The Role of the EU Charter of Fundamental Rights in Climate Litigation

Abstract

Climate litigation has become a permanent fixture in the climate law and policy landscape. Across jurisdictions, climate litigation takes different shapes, with actions based on administrative, civil, or criminal law. An increasing number of cases incorporate human rights, leading to courts inter alia imposing more onerous mitigation obligations on governments and private actors in light of human rights provisions. Several landmark cases in this domain have come from European jurisdictions and have been argued with reference to both the European Convention on Human Rights (ECHR) and the European Union’s Charter of Fundamental Rights. An analysis of case law from the European Member States shows that the emerging picture is one of the Charter playing a secondary role to the ECHR. Based on this jurisprudential analysis, this article reflects on the future role of the Charter in climate litigation, and by extension, in shaping environmental human rights.

The European Union and global warming: A fundamental right to (live in) a sustainable climate?

“…Because of their activities in the agriculture and tourism sectors, the claimants argued that they were negatively impacted in their fundamental rights under the EUCFR by environmental phenomena such as flooding, drought and heatwaves triggered or aggravated by climate change. The plaintiffs focused particularly on the right to nondiscrimination under article 21 of the Charter, the right to pursue an occupation under article 15 (1), the right to property under Article 17(1) and children rights under article 24. The claims were eventually dismissed, considering that the applicants had not established that the contested provisions infringed their fundamental rights and distinguished any individual from any other persons concerned by Directive 2018/410.…”

“…30 This is currently codified in article 6(3) of the Treaty on European Union (TEU) and further in EUCFR article 52(3), providing that rights under the EUCFR should be interpreted consistent with the ECHR, 31 which has become a binding norm since 2009 and establishes the European Convention as the minimum standard for human rights protection in the EU. 32 Within such a context, it is to be noted that the ECJ and CJEU have thus far sought to conform to the decisions of the ECtHR. 33 However, the question is far from settled: conflicts cannot be excluded and the issue has been raised of the possibility of a contrast when the ECtHR adjudicates upon a case in the absence of a previous preliminary ruling by the CJEU under TFEU article 267.…”

“…Whilst climate change is relevant to different areas of the law, key developments are taking place from the standpoint of fundamental rights. 1 Indeed, under the impending threat of climate change, there is a clear development of international human rights law from firstand second-generation human rights, that is, individual civil, political, economic, social and cultural claims, to the recognition of third-generation human rights, which have a collective nature, particularly the human right to a sustainable environment within the context of the fundamental right to sustainable development. 2 This is proven by the adoption of Resolution 48/13 of the UN Human Rights Council (HRC) in 2021 and Resolution A/76/L.75 of the General Assembly in 2022 on the right to a clean, healthy and sustainable environment.…”

Principles of EU law in climate litigation

“…110 vanZeben (2021Zeben ( , 1510.111 Art. 53 of the EU Charter (emphasis added).112 van Zeben (2021, 1510); de Boer (2013, 1096); Case C-399/11, Stefano Melloni v. Ministerio Fiscal, ECLI: EU: C:2013:107 (26 Feb. 2013), para 60, https://curia.europa.eu/juris/ liste.jsf?…”

“…See similarly: Ruhl, JB and Markell, DL (2012, 27);Wilensky (2015, 134);Setzer and Higham (2022, 25).9 See http://climatecasechart.com/ (all internet sources were last accessed on 16 Feb 2023);Setzer and Higham (2022, 25). On the Sabin Center's database as the most complete worldwide, seevan Zeben (2021van Zeben ( , 1506.10 Bodansky et al (2017);Gerrard (2021).…”