Admissibility Revisited

In an effort to force the European Union to adopt more ambitious climate targets, two environmental NGOs initiated a proceeding before the EU General Court, invoking the rarely used mechanism of “internal review” under the EU’s Aarhus Regulation. The reason for this unusual approach lies within a reoccurring issue of climate litigation: overcoming restrictive admissibility requirements. This new approach follows a path that had not yet been considered by legal scholarship or practice. While the line of argument is rather innovative, it goes beyond the boundaries of the Aarhus Regulation and is therefore likely to fail. However, a negative decision in this proceeding does not need to signal the end of climate litigation in EU courts. Instead, a methodically transparent development of the European Treaties, inspired by the KlimaSeniorinnen-ruling of the European Court of Human Rights (ECtHR), could provide a basis for arguing the admissibility of climate cases at EU level.

“Standing” as a reoccurring issue of Climate litigation

 Over the past years, courts across various jurisdictions have issued rulings demanding more ambitious climate change legislation. While the rulings were based on different legal texts, the legal obstacles to overcome are usually rather similar. Among them are issues of causation, issues of proof and – most notably – issues of standing before the court. Many legal systems require individuals and associations to demonstrate a personal and direct infliction of their rights to establish standing. Due to the global and collective nature of climate change, this requirement is typically negated for applicants in climate cases (cf. e.g. KlimaSeniorinnen, §§ 458 et seq.). Nevertheless, certain courts have recognized standing in climate-related cases: The German Federal Constitutional Court invented a new “intertemporal” dimension of fundamental rights that might grant standing to individuals in climate cases (cf. Calliess). More recently, the ECtHR adopted a different approach and further developed the European Convention on Human Rights (“ECHR”) in light of the Aarhus Convention as well as EU legislation (KlimaSeniorinnen, §§ 473 et seq.) to include the possibility of collective action in climate cases.

By contrast, EU courts have not yet proven quite as innovative. In the past, the only attempt to bring climate change before EU courts (The People’s Climate Case) remained unsuccessful due to the petitioners’ lack of standing. In strict application of the established interpretation of the relevant provisions of EU law (the “Plaumann-test”)¹⁾, both the General Court as first and the Court of Justice as second instance negated the admissibility of the claims (c.f. Eeckhout’s evaluation in light of KlimaSeniorinnen).

A new attempt – the Aarhus Regulation as a backdoor to admissibility issues?

Now, there is a new attempt to force more ambitious climate litigation through EU courts initiated by environmental NGOs. On the substance, the NGOs argue that the EU climate targets (in particular, the emission reduction of 55 % until 2030 as compared to 1990) are insufficient to stop global warming to the necessary degree and that EU climate legislation thus does not comply with EU primary-law as well as the EU’s obligations under international law, especially the Paris Agreement (cf. press briefing).

While these substantive arguments follow established paths of climate litigation, the NGOs – in light of the restrictive approach by EU courts – have adopted a creative legal strategy to argue their lawsuit’s admissibility. The claim is based on the mechanism of “internal review”²⁾ stipulated in the Aarhus Regulation. According to this mechanism, environmental NGOs that meet certain criteria can request the European Commission to review its administrative acts for alleged breaches of EU environmental law. The Commission’s review can be appealed to the General Court, thus granting access to court without the necessity to argue a personal and direct infliction of rights. However, although this mechanism seems to be a promising tool at first sight, its practical utility to argue the admissibility of a full review of the EU’s climate legislation is constrained by the detailed provisions of the regulation.

The regulation itself defines administrative acts as “any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law”³⁾. However, the EU’s most important environmental law instruments are regulations and directives, both of which are considered legislative acts. Hence, the “internal review”-mechanism of the Aarhus regulation has mostly been used in very technical areas of European environmental law (cf. here) that have not led to a wide reception of this legal remedy. This is also true for the EU’s framework of climate protection. The climate targets being challenged by the NGOs are set in the European Climate Law and the Effort Sharing Regulation. Both are regulations and thus legislative acts, rendering them ineligible for “internal review”.

The NGOs attempt to circumvent this obstacle by directing their lawsuit not at the European Climate Law or the Effort Sharing Regulation, but formally place Decision 2023/1319 front and center. This decision is part of the climate framework and allocates annual emission budgets (in tons of CO2) for the Member States on the basis of the European Climate Law and the Effort Sharing Regulation. Decisions are legal instruments unilaterally issued by the EU Commission and not subject to the legislative procedure, thus making them theoretically eligible for “internal review”. While this approach, at first glance, seems to satisfy the formal admissibility requirements, a closer look reveals that this divide between the formal subject of the lawsuit (the Commission’s decision) and substantive argument brought forward (aimed against the overarching climate targets) should render the application either inadmissible or unsuccessful on the merits.

While decisions can be subject to “internal review”, they must “contravene environmental law“⁴⁾ to be challenged. Environmental law is defined by the Aarhus Regulation as “Union legislation which […] contributes to the pursuit of the objectives of Union policy on the environment as set out in TFEU”⁵⁾. The emphasis here lies on “Union legislation”, narrowing the scope of review to EU secondary law. Neither the treaty provisions cited by the NGOs nor the Paris Agreement fall into this category. The situation would be different if the NGOs had contended that the emission budgets assigned to the Member States under Decision 2023/1319 were not sufficient to comply with the targets set in the Climate Law and Effort-Sharing Regulation itself. Both are regulations – instruments of secondary law – and thus fall under the definition of “Union legislation”. However, the NGOs did not pursue this argument. Instead, they challenge the sufficiency of the overall climate targets enshrined in the European Climate Law and the Effort Sharing Regulation.

Even if the General Court were inclined to expand these explicit boundaries of the Aarhus-Regulation, it could not render a judgment in favor of the NGOs. The decision being challenged – the allocation of annual emission budgets – merely translates the overarching targets set by the European Climate Law and the Effort Sharing Regulation into enforceable numbers. The Court cannot mandate more ambitious climate targets by invalidating the decision alone. Instead, it would have to demand changes to the underlying regulations, which are products of the legislative process. This clearly exceeds the scope of remedies provided under the Aarhus regulation. Consequently, the proceeding initiated by the NGOs are unlikely to succeed.

A transparent development of primary law instead of technical loopholes

However, there are alternative pathways to consider should the EU courts decide to revisit their restrictive position on climate litigation.⁶⁾ While the efficacy of a court-ordered adoption of more ambitious climate targets is debatable – especially since the current EU framework of climate protection suffers more from a lack of compliance than a lack of ambition (cf. Calliess) – a court aiming to move forward could find different avenues grounded in EU primary law (cf. Eeckhout with an overview).

One potential and possibly the most promising pathway could draw inspiration from the approach introduced by the ECtHR’s KlimaSeniorinnen-ruling. While this ruling does not bind EU courts, it could serve as a persuasive precedent. In its ruling, the ECtHR developed the ECHR to include standing in climate cases for associations dedicated to environmental protection, going beyond the remedies provided by the ECHR. To support this approach, the ECtHR referenced the overarching objectives of the Aarhus Convention (to which most contracting states are parties), relevant EU legislation, as well as the practical necessity of providing legal remedies in climate cases (KlimaSeniorinnen, §§ 473 et seq.).

EU courts could follow a similar path, moving beyond the limits imposed by Article 263(4) TFEU to allow climate cases by environmental NGOs in clearly defined exceptional cases. However, such an approach would need to be grounded in robust legal methodology and supported by strong arguments. EU courts could follow their own precedent for guidance, specifically the methodological framework that facilitated the introduction of fundamental rights into EU primary law. By drawing on international law (i.e. the ECHR) and the Member States’ legal systems as comparative law, EU courts incorporated fundamental rights into EU primary law (cf. Calliess for a detailed account of this process). In a similar fashion, EU courts could now refer to the Member States’ legal systems and the ECHR as comparative law, alongside the principles of the Aarhus Convention (to which the EU itself is a signatory), and the overall lack of mechanisms for reviewing climate legislation. This could provide the necessary foundation to allow climate cases initiated by NGOs in exceptional cases to overcome the hurdle of admissibility in climate litigation.

Once this hurdle is overcome, EU primary law offers a variety of provisions that could substantiate a claim for more ambitious climate targets. In particular, Article 191 TFEU and Article 37 of the Charter of Fundamental Rights require a “high level of environmental protection” – potentially giving petitioners an angle to argue the necessity of climate targets that surpass the standards of the Paris Agreement.