Climate Protection as a European Fundamental Right under the ECHR and beyond by eulawlive

Climate Protection as a European Fundamental Right under the ECHR and beyond

Edited by:

Nathan de Arriba-Sellier

Climate Protection as a European Fundamental Right under the ECHR and beyond

1. Introduction: Climate Protection as a European Fundamental Right under the ECHR and beyond

Nathan de Arriba-Sellier

2. Breaking Down Climate Litigation Justice in Europe: The ECtHR’s ruling on Duarte Agostinho and Others v. Portugal and 32 Other Member States

Carolina Ramalho dos Santos and Erriketi Tla da Silva

3. Verein KlimaSeniorinnen Schweiz v. Switzerland and Article 6(1) of the ECHR: Of Climate Change and Craftsmanship

Anaïs Brucher and Antoine De Spiegeleir

4. Legal Standing in Climate Litigation before the ECtHR and the CJEU

Mario Pagano

5. Climate Justice in the Jurisprudence of the European Court of Human Rights. Some notes on Carême v. France, Verein KlimaSeniorinnen v. Switzerland, Duarte Agostinho & al. v. Portugal & 32 Others

Marta Torre-Schaub

6. The Klimaseniorinnen Case: In Search of Substantive Standards

R. A. Lawson

7. No Nature, no Human Rights: Implications of KlimaSeniorinnen for Biodiversity

Niels Hoek and Justine Muller

8. Verein KlimaSeniorinnen Schweiz and others vs. Switzerland: paving the way for climate litigation in Europe Bas van Bockel

9. The Klimaseniorinnen Case: Clearing the Air for Corporate Climate Litigation

Sumeyra Arslan

10. Intersectionality in the KlimaSeniorinnen case – ‘Older Women’ in Action

Christa Tobler

11. Just as Ripples Spread out when a Single Pebble is Dropped into Water’- ECHR KlimaSeniorinnen Judgement’s Systemic Effects on the EU Legal Order

Alicja Sikora-Kaléda

12. Epilogue: “The Strasbourg Effect”

Daniel Sarmiento and Sara Iglesias Sánchez

Climate Protection as a European Fundamental Right under the ECHR and beyond

Introduction: Climate Protection as a European Fundamental Right under the ECHR and beyond

Nathan de Arriba-Sellier

Verein KlimaSeniorinen Schweiz v Switzerland, Carême v France, Duarte Agostinho et al. v Portugal and 32 Other Member States: it is with this trilogy of judgments that the European Court of Human Rights (ECtHR) has fired the opening salvo of a momentous year for the recognition of climate protection in international law. The International Tribunal for the Law of the Sea shortly thereafter issued its Advisory Opinion and the International Court of Justice is expected to decide on its own soon. All these jurisdictions are deciding on States’ obligations with respect to to climate action under international law. After years of negotiations, breakthroughs and impasses behind the closed doors of the hallways of the COPs, [1] the future of international climate law is being decided differently. In an adversarial fashion, in the open, before well-established tribunals where experimented judges decide what the law is, not what it ought to be.

So it is on 9 April 2024 that the ECtHR ruled that the right to private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms entailed a right to protection from the serious adverse effects of climate change. In other words, the Convention imposes positive obligations to take effective measures for climate change mitigation and adaptation in order to protect human life and health. While the ECtHR ruled the applications in Carême and Duarte Agostinho to be inadmissible, it found in KlimaSeniorinnen that Switzerland had violated Article 8 of the Convention by failing to take sufficient action to reduce its emissions of greenhouse gas.

Member States have a wide margin of discretion in deciding how to fulfill their obligations and what measures to take, yet the nature and extent of their positive obligations is unescapable. The ECtHR operated a remarkable reconciliation of international climate law and its own case-law in environmental matters to determine the positive obligations of Member States. To affirm the (individual) responsibility of the Member States, the Strasbourg Court invoked the well-known principle of common but differentiated responsibilities (§ 442) at the core of the United Nations Framework Convention on Climate Change and the Paris Agreement. With a view to the Paris Agreement, the ECtHR fleshed out the States’ positive obligations by recognizing that Article 8 of the Convention requires “the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades.” (§ 548) It also paid particular attention to the importance of inter-generational burden-sharing that was first affirmed in the 1972 Stockholm Declaration adopted by the United Nations Conference on the Human Environment; for this reason, “immediate action needs to be taken and adequate intermediate reduction goals must be set” in order to reach climate neutrality (§ 549).

Of course, the ruling in KlimaSeniorinnen cannot be considered in isolation from the already long series of judgments from national courts that all paved the way to the Strasbourg Court’s finding of climate protection as a European fundamental right – some of them extensively cited by the ECtHR: Neubauer (BundesKlimaschutzgesetz), Grande Synthe, Friends of the Irish Environment, etc. Already in the landmark Urgenda case, Dutch courts have found that the government had the obligation to take meaningful action

Climate Protection as a European Fundamental Right under the ECHR and beyond

to reduce greenhouse gas emissions on the ground of the rights protected under Articles 2 and 8 of the Convention. While the ECtHR unanimously found in KlimaSeniorinnen that it is not necessary to examine the applicability of Article 2 (the right to life), it upheld the claim of the applicants regarding Article 8 of the Convention.

The consolidating jurisprudential movement around the recognition of climate protection as a fundamental right is undeniable. And its consequences are far-reaching. Solidly grounded in fact and law, extensively justified and compelling, these judgments competently disprove facile (if not pavlovian) accusations of judicial activism. Yet, they open another, more uncomfortable question. Isn’t this all a Pyrrhic victory? What have these judgments changed? From Urgenda and Grande Synthe, to KlimaSeniorinnen, judicial canons seem filled with wet powder, and governments have stubbornly refused to take the measures required by courts. Is it just a question of indifference and complacency or does it beg a broader question, essentially one of the Rule of Law?

It is not for this symposium to chop this gordian knot. Instead, the dozen contributions that have been successively published on EU Law Live and that are reproduced here seek to provide some answers to the myriads of questions that arose from the ECtHR’s cases and arose your curiosity.

On admissibility first. While much of the attention has been captured by the ruling in KlimaSeniorinnen, the decisions in Carême and Duarte Agostinho deserve as much scrutiny. We start with the latter as Carolina Ramalho dos Santos and Erriketi Tla da Silva break down for us questions of extraterritorial jurisdiction and exhaustion of domestic remedies faced by the ECtHR. Deciding on the victim status of the applicants was arguably one of the most difficult tasks of the Strasbourg Court, as it recognised that climate change is not only a global phenomenon, but also one that is urgent, grave and irreversible. The application in Carême v France was found to be inadmissible, but it is itself of great interest given that it concerns a person who used to live in an area highly vulnerable to sea rise resulting from climate change at the core of the Grande Synthe case. It is in KlimaSeniorinnen that the ECtHR provides an avenue for access to justice under Article 6 of the Convention, as remarkably discussed by Anaïs Brucher and Antoine de Spiegeleir. Mario Pagano then pursues the fascinating reflection on legal standing by contrasting the admissibility decisions of the ECtHR with the Court of Justice of the European Union’s obstinate adherence to the Plaumann criteria. Marta Tarre-Schaub finally brings competently the three rulings of the Strasbourg Court together from the important standpoint of climate justice.

The transition to substantive law is operated by Rick Lawson, who opens the exciting search for substantive standards in KlimaSeniorinnen and lays out some reflections on the path forward. Despite the certain proximity with the case-law in environmental matters, the consideration of climate change presented its own set of unique challenges for the ECtHR to consider. The same may arise from biodiversity loss, the parallel environmental crisis that has arisen alongside the climate crisis; Niels Hoek and Justine Muller explore the thought-provoking parallel and the possible transposition of KlimaSeniorinnen. By contrast, Bas van Bockel reads the ECtHR’s judgments from the interesting perspective of game theory. But the ramifications of KlimaSeniorinnen may be more strongly felt in another fast-emerging area of litigation; climate cases directed against companies and financial institutions as exposed by Sumeyra Arslan, herself involved in one of the most important of such cases.

To conclude this symposium, we go back to the sources. Source of the judicial landmark that KlimaSeniorinnen represents: the vulnerability of women and aged persons to the effects of climate change,

Climate Protection as a European Fundamental Right under the ECHR and beyond

an inspiring intersectionality perspective provided by Christa Tobler. And source of this symposium: what are the consequences of KlimaSeniorinnen for the EU legal order, questions Alicja Sikora-Kaléda pointedly. Will we finally see the recognition of a right to a clean and healthy environment as some may have read in the recent grand chamber judgment in the Ilva case? [2] This would be a welcome development, decades after ADBHU and Plaumann. It may indeed be high time the Court of Justice wakes up to the XXIst century.

Dr. Nathan de Arriba-Sellier is the director of the Erasmus Platform for Sustainable Value Creation at Rotterdam School of Management, Erasmus University.

[1] The Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC)

[2] Court of Justice (Grand Chamber), C-626/22, C.Z. and Others v Ilva SpA in Amministrazione Straordinaria, ECLI:EU:C:2024:542, paras 71 and 72.

SUGESTED CITATION: De Arriba-Sellier, N., “Climate Protection as a European Fundamental Right under the ECHR and beyond”, EU Law Live, Symposium on “Climate Protection as a European Fundamental Right under the ECHR and beyond”

Climate Protection as a European Fundamental Right under the ECHR and beyond

Breaking Down Climate Litigation Justice in Europe: The ECtHR’s ruling on Duarte Agostinho and Others v. Portugal and Thirty-Two Other Member States

Carolina Ramalho dos Santos and Erriketi Tla da Silva

Introduction

On 9 April 2024 the European Court of Human Rights (ECtHR) rendered its judgement on Case Duarte Agostinho and others against Portugal and 32 others (Application no. 39371/20). The judgement was highly anticipated being one of the first climate litigation cases brought before the ECtHR. The potential recognition of victimhood for climate cases before the ECtHR would send a strong message to the Court of Justice and could invite it to rethink its strict admissibility conditions (Article 263 para. 4 TFEU and Case 25-62, Plaumann). The ECtHR concluded that the case was inadmissible since the applicants did not exhaust domestic remedies. However, on the same date the ECtHR issued its groundbreaking judgement in Verein KlimaSeniorinnen Schweiz and Others, recognising that failure to undertake adequate measures to address climate change is a violation of the European Convention of Human Rights (ECHR).

Background of the Duarte Agostinho Case

Six young Portuguese nationals lodged an application with the ECtHR on 7 September 2020. They claimed that lack of sufficient action by the 33 respondent States, including all the EU Member States to effectively deal with the existing and anticipated impacts of climate change such as rising temperatures and increased wildfires were in breach of Articles 2 (right to life), 3 (prohibition of inhuman and degrading treatment), 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the ECHR.

Citing various international agreements including the Paris Agreement and the UN Convention on the Rights of the Child, as well as expert reports, they argued that Portugal and 32 other countries shared responsibility for not adequately addressing climate change. They emphasised that they were currently facing risks due to climate change, which were expected to escalate significantly throughout their lifetimes and that their generation was disproportionately affected by climate change compared to previous ones.

The Judgement of the European Court of Human Rights

The ECtHR unanimously held that the application was inadmissible because there were no legal grounds for extraterritorial jurisdiction, thus concluding that territorial jurisdiction was established for Portugal and that the applicants had not exhausted the domestic remedies available in the Portuguese legal order. Consequently, it did not rule on the merits of the application. Nevertheless, the ECtHR took the opportunity to give some meaningful contributions in relation to the existence of a causal link between harmful activities for the environment and the impact they have on the rights included in the ECHR.

Extraterritorial Jurisdiction

According to the Court, the applicants, as Portuguese residents, were under Portuguese jurisdiction. Therefore, under Article 1 of the ECHR, Portugal was obliged to answer for the infringements resulting from its governmental inaction if it was considered to harm the rights protected in the Convention.

The applicants relied on the fact that the States’emmissions and/or their lack of action to limit or reduce them produced effects outside their territories, i.e., ‘exceptional circumstances’, and on the ‘special features’ of climate change (e.g., multilateral dimension, the consequences of surpassing the 1.5 º C limit and the States’ responsibility to comply with such limit, etc.) to ask the Court to establish the other respondent States’ extraterritorial jurisdiction First, the Court found that States were ultimately responsible for controlling public and private activities in their territories that produced greenhouse gas (GHG) emissions. Most importantly, the ECtHR concluded that there was a causal relationship between public and private activities based on a state’s territory that produced GHG emissions and the detrimental impact on the rights and freedoms of people living outside the borders of that State. Plus, the Court recognised that climate change posed an existential threat to humanity, distinguishing it from other causeand-effect situations.

Nevertheless, the ECtHR concluded that such considerations were not sufficient to establish extraterritorial jurisdiction in this case.

In this regard the applicants argued that jurisdiction should be built upon the content of the States’ positive obligations, i.e. to take action on climate change which harmed the applicants’ rights under the ECHR. The Court held that the States’ positive obligations regarding climate change was not a robust enough ground to claim that the State had jurisdiction over people residing outside of its territory. Additionally, the Court found that the Portuguese applicants’ EU citizenship was not a reason to establish a jurisdictional link between them and the EU respondent Member States.

Regarding the argument presented by the applicants which stated that extraterritorial jurisdiction should be established to facilitate broader litigation, the ECtHR stated that the Convention was not built to provide general protection of the environment by and of itself, and that international legal mechanisms and national legislation were the tools to handle such matters. Furthermore, the Court explained that such argument would constitute a departure from the protection system established by the Convention. Still in this aspect, the applicants took the opportunity to state that litigating the case only in Portugal would be of limited efficacy and this was the only legal avenue where they could hold the respondent States responsible for their inaction on climate change. Nevertheless, the ECtHR responded by stating that jurisdiction and responsibility are issues that should be assessed separately and, while admitting that climate change is a global concern it also noted that each State has its responsibilities regarding governmental action to fight the phenomenon.

Finally, the Court denied the applicants’ proposed extension of the member States’ extraterritorial jurisdiction on the basis of the ‘control over the applicants’ Convention interests’ in the field of climate change. According to the ECtHR if such extension was upheld it would lead to an unsound level of uncertainty for the States, given that accepting such a theory could mean an unlimited expansion of States extraterritorial jurisdiction under the Convention. In practice, this could mean that States would have global responsibility and that, consequently, they would have an unlimited expansion of their responsibilities

Climate Protection as a European Fundamental Right under the ECHR and beyond

under the Convention towards anyone in the world. This would thus change the Convention’s core purpose to a global climate-change treaty.

Following the considerations above, the Court ruled that the application in the Duarte Agostinho case was to be considered inadmissible pursuant to Article 35 (3) and (4) of the Convention.

Exhaustion of Domestic Remedies

The Court found that the applicants had not exhausted the domestic remedies available in Portugal and declared the application inadmissible. Indeed, the applicants had not pursued any legal recourse in Portugal regarding their grievances even though there is an enforceable right to a healthy and ecologically balanced environment in Portugal’s Constitution (Article 66).

Additionally, Section 7(1) of Law no. 19/2014 (the Environmental Policy Framework) ensures everyone’s right to full and effective protection of their environmental rights, while Section 7(2) provides for the possibility of instituting actio popularis actions to request public authorities to take specific actions, including environmental protection and quality of life measures. Furthermore, Law no. 98/2021, of 31 December 2021 (Portuguese Climate Framework Law) identifies climate change as an emergency and grants everyone the right of protection against its impacts, empowering individuals to demand compliance from public and private entities with their obligations in climate-related matters. Moreover, Portuguese domestic law provides for non-contractual civil liability actions against the State, as well as for administrative remedies, allowing individuals to petition administrative courts to compel the administration to take measures regarding issues, including the environment and quality of life.

In this regard, and as the Court correctly notes, climate litigation is already a reality in Portugal. On November 26, 2023, Último Recurso, Quercus and Sciaena, three Portuguese NGOs launched civil proceedings pursuant to Law no. 83/95 (Portuguese Class Action Law) against the Government for not taking the sufficient steps to implement the Portuguese Climate Framework Law. Amongst the claims, the NGOs allege that the State was negligent regarding the promulgation of the Law, referring to the lack of adoption of a carbon budget, a climate action portal, a national energy and climate plan and sectoral and mitigation plans. Nevertheless, the defendant has not been summoned by the judge responsible for the case, when it should have been on April 4, 2024, thus delaying the legal proceedings. Due to the first instance court’s inability to summon the defendant, a complaint has been submitted to the Superior Judiciary Council. However, the judge dismissed the action on the grounds that the claim brought was unintelligible, meaning that the NGOs will now appeal the decision to the Portuguese Supreme Court.

Considering the comprehensive system of remedies available in the national legal order, the Court found no special reasons to exempt the applicants from the requirement to exhaust domestic remedies. Had the applicants complied with that condition, national courts could assess the compatibility of the challenged national measures with the Convention. The ECtHR reminded that its role is subsidiary to that of national courts, and the applicants’ failure to engage with domestic remedies hindered the national courts’ ability to fulfil their fundamental role in the Convention protection system.

The ECtHR rejected the argument of the applicants that the Court should rule on climate change issues before national courts for standing against the notion of subsidiarity which underpins the Convention.

Some Reflections on the Case

The findings of the Court in the Duarte Agostinho case were expected, since the non-exhaustion of domestic remedies is incontestable, and it would be impossible to completely disregard the letter of the ECHR (Article 35 ECHR).

While the Duarte Agostinho case was lost on procedural grounds, the outcome of the Verein KlimaSeniorinnen Schweiz and Otherscase is a beacon of hope since the Court declared that government inaction directly affects human rights under the ECHR. Thus, the applicants in the Duarte Agostinho case can use this precedent before the Portuguese courts. The ECtHR’s judgement in VereinKlimaSeniorinnen Schweiz and Others is even more promising for the future of climate litigation in light of the potential accession of the EU to the ECHR following the conclusion of the negotiations at technical level in March 2023. In the event of EU’s accession, this judgement opens the door to a possible climate case against the EU for not taking sufficient actions to address climate change.

In Duarte Agostinho, the ECtHR came to the groundbreaking conclusion that there is a direct link between public and private activities within a state’s territory that produced GHG emissions and the adverse effects on the rights of individuals residing beyond that state’s borders. Nevertheless, the outcome of the case highlights the notable constraints of the ECtHR in safeguarding individual rights against climate change impacts. The ECtHR’s jurisdiction primarily operates within territorial boundaries, but the devastating effects of climate change transcend such confines. It is worth noting that other international courts such as the Inter-American Court of Human Rights in its advisory opinion OC-23/17 on human rights and the environment, have broadened the interpretation of extraterritorial jurisdiction, accepting a factual link between the conduct and the extraterritorial violation of human rights when a state exercises effective control over activities within its territory, leading to human rights violations beyond its borders, and has the capacity to prevent such harm.

The outcomes of these two cases shows that while the ECtHR remains loyal to its strict admissibility conditions, its doors are not as hermetically closed as it is currently the case in the CJEU. It would be interesting to observe whether these cases will trigger any changes in the approach of the CJEU, which made it clear in Carvalho (Case C-565/19 P para 70) that the Plaumann formula is inextricably tied with the Treaties and can only be modified through Treaty reform.

Can the openness of the ECtHR motivate the CJEU to depart from the Plaumann precedent and reform its interpretation of direct and individual concern or would the welcoming attitude of the ECtHR be an ‘excuse’ to maintain the status quo, since climate litigants have now access to an international court?

Given that the admissibility conditions for both Courts were not historically designed to address collective issues such as climate change, perhaps it is time to rethink admissibility drawing inspiration from other international courts so that it can encompass the community-wide nature of environmental claims.

Conclusion

To conclude, the outcome of the case was expected as the admissibility requirements were incontestably not fulfilled. Nevertheless, the acknowledgment of a connection between activities conducted within the

Climate Protection as a European Fundamental Right under the ECHR and beyond

territory of a state and result to GHG emissions and their negative impacts on the rights of individuals living outside that state’s borders together with the groundbreaking conclusions of the Verein KlimaSeniorinnen Schweiz and Others case show that ECtHR is becoming a promising forum for climate change litigation. However, the refusal of the ECtHR to create a new test for extraterritorial jurisdiction demonstrates the serious limitations of the ECHR as a tool to provide effective judicial protection in climate cases that by their nature do not respect territorial barriers.

Carolina Ramalho dos Santos is a trainee lawyer at a Portuguese law firm. She holds an LL.M. in European Legal Studies from the College of Europe and currently follows postgraduate studies in International Environmental Law at the University of London.

Erriketi Tla da Silva is a PhD candidate in Wageningen University and an Academic Assistant at the College of Europe. She holds an LL.M. in European Legal Studies from the College of Europe as well as an LL.M. in Environmental Law from the National and Kapodistrian University of Athens. She is a qualified lawyer, registered in the Athens Bar Association.

SUGGESTED CITATION: Ramalho, C. and Tla da Silva, E.; “Breaking Down Climate Litigation Justice in Europe: The ECtHR’s ruling on Duarte Agostinho and Others v. Portugal and 32 Other Member States”, EU Law Live, 24/04/2024, https://eulawlive.com/op-ed-breakingdown-climate-litigation-justice-in-europe-the-ecthrs-ruling-on-duarte-agostinho-and-others-v-portugal-and-32-other-member-states-by-carolina-ramalho-dos-sa/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Verein KlimaSeniorinnen Schweiz v. Switzerland and Article 6(1) of the ECHR: Of Climate Change and Craftsmanship

Anaïs Brucher and Antoine De Spiegeleir

On April 9, the European Court of Human Rights (ECtHR) issued its much-awaited rulings in three climate change cases: Verein KlimaSeniorinnen Schweiz v. Switzerland, Duarte Agostinho and Others v. Portugal and 32 Other States, and Carême v. France. In this Op-Ed, we look at how the right to a fair trial under Article 6(1) of the European Convention on Human Rights played out in KlimaSeniorinnen, the only case in which this provision was relied upon by the applicants. While this aspect of the Grand Chamber judgment is not revolutionary, its significance should not be understated. First, we summarize the ECtHR’s application of Article 6(1) in this seminal climate change case. Second, we voice concerns about the ECtHR’s finding that the individual applicants’ claim under Article 6(1) was inadmissible. Third, we reflect on KlimaSeniorinnen’s treatment of Article 6(1) as an example of creative judicial craftsmanship.

The ECtHR’s Approach to Article 6(1) in KlimaSeniorinnen

In KlimaSeniorinnen, a non-profit association and four individual applicants (who are also members of the association) complained before Swiss authorities that Switzerland was not doing enough to protect them from the adverse effects of climate change on their health and quality of life. Having declared the applicants’ claims inadmissible for lack of legal standing, not a single domestic authority, either administrative or judicial, examined these claims in their merits. In Strasbourg, the applicants complained that this non-examination amounted to denying their right of access to court guaranteed under Article 6(1) of the Convention.

Throughout its judgment, the ECtHR underlined the uniqueness of climate-related litigation, including the need to reflect this uniqueness when interpreting Article 6(1) (KlimaSeniorinnen, paras. 608-614). Although the ECtHR went on to remark that ‘the characteristics of the subject matter do not at present prompt the ECtHR to revise its firmly established case law on Article 6’ (Ibid, para. 608), the theme of climate change did influence how the ECtHR ruled on (i) the applicability conditions of Article 6(1) and (ii) the assessment of compliance with this provision.

While the applicability of Article 6(1) was largely assessed by reference to other judgments (BalmerSchafroth and Others v Switzerland, and Athanassoglou and Others v Switzerland), one tricky question remained. Were the domestic proceedings ‘directly decisive’ for protecting the applicants’ rights against the adverse effects of climate change? Contrary to environmental harms caused by specific operations, which the ECtHR addressed in a long line of case law, climate change-related risks are broader and diffuse—and the climate crisis’ worse effects will only materialize in the future. Assessing the decisiveness of the domestic proceedings for risk alleviation or reduction is necessarily in part prospective. One needs to strike a balance between avoiding an actio popularis based on strictly hypothetical risks and acknowledging the pressing need for access to courts today to prevent irreversible harm tomorrow (Ibid, para. 614).

Climate Protection as a European Fundamental Right under the ECHR and beyond

The ECtHR provided a nuanced answer to the question of decisiveness. Similarly to its approach under Article 8, it only declared the association’s complaint admissible under Article 6(1), rejecting the individuals’ complaint. Associations can act as a collective voice, which is especially relevant to climate change-related concerns shared by an indefinite number of persons, including future generations and other society members at a distinct representational disadvantage. In light of this important role of associations in climate change litigation, the ECtHR allowed the condition for a ‘directly decisive’ outcome to be ‘taken in [a] broader sense of seeking to obtain a form of correction of the authorities’ actions and omissions’ (Ibid, para. 622) and ruled that the association had demonstrated an ‘actual and sufficiently close connection to the matter complained of and to the individuals seeking protection against the adverse effects of climate change on their lives’ (Ibid, para. 621).

The climate change context of KlimaSeniorinnen also influenced the ECtHR’s assessment of the Swiss proceedings’ compliance with Article 6(1) requirements. The ECtHR agreed to examine the association’s claim as long as it was concerned with domestic actions relating to the effective implementation of mitigation measures required under domestic law to tackle climate change, as opposed to requests for legislative and regulatory action. It found that the complete lack of examination of the merits of the association’s claim impaired the ‘very essence’ of the association’s right of access to court (Ibid, paras. 629640). This finding does not depart from the ECtHR’s well-established Article 6(1) case law. Noteworthy is the ECtHR’s insistence on how climate change posed a (new) pressing need to ensure ‘legal protection of human rights as regards the authorities’ allegedly inadequate action to tackle climate change’ (Ibid, para. 634). One wonders whether the ECtHR did not almost suggest that climate change litigation warrants additional vigilance, or lenience, when applying access to court criteria. Such a suggestion, if indeed more than a figment of enthusiastic interpreters’ imagination, remains timid; KlimaSeniorinnen will not overhaul the ECtHR’s Article 6(1) case law.

Victim Status of Individual Applicants under Article 6(1)

For all the sophistication of KlimaSeniorinnen’s reasoning, we are puzzled by the ECtHR’s finding that the individuals’ claim under Article 6(1) was inadmissible. To start with, as pointed out by Judge Eicke in his partial dissent, this finding of inadmissibility breaks with a long tradition of Article 6(1) case law where ‘victim status’ is granted to any individual applicant demonstrating that they have been a party in proceedings brought by them before domestic courts. Pragmatism and self-preservation may explain the ECtHR’s restraint. As it worried about preventing actio popularis, the ECtHR decided to reduce chances for individuals to make it to Strasbourg. The ECtHR was well-aware of the repercussions its first ruling on climate change would have beyond its courtroom. Hence, the ECtHR played it safe. Whether we like it or not, this approach presented two main advantages for Strasbourg. First, the ECtHR avoided being flooded by future claims from individuals somehow directly affected by climate change and whose claims would have been dismissed at the domestic level. Second, by rejecting the victim status of individual applicants throughout its judgment, the ECtHR sidestepped the risk of creating a dissonance between its findings under Article 6 and under Articles 2 and 8. Instead, the ECtHR built a clear common thread for climate change cases: if one hopes to be successful in Strasbourg, one might wish to resort to associations.

Climate Protection as a European Fundamental Right under the ECHR and beyond

If this pragmatism is understandable, it strikes us as somewhat untenable. Indeed, it results in a strange situation: the admissibility test under Article 6(1) was softened for environmental associations and simultaneously hardened for individuals… while their claims under this provision were virtually identical. Associations aim to defend the rights and interests of their members—the ECtHR itself held that the ‘association’s action was based on the threat arising from the adverse effects of climate change as they affected its members’ health and well-being’ (Ibid, para. 618). The same basis (even more directly) animated the individual applicants’ action: their action was based on the threat arising from the adverse effects of climate change for their own health and well-being. Specifically in the context of Article 6(1), we fail to understand why the individuals’ claims could not also be found on its own to have a ‘direct and sufficient link’ with the dispute raised before domestic courts.

One additional detail makes the distinction between associations and individuals under Article 6(1) even odder. As we recalled above, the ECtHR found Switzerland to impair the ‘very essence’ of the association’s right of access to court (Ibid, para. 638). Arguably, despite its rhetorical splendeur, such a finding based on the essence of a right is not particularly compelling or impressive; in KlimaSeniorinnen, it is merely a nearsynonym of the measure being disproportionate to its aims. That said, it remains difficult to reconcile the ECtHR’s dramatic ‘essence’ terminology, and the separation it implies within the Convention provisions between a universalist core and a periphery, with the ECtHR’s sharp distinction between the legal standing of associations and individuals. By granting legal standing only to the association, KlimaSeniorinnen indirectly entitled member states to impair the essence of individuals’ right to access to court, even though this essence was found to be threatened by domestic authorities’ failures.

Below, we argue that the very structure of the KlimaSeniorinnen judgment may be to blame for these issues.

KlimaSeniorinnen as

a Feat of Judicial Craftsmanship

This Op-Ed’s focus on the right to a fair trial in KlimaSeniorinnen offers a welcome opportunity to reflect more abstractly on the craftsmanship that goes into writing collectively such a long and elaborate ruling. As many commentators have noted in the last weeks, this judgment is a testament to the thoroughness and professionalism of the individuals who sit on the Strasbourg bench. Spanning 657 paragraphs, KlimaSeniorinnen is a feat of judicial drafting that is worth studying as such. Above, we pointed out how the ECtHR repeatedly underscored the unique role of environmental associations. Another strategy used by the ECtHR is the ordering of its rulings. When an application encompasses multiple claims, the ECtHR is free to choose which one to discuss first and in which subsequent order to address the others. When it finds that a Convention provision has been breached, it can also decide not to address other claims. In KlimaSeniorinnen, this ordering may have had an important influence on the finding of inadmissibility of the individuals’ claims under Article 6(1), which the ECtHR addressed after touching on Article 8 (and 2), as suggested by Judge Eicke in his partial dissent. Indeed, the ECtHR may have merged considerations on victim status and applicability under Article 6(1) for the mere reason that it had done so under Article 8 and was aiming for overall consistency. The ECtHR may also have denied the individual applicants’ victim status under Article 6 because it had denied it under Article 8 and aimed for consistency of reasoning. All rulings involve these sorts of choices—commentators will surely continue to bicker over whether Strasbourg made the right ones in KlimaSeniorinnen. Whatever the answer, this judgment stands as a model of judicial craftsmanship that will leave an indelible mark on the (European) human rights landscape.

Climate Protection as a European Fundamental Right under the ECHR and beyond

Anaïs Brucher and Antoine De Spiegeleir are PhD researchers at the Law Department of the European University Institute (Florence).

SUGGESTED CITATION: Brucher, A. and De Spiegeleir, A; “Verein KlimaSeniorinnen Schweiz v. Switzerland and Article 6(1) of the ECHR: Of Climate Change and Craftsmanship”, EU Law Live, 08/05/2024, https://eulawlive.com/op-ed-verein-klimaseniorinnen-schweiz-v-switzerland-and-article-61-ofthe-echr-of-climate-change-and-craftsmanship-by-anais-brucher-and-antoine-de-spiegeleir/

Introduction

Climate Protection as a European Fundamental Right under the ECHR and beyond

Legal Standing in Climate Litigation before the ECtHR and the CJEU

Mario Pagano

In the present Op-Ed (which represents a very preliminary reflection), I would like to deepen the topic of admissibility in climate change litigation and compare the different approaches of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) when assessing locus standi of private applicants. In its judgments of the 9th of April 2024, the Strasbourg Court clarified that the issue of the ‘victim status’ of individuals on the one hand, and the one of legal standing of representatives who are acting on behalf of persons whose Convention rights are alleged to be violated on the other, are separate and distinguished (Klimaseniorinnen, application no. 53600/20, para. 496). However, satisfying such requirements is in any case crucial in order to get access to justice. In this contribution, it is argued that the main (substantive) difference in the interpretative methods of the two supranational courts when dealing with legal standing, lies is the evolving hermeneutic approach adopted by the ECtHR, compared to the static approach of the CJEU. For space constraints reasons, I will concentrate my analysis on locus standi in the aforementioned Klimaseniorinnen case of the ECtHR and on the 2021 Carvalho case of the CJEU (C-565/19 P).

In Klimaseniorinnen, the applicants –an association of senior women and four individual women over the age of 80– argued that increasing temperatures due to climate change result in severe health risks and increased mortality, especially for older women (including the applicants). They claimed that Switzerland is failing to fulfil its positive obligations under the ECHR, since the Swiss State is not doing enough to prevent a global temperature rise of more than 1.5°C. By doing so, the applicants argued that Switzerland is also failing to effectively protect their human rights.

Similarly, in Carvalho, the applicants (36 individuals and one association) challenged the 2018 EU climate package (including three EU legislative measures) under Article 263(4) TFEU, measures by which the EU sought to comply with the ‘nationally determined contributions’ (NDCs), as required by Article 4(2) of the Paris Agreement. In essence, the applicants in Carvalho maintained that the climate targets laid down in the contested measures were not sufficiently ambitious to preserve their fundamental rights. In the light of this, the EU judiciary was supposed to annul the contested legislative package and order the EU institutions to adopt measures requiring the Union to reduce its GHG emissions by 2030 by at least 50% to 60% compared to their 1990 levels.

Having briefly outlined the factual background of the two cases, and before delving into the comparison on legal standing, I will first highlight –in short– some key differences between the two courts when dealing with climate change litigation.

Climate Protection as a European Fundamental Right under the ECHR and beyond

The Climate in Strasbourg, the Climate in Luxembourg

Scholars working on climate change litigation have certainly noticed the different ‘emphasis’ put by the ECtHR and the CJEU when dealing with climate change. The ECtHR cases were, since the very beginning, under the spotlight. Scholars and activists long awaited for the 9th of April 2024 as a new ‘doomsday’ (to quote the recently dismissed Italian climate case), a day to be highlighted with a marker on the calendar. Furthermore, the ECtHR decided to relinquish for the Grand Chamber in three key climate cases (including Klimaseniorinnen of course) and deliver the judgments for all of these on the same day. This deeply contributed to build ‘hype’ around the cases, which were treated with the attention and the specialty that is due to the most urgent and widespread threat of our times, that is climate change.

Conversely, climate litigation scholars and activists usually do not remember the 25th of March 2021 as a particularly salient day in their calendar (apart from the undersigned probably). On that day, the sixth chamber of the Court of Justice delivered its ruling dismissing the Carvalho case for lack of standing. Besides the efforts of the plaintiffs and the NGOs behind the case, very little was done by the EU judiciary to emphasise its contribution to the case law on climate change and the relevance of the judgment. No Advocate General provided an opinion on the case and the Grand Chamber was not involved to provide a broader and deeper assessment. A choice that culminated into a very short ruling, counting only 17 pages. Even nowadays, the Court’s final ruling is only available on the CURIA database in English and French and not in all the official languages of the EU. The two different approaches of the two courts are also reflected in the way these dealt with legal standing of the applicants.

Locus standi in Climate Litigation before the CJEU

In para. 479 of the Klimaseniorinnen judgment, the ECtHR captured the key difficulty of granting standing in the climate change context. Indeed, ‘[given] the nature of climate change and its various adverse effects and future risks, the number of persons affected, in different ways and to varying degrees, is indefinite. […] The need, in this context, for a special approach to victim status, and its delimitation, therefore arises from the fact that complaints may concern 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.’ Considering the widespread impact of climate change across society, how should thus courts protect citizens’ human rights from public authorities’ omissions on climate change, while ensuring the exclusion of actio popularis? This is, in essence, the key question that both, the ECtHR and the CJEU, were called upon to answer and that these courts treated in very different ways.

As our reader will know, the CJEU traditionally provides a very narrow interpretation of the standing requirements for private applicants laid down under Article 263(4) TFEU. A narrow interpretation better known under the name of ‘Plaumann test’ (C-25/62). Under this ‘test’, private applicants have to demonstrate to be ‘individually concerned’ by the contested measure, as if the contested measure addresses them individually by certain peculiar attributes or circumstances that differentiate the applicant from any other person. This is already very different from the ECtHR’s interpretation of the ‘victim status’ requirements, according to which the rigorous necessity that the applicant must be personally and actually affected by the alleged violation of the Convention (which is normally the result of a State’s act or omission), ‘does not necessarily mean that the applicant [needs] to be personally targeted by the act or omission complained of’ (paras.

Climate Protection as a European Fundamental Right under the ECHR and beyond

465-466). On the opposite, in Carvalho, the Court of Justice confirmed its Plaumann formula even in the climate change context.

Indeed, the EU judiciary argued 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. […] [A] different approach would have the result of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless and of creating locus standi for all without the criterion of individual concern within the meaning of [Plaumann]’ (para. 37). Here the Court of Justice showed its fear of softening the standing requirements, which might lead – in its view – to a scenario of actio popularis, where everyone is basically entitled to bring a claim to the Court over EU climate policy. In this regard, the Court underlined that, ‘the fact that the appellants, owing to the alleged circumstances, are affected differently by climate change is not in itself sufficient to establish the standing of those appellants to bring an action for annulment of a measure of general application such as the acts at issue’ (para. 40). Indeed, the Court emphasised that, in order to be granted standing, the applicants have to show a (very narrow) link between the contested act and their legal sphere, not between climate change and their legal sphere (para. 49).

This reasoning of the Court de facto excludes any possibility for climate change litigation under Article 263(4) TFEU (except for the actions brought under the new Aarhus Regulation – a topic that, however, falls out of the scope of this contribution. On this point, see for instance NGOs’ requests related to the EU Taxonomy Regulation). Since 1963, the Court of Justice reiterates the same reading of the Treaty provisions on access to justice in a very static and rigid way. It is not my intention now to delve into the rich literature trying to explain ‘why’ the Court does not abandon the Plaumann formula, but –apart from that– EU law scholars perfectly know that times change, but Plaumann doesn’t. This being said, how did the ECtHR engage with this same ‘fear’ of actio popularis in Klimaseniorinnen?

standi in Climate Litigation before the ECtHR

In Klimaseniorinnen, the Strasbourg Court recalled that ‘the issue of victim status must be interpreted in an evolutive manner in the light of conditions in contemporary society and that any excessively formalistic interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory’ (para. 482). The analysis of the Court’s openness to adapting its interpretation to the changing times – and in particular to the climate change context – is fascinating. While the CJEU showed its stillness toward standing – regardless of the evolution of society – the ECtHR took a very different pathway.

Indeed, in undertaking its balance between granting effective judicial protection of the Convention’s human rights threatened by climate change on the one hand, and ensuring the avoidance of actio popularis on the other, the ECtHR did not shut down its doors to citizens and NGOs litigating in the climate context. On the opposite, it worked on developing new legal ‘filters’ and adapted its former criteria to assess the ‘victim status’ of applicants to the special features of climate change. ‘[Having] regard to the special features of climate change, when determining the criteria for victim status – which is premised on the existence of a real risk of a ‘direct impact’ on the applicant […] – the Court will rely on distinguishing criteria such as a particular level and severity of the risk of adverse consequences of climate change affecting the individual(s) in question […], taking into account the pressing nature of their need for individual protection’ (para. 486). In the light of this, the Strasbourg Court (see also Carême v. France, application no. 7189/21, para. 76) developed the

Locus

Climate Protection as a European Fundamental Right under the ECHR and beyond

following criteria for assessing the victim status of individual applicants: (a) the applicant must be subject to a high intensity of exposure to the adverse effects of climate change, that is, the level and severity of (the risk of) adverse consequences of governmental action or inaction affecting the applicant must be significant; and (b) there must be a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm (para. 487). This while also recalling that ‘the threshold for fulfilling these criteria is especially high’ (para. 488) and these were actually not met by the individual women included among the applicants (para. 535).

Besides the victim status requirements for individuals, the ECtHR also reviewed its standing requirements for associations and NGOs in the light of the special features of climate change. Indeed, the Court first recalled the special role that associations and NGOs play in modern-day societies: ‘when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively’ (para. 489). Furthermore, the Strasbourg Court stressed that this is especially true in the environmental and climate change context, where ‘intergenerational burden-sharing assumes particular importance […], collective action through associations or other interest groups may be one of the only means through which the voice of those at a distinct representational disadvantage can be heard and through which they can seek to influence the relevant decision-making processes’ (para. 489). This aspect was particularly emphasised by the Court with several references also to the Aarhus Convention (para. 491). In the light of this, the ECtHR put forward the factors to be considered when assessing the standing of associations in the climate context. Indeed, the association in question must be: (a) lawfully established in the jurisdiction concerned or have standing to act there; (b) able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and (c) able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention (para. 502). The ECtHR also specified that, in assessing such factors, the Court will have regard, for instance, ‘to the purpose for which the association was established, that it is of non-profit character, the nature and extent of its activities within the relevant jurisdiction, its membership and representativeness, its principles and transparency of governance and whether on the whole, in the particular circumstances of a case, the grant of such standing is in the interests of the proper administration of justice’ (para. 502). The Court found that the association ‘Verein Klimaseniorinnen’ – included among the applicants of the case – met such requirements and was thus granted standing (para. 526). Here below, I will now outline my final considerations.

Conclusion

In this short contribution, I showed how the ECtHR and the CJEU approached in very different ways the issue of legal standing in climate litigation. Static and conservative is the approach of the CJEU; adaptive and dynamic, the one of the ECtHR. Indeed, the two major European courts have a different history, different procedures to get to the court, different legal systems, different institutional positions, and different mandates. However, the legal issues on which they were called upon to rule in the climate context definitely showed some similarities. One in particular, inevitably intertwined with the issue of

Climate Protection as a European Fundamental Right under the ECHR and beyond

standing: how should courts protect citizens’ human rights from public authorities’ omissions on climate change while ensuring the exclusion of actio popularis? To this question, the two judiciaries provided two different answers. For the CJEU the response so far has been no direct access to justice at all for private applicants in the climate context (apart from the new Aarhus Regulation cases, see above); while for the ECtHR the response has been the development of innovative criteria acting as ‘filters’ to be applied with rigour on a case-by-case basis. Of course, when taking such a big picture, we also have to take into account that – procedurally speaking – one court acts as a last instance court on human rights issues (having national courts already acting as ‘filters’), while the other one can also be addressed directly by different public and private actors, inter alia under Article 263 TFEU, with no involvement of national courts. The preliminary reference procedure remains – according to the CJEU – the true ‘gap filler’ for the narrow opportunities for access to justice at the EU level. Time will tell us if this procedure will effectively be used by citizens and NGOs also in the climate change context. My final view is that these major procedural differences between the ECtHR and the CJEU are crucial in order to understand the different hermeneutic approaches of the two courts on legal standing. However, further research is certainly needed to provide more clarity on this aspect.

Dr Mario Pagano works as a case handler at DG ENV of the European Commission. Mario holds a PhD in EU law from the European University Institute of Florence, where he wrote his dissertation on environmental NGOs and direct access to justice before the CJEU. Prior to joining the Commission, Mario worked as a postdoctoral researcher at the University of Amsterdam.

The views and opinions expressed in this text belong solely to the author, and do not reflect the view of the European Commission.

SUGGESTED CITATION: Pagano, M.; “Legal Standing in Climate Litigation before the ECtHR and the CJEU”, EU Law Live, 28/05/2024, https:// eulawlive.com/op-ed-legal-standing-in-climate-litigation-before-the-ecthr-and-the-cjeu-by-mario-pagano/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Climate Justice in the Jurisprudence of the European Court of Human Rights. Some notes on Carême v. France, Verein KlimaSeniorinnen v. Switzerland, Duarte Agostinho & al. v. Portugal & 32 Others

Marta Torre-Schaub

‘Climate justice’ is a term, or more precisely a movement that acknowledges climate change can have disproportionately harmful social, economic, and public health impacts on disinvested populations. Advocates for climate justice are striving to have these inequities addressed head-on through long-term mitigation and adaptation strategies

In addition, climate change is mostly a human rights issue. However, the climate crisis is causing loss of lives, livelihoods, language, and culture, putting many at risk of food and water shortages, and triggering displacement and conflict. The climate crisis impedes the right to good health as well. The impacts are more severe for vulnerable populations who have limited means to adapt to climate change.

On 9th April 2024, the European Court of Human Rights (ECtHR) ruled on three applications concerning the fight against climate change and the positive obligations of the signatory states of the European Convention on Human Rights in this respect. Two of them were declared inadmissible (Duarte Agostinho and Carême). The third, Verein Klimaseniorinnen, was a great success. The judgments, their main elements and their possible scope have recently been analyzed by a number of commentators. That’s why I’ll concentrate here on highlighting the contributions of the decisions to climate justice. This article analyses the decisions in the light of climate justice as a concept aimed at alleviating inequalities in the face of the negative consequences of climate change, as well as its capacity to strengthen human rights.

Building the Right to a Clean Environment and a Safe Climate Before the ECHR

A number of organisations have come together in recent years to work out principles for achieving climate justice. Advocacy campaigns, strikes, public demonstrations, and activists’ protests have been increasingly reported to fulfill climate pledges. The recent advancements on the recognition of human rights in the context of climate change look promising (S. Chen Kwan & D. McCoy, ‘Climate Justice. Is litigation a Good Way Forward?’, United Nations University, 5 September 2023). It is hopeful that these efforts will build the momentum in countries’ commitments to climate actions in all Member States. The role of civil society as climate watchdog remains fundamental in ensuring effective actions are followed through in the quest for climate justice (M. Torre-Schaub, ‘Changement climatique: la société civile multiplie les actions en justice’, The Conversation, September 2017).

In this sense, Climate Justice, can be understood both as the access to ‘effective’ justice and to the courts (Mary Robinson Foundation for Climate Justice, ‘Principles of Climate Justice’ 2017). In this context

Climate Protection as a European Fundamental Right under the ECHR and beyond

individuals and non-governmental organisations turned to the ECtHR using human rights law as a strategic instrument to enforce climate actions. The question before the decisions were held was, does the European Convention of Human Rights (the Convention) offer strong grounds for litigation against states? Will the Court accept to affirm that states have a duty to protect human rights? The three climate judgments delivered by the Grand Chamber of the Court on 9th April 9, provide answers to these questions. More precisely, the climate cases were made on the grounds of the human rights violations of the right to life (Article 2), the right to respect for private and family life (Article 8) and the right of a fair process (Article 6) as enshrined in the Convention. The Court, in an unprecedented but ‘tailored’ way, has laid the foundations for solidifying the positive obligations of States to respect the rights of the Convention and the obligation to remain on a trajectory towards carbon neutrality by 2050. The Court has also stated the conditions under which it accepts the claimants’ interest in acting and their status as victims. Conversely, it has also stated under what circumstances and according to what analysis of the cases, applicants do not meet such conditions (Carême §76-83 and Klimaseniorinnen 470 -472, §533). The Court has also shown a rigorous analysis of its territorial jurisdiction, following what it calls ‘the spirit of the Convention’, in order to limit its action and not allow the criterion of extraterritoriality to transgress its jurisdiction. These elements put forward by the Court demonstrate its vision of achieving Climate justice.

Connecting Climate Change to Human Rights

Climate justice connects the climate crisis to the social, gender racial and environmental issues in which it is deeply entangled. It recognises the disproportionate impacts of climate change on vulnerable communities. Climate Justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Intergenerational inequity is an important element: Children and young people today have not contributed to the climate crisis in a significant way but will bear the full force of climate change impacts as they advance through life. Older and ill people too. Their rights must be at the center of all climate decision-making and action (see here).

The principles of Climate Justice that were adopted by the Mary Robinson’s Foundation were focused in these aspects and provide an excellent base for the link between climate change and human rights. The respect and the protection of human rights in order to provide a reservoir for the supply of legal imperatives with which to frame appropriate responses to climate change, rooted in equality and justice. The guarantee of basic rights rooted in respect for the dignity of the person, at the core of this approach, makes it an indispensable foundation for action on climate justice.

In this sense, several elements of these principles can be found in the ECtHR’s decisions here analysed. Among these, the sharing of benefits and burdens equitably, the guarantee that decisions on climate change are participatory, transparent and accountable, the emphasis on gender equality and equity, the use of effective partnership to secure climate justice are well reflected in the Klimaseniorinnen decision. These principles, actually, are rooted in the frameworks of international and regional human rights law and have already been affirmed by the Court itself in other context out-climate change. What made these decisions special and remarkable is the fact they have been ruled in the context of climate emergency, contributing to urge the states to act and to assume their responsibilities on Climate Justice.

The ECHR and its Contribution to Improve Climate Justice

Climate Justice needs better ways of making decisions that include the voices of all those who are being affected by climate change. It needs also to ensure that costs and benefits of meeting the challenge of climate change are spread out fairly according to responsibility and ability. Also, it requires to think about how the needs of future generations and non-human beings, those who do not have a voice in current decisions, can be better considered in present decision-making. Within the context of climate change this means that those who have contributed most to climate change should support vulnerable people. As a fairly new concept, Climate Justice states that ‘vulnerable’ people are treated fairly in the ways in which states try to reduce further climate changes, by cutting down the amount of GHG emissions and adapting to the changes (see here). In the context of the ECtHR decisions, Climate Justice is to be achieved by Switzerland, reducing its emissions, according to the principle of common and differentiated responsibilities (and the Paris Agreement objective), to levels that will prevent dangerous human induced interference with the climate system. Also, from the Klimaseniorinnen decision, it appears that Switzerland must provide short- and long-term climate finance to help the most vulnerable (the Klimaseniorinnen NGO which represents the older women) and to ensure democratic and participative context on the elaboration of climate change law and policy making.

How the Verein Klimaseniorinnen Decision enhances Climate Justice

Human Rights provided in the Convention deliver valuable minimal thresholds, legally defined, about which there is widespread consensus among the Member States of the Council of Europe. The guarantee of basic rights rooted in respect for the dignity of the person, which is at the core of this approach, makes it an indispensable foundation for action on Climate Justice.

More precisely and, as revealed in Klimaseniorinnen, the ‘guarantee that decisions on climate change are participatory, transparent and accountable’ appears in the judgment through the obligation to participate in decision-making processes fair, accountable and open. This is essential to the growth of a culture of Climate Justice. The voices must be heard and the states must act upon them. The requirement for transparency in decision-making, and accountability for decisions that are made is affirmed as an essential part of Article 6 of the Convention. Thus, Switzerland must ensure that policy developments and policy implementation in this field are informed by an understanding of the needs in relation to Climate Justice.

Another component is the emphasis on gender equality and equity, meaning that the impacts of climate changes are different for women and men. In Klimaseniorinnen, the Court accepts that older women bear a burden in situation of particular vulnerability. In other terms and going further in my comment, older women’s voices must be heard, and their priorities supported as part of Climate Justice. This is a vital aspect of the Klimaseniorinnen ruling. Involving civil society in associations likely to represent the most affected by climate change is for the court the most adequate way to build the path.

Still, half of the Way to go

Despite this progress and innovative elements, difficulties and limits still remain. While climate litigation before the ECtHR undeniably offers a number of advantages that explain its growing success, it is no less fraught with difficulties.

Climate Protection as a European Fundamental Right under the ECHR and beyond

The first difficulty, which is almost structural, is the preference for the ECtHR to use non-adversarial methods, followed by the limited jurisdictional basis concerning a global issue. Member States of the Convention have accepted the compulsory jurisdiction of the Court with the limit of territorial jurisdiction. This difficulty came out in the Duarte Agostinho and others v Portugal and 32 other decision.

Other obstacles limit the widespread success of this type of legal action, which is the requirement for the plaintiffs to prove that they have suffered or will suffer a ‘particular’ injury caused by the defendant’s unlawful action or inaction. It is indeed hard to demonstrate that a government’s failure to legislate on climate change so directly affects the plaintiff. Plaintiffs can only prove such injuries if they show a concrete, specific and actual or imminent injury in fact, a causal link that ‘fairly traces’ to a violation of the right invoked caused by the defendant’s conduct. The Carême, Duarte Agostinho and the individual victims in the Klimaseniorinnen case have been dismissed for these reasons.

The outcome of such arguments depends to a large extent on the acceptability of such grounds before the Court. We can hope that after the Klimaseniorinnen decision the Court will be more inclined to accept this type of argument in favor of Climate Justice. One can expect too that the Court will be more permeable towards the theory of positive State obligations under the Convention and its influence on the evolution of domestic climate law. For these reasons it is important to persist in this path for future climate cases. The avenue to reinforce the effectiveness of the climate neutrality objective can only be ensured by legislative provisions that are coherent with Climate Justice principles.

Marta Torre-Schaub is Senior Law Professor at the Institut de sciences juridique et philosophique de la Sorbonne, Université Paris 1 Panthéon-Sorbonne.

SUGGESTED CITATION: Torre-Schaub, M.; “Climate Justice in the Jurisprudence of the European Court of Human Rights. Some notes on Carême v. France, Verein KlimaSeniorinnen v. Switzerland, Duarte Agostinho & al. v. Portugal & 32 Others”, EU Law Live, 2405/2024, https:// eulawlive.com/op-ed-climate-justice-in-the-jurisprudence-of-the-european-court-of-human-rights-some-notes-on-careme-v-france-vereinklimaseniorinnen-v-switzerland-duarte-agostinho-al-v-portugal/

Climate Protection as a European Fundamental Right under the ECHR and beyond

The Klimaseniorinnen Case: In Search of Substantive Standards

R. A. Lawson

And, so this is Christmas: cheers and boos

And, so this is Christmas (war is over)

And what have you done? (If you want to) [1]

The first incursions of the European Court of Human Rights in the field of climate change met with a mixed response. Even though each of the 11 individual applications was rejected, it was the success of the Swiss NGO Verein KlimaSeniorinnen that determined the outlook of this set of three cases (Duarte Agostinho a.o. v. Portugal and 32 others, Verein KlimaSeniorinnen Schweiz o.a. v. Switzerland and Carême v. France).

Predictably, there were cheers from the side of climate litigation activists and scholars. Although some believed that the Court should have gone further, they welcomed the landmark ruling as a much-needed contribution to the growing body of case-law on the subject. The boos came from quarters that deny that there is a climate crisis, and/or argue that the Court engaged in judicial activism: this, they maintain, is a policy area that is best left to the legislator and the executive.

All this could have been foreseen, and was undoubtedly foreseen by anyone involved in the three cases. What must be difficult to anticipate, though, is how unfair part of the criticism sometimes is. A graphic example was offered by a commentator of The Spectator:

‘We have debated for years whether Britain’s continued membership of the European Court of Human Rights threatens our national security. This ruling means that it will threaten our prosperity and democracy as well. … Claimants alleged that thanks to heatwaves, they need to organise their lives around a weather forecast, and this was a violation of their human rights. The Court agreed’.

Either the author did not bother to read the judgment, or he deliberately misrepresented what the Court actually said:

‘553. However, while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection (…). It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation given the extent of heatwaves affecting that country (…)’.

Climate Protection as a European Fundamental Right under the ECHR and beyond

These considerations were lost on the Spectator’s author, who may have sensed a great opportunity to ridicule the Court, no matter what it actually said. Sadly, this is becoming a widespread phenomenon. When the Dutch Supreme Court delivered its carefully drafted judgment in the Urgenda case, critics were quick to point their fingers at these activist judges without engaging with the court’s elaborate reasoning. Perhaps this should come as no surprise since the first comments came in within hours after the judgment was delivered.

In an earlier contribution, Christa Tobler already pointed to the ‘heated public debate’ that took place in Switzerland following the Court’s rulings. Meanwhile, on 13 June, Swiss parliament’s lower house voted to disregard the Strasbourg Court’s KlimaSeniorinnen judgment. This is climate change in a very different sense: across the continent post-War Europe’s multilateral institutions are being undermined. The erosion takes place at breath-taking speed. Its consequences for the protection of human rights are no less serious than those flowing from the ‘real’ climate crisis.

And what have you done?

So, was the KlimaSeniorinnen judgment a Pyrrhic victory, as Joshua Rozenberg asked in his first comments on the case?

Clearly the Court invested heavily in the three cases. The cases were assigned to the Grand Chamber, an increasingly rare move as the Court generally seeks to deal with its case-load in the most efficient way. The rulings were elaborate and crafted in a precise way. They bring together a wealth of information relating to climate change and engage extensively with the submissions of the parties and the interveners. The considerations concerning the victim requirement (in the Swiss case) and extra-territoriality (in the Portuguese case) are meticulous. The Court was even prepared to change its approach to the standing of associations in climate-change litigation under the Convention, so as to do justice to ‘the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context’ (§ 499 of KlimaSeniorinnen). In doing so, the Court must have been aware of the question whether this new approach can be limited to climate-change litigation: inevitably, there will be border-line cases. And what about other areas where systemic yet intangible trends have a profound impact on the enjoyment of human rights? Think of situations where the rule of law is under pressure and where the authority of the judiciary is systematically undermined. There will a clear common interest to address these trends, preferably at an early stage when it may be difficult to identify individual victims? Will the Court then deny standing to an NGO representing, say, judges who feel that they are under pressure?

These questions are for another day. Now, one may raise another question: what did all these efforts yield? What, in substantive terms, did the KlimaSeniorinnen judgment tell us? Put briefly, the Court identified, in Article 8 of the Convention, a ‘right for individuals to effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change’ (§§ 519 and 544 of the judgment). From this it derived a ‘primary duty’ for the High Contracting Parties, in line with the international commitments that they entered into, ‘to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’ (§ 545). This obligation is in turn specified as the requirement ‘that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the

Climate Protection as a European Fundamental Right under the ECHR and beyond

next three decades’ (§ 548). To this end, immediate action must be taken; measures must be defined in a binding regulatory framework, with targets and timelines, followed by adequate implementation (§ 549). The States’ efforts will be assessed by looking at a set of five requirements (§ 550-551). That is not all: these measures must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change (§ 552), while specific procedural safeguards need to be available, too (§ 553-554).

All in all, the Court goes a long way to specify the State’s positive obligation to counter climate change (or rather, mitigate its effects). But, unavoidably, the Court cannot be too specific. The actual measures are for the domestic authorities to decide. In accordance with the principle of subsidiarity, the Court states, the States should be accorded a wide margin of appreciation when it comes to their ‘choice of means, including operational choices and policies adopted in order to meet internationally anchored targets and commitments in the light of priorities and resources’ (§ 543).

War is over, if you want to

The question then is: what next? How to determine whether Switzerland, or any individual Contracting Party to the Convention for that matter, did enough? That will not be an easy question, as the Court acknowledges that ‘each individual State is called upon to define its own adequate pathway for reaching carbon neutrality’ (§ 547). The Court’s standards will need to be operationalised, which will require close reading of the judgment. Undoubtedly different interpretations will be advanced by the various actors that are involved, including, of course, climate change litigators and State authorities.

In future cases – and there will be future cases! – domestic courts will be confronted with these questions. In answering them, they face the dilemma that the Court acknowledges in a slightly different context (§ 484). On the one hand there is the risk of ‘disrupting national constitutional principles and the separation of powers by opening broad access to the judicial branch as a means of prompting changes in general policies regarding climate change’. On the other hand, the Court continues, there is a risk that ‘even obvious deficiencies or dysfunctions in government action or democratic processes could lead to the Convention rights of individuals and groups of individuals being affected without them having any judicial recourse’. Not an enviable position for the domestic courts to be, in at a time that the judicial branch is all too often the subject of criticism. The Court will face similar dilemmas once it is called upon to rule on followup cases: it will need to balance the margin of appreciation, which it usually leaves in areas which are characterised by complex and sensitive policy-making, and its desire to ensure accountability.

But at first instance, it is the Committee of Ministers of the Council of Europe that is called upon to determine whether Switzerland did enough. After all, under Article 46, paragraph 2, of the Convention, the Committee of Ministers shall supervise the execution of the Court’s judgments. It is an interesting exercise to imagine a meeting, in the not-so-distant-future, where the representatives of Switzerland will have to explain to their colleagues whether their country has done enough to fight climate change. Ironically, the resolution of the Swiss parliament, calling upon the government to disregard the KlimaSeniorinnen judgment, may prompt the Committee of Ministers to use the ‘enhanced procedure’. But then: how will this discussion go? No doubt the other Member States have not forgotten the Portuguese case, which was addressed against 33 of them: a reminder that they may be next. Will the Council of Europe Member States be keen to introduce – in this particular context – a mechanism to supervise whether they comply with their obligations under, inter alia, the Paris Agreement?

Climate Protection as a European Fundamental Right under the ECHR and beyond

Much will depend on the role of the Department for the Execution of Judgments, which supports the Committee of Ministers in this area. No doubt civil society will make ample use of the opportunity to submit their so-called Rule 9 observations

John Lennon rightly noted that war is over, if no-one wants it. Unfortunately the opposite is also true. At a time that climate change policies are the subject of increasing tensions in society across the continent, the KlimaSeniorinnen case is far from over.

[1] J. Lennon & Y. Ono, Happy Xmas (War is over) (1972).

R. A. Lawson is Chair in European Human Rights Law, Leiden Law School, the Netherlands. E-mail r.a.lawson@law. leidenuniv.nl

SUGGESTED CITATION: Lawson, R.A.; “The Klimaseniorinnen Case: In Search of Substantive Standard”, EU Law Live, 24/06/2024, https://eulawlive.com/op-ed-the-klimaseniorinnen-case-in-search-of-substantive-standards/

Climate Protection as a European Fundamental Right under the ECHR and beyond

No Nature, no Human Rights: Implications of KlimaSeniorinnen for Biodiversity

Niels Hoek and Justine Muller

Biodiversity loss, alongside the extinction of nature as we know it, continues at an unprecedented rate. Land and sea-use changes, invasive species, and chemical pollution are well-known anthropocentric pressures on ecosystems. As a result, some estimates predict that one million species, including 40 % of insects, will become extinct in the coming decades. Further down the line, scientists warn us that half of all current species could be gone at the end of the century, with the extinction rate 10.000 higher than the natural, historic rate. It is clear that the current biodiversity crisis matches, in scale and importance, the climate crisis. So, this begs the question: what could the landmark KlimaSeniorinnen case at the European Court of Human Rights entail for biodiversity protection? And perhaps more crucially, what opportunities may arise for biodiversity litigation going forward as a result of this case? This opinion piece argues not only that human rights are at risk as a direct result of biodiversity loss, but also that the rationale utilised by the Court in KlimaSeniorinnen on climate change could be translated to the biodiversity crisis. After all, biodiversity loss and climate change are intertwined and mutually reinforce one another.

1. The ECHR and Nature

Unlike some of its more ambitious (American and African) counterparts, the European Court of Human Rights (ECtHR) is not meant for environmental protection on its own. The ECtHR, as a court focusing on human rights is highly anthropocentric. In the same breath, nature cannot speak for itself. The burden, thus, falls on NGOs and individual members of the public to litigate on behalf of human interests in otherwise environmental cases. The problem, however, is that nature is often destroyed by the time the case reaches the Court. In turn, the Court oversees a form of ‘deathbed conservation’, especially on several occasions when its interpretations have been particularly restrictive. Complaints relating to environmental nuisances have to show, first, that there was an ‘actual interference’ with the applicant’s enjoyment of his or her private or family life or home, and, secondly, that ‘a certain level of severity’ was attained. This assessment can only be done on a case-by-case basis and does not encompass a more general right to a healthy environment.

However, addressing biodiversity loss requires a comprehensive approach, including measures such as restoring meandering rivers, rewetting peatlands, facilitating the reintroduction of keystone species, engaging in connectivity restoration, and expanding urban green space. It requires overarching policies that seek to restore biodiversity levels and progressive improvement of natural and agricultural ecosystems rather than patchwork harm reduction. Additionally, the size of these interventions matters. Provided nature is given space, it can recover. Conservation works.

2. Implications of KlimaSeniorinnen for Biodiversity Protection and Recovery

This brings us to the recent ECtHR landmark climate litigation case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. Here, the Court crucially found that Article 8 ECHR ‘encompasses a right for individuals to effectively protect (..) from serious adverse effects of climate change on their (..) quality of life’. This obligation flows from the causal relationship between climate change and the enjoyment of Convention rights. Therefore, the State has a positive obligation to adopt regulations and measures to mitigate the irreversible effects of climate change. The Court relied heavily on expert opinion that underlined the dangers of climate change, such as the International Panel of Climate Change (IPCC).

For the ECtHR, it was also relevant that the Swiss Government had committed to the United National Framework Convention on Climate Change and the subsequent 2015 Paris Climate Agreement, which set out a legal obligation to limit greenhouse gas (GHG) atmospheric concentrations. The logic of the court encompasses two key implications for biodiversity protection that are briefly explored below: the necessity to protect biodiversity to achieve climate change mitigation, as set called for by the ECtHR (i) and the relevance of the reasoning of the Court on climate change, which may hold relevance for separate (future) biodiversity litigation (ii).

3.1 Implication I: Carbon Sinks & Biodiversity Protection

In the KlimaSeniorinnen case, the ECtHR notes that ‘decarbonisation of the economies and ways of life can only be achieved through a comprehensive and profound transformation in various sectors’ which will ‘require a very complex and wide-ranging set of coordinated actions, policies and investments involving both the public and the private sectors.’ Here, it is crucial to note that it is difficult, if not impossible, to mitigate climate change without nature restoration. It is a package deal. There is a plethora of examples of this. To give but just a few, peatlands compose 3% of the northern terrestrial surface but account for 30% of global carbon storage. Restoring (and rewetting) these ecosystems will be crucial to any climate change efforts. The ocean and marine life, including whales and plankton, are the largest carbon sink , cementing the necessity for ocean recovery. Additionally, healthy ecosystems act as important buffers to regulate local climate, preventing floods whilst mitigating the effects of dry seasons, and green space in cities acts as natural cooling. In order to effectuate the obligations formulated by the Court, nature restoration cannot be forgotten, whereby it is important that these policies span across urban, natural and agricultural ecosystems, to be deemed effective. This, in essence, reaffirms the importance of proceeding with the fiercely debated EU Nature Restoration Law proposal.

However, this approach does contain a risk that the measures will fall prey to a carbon tunnel vision. In this scenario, ecosystems are valued for the amount of CO2 they can sequester rather than their rich biodiversity. In the climate regime, this had previously led to an overemphasis on forests whilst undervaluing grasslands or on individual species conservation, regardless of their importance in delivered ecosystem services (from pollination to water regulation). Crucially, this brings us to the second important implication of the KlimaSeniorinnen case for biodiversity protection. Namely, we argue that the Court’s reasoning on climate change (and the polycentric crisis) should equally be applied to biodiversity, given the severity of the impact of biodiversity loss on human well-being.

3.2 Implication II: Perspective for Future Cases

The KlimaSeniorinnen case is already considered a landmark case of the ECtHR and climate litigation in general. One of the key aspects of this typecasting as a landmark case comes from the narrative that the Court uses to justify the uniqueness of climate change as an environmental issue. However, as biodiversity lawyers, we could not help but see the similarities between the Court’s narrative of the climate crisis and the concomitant biodiversity crisis. In its decision, the Court lists several factors that make the climate crisis such a severely dangerous event that the usual ECtHR approach to environmental cases is neither adequate nor appropriate and cannot be transposed directly (para. 422). Whilst the applicants themselves in KlimaSeniorinnen have built their claims around the climate crisis, we argue that this list of factors could also justifiably grant this same special status to the biodiversity crisis, in potential future cases.

1. The first factor that the ECtHR puts forward as a justification for adopting a specific approach for cases in the context of climate change is that with climate change, there is no single or specific source of harm (para. 416). Rather, the harm comes from aggregated levels of GHG emissions. A related factor is that the sources of GHG emissions are not limited to specific activities that could be labelled dangerous but ‘arise in the context of basic activities in human society’ (para. 418). Here, the global biodiversity crisis equally is caused by the accumulation of many different direct and indirect sources ranging from land and seause changes, pollution, consumption, and many others (IPBES, 58-61). Most of these activities are not labelled as dangerous but are instead (unsustainable) pillars of our modern economy.

2. Another key factor pointed out by the Court is that CO2 is not toxic per se at an ordinary level (para. 416). In the same way, many anthropogenic activities that harm biodiversity are causing a global crisis because of their massive scale. For example, this is the case of fishing. This ancestral practice does not cause any harm to biodiversity per se, even locally, if practised sustainably. Industrial fishing, however, is one of the most harmful activities with biodiversity preservation in mind (as noted by the IPBES, p.5859). In other words, the scale of the drivers of biodiversity loss matters greatly.

3. Another key point that the Court relies upon is that the chain of effect between cause (GHG emission) and harm (the consequences of climate change) is both complex and unpredictable (para. 417). In addition, the ECtHR mentions the significant risks for humanity linked to this chain of effect. It states, ‘in the longer term, some of the consequences risk destroying the basis for human livelihoods and survival in the worst affected areas.’(para. 417). Both points hold up for biodiversity loss. Biodiversity relies on a complex system of different interactions between individuals of the same species, between different species, and between species and their environment. What happens after losing one species or one ecological niche is unpredictable. Several tipping points exist whereby healthy ecosystems slip into degraded ones. It should be stressed that nature underpins basic life support for humanity, such as providing food, medicine, and the backbone of our economy. Losing one species may not put an entire ecosystem at risk –but where does the boundary lie? How far can we go in light of the current extinction rate? Both climate change and biodiversity loss are plagued by scientific uncertainty in this regard and should thus be guided by the precautionary principle. For climate change, that means at least adhering to the UNFCCC Paris Agreement’s 1.5oC target. In contrast, for biodiversity loss, the Kunming-Montreal Global Biodiversity Framework is of the utmost importance (which sets out, for example, to protect 30 % of the land and sea areas).

4. The ECtHR considers climate change a polycentric issue, meaning that the fight against climate change does not depend on adopting specific localised or single-sector measures (para. 419). Whilst climate change is a global challenge, the importance of GHG sources and the necessity for mitigation and adaptation measures may differ from state to state (para. 422). These last two factors can also apply to the global biodiversity crisis. For example, deforestation in the Amazon is caused by both local incentives (such as cattle farming) and global drivers (through the subsequent supply chain). The local impacts are visible through the loss of ecosystem services, whilst the global impact can be felt through deregulating the entire climate system or increased risks of pandemics, to name a few examples. In this context, it should be stressed that not one sector is responsible for biodiversity loss. Instead, an inherently unsustainable and exploitative relationship with nature can be observed in parts of virtually all sectors, from logging, agriculture, manufacturing to mining.

A final, general point should be made. That is, beyond this judgment, an anthropocentric fallacy looms in the way we address environmental decay. In this fallacy, climate change is an imminent risk to humanity due to extreme weather and other tipping points. In contrast, biodiversity loss invokes mere images of loss for other species, from charismatic elephants to not-so-visible soil critters. Yet, this could not be further from the truth. The above highlights the similarity between biodiversity and climate change in terms of severity and importance for human survival. Precisely because of this fact, human rights are an important avenue for advocating for biodiversity protection.

4. Conclusion

We have argued that the landmark KlimaSeniorinnen case at the European Court of Human Rights represents a significant turning point in favour of nature restoration. The logic of the Court calls for a shift from local harm prevention (to protect individual rights) to the more widespread adoption of nature restoration policies to meet climate targets. Crucially, the Court’s reasoning to grant special status to the climate crisis could justify a similar type of ECtHR case on biodiversity. The loss of ecosystem services (from pollination, disease prevention, water filtration and so on) will require us to recognise the indispensable role of biodiversity in sustaining human life, for the enjoyment of ‘convention rights’. After all, nature does not need us. Instead, we need nature.

Niels Hoek and Justine Muller are PhD Researchers at the Department of Law at the European University Institute (Florence).

SUGGESTED CITATION: Hoek, N. and Muller, J.; “No Nature, no Human Rights: Implications of KlimaSeniorinnen for Biodiversity”, EU Law Live, 23/05/2024, https://eulawlive.com/op-ed-no-nature-no-human-rights-implications-of-klimaseniorinnen-for-biodiversity-byniels-hoek-and-justine-muller/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Verein KlimaSeniorinnen Schweiz and others vs. Switzerland: paving the way for climate litigation in Europe

Bas van Bockel

Climate change affects us all. The heavy burden of complying with international obligations to reduce emissions however only falls on those nations that actually take all the necessary steps to reduce their greenhouse gas (‘GHG’) emissions. Those often involve deep cuts in production and consumption, changes to a society’s way of life, and economic hardship. In game theory this type of problem is a form of what is known as a ‘prisoners dilemma’: the ‘players’ (in this case: nations and large corporations) have a choice to ‘cooperate’ (take the necessary steps to reduce emissions), or to ‘defect’ (the opposite). Game theory predicts that an optimal outcome (which, in this case, is a reduction of emissions sufficient to prevent or mitigate the most disastrous consequences of climate change) is only achieved if all the players cooperate fully, but that defection is a more attractive short-term strategy because it serves the self-interest of each individual player. If we translate this to the context of climate change, the theory suggests that nations (and corporations) that ‘defect’ (meaning that they stop short of fully complying with emission reduction obligations and/or enforcing environmental and climate laws) would do so in the hope of benefiting economically from sustained emissions, while freeriding on any positive climate effects resulting from emission cuts realised by the others. The grim prediction from game theory is that the outcome will be ‘suboptimal’.

Game theory offers several strategies to change the overall negative outcome of the prisoner’s dilemma. Amongst other things, laws and legal institutions (the ‘Rule of Law’) can force the individual players to adjust their strategy, which changes the outcome. On the international level however, institutions capable of taking effective enforcement measures against sovereign nations who fail to protect the climate and the environment are largely lacking. It is therefore unsurprising that rigorous enforcement of environmental and climate laws is the exception, rather than the norm amongst nations.

Climate litigation relies on robust national judicial institutions as well as on the strength of the Rule of Law to enforce climate obligations against governments and large corporations. According to different sources, several thousands of climate cases have by now been brought before courts in over 70 jurisdictions, although often with modest success. The Dutch Urgenda and Milieudefensie cases have been notable exceptions, and have been proposed as a ‘template’ for climate litigation in other jurisdictions. Due to the particular nature of the Dutch constitution which grants primacy to instruments of international law, the legal arguments in those cases turn more on interpretations of provisions of the European Convention on Human Rights (‘ECHR’) than on Dutch law.

In Urgenda, consecutive Dutch courts held that that the Dutch government had failed to comply with positive obligations arising out of Articles 2 (right to life) and 8 (respect for private and family life) of the ECHR. The ECHR lacks any provision expressly guaranteeing a ‘right to a healthy environment’, and the Dutch courts could only base their interpretation of Articles 2 and 8 ECHR on less than a handful of environmental judgments by the ECtHR, none of which concerned climate change. The judgments of the ECtHR in the first three climate cases that reached that court (Carême vs. France, application no.

Climate Protection as a European Fundamental Right under the ECHR and beyond

7189/21; Duarte Agostinho and Others vs. Portugal and 32 others, application no. 7189/21; and Verein KlimaSeniorinnen Schweiz and others vs. Switzerland, application no. 7189/21) were therefore eagerly awaited by many. It was however widely expected that all three would be found inadmissible, as none of the applicants fulfilled the stringent victim-status criteria under Article 34 ECHR. That provision requires a victim to be ‘personally and directly affected’, which criterium has been further developed in the case law in a restrictive manner. Because climate change affects us all, and the worst of the damage it causes is still in the future, either no-one or everyone is a climate ‘victim’ under the ECHR, both outcomes being equally undesirable. Having regard in particular to the ‘important role the Aarhus Convention assigns to non-governmental organisations’ the Court finds a solution to this dilemma by creating an actio popularis under the ECHR. It declares the NGO KlimaSeniorinnen Schweiz admissible in its application, and not the individual members. The other two applications were inadmissible for non-exhaustion of national remedies (Duarte Agostinho and Others) and because the application lacked victim status (Carême vs. France).

The judgment in KlimaSeniorinnen Schweiz and others vs. Switzerland is of fundamental importance primarily because in that judgment, the Grand Chamber confirmed that the failure on the part of states to take the necessary measures in the face of climate change affects the rights contained in Article 8 ECHR (right to respect for private and family life).

As already explained in the Op-Ed by Carolina Ramalho dos Santos and Erriketi Tla da Silva in this Symposium, the KlimaSeniorinnen case concerned four individual members of a Swiss NGO who addressed formal requests to a number of Swiss federal bodies and agencies and a federal department in order ‘to compel the authorities, in the interest of safeguarding their lives and health, to take all necessary measures required by the Constitution and the Convention to prevent the increase of the global temperature.’ When their actions were dismissed, the applicants unsuccessfully launched consecutive appeals before an administrative court and finally before the Federal Supreme Court. These actions were dismissed by the courts on grounds of admissibility, without any consideration of the merits.

In the proceedings before the ECtHR, the Swiss NGO and its members argued that Switzerland was not doing enough to reduce emissions of greenhouse gasses, but instead was ‘pursuing a strategy of purchasing emission reductions abroad and taking them into account in the national emission reduction target for 2030’. The Swiss authorities are thus finding ways to postpone the measures that are actually necessary to reduce emissions.

The Grand Chamber agrees with the NGO. In reaching its findings, the judgment goes into the importance and urgency of taking the necessary measures in the face of the climate crisis at some length. Consecutive reports by the Intergovernmental Panel on Climate Change (‘IPCC’) as well as numerous decisions, resolutions, reports issued by other international organisations and bodies are cited, and the ECtHR notes that the scientific evidence is not contested by the defendant governments.

By now, a growing number of international organisations and bodies have recognised environmental and climate-related human rights obligations arising out of the right to life, and the right to privacy and family life. Climate harm however raises ‘unprecedented issues’ under the ECHR which complicate the task that the Grand Chamber is faced with. In this regard the Court makes a fundamental distinction between climate harm on the one hand, and environmental harm on the other. In environmental cases, a ‘particular harm can be (…) identified’, and there is a clear causal link between that source and groups of individuals suffering from that harm. Climate change does not derive from any single, specific source, and the chains of causality are highly complex. For all these and other reasons, the Grand Chamber concludes that the ‘key

Climate Protection as a European Fundamental Right under the ECHR and beyond

characteristics and circumstances’ in climate cases are significantly different from those in environmental cases. That it may prove futile for a single state to take adequate measures if other states are not doing the same is not a valid argument, as far as the Grand Chamber is concerned: ‘each State has its own share of responsibilities to take measures to tackle climate change and (…) taking those measures is determined by the State’s own capabilities rather than by any specific action (or omission) of any other State’.

Due to the special nature and the gravity of climate harm, the State’s margin of appreciation is reduced in so far as it concerns not the specific measures chosen, but ‘the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect’. The Grand Chamber furthermore takes the important step of recognising that the ECHR entails positive obligations for States ‘to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change’. What this means concretely is that the States must put ‘in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights, notably the right to private and family life and home under Article 8 of the Convention.’ Even more specifically, the Court rules that States are under an obligation to achieve carbon neutrality within the next three decades. All of these obligations derive from Article 8 in this case, but it is sufficiently clear from the judgment (which addresses the link between the two provisions), that the same obligations derive from Article 2 ECHR.

There is of course much more in the judgment, and many details deserve separate and thorough consideration, as it will become apparent through the different contributions to this Symposium. The key takeaway for now is that the Grand Chamber took great steps (and overcame great hurdles) in addressing the issue of climate change under the ECHR. No doubt the judgment could have gone even further, and from a climate perspective the question remains whether this will be enough, and whether it is not too late. Some points in the judgment, in particular the sharp distinction between environmental cases and climate cases, raise doubts and concerns.

There is strong consensus that stringent measures need to be taken everywhere in the world if we want to stand a chance of preventing the worst consequences of climate change. Consensus however is not enough. Whilst it may be disappointing that courts need to step in to enforce climate obligations against states, game theory helps us to better understand why many states will otherwise stop short of fully enforcing environmental and climate laws. Courts have an indispensable role to play in the climate crisis because the Rule of Law is one of only a handful of strategies to overcome the collective prisoners’ dilemma we are grappling with. This judgment is one key step on a long road towards full climate Rule of Law, and many other legal procedures must follow. There is only so much one human rights court can do in the face of the ‘super-wicked’ problem of climate change, but the Grand Chamber surely did not disappoint this time around.

Bas van Bockel is Research Fellow at the Catholic University of Leuven.

SUGGESTED CITATION: Van Bockel, B.; ““Verein KlimaSeniorinnen Schweiz and others vs. Switzerland: paving the way for climate litigation in Europe”, EU Law Live, 26/04/2024, https://eulawlive.com/op-ed-verein-klimaseniorinnen-schweiz-and-others-vsswitzerland-paving-the-way-for-climate-litigation-in-europe-by-bas-van-bockel/

Climate Protection as a European Fundamental Right under the ECHR and beyond

The Klimaseniorinnen Case: Clearing the Air for Corporate Climate Litigation

Sumeyra Arslan

The Klimaseniorinnen case constitutes a pivotal point in history for corporate climate litigation. From acknowledging the direct link between climate change and human rights violations to further clarifying the role of national courts on such matters, Klimaseniorinnen delves into arguments often used by corporations in climate litigation and demystifies them. Polluting companies have been fighting climate responsibility and accountability for far too long. Diving into the multifaceted significance of Klimaseniorinnen, this piece will examine its implications for present and future corporate climate litigation.

Corporate Climate Accountability

For decades, polluting companies have known about the risks of climate change, and for decades, they have chosen to ignore the risks and continue business as usual. The fossil fuel industry alone is responsible for 75% of global greenhouse gas emissions, perpetuating extreme weather events such as droughts, floods, and forest fires that destroy land, livelihood and property. Trying to hold the companies most responsible accountable, more and more civil society members have turned to climate litigation as a last resort. The majority of corporate climate litigation cases so far has centred around reducing greenhouse gas emissions, using false solutions while continuing business as usual (greenwashing), violating human rights and causing damage to the land and property of Indigenous Peoples and local communities.

The polluting industry’s lobbying efforts have held climate accountability back for far too long. Big companies, and especially the fossil fuel sector, have been lobbying against climate regulation and accountability while knowing for decades the catastrophic risks of climate change. As the Special Rapporteur on Climate Change and Human Rights has stated in its 2022 report : ‘…it is evident that business elites with interests in the fossil fuel and carbon-intensive industries have disproportionate access to decision-makers, a phenomenon described as “corporate capture.”‘ A key corporate capture strategy is the revolving door phenomenon, where employees switch jobs between the private industry and public offices. Another example of corporate capture is the record amount of fossil fuel lobbyists that have been present during the international climate negotiations; during COP28 alone, at least 2.456 fossil fuel representatives were granted access.

As the UN Special Rapporteur on Human Rights and Climate Change stated: ‘There is an enormous injustice being manifested by developed economies against the poorest and least able to cope. Unwillingness by developed economies and major corporations to take responsibility for drastically reducing their greenhouse gas emissions has led to demands for “climate reparations” for losses incurred.’ Limiting global warming to 1.5 degrees is undeniably impossible if the most responsible companies do not reduce their emissions. Especially since the chances of limiting global warming to 1.5 degrees have already been reduced to 50%, according to the IPCC

Climate Protection as a European Fundamental Right under the ECHR and beyond

The Precarious Nature of Corporate Climate Litigation

While the number of corporate climate litigation cases continues to rise in Europe, the landscape remains fraught with challenges. National legislation and judicial systems often dictate the success or failure of such cases, leading to disparate outcomes across jurisdictions in Europe.

The first-ever judgment requiring a company to reduce its emissions was the Milieudefensie v. Shell case in 2021. The District Court of the Netherlands ruled that Shell must reduce 45% of its total emissions by 2030, shaping the future of corporate climate litigation. Since then, new cases of corporate climate litigations have risen in Europe, including Fossielvrij NL et al. v. KLM (The Netherlands), Allhof Cramer v. Volkswagen AG (Germany), ClientEarth v. Shell’s board of directors (The United Kingdom), Asmania et al. v. Holcim (Switzerland), Friends of the Earth v. Total (France), Luciano Lliuya v. RWE (Germany) and many more.

Corporate climate litigation is precarious. While Milieudefensie and Fossielvrij NL may have succeeded in holding Shell and KLM responsible in the Netherlands, the court rulings differ in other countries. For example, in the United Kingdom (ClientEarth v. Shell’s board of directors), a single judge decided on the procedural merits of the case without a hearing that ClientEarth could not appeal the verdict. In a paper, Lord Robert Carnwath, a retired Supreme Court judge, stated that he found it ‘unfortunate’ that the permission to appeal was dismissed without any hearings. In Germany (Allhof Cramer v. Volkswagen), the national court dismissed a request to order Volkswagen to reduce its greenhouse gas emissions, stating that the damage to the plaintiff could not be remedied by reducing its emissions. Therefore, whether companies can be held responsible is often bound to national systems of rules and access to justice, making binding cases like the Klimaseniorinnnen case that clarify crucial components related to access to justice and the interlinkages between human rights and climate change on the regional level even more important.

Climate Change and Human Rights

The European Court of Human Rights (ECtHR) made a significant stride by acknowledging, for the first time, the direct link between climate change and human rights violations in Klimaseniorinnen. Specifically, the Court found that anthropogenic climate change ‘poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention’ (paras. 410 and 436). With this acknowledgement, the Court underscored the urgent need for corporate accountability in mitigating the adverse effects of climate change. Despite the polluting industries’ denial of this link, the Court’s ruling establishes a crucial precedent in advancing corporate climate litigation efforts.

It is widely acknowledged that climate change and human rights are interlinked (see the IPCC AR6 WGII, General Comment no. 26 of the Child Rights Committee and Human Rights Council resolutions), but corporate actors continue to deny their relationship and treat them as separate paradigms. From financial institutions to polluting companies like ING, RWE, Shell, BP, Saudi Aramco and Exxonmobil, there is no chain of causation between greenhouse gas emissions and human rights that could lead to civil liability. For these actors, climate responsibility is a voluntary effort to strive for a better planet where we (almost magically) reach net zero emissions by 2050. In contrast, human rights, an established body of law, is seen as liable grounds for misconduct related more to labour rights and operational and environmental safeguards.

Climate Protection as a European Fundamental Right under the ECHR and beyond

In contrast to the belief of polluting companies, the Court states that ‘[i]n the longer term, some of the consequences [of climate change] risk destroying the basis for human livelihoods and survival in the worst affected areas. Whole populations are, or will be, affected, albeit in varying ways, to varying degrees and with varying severity and imminence of consequences’ (para. 417). The Court concludes that in light of climate change’s unique character and previous rulings and considerations, ‘Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life’ (para. 519).

While the Court’s finding focuses on the obligation of State authorities, the mere acknowledgement of the direct link between the two paradigms provides protection from inadequate climate action by business actors under international human rights law. Most polluting companies are committed to the Race to Zero campaign, United Nations Guiding Principles on Business and Human Rights (UNGPs), and the updated OECD Guidelines (which recently expanded their scope to include climate change), which are all based on or mention the protection of international human rights. Due to the fierce commitment of the sector to these voluntary/non-binding instruments, it is a small step in logic to assume their understanding of these voluntary industry initiatives and soft law instruments will, after Klimaseniorinnen, encompass harms related to climate change, including their responsibility to reduce their greenhouse gas emissions emitted into the atmosphere.

Actio Popularis and Locus Standi

By protecting the association’s right to a court and setting clear criteria to determine the association’s locus standi in climate litigation, Klimaseniorinnen sets a precedent against the rising trend to limit the locus standi and, therefore, actio popularis, of such organisations in Europe. Since national legislation does not (yet) make a difference in the locus standi of cases against states or companies, Klimaseniorinnen creates a more robust standing in national proceedings in corporate climate litigation.

The growing attempts to restrict actio popularis and locus standi in climate litigation across Europe are alarming. For example, discussions about new legislation proposals (Wamca 36 169, nr 40 and motie Stoffer) in the Netherlands aim to restrict actio popularis, focussing on limiting the representation of civil society by associations. Another significant example is the Klimaseniorinnen case at the national level. Swiss courts dismissed the Klimaseniorinnen case altogether without looking at the substance of the case or the locus standi of the association representing older women above 75 years old before it reached the European Court of Human Rights.

In corporate climate litigation, companies often argue that associations do not have locus standi, aiming to restrict actio popularis. For example, Shell argued during the appeal of the Milieudefensie v. Shell case that ‘[t]he public interest in relation to climate change is much broader and more varied than the interests Milieudefensie claim to represent, they ignore all of the other interests at stake.’ Shell adds that ‘[t]here are wide-ranging views on how to address climate change.’ In Luciano Lliuya v. RWE, RWE argued that the plaintiff does not have a ‘legitimate interest’ in the case because it lacks specificity. Swiss courts had similar motives to deny the association standing, stating that the real act (or inaction in this case) did not affect the rights or obligations of the applicants. In the Klimaseniorinnen case, the ECtHR ruled that ‘[t] he domestic courts did not engage seriously or at all with the action brought by the applicant association’ (para. 636) and that the association was lawfully qualified to represent the applicants. The Court goes on

Climate Protection as a European Fundamental Right under the ECHR and beyond

to clarify three criteria to assess the locus standi of an association: 1. The association is lawfully established, 2. It showed that it pursues a dedicated purpose in accordance with its statutory objectives to defend human rights against the threats of climate change in the State 3. and ‘that is it genuinely qualified and representative to act on behalf of those individuals who may arguably claim to be subject to specific threats or adverse effects of climate change on their life, health, well-being and quality of life as protected under the Convention’ (para. 524). The Court then ruled that the association has locus standi, that its complaint falls within the scope of Article 8 of the Convention, and that the very essence of the applicant association’s right to access to a court was impaired (para. 638-9).

Separation of Powers – the Role of National Courts

In corporate climate litigation, a recurring debate emerges regarding the role of judges in climate corporate responsibility. Companies often argue that such issues fall within the purview of the legislative and executive branches, dismissing the judiciary’s involvement as a breach of democratic principles. This sentiment was echoed in the appeals of the Milieudefensie v. Shell and Luciano Lliuya v. RWE cases, where both companies argued that corporate climate responsibility should be addressed solely at the state and political levels. However, Article 13 of the European Convention on Human Rights (ECHR) underscores the pivotal role of national courts in safeguarding human rights, especially when political mechanisms falter. The Klimaseniorinnen case further illuminates this complex issue. While the Court acknowledged the limitations of judicial authority vis-à-vis legislative and executive prerogatives, it also underscored the imperative to uphold human rights in the face of climate change’s existential threats.

During the appeal in the Milieudefensie v. Shell case, Shell argued that ‘[o]nly governments and legislators have the democratic and constitutional legitimacy to make such decisions based on the needs of citizens and policy priorities and in the face of evolving technology and a dynamic geopolitical landscape. The [national] court is not able to make these trade-offs for the Netherlands or for the world.’ According to the fossil fuel sector, corporate climate responsibility is a matter of politics and not of justice. Similarly, RWE argued in the Luciano Lliuya v. RWE case that ‘long term damage (climate change) should be resolved at state and political levels.’

As Milieudefensie argued in the appeal, judicial protection must also apply when politics fail to protect the human rights embedded within the ECHR. The Strasbourg Court acknowledges that judicial intervention cannot replace or substitute action by the legislative and executive branches of the government, but it also considers that ‘… democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law.’ The remits of the national courts are, therefore, complementary to democratic processes. While the legal basis for the Court’s intervention is always limited to the Convention, the Court finds that ‘[t]he relevant legal framework determining the scope of judicial review by domestic courts may be considerably wider and will depend on the nature and legal basis of the claims introduced by litigants’ (para. 412).

In addition, the Court adds that it must take into consideration that ‘past State action to combat climate change globally entails an aggravation of the risks of its adverse consequences, and the ensuing threats arising therefrom, for the enjoyment of human rights—threats already recognised by governments worldwide.’ The Court emphasises that while it is tasked with enforcing human rights, it also cannot dismiss the scientifically proven impact of climate change on human rights (para. 413). The Court then concludes that in the Klimaseniorinnen case, the Swiss courts had obstructed the right to a fair trial (Article 6 ECHR)

Climate Protection as a European Fundamental Right under the ECHR and beyond

by not examining the case’s merits and dismissing the requests of the plaintiffs by stating that there was still some time to limit global warming from reaching a ‘critical limit’ (paras. 630 and 635).

Article 8 – State’s Positive Obligations

After national cases such as the Klimaatzaak v. Belgium case and the Urgenda v. The Netherlands case obligating governments to reduce their emissions, the Klimaseniorinnen case followed suit. The Court ruled that contracting States have positive obligations under Article 8 of the Convention to reduce their greenhouse gas emissions within the next three decades (para. 548), constituting a significant turning point. With sheer logic and considering the disproportionate role of the polluting sectors in climate change (set out in the sections above), these positive obligations to reduce emissions necessitate the regulation of the most polluting industries.

The Court finds that immediate action must be taken, and short-term reduction targets must be set to ensure a ‘genuinely feasible’ outcome and to avoid a disproportionate burden on future generations. The Court adds that these measures must be set in a binding regulatory framework at the national level, followed by adequate implementation. The relevant targets and timelines must form an integral part of the domestic regulatory framework as a basis for general and sectoral mitigation measures. The Court lists five positive obligations for Switzerland to achieve these targets (paras. 544-50). While acknowledging the margin of appreciation afforded to States in determining the means to achieve these targets, the Court’s ruling imposes a diminished margin of appreciation, signalling a shift towards increased accountability to reduce their emissions.

Due to the disproportionate amount of greenhouse gas emissions stemming from polluting industries, such as the fossil fuel industry, which is responsible for 75% of global greenhouse gas emissions, robust accountability mechanisms for polluting industries become a prerequisite to effectively reducing emissions without relying on unproven and risky solutions.

Conclusion

In conclusion, Klimaseniorinnen represents an important moment in the fight for climate justice. By acknowledging the direct link between climate change and human rights violations, clarifying the crucial role of national courts, setting positive obligations on States, and strengthening the locus standi of associations representing members of society, this ruling provides a stronger footing in further corporate climate litigation. Moving forward, it is imperative that stakeholders leverage the precedent set by Klimaseniorinnen to strengthen ongoing litigation and hold polluting companies accountable for their climate responsibility.

Sumeyra Arslan is a researcher on the climate litigation team at Milieudefensie and functions as a legal advisor on the Supervisory Board of Fossielvrij NL.

SUGGESTED CITATION: Arslan, S.; “The Klimaseniorinnen case: Clearing the Air for Corporate Climate Litigation”, EU Law Live, 13/05/2024, https://eulawlive.com/48770-2/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Intersectionality in the KlimaSeniorinnen case – ‘Older Women’ in Action

Christa Tobler

Introduction

The judgment of 9 April 2024 by the Grand Chamber of the European Court of Human Rights (ECtHR) in Verein KlimaSeniorinnen Schweiz v. Switzerland, finding that Switzerland has failed to undertake adequate measures to address climate change, thereby breaching the European Convention of Human Rights (ECHR), has led to a heated public debate in Switzerland. As was to be expected, opinions are sharply divided, between those who welcome the judgment as a beacon of light in an otherwise dark climate world and those who condemn it roundly as incomprehensible and wrong. Even some of the Swiss multiparty government ministers spoke up in public. Notably, the Swiss minister for environment, Albert Rösti, criticized the Strasbourg judgment as being incompatible with the Swiss system of direct democracy, asking: ‘How can it be reconciled if the Court says that Switzerland is doing too little when the population has decided that it does not want to do more at this point in time?’ In contrast, the Justice Minister, Beat Jans, stated that Switzerland will continue to decide sovereignly and independently on its climate policy and that the Strasbourg judgment is ‘not a decision against the Swiss population, but rather strengthens the rights of the people who live in this country’. Explaining the judgment on Swiss public radio, the Swiss judge at the ECtHR, Andreas Zünd, underlined that the Strasbourg court is not a ‘foreign court’ (to be rejected absolutely following the rhetoric in the nationalist discourse in Switzerland), but rather ‘our common court’ for the ECHR. My academic colleague from Basel University, Andreas Müller, pointed to the broader context, noting in a Swiss daily that the Swiss government ‘must take the rap for a message that in fact goes out to all European states’.

Indeed, this is more than a mere ‘Swiss’ case – and it is more than a case about climate change. In the general noise around the decision, one interesting aspect appears to have moved somewhat to the sideline, namely the fact that the case had been brought by ‘older women’ concerned about, and particularly affected by, climate change, who had set up an association with this aim in view and who had chosen the name for the association accordingly, namely Verein KlimaSeniorinnen Schweiz. In this Op-Ed, I wish to look at the issue of admissibility in the KlimaSeniorinnen case through the lens of intersectionality.

The Eye of the Needle: Admissibility

Without admissibility, there will be no substantive analysis. The action in the KlimaSeniorinnen case was brought by the Verein KlimaSeniorinnen Schweiz and by four of its individual members. In Switzerland, the courts found it to be inadmissible. At the last instance, the Swiss Federal Supreme Court left it open whether the association had standing under Swiss law and focused on the individual applicants instead. It considered their action to be of an actio popularis nature and held that the individual applicants were not affected with sufficient intensity. The ECtHR, too, rejected the individuals’ actions as inadmissible,

Climate Protection as a European Fundamental Right under the ECHR and beyond

finding that they do not meet the two key criteria for victim status under Art. 34 ECHR, namely: (a) a sufficiently high intensity of exposure of the applicants to the adverse effects of climate change, and (b) a pressing need to ensure the applicants’ individual protection were not fulfilled. In academic comments on the judgment, it has been noted that the ECtHR in this respect ‘applied its existing case law in a relatively orthodox manner’ (thus Letwin).

In contrast, the ECtHR’s approach to the standing of the association was ‘anything but orthodox’ and rather highly innovative (again, Letwin). According to the Court, specific considerations relating to climate change weigh in favour of recognising the admissibility of actions of associations. The Court notes that the association in question represents a vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change, and individual applicants did not have access to a court in Switzerland. According to the Court, granting associations standing is in the interests of the proper administration of justice in climate change cases.

At the same time, the ECtHR confirms that actio popularis type of complaints are not permitted in the Convention system, ‘this prohibition being intended to avoid cases being brought before the Court by individuals complaining of the mere existence of a law applicable to any citizen of a country, or of a judicial decision to which they are not party’ (KlimaSeniorinnen, paras. 446 and 596). According to the Court, ‘[i]t is clear that the Convention mechanism cannot accept an abstract complaint about a general deterioration of the living conditions of people without considering its impact on a particular person or group of persons’ (KlimaSeniorinnen, para. 500). In order to distinguish the action before it from an actio popularis, the Court applies a threefold test, which the Verein KlimaSeniorinnen Schweiz passes: 1) It is lawfully established, 2) it has demonstrated that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members and other affected individuals against the threats arising from climate change in the respondent State, and 3) it is genuinely qualified and representative to act on behalf of those individuals who may arguably claim to be subject to specific threats or adverse effects of climate change on their life, health, well-being and quality of life as protected under the ECHR.

According to Letwin (who is one of many critical commentators on this aspect of the case), this sets an extremely low bar for the standing of associations in climate change cases, in particular given that the right of an association to act on behalf of its members or other affected individuals is not subject to a separate requirement that those on whose behalf the case has been brought would themselves meet the victim-status requirements for individuals (thus the ECtHR in para. 502). But what about the element of intersectionality in this context, i.e. the fact that the association represents ‘older women’? Could it be argued that this played a role in the Court’s finding and perhaps even in tilting the balance away from the actio popularis?

‘Older

Women’: a Case of Intersectionality

The association whose standing was accepted by the ECtHR in KlimaSeniorinnen focuses on ‘older women’. Indeed, only women residing in Switzerland and aged above the current Swiss pension age for women of 64 years (which is about to raise as a consequence of a popular vote) can become members. According to its statute, the association was established to promote and implement effective climate protection on behalf of its members. Explaining its approach in the KlimaSeniorinnen litigation, the association states on its website: ‘Why an association? Because that way the legal proceedings do not depend on individual persons. Why female seniors? Because older women are particularly susceptible to intense and frequent

Climate Protection as a European Fundamental Right under the ECHR and beyond

heat waves. Obviously, we are aware that older men, people with diseases as well as small children also suffer from heat waves and other climate effects. By focusing on the proven particular susceptibility of us older women we are simply enhancing our lawsuit’s chances of success which is ultimately good for everyone.’ In essence, the applicants argued in court that, according to scientific studies, women aged 75 and over have a significantly higher mortality risk in hot summers and that their health is significantly more affected than that of the general public, and, in addition, that their well-being is more affected. Against this background, the applicants argued that they are members of a most vulnerable group affected by climate change. In addition, the individual applicants stated that this could be seen in their specific cases as they all had various health impairments affected by heatwaves.

Putting the focus on ‘older women’ means to choose the lens of intersectionality, i.e. not to focus on older people in general, nor on women in general, but rather on the specific group of ‘older women’. Intersectionality is a term originally coined by Kimberlé Crenshaw in her critique of the traditional singleaxis approach in anti-discrimination law, drawing attention to the fact that multiple forms of disadvantage may compound themselves. In B.S. v. Spain, the ECtHR recognised that discrimination under Art. 14 ECHR can be of an intersectional nature – a finding, by the way, that is markedly different from that of the Court of Justice of the European Union in Parris with respect to EU law (see on the approach under EU law e.g. Solanke in The Routledge Handbook of Gender and EU Politics). In the KlimaSeniorinnen case, the applicants did not claim a violation of Art. 14 ECHR. Even so, the importance of the concept of intersectional discrimination was emphasised before the ECtHR in third-party interventions (e.g. here, as of p. 4, and here, as of p. 5). Writing when the case was pending, other voices more generally referred to ‘an intersectional climate justice approach’ (de Jong ) or to ‘a specific intersectional legal strategy’ employed by the applicants (Sußner). Indeed, according to Sußner, the KlimaSeniorinnen case is unique because the ‘applicants assert the formal admissibility and substantive merits of their claim on the grounds of being older women.’

In my analysis, it is in the part on admissibility of the judgment (which the ECtHR analyses combined with the applicability of the substantive provisions of the ECHR) where intersectionality may have played a role. The interesting question is: How important was the specific strategic focus chosen by the applicants for the association’s success in having its case pass the eye of the needle of admissibility and make it to the level of substance?

Intersectionality in the Judgment

In its judgment, the ECtHR acknowledges the adverse effects of climate change on older women, and the need to protect them from such effects, as stressed in international documents relating to climate change which the Court reviews. In such documents, ‘women’ and ‘gender equality’ are very regularly mentioned (e.g. the preamble to the Paris Agreement), sometimes in parallel with, among others, age (e.g. Resolution 50/9 of the Human Rights Council: ‘a comprehensive, integrated, gender-responsive, age-inclusive and disability-inclusive approach to climate change adaptation and mitigation policies’). Some documents explicitly take up the intersectional perspective, most notably the report Human rights of older women: the intersection between ageing and gender, where the United Nations’ Independent Expert on the enjoyment of all human rights by older persons states that the specific risks and impacts brought on by climate change for older women are ‘generally invisible’ (p. 16).

Climate Protection as a European Fundamental Right under the ECHR and beyond

With respect to the individual applicants, the ECtHR states that the findings in these international materials ‘undoubtedly suggest that the applicants belong to a group which is particularly susceptible to the effects of climate change’ (KlimaSeniorinnen, para. 531). As for the association, it will be remembered that it is made up by the exactly same type of people, namely older women faced with the effects of climate change. References in the judgment about the need, in the context of avoiding an actio popularis, for an ‘impact [of climate change] on a particular person or group of persons’ (KlimaSeniorinnen, para. 500), to ‘affected individuals who are subject to specific threats or adverse effects of climate change on their lives, health or well-being’ (para. 502) and to ‘the membership basis and representativeness of the applicant association, as well as the purpose of its establishment’ (para. 523) in my reading provide a clear link to the intersectional aspect of the case and indicate its importance in the eyes of the Court.

However, in other places the ECtHR refers to a more general context, e.g. when it states that the Verein KlimaSeniorinnen Schweiz ‘acts not only in the interest of its members, but also in the interest of the general public and future generations, with the aim of ensuring effective climate protection’ (KlimaSeniorinnen, para. 521). Similarly, the Q & A on the three climate cases, of which KlimaSeniorinnen was the only one to pass the admissibility threshold, refers to a ‘common concern for humankind’ and ‘intergenerational burdensharing’. Further, explaining the Court’s finding on the association’s standing on Swiss radio, Swiss ECtHR Judge Zünd said that ‘many people will be affected by climate change – all of us. The ECtHR assumes that such organizations are representative of all the people affected’.

So, which is it, the general public or rather the specific group of the association’s members, in accordance with its statute? There appears to be an uncertainty, even a contradiction on this issue. From a practical point of view, the ambiguity of the judgment in this respect leaves room for interpretation – and for clarification by the ECtHR in future case law. If, after all, it was the element of intersectionality that tilted the balance away from the actio popularis, or if it at least helped tilting it, it should mitigate some of the criticism levelled at the Court: In that case, there is no actio popularis in the KlimaSeniorinnen case, precisely, because the case was brought by a) a particular group of persons with b) a proven particular susceptibility to climate change, namely older women – even if their action at the same time benefits ‘all of us’, to use the words of Judge Zünd. It would, however, remain to be seen what this means for future cases, on climate change or other matters.

Finally, acknowledging the influence of the intersectional aspect on the judgment would also mean that, for once, the specific risks and impacts brought on by climate change for older women, rather than generally remaining invisible, as lamented by the UN’s Independent Expert on the enjoyment of all human rights by older persons, are acknowledged by Europe’s highest Human Rights Court. If indeed so, then the intersectional aspect of the case is an important part of the Court’s message that goes out to all European states, a message, in fact, that could and should be made more explicitly and more forcefully.

Christa Tobler is professor of European Union law at the Universities of Basel (Switzerland) and Leiden (the Netherlands).

SUGGESTED CITATION: Tobler, C.; “Intersectionality in the KlimaSeniorinnen case – ‘older women’ in action”, EU Law Live, 17/05/2024, https://eulawlive.com/op-ed-intersectionality-in-the-klimaseniorinnen-case-older-women-in-action-by-christa-tobler/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Just as Ripples Spread out when a Single Pebble is Dropped into Water’- ECHR KlimaSeniorinnen Judgement’s Systemic Effects on the EU Legal Order

Alicja Sikora-Kaléda

As stated by B.J. Richardson in his book Time and Environmental Law, the temporal challenge of environmental governance ‘is not just to value the future but also to respond and manage a changing future’. The capacity to anticipate should thus encompass a democratic decision-making enabling governance to respond to the societal concerns in a timely manner, one of the key components of democratic processes being access to justice.

With the recent judgement in the Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, notwithstanding controversies surrounding admissibility and technical analysis of the carbon budget, the European Court of Human Rights (ECtHR) proves one more time to hear, in a timely manner, the voice of those it is supposed to protect, taking thus an important step towards managing the changing future. As demonstrated by the endless commentaries varying from a genuine, environmental and human rights enthusiasm to a moderate and critical follow up, including an adverse reaction of the Swiss authorities, tying a link between climate change and human rights through the prism of Article 8 ECHR has already become an incontournable of the international legal toolbox of human rights. It is this link that allows anchoring the constitutional dimension of a climate change and confirming the role of the European Convention on Human Rights and Fundamental Freedoms as the constitutional instrument of ‘European public order’ in the field of human rights and a product of ‘idealistic realism’ meant ‘to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law’ (ECHR admissibility decision, Ukraine and the Netherlands v. Russia, 30 Nov. 2022, No. 8019/16, 43800/14 and 28525/20, para 385).

There is no doubt that climate litigation is a powerful manifestation of constantly rising environmental civic awareness, which is a part of a broader phenomenon of environmental democracy. As climate related issues are debated before international and constitutional courts – the ECtHR, the International Court of Justice, the International Tribunal for the Law of the Sea, the German Federal Constitutional Court – this judicial debate echoes the constitutional dimension of both anthropocentric and ecocentric approaches, human rights, intergenerational rights, common responsibilities and States’ positive obligations in the context of climate change. The concept of environmental democracy also coincides with the theory of the European constitutional space construed as a space with three dimensions ‘judicial, political and civic, where the civic component is to equivalent civil society, one autonomous constitutional actor in the European integration process’ (A. Simoncini).

This Op-Ed aims, accordingly, at shedding some light at the systemic consequences of the KlimaSeniorinnen judgement for the EU legal order, in particular, from the fundamental rights perspective and a status quo according to which the EU legal order does not recognise environmental or

Climate Protection as a European Fundamental Right under the ECHR and beyond

climate related fundamental rights, notably in view of the limits enshrined in the Charter of Fundamental Rights, in particular its Articles 37 and 51, the principle of conferral, as well as the rationale of direct effect of the EU directives.

This status quo reflects a certain paradox of the recent evolution of EU law. A transformation of environmental protection in the EU legal order in recent decades justifies the assertion of its constitutional status, whereby it permeates the whole of the EU legal order. Constitutionalisation may be indeed viewed as a reflection of the changing future. In this context, EU environmental law has evolved from a sectoral policy to one of the core, transversal and guiding components of the EU legal order, which is itself anchored in the values on which the Union is founded within the meaning of Article 2 TEU. Likewise, it is uncontestable that EU secondary law is undergoing a wide ecological and climate neutrality reorientation, including with the very recent adoption of the Nature Restoration Law. In parallel, the constant development in the realm of judicial protection is illustrated by the key role of the Court of Justice both exploring the Aarhus Convention environmental procedural rights, and upholding the protective, pro-ecological interpretation of EU law in the spirit of effectiveness, [1] which, as a whole, approaches the environmental rule of law concept [2]. The EU secondary law is constantly empowering individuals via the new instruments such as the internal review under the Aarhus Regulation, targeted access to justice provisions, and the concept of impairment of a right giving wide access to justice under the Ambient Air Quality Directive, the so called ‘green claims’ in the field of consumer protection, and development of corporate due diligence regulatory framework aiming at protecting human rights and environment.

On the other hand, in the realm of the EU fundamental rights, Article 37 of the Charter has been construed as a principle, not a right, within the meaning of Article 52 of the Charter. It is worth however recalling that Article 37 of the Charter represents a systemic potential, as it is anchored in the principles of high level of environmental protection, sustainability and environmental integration. This narrative has not been yet effectively explored in the jurisprudence related to the Charter. Furthermore, a unique attempt of the climate litigation at the EU law level, in Carvalho v Parliament and Council, failed at the stage of admissibility without leading to the substantive analysis of a potential breach of selected provisions of the Charter in the context of a climate change. Indeed, the Court has clarified that the protection conferred by Article 47 of the Charter does not require that an individual should have an unconditional entitlement to bring an action for annulment against an EU legislative act (Carvalho, para 77). Climate litigation closely resonates with the Aarhus Regulation internal review instrument, enabling access to the EU justice. Construing environmental rights under the umbrella of non-contractual liability of Member States for infringement of EU law in the area of air quality has likewise recently failed, not without controversies. Indeed, at the current stage of development of EU law, the limits of the ‘European constitutional imaginaries’ does not allow for the Urgenda-like judgement before the EU Courts. In the light of the draft instruments of accession, the future EU’s accession to the ECHR is not liable to dramatically change upfront the constitutional edifice of the EU fundamental rights.

How could, in such a complex and diverse context, the KlimaSeniorinnen judgement inspire EU law and the Court of Justice?

It is true that in considering the multifaceted system of the fundamental rights protection, be it under the Charter, national constitutions or the ECHR, the Court of Justice is guided by the principles of autonomy, primacy, uniformity and effectiveness of EU law, and the need of harmonious coordination of competing constitutional claims [3]. Contrary to other constitutional areas of EU law, such as judicial independence

Climate Protection as a European Fundamental Right under the ECHR and beyond

where the Ástráðsson criteria have enabled the development of a common minimum standard of protection jointly construed by the ECtHR , EU [4] and national courts, there is no similar interaction, not to mention a dialogue between the Court of Justice and the ECtHR in the field of environmental rights.

What could be the ways forward in fostering such an interaction?

First, since the Charter of Fundamental Rights offers an approach of openness towards both national constitutional orders and the ECHR, the Court of Justice could start using Article 52(3) of the Charter as much more than an inspiration and refer to the model ‘par ricochet’, as adopted by the ECtHR under Articles 2 and 8 ECHR in the field of environmental protection and climate change. There is no doubt that the Court of Justice will be, sooner or later, in the context of preliminary rulings, confronted with thorny question of fundamental rights protection in the era of a climate change. Such a question could arise as a matter of interpreting Articles 2 and/or 7 of the Charter coupled with Article 37 of the Charter, as a yardstick of judicial review of EU law. Interestingly, in construing derived environmental rights in EU law, the Charter offers Article 37 as an environmental fundamental rights provision, which could serve as a conceptual consolidating agent of a constitutional relevance. It is not sure whether, firstly, the criteria of ‘actual interference’ with the applicant’s enjoyment of his or her private or family life or home, as developed by the ECtHR, and, secondly, the criterion of certain level of severity under Article 8 ECHR are adequate in the realm of EU law. However, the Court of Justice could build its own novel standard of a derived fundamental right, through the prism of a climate change, drawing upon the criteria applicable to the breach of Article 47 of the Charter and the concept of the essence of fundamental rights within the meaning of its Article 52.

Secondly, situating climate change within the realm of Article 8 ECHR could be explored in the light of the presumption of equivalent protection under the Bosphorus judgement. Indeed, as illustrated in the field of mutual trust by the Avotinš judgement, while the ECtHR applied Boshoprus presumption, it still verified whether the level of protection resulting from the Convention was not manifestly insufficient in EU law. In this respect, the ECtHR’s KlimaSeniorinnen judgement may trigger new litigation strategies, even before the EU’s accession to the ECHR, and raise unprecedented issue of the lack of recognition of environmental fundamental rights in EU law notwithstanding the most advanced environmental legislations and climate neutrality ambitions of the Union.

Thirdly, as demonstrated by the case-law of the Court of Justice, the values contained in Article 2 TEU, in particular the respect for fundamental rights, have been identified and are shared by the Member States. They define the very identity of the European Union as a common legal order. Thus, the European Union must be able to defend those values, within the limits of its powers as laid down by the Treaties (C157/21, Poland v. European Parliament and Council, para.145). This proactive approach to the defence of Union values could trigger the EU legislator to reflect upon new, horizontal instruments of legal protection, for instance, protecting new compartamentalised fundamental rights as such the right to clean air. Given that individuals might have difficulties in meeting the admissibility criteria, collective actions, already existing in the consumer’s law, could be further expanded. The novel dimension of militant Union’s constitutional identity could be relied upon by the Court of Justice to justify the ‘derived environmental rights’ approach. Given the clear limits of the Charter, the approach of principles is a relevant alternative. A new general principle of a high level of environmental protection law anchored in the triple legal basis of Articles 3 TEU, 191 TFEU and 37 of the Charter has already been analysed in the case-law and legal doctrine.

Climate Protection as a European Fundamental Right under the ECHR and beyond

Fourthly, the ongoing discussion regarding the judicial protection and fundamental rights in the field of the CFSP, as the last controversial component of the EU’s accession to the ECHR, could be, per analogiam, explored for linking the planetary challenge of the climate change and protection of fundamental rights. In her Opinion in cases KS and KD, AG Ćapeta, emphasised that in order to ensure the effective judicial protection of individuals who claim that their fundamental rights, as guaranteed by the EU legal order, have been infringed by EU institutions or bodies, the EU Courts must, in principle, have jurisdiction to hear such claims. Since the climate and environmental rights are not apparently ‘guaranteed’, as fundamental rights, by the EU legal order, the Court of Justice could, drawing inspiration from the KlimaSeniorinnen judgment, in the light of Article 52(3) of the Charter, engage in a process of ‘judicial anticipation’ similar to the one underlying the ADBHU case where the Court ‘without any explicit legal basis—and in the context of a Treaty, one of whose main aims was the elimination of trade barriers—declared environmental protection to be one of the essential objectives of the Community’ (F. Jacobs). Such an approach would create a link between the fundamental rights and climate change in EU law.

Finally, it goes without saying that the most likely instance to raise all abovementioned questions is the national judge in the context of a judicial dialogue under Article 267 TFEU. However, as noted by the ECtHR, tackling climate change, especially given fundamentally subsidiary role of the Convention, remains in the hands of the domestic policy-makers enjoying the direct democratic legitimation (KlimaSeniorinnen, para. 449). By extrapolation, primary choices ahead of the Union and its Member States related to climate change will have to be addressed by the Union and national legislators. That being said, the Court of Justice, as a constitutional and supreme Court within the realm of the EU legal order will certainly play an increasingly important role in this area, especially since climate change is ‘no longer merely an issue of politics or policy but also a matter of law’ and ‘bearing in mind the general acceptance that climate change is a common concern of humankind’ (KlimaSeniorinnen, paras 449-451). In this respect, it will be crucial for the Court of Justice to engage into the constitutional dialogue with national courts and remain ‘capable and seen to be capable of comprehending the constitutional sensibilities of the Member States’ (J.H.H. Weiler, Epilogue : The Judicial Après Nice). Just as ripples spread out when a single pebble is dropped into water, the KlimaSeniorinnen is only the beginning, the pebble triggering further constitutional conversations to anticipate a changing future.

[1] See cases C-461/13, Bund für Umwelt und Naturschutz Deutschland eV; C-664/15, Protect Natur, Arten- und Landschaftschutz Umweltorganisation, and C-723/17, Craeynest and Others.

[2] C-441/17 R , Commission v Poland (Białowieża Forest); C-752/18, Deutsche Umwelthilfe.

[3] C-399/11, Melloni; C-42/17, M.A.S. and M.B (Taricco II); Opinion 2/13 (Adhésion de l’Union à la CEDH); see for further reading, M. Poiares Maduro, ‘ Three Claims of Constitutional Pluralism’, Constitutional pluralism in the European Union and beyond, 2012.

[4] C-585/18, A. K. and Others v Sąd Najwyższy, CP v Sąd Najwyższy and DO v Sąd Najwyższy; C-132/20 Getin Noble Bank; C-718/21, L.G v Krajowej Radzie Sądownictwa.

Climate Protection as a European Fundamental Right under the ECHR and beyond

Alicja Sikora-Kaléda is Senior Lecturer, EU Law Department, Jagiellonian University (Cracow, Poland); Member of the Council Legal Service. All the views expressed are those of the author and do not engage Council of the European Union and the European Council.

SUGGESTED CITATION: Sikora, A.; “‘Just as ripples spread out when a single pebble is dropped into water’- ECHR KlimaSeniorinnen judgement’s systemic effects on the EU legal order”, EU Law Live, 26/06/2024, https://eulawlive.com/op-ed-just-as-ripples-spread-outwhen-a-single-pebble-is-dropped-into-water-echr-klimaseniorinnen-judgements-systemic-effects-on-the-eu-legal-order-by-a/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Epilogue: The Strasbourg Effect

Daniel Sarmiento and Sara Iglesias Sánchez

The influence of the European Court of Human Rights is on the rise. Recent judgments in the fields of climate change, the protection of judicial independence or immigration, to name only a few examples, have put the Strasbourg court in the limelight. The recent rise of the court’s influence is not entirely a surprise. Rule of law backsliding puts at risk some of the basic rights enshrined in the Convention, from freedom of information and expression to judicial independence. The existential crises that now affect humanity (climate change and the rise of artificial intelligence) demand a response from a fundamental rights perspective. The challenges that the new digital economy brings about come hand in hand with the emergence of new tensions in which societal values demand complex compromises, mostly through the balancing of competing fundamental rights. In sum, the signs of the times are inevitably calling the European Court of Human Rights to play a key role in solving some of the complex challenges now faced by Europeans and the world more generally.

So how does this growing influence impact the EU and its law? After all, the European Court of Human Rights (hereinafter, ‘ECtHR’) has no jurisdiction over EU action, nor has the EU acceded to the European Convention of Human Rights (hereinafter, ‘the Convention’), despite the imperative mandate to do so in Article 6 TEU. The Court of Justice has followed the path of the ECtHR in the past, aligning its case-law to the findings of the Strasbourg court, but this alignment has not always been amicable nor complete. The reiterated refusal of the Court of Justice to authorise the accession of the EU to the Convention has not made matters any easier. The Charter of Fundamental Rights includes a provision, Article 52(3), to facilitate the alignment of the Charter with the Convention, but thus far the Court of Justice has used this rule mostly as a source of inspiration, but not as a means of providing the Convention automatic legal effects over the interpretation of the Charter.

However, some recent decisions suggest that the ECtHR’s shadow looms as large as ever over the Court of Justice. In this Insight we will give some examples of this growing role of the Strasbourg court and of the Convention in the practice of EU law. Some considerations will also be made as to the broader impact of this trend and the potential consequences it may have in the future attempts of the EU to accede to the Convention.

The rulings of the ECtHR in the climate change cases (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Other States) made the headlines across the world. A major international court was embracing a new interpretation of the fundamental right to family life with the aim of incorporating an environmental dimension that includes the positive obligation of the contracting States to combat climate change. The substance of this case will certainly have an impact in the signatory States of the Convention, as well as indirectly in the EU’s climate agenda. However, another more technical and discreet aspect was addressed by the ECtHR, with very significant practical implications for EU law and the case-law of the Court of Justice. In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the ECtHR declared a violation of Article 8 of the

Climate Protection as a European Fundamental Right under the ECHR and beyond

Convention, but also of Article 6 of the Convention due to the Swiss courts’ lack of engagement with the claims brought by a non-profit association established under Swiss law to promote and implement effective climate protection on behalf of its members. In addition, the ECtHR granted victim status to the association pursuant to Article 6 of the Convention, whilst it rejected the standing of the individuals acting as applicants in the case. To come to this conclusion, the ECtHR relied heavily on the specific role granted by the Aarhus Convention to NGOs in environmental matters. This ruling will have major repercussions in the practice of climate litigation, inasmuch it paves the way for environmental NGOs to bringing actions before the Strasbourg court in their capacity as victims of a violation of the Convention, but it also puts a particular burden on Member States to articulate remedial channels for these organisations as a means of guaranteeing environmental justice. It should be noted that not only the Member States, but also the EU are parties to the Aarhus Convention, on which the ECtHR relied to reach this outcome.

The Court of Justice’s record in providing such channels has not been too inspiring to date. Due to the restrictive conditions imposed by Article 263 TFEU, fourth paragraph, to private applicants in bringing direct actions in Union courts, considerable efforts have been invested in the attempt of aligning this framework with the more generous conditions provided in the Aarhus Convention for NGOs in environmental matters. This tension ensued in a reform of Regulation 1367/2006, following a clash with the Aarhus Convention Compliance Committee, which still remains unresolved in some specific points. At the present time, the conditions that an environmental association must fulfill to comply with the requirements of individual and direct concern of Article 263 TFEU are stringent and make it difficult to challenge the inaction of the Union to introduce general measures, or the ability to challenge directly such general measures. How does Verein KlimaSeniorinnen Schweiz alter the status quo? For starters, the interpretation of Article 6 of the Convention points in the direction of imposing much more rigorous standards of review over national channels and analysis of claims brought by environmental NGOs in cases concerning climate change, in a combination in which the Aarhus Agreement and the Convention interact with the purpose of providing full judicial participation to environmental NGOs. Climate litigation could eventually reach Union courts through preliminary references of validity, but it is questionable to what extent can failures to act of the Union be reviewed through this indirect course of action. Also, Articles 7 and 47 of the Charter must be interpreted in conformity with the standards set by the ECtHR in its interpretation of the Convention. While the Court of Justice has not always been enthusiastic about deploying the full effects of Article 52(3) of the Charter, as time goes by it will be more and more untenable to close the doors of Union courts to environmental NGOs, at the same time that the Member States and other international organisations have adapted to the new remedial framework following Verein KlimaSeniorinnen Schweiz

In a different field, that of privacy and data protection, the Union has stood in the opposing side: by providing a very high standard of protection, this time in the right to private life. As is known, the Court of Justice turned the Union into the international champion of international protection of data and, in particular when national measures gathering data amounted to a retention of data. In the well-known cases of Digital Rights Ireland, Tele2 and Quadrature du Net, among others, the Court of Justice affirmed the Union’s high level of protection of privacy, by precluding measures of mass retention of data by private or public authorities, including public authorities acting in the field of defence and security. The balancing exercise provided by the Court of Justice was heavily inclined in favor of the right to privacy, whilst only in highly strict circumstances could this right be overridden by another competing interest. This approach led to serious difficulties in the Member State when it came to handle data and make use of it for the purpose of pursuing policies linked to a general interest. In contrast, the approach taken by the ECtHR was more

Climate Protection as a European Fundamental Right under the ECHR and beyond

balanced, undertaking a careful analysis of the different interests at stake and providing further leeway to the Member States when it was clear that public interest policies were at risk. Whilst the approach of the Court of Justice seemed almost categorical in its devout protection of privacy, the Strasbourg court seemed to follow a more nuanced approximation to the matter.

After more than a decade reiterating the bluntness of its case-law, the Court of Justice finally conceded in Quadrature du Net 2, delivered this month. As evidence of the difficulty that the Court of Justice found in nuancing its case-law, it was the Full Court that was called to rule on the case, a sign that evidenced the internal tensions within the Court over the handling of a case-law that had strained the relations with national courts, in particular with the French Conseil d’État. How did the Court of Justice adapt its tone and what did it rely on to reach such an outcome? An important clue can be found in paragraphs 114, 116 and 117 of the judgment, where it finally decided to rely on the case-law of the ECtHR, which had been ruling on similar cases for some time, almost in parallel to the Court of Justice, but using a balanced approach that led the Strasbourg court to provide a more nuanced protection of the right to private life. Thus, the reference in Quadrature du Net 2 to Lopez Ribalda v. Spain, Gardel v. France and K.U. v. Finland, three cases in which it is no coincidence that the ECtHR sided with the party retaining the personal data, or with the victim that had complained of the State’s cautious stance vis-à-vis law enforcement on the internet. In sum, it was the reasoning and methodology used by the ECtHR that finally prevailed in the Court of Justice’s full court decision of Quadrature du Net 2, after years of a blunt and probably too onesided interpretation of the fundamental right to private life.

Another area in which the ECtHR has recently shown its ability to take the lead is the protection of the rule of law in the Member States. At first, the Court of Justice seemed poised to set the terms of the debate in the seminal Associação Sindical dos Juízes Portugueses, the first occasion in which the principle of judicial independence was declared to be a self-standing ground of review on the basis of Article 19 TEU, interpreted in light of Article 47 of the Charter. This judgment paved the way to a wide array of judicial decisions concerning the 2017 judicial reforms in Poland, a sweeping transformation of the Polish judiciary that led to a new composition of the National Council of the Judiciary, a reattribution of the organic links of the Prosecutor’s Office to the Ministry of Justice, the introduction of a Disciplinary Chamber in the Supreme Court and many other measures that targeted the independent judiciary in Poland as part of an offensive led by the ruling coalition parties in government. Whilst the Court of Justice was very strict in its review of the Polish reforms, it was more cautious when the matter came to the composition of the National Council of the Judiciary, which had changed its composition from a judicialbased appointments system to a model in which the appointments are subject to the influence of the legislature and the executive. To date, the Court of Justice has been reluctant to rule on the standards of independence that must apply to a council of the judiciary of a Member State, using a balanced approach that requires proof of a specific breach of independence in the case at hand, and not in structural terms. In fact, the Court of Justice is not inclined to rule in general terms on how should judges be appointed in the Member States, a feature that was clear in the case of Repubblika, where the powers of appointment of judges of the Maltese Prime Minister were reviewed and declared in line with the Treaties, subject to a broad discretion left to the Member States.

And then the ECtHR stepped in. In the case of Guðmundur Andri Á stráðsson v. Iceland, introduced clear criteria on the appointment of judges in light of Article 6 of the Convention. And when the principles of Guðmundur Andri Á stráðsson v. Iceland, were applied to the Polish case in Advance Pharma v. Poland, the

Climate Protection as a European Fundamental Right under the ECHR and beyond

ECtHR was blunt in its assessment: the National Council of the Judicial is not an independent body and any appointment of a judge made by the institution will deprive the court in which it sits of its condition of a ‘tribunal established by law’. The Court of Justice’s cautious approach towards the appointment of judges and the composition of the bodies appointing judges was put in sharp contrast with the findings of the Strasbourg court. As time went by, the Court of Justice had to readjust its caution and act more boldly. A change that was confirmed in the more recent judgment of Krajowa Rada, when the Court of Justice finally ruled that the Chamber of Extraordinary Control and Public Affairs, whose sitting judges were appointed by the National Council of the Judiciary, was not a ‘tribunal’ for the purposes of Article 267 TFEU, and therefore it had no ability to refer questions for a preliminary reference. The wording of the judgment in paragraph 58 could hardly be more telling:

‘In the light of the Court’s own case-law on the interpretation of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter, the findings and assessments made by the European Court of Human Rights in the judgment in Dolińska-Ficek and Ozimek v. Poland and by the Naczelny Sąd Administracyjny (Supreme Administrative Court) in its judgment of 21 September 2021, as described in paragraphs 47 to 57 above, lead to the conclusion that, because of the manner in which its constituent judges were appointed, the panel of judges of the Chamber of Extraordinary Control and Public Affairs which made the present request for a preliminary ruling does not have the status of an independent and impartial tribunal previously established by law, for the purposes of those provisions of EU law, with the result that that panel of judges does not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU.’

This short summary of recent interactions between the ECtHR and the Court of Justice is good proof of multiple points of connection between both jurisdictions, in which the Strasbourg court is playing a growing role in essential developments that have a direct impact in EU law and its policies. Seen in this light, it is a mistake to characterise the ECtHR as a court of minimum standards, as a jurisdiction working on a security net for all the signatory countries that can be superseded by any of them at their will. This portrait is a misconception of the role currently played by the ECtHR, in which it is not only setting a minimum standard of protection throughout the continent, but it is also pushing specific fields into new directions needed of protection, thus conditioning policy, case-law and the environment of European litigation altogether. These are not developments stemming from a modest jurisdiction working on minimum standards, it is the outcome of a jurisdiction playing an active role in the societal and institutional discussion over key values of our times, seen through the lens of fundamental rights protection.

In these circumstances, it is questionable (to say the least) that the negotiations on the accession of the EU to the Convention remain in legal and political limbo. In the wake of Opinion 2/13, a somber mood prevailed over the prospect of Union accession and, despite the recent efforts in that direction, it is uncertain whether there is any success on the horizon. Having reached this point, the following question emerges: are the technicalities raised by the Court of Justice in Opinion 2/13 sufficiently serious as to keep the EU outside the remit of the Convention and the jurisdiction of the ECtHR? Is the EU acting wisely in its reluctance to openly embrace the role of this means of external control, particularly at a time in which the most relevant societal issues are being brought before the ECtHR, and the court is giving responses that are having a manifest impact in its signatory States, most of them members of the EU? It is no coincidence that the EU intervened in the proceedings in Verein KlimaSeniorinnen Schweiz and others, as proof that its climate agenda was indirectly put at risk when Portugal and France were brought before the Strasbourg court.

Climate Protection as a European Fundamental Right under the ECHR and beyond

Considering the role that the ECtHR is currently playing, and its overall impact in the political and judicial landscape, is it worth carrying on the bickering over the technicalities of Opinion 2/13? While the hesitations and doubts of the Union over accession continue, the ECtHR carries on with its task of interpreting the Convention, a text that is deploying enormous influence over the laws and policies of the Member States and the Union. The longer it takes the EU to assume the need and urgency of acceding to the Convention, the longer it will take for the EU to be in a position to react, respond and have a say in the growing expansion of the Strasbourg effect.

Daniel Sarmiento is Professor of EU Law at the Universidad Complutense of Madrid and Editor-in-Chief of EU Law Live.

Sara Iglesias is Professor of EU Law at the Universidad Complutense of Madrid and In-Depth/Weekend Edition editor at EU Law Live.

SUGGESTED CITATION: Sarmiento, D. and Iglesias, S; “The Strasbourt Effect”, EU Law Live, 14/05/2024, https://eulawlive.com/ insight-the-strasbourt-effect-by-daniel-sarmiento-and-sara-iglesias-sanchez/

Climate Protection as a European Fundamental Right under the ECHR and beyond

Table of Contents

Introduction: Climate Protection as a European Fundamental Right under the ECHR and beyond

Breaking Down Climate Litigation Justice in Europe: The ECtHR’s ruling on Duarte Agostinho and Others v. Portugal and Thirty-Two Other Member States

Background of the Duarte Agostinho Case

The Judgement of the European Court of Human Rights

Extraterritorial Jurisdiction

Exhaustion of Domestic Remedies

Some Reflections on the Case

Verein KlimaSeniorinnen Schweiz v. Switzerland and Article 6(1) of the ECHR: Of Climate Change and Craftsmanship

Anaïs Brucher and Antoine De Spiegeleir

The ECtHR’s Approach to Article 6(1) in KlimaSeniorinnen

Victim Status of Individual Applicants under Article 6(1)

a Feat of Judicial Craftsmanship

Legal Standing in Climate Litigation before the ECtHR and the CJEU

The Climate in Strasbourg, the Climate in Luxembourg

standi in Climate Litigation before the ECtHR

Conclusion

Climate Justice in the Jurisprudence of the European Court of Human Rights. Some notes on Carême v. France, Verein KlimaSeniorinnen v. Switzerland, Duarte Agostinho & al. v. Portugal & 32 Others

Building the Right to a Clean Environment and a Safe Climate Before the ECHR

Connecting Climate Change to Human Rights

The ECHR and its Contribution to Improve Climate Justice

How the Verein Klimaseniorinnen Decision enhances Climate Justice

Still, half of the Way to go

The Klimaseniorinnen Case: In Search of Substantive Standards

No Nature, no Human Rights: Implications of KlimaSeniorinnen for Biodiversity

1. The ECHR and Nature

2. Implications of KlimaSeniorinnen for Biodiversity Protection and Recovery

3.1 Implication I: Carbon Sinks & Biodiversity Protection

3.2 Implication II: Perspective for Future Cases

4. Conclusion

Verein KlimaSeniorinnen Schweiz and others vs. Switzerland: paving the way for climate litigation in Europe

The Klimaseniorinnen Case: Clearing the Air for Corporate Climate Litigation

Sumeyra Arslan

Corporate Climate Accountability

The Precarious Nature of Corporate Climate Litigation

Climate Change and Human Rights

Actio Popularis and Locus Standi

Separation of Powers – the Role of National Courts

Article 8 – State’s Positive Obligations

Conclusion

Intersectionality in the KlimaSeniorinnen case – ‘Older Women’ in Action

The Eye of the Needle: Admissibility

Women’: a Case of Intersectionality

Intersectionality in the Judgment

Just as Ripples Spread out when a Single Pebble is Dropped into Water’- ECHR KlimaSeniorinnen Judgement’s Systemic Effects on the EU Legal Order

Alicja Sikora-Kaléda

Epilogue: The Strasbourg Effect

Daniel Sarmiento and Sara Iglesias Sánchez