From Strasbourg to Luxembourg?

The judgment in Verein KlimaSeniorinnen is transformational. The European Court of Human Rights (ECtHR) has now established, with great care and articulation, that States’ failure to take adequate action against climate change amounts to a violation of Article 8 of the European Convention on Human Rights (ECHR).  It has, ingeniously, constructed an “appropriate and tailored” remedy by accepting the standing of associations representing “the individuals whose rights are or will be affected” (see e.g. paragraphs 422, 434 and 498).  It has struck an appropriate balance between the judicial protection of fundamental rights and democratic policy-making on climate change.  Following the Court’s decision, States retain discretion to decide on the appropriate means and measures to reduce GHG emissions, but their overall aims, objectives and trajectory must fit the political and scientific consensus that global warming must be contained, preferably to 1.5C.

This blogpost offers a first examination of whether the EU system of remedies accommodates the remedy established in Verein KlimaSeniorinnen v Switzerland (“KlimaSeniorinnen”): that environmental associations fighting climate change should be able to challenge inadequate action against climate change.  As will be seen, in order to achieve this, the CJEU will need to show flexibility and a willingness to innovate.

KlimaSeniorinnen and the EU

KlimaSeniorinnen applies directly to the ECHR Contracting Parties, which do not include the EU.  However, for those States that are party to the ECHR and also EU Member States, the EU is the elephant in the room.  It is the main driver of climate change mitigation policies – in essence, the reduction of GHG emissions – in and of the EU Member States.  It has signed on to the Kyoto Protocol and the Paris Agreement, has established an emissions trading scheme, and has wide and overarching competences in product regulation (internal market), environmental protection, energy and international trade.

When the ECtHR finds that climate change policies are within the scope of the right to respect for private and family life, the EU is potentially in the dock, even if it is not an ECHR Contracting Party.  That is because that right is also protected in EU law, namely in Article 7 of the EU Charter of Fundamental Rights, which the EU needs to respect (Article 6(1) TEU).  And Article 52(3) of the EU Charter of Fundamental Rights provides: “In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention.”

Possible EU remedies

KlimaSeniorinnen reminds us of the maxim ubi ius, ibi remedium – no right without a proper remedy.  The remedy constructed by the ECtHR is straightforward.  NGOs fighting climate change, and thereby representing all those who are affected, within a particular jurisdiction, must have standing to challenge “acts or omissions in respect of various types of general measures, the consequences of which are not limited to certain identifiable individuals or groups but affect the population more widely” (paragraph 479).  This is so because, as regards the fight against climate change: “The critical issues arise from failures to act, or inadequate action.  In other words, they arise from omissions” (idem).  These are quotations from the section of the judgment which examines victim status.  The ECtHR considers that “the issue of victim status must be interpreted in an evolutive manner (…) and that any excessively formalistic interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory” (paragraph 482).

The question therefore arises whether the EU system of remedies enables NGOs to challenge the EU for failing to act, or for taking inadequate action against climate change. There are, at least in theory, several possible avenues for bringing such a challenge.

The first route is an indirect one, through a national court, which may refer a question of validity of EU climate legislation to the Court of Justice of the European Union (CJEU) (Article 267, Treaty on the Functioning of the EU (TFEU)).  That is not, in my view, an adequate remedy for a number of reasons.  In preliminary rulings cases, it is the national court which decides whether to make a referral to the CJEU, not the parties.  Assuming that a right of action under the law of a Member State allows an NGO to challenge general EU climate legislation – not a straightforward matter – it is for the NGO to convince the national court that the EU is indeed failing in its human rights obligations by not taking adequate action on climate change.  But national courts are not the appropriate venue for assessing this. As we have learned from KlimaSeniorinnen, the assessment requires an in-depth review of the scientific evidence and of the whole EU legislative and regulatory framework, which national courts are not well placed to undertake.  Moreover, even if a reference is made, the procedure of a preliminary rulings case is wholly unsuited for the in-depth review which the CJEU should undertake (as most cogently demonstrated by Advocate General Jacobs in UPA).  The CJEU cannot find facts in preliminary rulings cases and decides purely on matters of law.  It must base its decision on the fact file as it has been constituted by the referring court.  The Court of Justice, which hears these cases, is rarely dealing with fact-intensive cases; that is the role of the General Court in the EU system.  The preliminary rulings procedure is not adversarial: the parties have two months to make their submissions but cannot respond to each other’s arguments other than at the hearing.  Those are just some of the reasons to question the effectiveness of this remedy.

A second option for challenging the adequacy of EU climate action is via direct actions for annulment (Article 263 TFEU). This may be a more viable route, particularly after the decision in KlimaSeniorinnen.

A general challenge to EU climate policy was attempted in Armando Carvalho (2019).  That case showed that private parties could not directly challenge EU climate legislation because they were not “directly and individually concerned” by the legislation (Article 263, fourth paragraph, TFEU).  That restrictive interpretation of the standing requirements is about as old as the CJEU, dating back to Plaumann (1963).  One of its most infamous applications was in Greenpeace and Others, where the CJEU held that local residents affected by the building of two power stations on the Canary Islands, co-funded by the EU, were not directly and individually concerned by that funding decision.

The CJEU has shown an unwillingness to reconsider its interpretation of the concepts of direct and individual concern so as to allow challenges to EU legislation by private parties.  It will clearly not do so through a general re-interpretation, which opens up actions for the annulment of legislation, across the board.  The argument that an exception must be made for alleged human rights violations was also rejected on the grounds that “a fundamental right is always likely to be concerned in one way or another by measures of general application” and that “the claim that the acts at issue infringe fundamental rights is not sufficient in itself to establish that the action brought by an individual is admissible, without running the risk of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless” (Armando Carvalho, paragraphs 47-48).

Could the judgment in KlimaSeniorinnen lead the CJEU to make an exception for the “appropriate and tailored” remedy which that judgment constructed, exclusively in the sphere of climate change policy?  It ought to, in my view.  The potential counter-argument that such an exception was already rejected in Armando Carvalho is unconvincing.  KlimaSeniorinnen is not limited to finding a breach of a substantive right protected by the ECHR but also establishes the need for this uniquely tailored remedy.  The right to an effective remedy is protected by both the ECHR and the EU Charter (Article 47).  The CJEU’s insistence that this right “cannot have the effect of setting aside the conditions expressly laid down” in Article 263 TFEU (Armando Carvalho, paragraph 78) is now besides the point.  Those conditions must also be interpreted in the light of other provisions of EU law, including Articles 7, 47 and 53 of the EU Charter.  In KlimaSeniorinnen, the ECtHR found that “The specific considerations relating to climate change weigh in favour of recognizing the possibility for associations, subject to certain conditions, to have standing before the Court as representatives of the individuals whose rights are or will be affected” (paragraph 498).

Given that the EU Charter must be interpreted in light of the ECHR, the CJEU should find that associations coming within the scope of the “specific and tailored” remedy are directly and individually concerned by EU climate policy.  That does not amount to setting aside the conditions laid down in Article 263 TFEU.  It amounts to interpreting them so that they are tailored to “the specific considerations relating to climate change”.  Nor does it establish an actio popularis, to use the words of the ECtHR in KlimaSeniorinnen, precisely because of its exceptional character.

Even if the CJEU were willing to establish this specific interpretation of the conditions in Article 263, fourth paragraph, TFEU, there are doubts about the appropriateness and effectiveness of this particular remedy.  KlimaSeniorinnen speaks of the need for a remedy against failure to act or inadequate action.  It is not clear whether a challenge to EU climate legislation, which in any event needs to be brought within a two-month period after its adoption, enables an environmental association to make the claim that particular legislation is inadequate – or indeed that the EU is, in general, not taking adequate action.  The two-month period means that an association must wait for the adoption of new, general climate legislation, or for the amendment of such legislation.  However, the fact that EU action is inadequate may only become apparent with time, as the intensity of the climate emergency manifests itself.

It may therefore be worthwhile to look at another EU law remedy, one that is hardly ever used: the action for failure to act (Article 265 TFEU).  It governs cases where EU institutions, “in infringement of the Treaties, fail to act”.  Those terms best fit the appropriate and tailored remedy established by the ECtHR, focused as it is on failure to act or inadequate action.

Undoubtedly, the EU Treaties require action on climate change (Article 191(1) TFEU and Article 7 EU Charter).  There is a hurdle, though.  A natural or legal person may only bring an action for failure to act where the EU institution “has failed to address to that person any act other than a recommendation or opinion” (Article 265 TFEU).  The CJEU interprets that provision by extending the requirements of direct and individual concern to this remedy, in order to widen it to certain acts that are not addressed to a person, and to ensure that the action for failure to act is the mirror image of the action for annulment.  Again, the CJEU ought to accept an interpretation that accommodates the specific, exceptional climate change remedy.  After KlimaSeniorinnen, it is arguable that environmental associations may rightfully claim that inadequate EU climate change policy amounts to a failure to address to them – the accepted representatives of all EU (potential) victims of climate change – the requisite acts.

Finally, there is also the possibility of an action in damages (Articles 268 and 340 TFEU).  That may also be an avenue for challenging failure to act, or inadequate action against climate change.  However, whether it is an effective remedy is again open to doubt, in light of the stringent requirements imposed in the case law (such as the need to establish a “sufficiently serious” violation).

Conclusion

As can be seen, KlimaSeniorinnen has established a remedy which, in EU law, is not easy to locate and may actually be unavailable in light of restrictive CJEU case law.  Whatever one’s views on this restrictive case law, it is a fact that the EU Charter of Fundamental Rights now obliges the CJEU to do as much as it can to accommodate the KlimaSeniorinnen remedy and to interpret the relevant TFEU provisions flexibly.  One may assume that, sooner or later, the CJEU will be confronted with a KlimaSeniorinnen claim.  If the CJEU were to declare such a claim inadmissible, it will put itself in the corner of courts refusing to engage with climate change policies.  That would be unfortunate for a court that has long been at the forefront of legal progress.

There is also a further question as to whether a denial of this remedy would constitute a manifest deficiency in the standard of EU fundamental rights protection.  Such a manifest deficiency could be established by the European Court of Human Rights (see Bosphorus), notwithstanding the fact that the EU is not an ECHR Contracting Party.  That would be most unfortunate, for the EU, for the CJEU, for the protection of fundamental rights, and for the fight against climate change.