by Alejandra Ureta Melcon

Background

The European Court of Justice (ECJ), as the apex court in the European Union (EU), adheres to strict procedural requisites for standing delineated in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Article 263 of the TFEU plays a pivotal role, conferring the right to initiate direct actions upon individuals and entities. This right extends to EU member states, the European Parliament, the Council, the Commission, and those directly impacted by a regulatory act. Admissibility criteria outlined in Article 263 further specify that the act must be regulatory and addressed to the individual, excluding challenges against legislative acts by individuals. Central to standing is the concept of ‘locus standi,’ necessitating that claimants establish a “direct and individual concern” regarding the EU act being challenged, meaning that the act must affect them specifically and not be of a general nature. Additionally, strict time limits dictate that actions before the ECJ must be initiated within two months of the act’s publication or notification. Non-Governmental Organizations (NGOs) seeking standing must demonstrate a direct and current interest, subject to more stringent requirements. Additionally, the ECJ handles preliminary references from national courts, allowing any party before a national court to invoke the ECJ when EU law interpretation is deemed essential.

Similarly, applicant standing is a pivotal aspect of initiating legal proceedings before the European Court of Human Rights (ECtHR), as outlined in the European Convention for Human Rights (ECHR). To qualify, individuals, groups, or organizations must meet certain criteria. The standing requirements for bringing a case before the ECtHR are primarily established in Article 34 and Article 35 of the ECHR. Article 34 outlines the right of individuals to submit applications, emphasizing that applicants must be victims of human rights violations and must have exhausted domestic remedies. Article 35 sets out admissibility criteria, addressing issues such as the time limit for submitting applications and the completeness of the submissions. Protocols 1 and 4 to the ECHR also contain additional details related to standing and procedural requirements. While these articles provide the foundational principles, the Court’s case law plays a crucial role in interpreting and applying these requirements in practice. The victim requirement stipulates that applicants must assert being victims of rights violations under the European Convention on Human Rights, with the term “victim” broadly encompassing individuals and entities like NGOs. Emphasizing “direct and personal interest”, the Court mandates that the alleged violation must tangibly affect the applicant’s rights, excluding cases based solely on a general interest. Representative actions enable individuals or organizations to litigate on behalf of others, necessitating a demonstrated legitimate basis for representation. Legal entities, including NGOs, can stand before the ECHR if they show the alleged violation directly impacts their purposes. The Court generally prohibits multiple applications on the same matter from the same party after a final decision.

Analysis

The first instances of climate change-related legal action in Europe can be traced back to the early 1990s; during this period, the few existing cases centered around the interpretation of planning laws for renewable energy projects presented in UK courts. Since that time, the documented instances of climate litigation have increased, with a total of 285 cases identified throughout the region. However, even now, the requirement for direct and individual concern or standing poses a preliminary concern, which often bars litigation from moving forward in European Courts.

In 2018, ten families, comprising both adults and children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, initiated legal proceedings in the EU General Court intending to compel the European Union to implement more rigorous reductions in greenhouse gas (GHG) emissions. They argue that the European Union’s current objective of reducing domestic greenhouse gas (GHG) emissions by 40% by 2030, compared to 1990 levels, is inadequate in preventing climate change and threatens their fundamental rights, including life, health, occupation, and property. The European General Court did not rule on the merits but dismissed the case on procedural grounds, finding that the plaintiffs could not bring the case since they were not sufficiently and directly affected by these policies (“direct and individual concern” criterion). The Court determined that the plaintiffs lacked standing to pursue the case, reasoning that climate change impacts every individual to some extent. Additionally, the Court’s case law requires that plaintiffs are affected by the contested act in a manner that is “peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually.” The Court rejected the plaintiffs’ argument that the interpretation of the concept of ‘individual concern’ referred to in the fourth paragraph of Article 263 TFEU is not compatible with a fundamental right to effective judicial protection under Article 47 of the Charter of Fundamental Rights. Additionally, the Court did not identify grounds for the plaintiffs to bring the case under alternative criteria specified in the fourth paragraph of Article 263 of the Treaty on the TFEU, which would entail either being direct addressees of the legislative package under consideration or contesting a regulatory act directly relevant to their concerns.

On July 11, 2019, the plaintiffs lodged an appeal with the ECJ, contending that the General Court had erred in its determination that the plaintiffs lacked standing under Article 263. They further argued against the requirement imposed by the Court, asserting that establishing standing under Article 263 should not be a prerequisite for bringing a claim based on non-contractual liability. On March 25, 2021, the ECJ upheld the General Court’s order and held the plaintiff’s claims inadmissible on standing grounds for failing to demonstrate that they were individually impacted by Europe’s climate policy, rejecting the plaintiffs’ arguments that the General Court did not take into account the climate harms specific to them. Instead, the ECJ found sufficient the court’s reasoning that “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,” and that doing so would render standing limitations meaningless. Further, the ECJ rejected the argument that the plaintiffs had established standing by invoking an infringement of fundamental rights. “[T]he appellants’ reasoning, in addition to its generic wording, leads to the conclusion that there is locus standi for any applicant, since a fundamental right is always likely to be concerned in one way or another by measures of general application such as those contested in the present case.” As a result, the ECJ dismissed the appeal and instructed the plaintiffs to cover the costs accrued by the European Parliament and the Council of the European Union.

Similarly, on July 11, 2022, Plan B. Earth, and others filed an application at the ECtHR against the United Kingdom with a priority request under Rule 41. They contended that the UK Government was systematically failing to fulfill its legal obligations under the Human Rights Act 1998 and the European Convention on Human Rights. Further, they argued that the government’s negligence involves a consistent lack of “practical and effective measures” to address the threat posed by man-made climate breakdown. Articles 2, 8, and 14 of the Convention place upon governments the positive obligation to undertake reasonable and proportionate measures to protect the right to life and family life and to do so without discrimination. However, in January 2023, the case was declared inadmissible. Similarly to the ECJ, the EctHR found that the applicants were not sufficiently affected by the alleged breach of the Convention to claim to be the victims of a violation within the meaning of standing under Article 34. Accordingly, their complaints were deemed incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a)Possible Solutions

An increasing number of national courts in Europe are holding Member States accountable for the climate crisis and, in some cases, ordering them to accelerate greenhouse gas emission reductions to protect citizens from current and future climate impacts. With decisions like the two above, the European Higher courts fail to join the tidal wave of national and supranational Courts who play an important role in holding governments accountable for their climate inaction. However, recently, the ECtHR notably granted priority to the climate case initiated by six young Portuguese based on the “importance and urgency of the issues raised.”

The idea that a litigant must have a personal stake in the litigation is inherently satisfied in climate change cases. As the public becomes increasingly aware of the effects of climate change, it is unjust for litigants to be required to plead precise injuries just to enter the courtroom. If judicial systems were to continue barring legitimate climate change cases from reaching a substantive trial or motion, the potential impacts of climate change will only worsen; therefore, a new legal approach to the issue is required. Scholars have proposed a streamlined approach for climate change standing that assumes injury in fact and causation for a class of discernible climate change harms. By removing preliminary concerns regarding standing, this streamlined approach would enable litigants harmed by climate change to seek redress in court, providing an outlet for redress where there previously has not been one.

Conclusion

The procedural challenges posed by stringent standing requirements at the EctHR and the ECJ significantly hinder progress in European climate change litigation. The emphasis on a “direct and individual concern” has proven to be a formidable barrier, evident in recent dismissed cases. This highlights litigants’ struggle to establish a personal stake in climate-related matters. Despite the increasing number of climate change legal actions in Europe, standing requirements persist as a significant obstacle, emphasizing the pressing need to reevaluate these requirements. As the global community grapples with the urgent threat of climate change, a more inclusive and adaptable legal approach is essential to ensuring that legitimate cases can proceed and contribute to the collective efforts in addressing this global challenge.