LEGAL BACKGROUND
In recent years, numerous ecologists and environmental organisations have brought proceedings against national governments for their failure to reach the objectives contained in the 2015 Paris Agreement on combating climate change. That Agreement is unique for two reasons. First, it has been ratified by almost all countries in the world, representing over 95% of global greenhouse emissions. Secondly, it contains a specific climate target which our governments have promised to achieve. This consists in the maintenance of global temperatures to well below 2°C and preferably to not more than 1,5°C above pre-industrial levels from the date of the Agreement into the future. In concrete terms, scientists working with the Groupe d’experts intergouvernemental sur l’évolution du climat (GIEC) have demonstrated that to achieve this goal, greenhouse gas emissions must drop by half by 2030, and must reach net-zero by 2050.
As part of the European Green Deal, the European Commission has come up with its nationally determined contribution under Article 7 of the Paris Agreement. Up until the 20th April 2021, the Commission had declared that it is engaged, from now up to 2030: to cut greenhouse gas emissions by 40% in relation to 1990 levels; to ensure that renewable energy sources make up 32% of the energy sector; and to ensure that energy efficiencyis increased by 32.5%. By comparison, the UK plans to achieve a much more ambitious 68% reduction in greenhouse gas emissions in relation to 1990 levels, from now up to 2030 (and an even greater 78% decrease by up to 2035).
CLIMATE ACTIONS FILED AROUND THE WORLD
It is within this legal context that activists wishing to hold national governments to account have opened a number of court actions claiming that not enough is being done to reach the goals set by GIEC. In France, four environmental organisations instituted the Affaire du Siècle (Case of the Century) before the Tribunal Administratif de Paris which, on the 3rd February 2021, condemned the French State for failing to meet the climate targets it set for itself. This means that the responsibility of the French State can be engaged by the French administrative tribunals and the special remedy of réparation en nature may be ordered against it.
Similar actions have been instituted in the Netherlands (Urgenda), in Belgium (Affaire du Climat), in Colombia and in Brazil. In 2020, six Portuguese students even went as far as bringing their case against 33 countries (including Malta) before the European Court of Human Rights, claiming that failure to effectively combat climate change constitutes an infringement of their right to private and family life and their right to live in an environment which poses no danger to their health. This case has been declared admissible by the Strasbourg Court despite the non-exhaustion of domestic remedies.
ACTION BEFORE THE EUROPEAN COURTS
One set of climate change proceedings was even brought before the European courts (Armando Carvalho and Others v. European Parliament and the Council of the European Union, c-565/19 P). In those proceedings various families and an association hailing from various Member States of the European Union, as well as from Kenya and Fiji, asked the Luxembourg courts to annul the legislative package adopted in 2018 by the Union institutions (whose contents are described above). According to the applicants, the legislative package was not ambitious enough since a 40% decrease in greenhouse gas emissions by 2030 (when compared to 1990 levels) could not prevent them from suffering damage caused by the failure of the Union to prevent the effects of climate change. Interestingly, the remedy demanded in the application was an order for the Council of the European Union and the European Parliament to adopt all measures which are necessary to reduce greenhouse gas emissions by anywhere between 50% and 60% (an ‘injunction’ in legal speak).
On the 25th March 2021, the CJEU confirmed the General Court’s previous judgment, declaring the climate action inadmissible. Both courts found that the applicants failed to satisfy the locus standi criteria contained in the fourth paragraph of Article 263 TFEU. Under that provision, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
The legislative acts at issue were not addressed to the applicants so they had to prove that those acts were of direct and individual concern to them. To pass this test, applicants had to show that the contested provisions of the acts at issue distinguished them individually just as in the case of an addressee. In the present case, the applicants argued that, due to their lifestyle or the particular activity they carried out, they suffered from droughts, flooding, melting snow and heatwaves.
According to settled case-law, natural or legal persons satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors they are distinguished individually just as in the case of the person addressed (Plaumann (c-25/62)). Applicants will therefore need to show that they belong to a closed class of persons.
The court held that measures of general application, such as the one at issue, will always concern some fundamental right of some particular applicant, so too wide an interpretation will accord locus standi to any applicant under the sun. For an annulment action to be declared admissible, it is therefore not sufficient to simply claim that a legislative act infringes fundamental rights. By invoking their fundamental rights, the applicants tried to infer an individual concern from the mere infringement of those rights, on the ground that the effects of climate change are unique to and different for each individual. The court disagreed with this approach, stating that the legislative acts at issue did not affect the applicants by reason of attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons.
The conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU could not be widened to the extent demanded by the applicants. Although the EU Charter confers a right to access justice and to obtain effective judicial redress, this does not mean that every action for annulment should be unconditionally admitted. Very importantly,the decision in Plaumann (c-25/62) remained good law and did not need to be revised by the court.
THE SIGNIFICANCE OF THE DECISION
Doctrine has, in the past, praised the CJEU for its judicial activism at times when the Union institutions either failed to function properly or found themselves in deadlock. The CJEU has also been praised for its tendency to enlarge the rights conferred on Union citizens by the Treaties. However, this case will unfortunately be viewed as a deliberate act of resistance to a much-needed change.
The court will definitely be criticised for adopting the principle whereby the more diffuse the effects of a violation of rights are, the less admissible an action for annulment (and damages) will be. In the environmental sphere, the present decision is quite worrying since matters concerning the environment are of themselves classified as being of ‘general concern’. In this sense it is not hard to imagine violations of environmental rights which are also extremely diffuse in nature.
Moreover, it is worth pointing out that eminent jurists, such as Advocate General Jacobs, disagreed strongly with the restrictive approach taken in Plaumann, and asked the European courts to revise their position on several occasions. Yet the Court of Justice in the present case failed to address these views and was content with reiterating the fact that it cannot ignore its past case-law, nor alter the conditions laid down by the TFEU.
On a final note, the Union and its Member States have now agreed to a new ‘Climate Law’ which would reduce greenhouse gas emissions by up to 55% by 2030. Sometimes, a battle lost by citizens may still serve as a symbol to our political institutions.
This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Mark Soler