The European Climate Law and Access to Justice

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In early March, just before the onset of the current COVID 19 crisis, the European Commission presented its proposal for a European Climate Law, a flagship initiative under the Green Deal. At the heart of the proposal is the legally binding commitment to reach climate neutrality by 2050 and a yet to be determined intermediary target for 2030, which the draft report of the parliamentary rapporteur Ms. Guteland proposes to raise to 65%.

Another, equally important function of the Law is to establish monitoring and review mechanisms that ensure that these targets are actually reached. This raises the question of whether accountability is ensured should the EU institutions and Member State governments fail to deliver. A closer look demonstrates a clear access to justice deficit in this regard, which links back to underlying structural issues.

Access to Justice regarding insufficient Member State ambition

The Climate Law gives new powers to the Commission to monitor the actions taken by the Member States towards climate neutrality. However, it does not impose an obligation on Member State to adopt any new acts. Instead, it relies on the existing National Energy and Climate Plans (NECPs) and Long Term Strategies (LTSs) which Member States are already required to adopt under the EU Governance Regulation. To that end, the Climate Law amends the Governance Regulation in some respects but neither the Commission Proposal nor the rapporteur’s draft report add an access to justice provision to challenge the NECPs and LTSs where they are insufficient.

The case law of the Court of Justice suggests that affected members of the public already have a right to challenge EU-mandated plans and programmes related to the environment (see for instance, the recent Burgenland judgement, analysed here). Nonetheless, our experience shows that the Climate Law should insert an access to justice provision into the Governance Regulation, so that the need for lengthy legal disputes over standing is pre-empted in the first place. It would therefore be very beneficial if the European Parliament would insert such an amendment.

Access to Justice regarding insufficient EU Commission ambition

As regards acts by the EU institutions, the Commission’s draft proposes different Commission assessments of both EU and Member State level actions at specific points in time (Arts 5 and 6). The Commission shall then adopt relevant measures if the level of ambition is insufficient to reach the targets. The assessments prepared by the Commission are not legally binding. They can therefore not be challenged themselves but this is not necessarily problematic. However, what happens if an assessment demonstrates that there is a need to act but the Commission fails to adopt the “necessary measures in accordance with the Treaties” (Art. 5(3))?

As is by now well established, individuals and NGOs do not have standing to directly challenge acts/omissions before the Court of Justice, unless they are the addressees of the measure in question (Article 263). NGOs must therefore rely on the Aarhus Regulation, which allows them to request the review of an omission by an EU institution to adopt an administrative act of individual scope. In the circumstances of the Climate Law, it will be difficult to demonstrate that the act to be adopted would be of individual scope. Even if this barrier would be removed, as the Commission has announced it will propose later this year, the Commission will likely argue that the acts to be adopted would either be non-binding (Communications or Recommendations) or legislative (Regulations, Directives, Decisions). Therefore, the Aarhus Regulation route would currently be barred.

The other route to challenging acts of EU institutions is to start a national challenge and obtain a preliminary reference to the Court of Justice (Art. 267 TFEU). But national courts would only be able to ask about the validity of existing measures in light of the climate target; the omission to adopt necessary measures cannot be addressed by way of a preliminary reference.

Validity challenges could therefore only be directed at existing EU acts, such as Directives or Regulations, arguing that they contradict the binding climate neutrality objective. However, this route is ridden with problems. It requires a national judge to accept that such a validity reference is relevant to a national dispute. If that hurdle is cleared, the challenge will be to establish that the specific Directive or Regulation is inconsistent with the binding target, rather than another EU act that negatively affects the climate or insufficiently contributes to climate mitigation.

Furthermore, the draft would permit the Commission to set the trajectory between the 2030 and the 2050 targets by way of a delegated act (Arts. 3 and 9). These acts would again not be of individual scope, barring use of the Aarhus Regulation. This demonstrates that the Commission’s announced revision of the Aarhus Regulation is sorely needed.

Importantly, the European Parliament Legal Service has delivered a non-paper that this would be non-compliant with the EU law requirement that delegated acts may not amend essential elements of a legislative act. The draft report therefore proposes to replace the delegated act with a legislative act. If accepted, one would encounter the same issues related to challenging legislative acts and omissions discussed above in relation to the Article 5 assessment.

Conclusion

The Climate Law demonstrates the current access to justice shortcomings on EU level. Even though the Commission is given a central role in both monitoring and acting on shortcomings if the legally binding targets are not reached, it will be very difficult to challenge related failures before the European Court of Justice. One important step will be, on the one hand, an amendment of the Climate Law Proposal, inserting an access to justice provision in relation to NECPs and LTSs. Secondly, the amendment of the Aarhus Regulation this autumn must widen the currently unduly narrow definition of an administrative act. Neither will be a fix-all solution but will significantly improve the current situation and provide for more accountability in respect of the EU’s climate target.

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Nicholas Doherty