or another by climate change, that issue is recognised by the European Union and the Member States who have, as a result, committed to reducing emissions. However, the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application.” The Court opined that such an approach would create locus standi for all, without having to fulfil the criteria imposed by the Treaty of being individually concerned.
The applicants alternatively claimed that the interpretation of the individual concern criteria was incompatible with the fundamental right to effective judicial protection provided by Article 47 of the Charter of Fundamental Rights, as it results indirectly applicable regulations being immune to judicial review. The General Court simply responded that this protection did not require that an individual should have an unconditional entitlement to bring an action for annulment of such a legislative act of the Union directly before the EU courts.
Finally, the Court reasserted its settled case law that, when EU decisions cannot be challenged before the EU courts for lack of standing, natural and legal persons can rely on the procedure foreseen by Article 267TFEU allowing national courts to refer questions to the EU courts.
This ruling confirms the long-standing irony that, as pointed out by the applicants, the more widespread the harmful effects of an act, the more restricted the access to the courts. The more serious the damage and the higher the number of affected persons, the less judicial protection is available. Thus, under the current interpretation of 263(4)TFEU, a case challenging the inaction of EU institutions in tackling climate change was doomed to fail. And, apparently, asking the Court to reverse its settled case law (which has prevented any environmental or human rights NGO and individuals from having standing since 1963), to allow anyone being impacted by climate change to challenge EU institutions was too much of an ask.
However, the lack of legal standing of individuals and NGOs before the CJEU remains part of the democratic deficit of the EU. The interpretation of the CJEU of the direct and individual concern criteria have been found in violation of the Aarhus Convention by the Aarhus Convention Compliance Committee (ACCC). The CJEU needs to address this deficit, not only to make the Union a truly democratic one, but also to play its part in addressing the environmental challenges we are all facing today. This requires that members of the public may enforce EU environmental legislation not only at national level but also at EU level.
Despite the fact that the body of EU environmental policy and regulation is very advanced and comprehensive, Europe’s environment is rapidly deteriorating. Strong legislative and policy frameworks are not providing the results they should, because they are not properly implemented or enforced. This is both an environmental and socio-economic problem. The estimated cost of poor implementation of EU environmental law is around €50 billion a year. The lack of implementation of EU environmental laws also erodes the rule of law and public trust in both national authorities and EU institutions.
Experience has shown that relying solely on EU institutions and public authorities to overcome the implementation deficit will not yield the required outcome. Therefore, active citizens, either acting on their own or via NGOs, are essential to support or even substitute actions from the authorities. This enforcement requires access to Courts.
The same measures are necessary to level the playing field between NGOs, decision-makers and industry. While industry can represent and defend their economic and financial interests before the courts, more than often damaging the environment, NGOs and individuals still cannot voice and protect public interests such as environmental protection and public health.
The CJEU will surely be given other opportunities to re-evaluate and evolve its case law, thanks to the many strategic cases being brought by NGOs. It should embrace the chance to improve democracy, weaken the grip of industry on our public institutions and provide people and civil society access to justice to enforce the rights guaranteed to them.
In parallel, following the findings of the ACCC, the European Commission is working to address the deficiencies of the Aarhus Regulation and will propose solutions to bring the EU in line with the Aarhus Convention. It is expected to provide the results of its study to the Council in September. ClientEarth will not be satisfied with anything less than the revision of the Aarhus Regulation, in particular of the definition of the acts that NGOs may challenge.
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.