Ten families, including children, from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Swedish Sami Youth Association Sáminuorra, brought an action in the EU General Court seeking to compel the EU to take more stringent greenhouse gas (ghg) emissions reductions. Plaintiffs allege that the EU’s existing target to reduce domestic ghg emissions by 40% by 2030, as compared to 1990 levels, is insufficient to avoid dangerous climate change and threatens plaintiffs’ fundamental rights of life, health, occupation, and property.
The lawsuit has two major components. First, plaintiffs bring a nullification action, asking the court to declare three EU legal acts as void for failing to set adequate ghg emissions targets. The three EU legal acts are: Directive 2003/87/EC governing emissions from large power generation installations (ETS); regulation 2018/EU on emissions from industry, transport, buildings, agriculture, and etc. (ESR); and regulation 2018/EU on emissions from and removals by land use, land use change, and forestry (LULUCF). Plaintiffs argue that inadequate emissions reductions violate higher order laws that protect fundamental rights to health, education, occupation, and equal treatment as well as provide obligations to protect the environment. These higher rank laws include: the EU Charter of Fundamental Rights (ChFR), the Treaty on the Functioning of the European Union (TFEU), the United Nations Framework Convention on Climate Change (UNFCCC), and the Paris Agreement. Plaintiffs ask the court to order that the three emissions reductions laws remain in force until improved versions of the Acts can be enacted. Art. 263 of the Treaty on the Functioning of the EU (TFEU) is the basis for this procedural action.
The second action concerns non-contractual liability. Article 340 of the TFEU provides a mechanism for injunctive relief when three conditions are met: 1) there is an unlawful act by the EU institution(s), 2) the unlawful act is a serious breach of a law that protects individual rights, and 3) there is a sufficient causal link between the breach and the damages.
Demanded relief is an injunction to compel the EU to set more stringent ghg emissions reductions targets through the existing framework of the ETS, ESR and LULUCF regimes in order to bring the EU into compliance with its legal obligations. Plaintiffs assert this would require a 50%-60% reduction in ghg emissions below 1990 levels by 2030 or whatever level the court finds appropriate.
The European General Court did not rule on the merits, but dismissed the case on procedural grounds, finding that the plaintiffs could not bring the case since they are not sufficiently and directly affected by these policies (“direct and individual concern” criterion). The court concluded that the plaintiffs did not have standing to bring the case because climate change affects every individual in one manner or another and case law requires that plaintiffs are affected by the contested act in a manner that is “peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually.” The court rejected plaintiffs’ argument that the interpretation of the concept of ‘individual concern’ referred to in the fourth paragraph of Article 263 TFEU is not compatible with a fundamental right to effective judicial protection under Article 47 of the Charter of Fundamental Rights. Nor did the court find that plaintiffs could bring the case under the other possible criteria under the fourth paragraph of Article 263 of the TFEU which would require that they were direct addressees of the legislative package in question or they contested a regulatory act that was of direct concern to them.
The plaintiffs appealed to the European Court of Justice on July 11, 2019, arguing that the EU General Court erred in concluding that plaintiffs lacked standing under Article 263, and by holding that plaintiffs needed to establish standing under Article 263 in order to bring a claim for non-contractual liability.