On 3 December, the European Parliament and the Council have submitted their responses on the appeal of the legal action challenging the EU’s 2030 climate target. Despite the political momentum in the EU to increase the 2030 climate target, both institutions argue that the families and the Sami youth who are affected by the climate crisis shouldn’t be heard in European courts. Now, plaintiffs will write the Court to request permission to answer the EU Institutions.
The European Parliament who declared climate emergency only last week makes an unexpected statement in its written response and says that “ whilst the Charter of fundamental rights reaffirmed the fundamental rights on which an individual may rely on, that does not make the rights “individualised” or “personal”” and thus the fundamental rights of plaintiffs should not be debated at court.
Gerd Winter, lawyer of the case said: “The EU keeps defending a paradox that the more serious damage is resulted by the EU’s laws and thus the more persons are harmed, the less their rights should be an issue for direct action at European courts. ”
Besides, the European Parliament and the Council argue that plaintiffs should try recourse through national courts. The families and Sami youth however explained in their application that this means sending them on a long detour, and an unsuccessful one because the national court would have no reason to involve the EU court. Rather, they would need to bring actions at 28 Member State Courts in order to have the entire emission quantity of the EU reduced. The plaintiffs claim this would be an unacceptable barrier to their right to legal protection.
Roda Verheyen, coordinating lawyer of the case said: “EU leaders made numerous declarations to recognise the magnitude of the climate crisis and the importance of stepping up climate action. Today, it is simply unacceptable that instead of providing legal protection, these institutions try to push citizens out of the EU jurisdiction.”
In the People’s Climate Case, families and the Sami youth argue that the EU’s current targets are too weak to prevent dangerous climate change and protect their human rights, mainly their right to live, health, occupation and property. Today, the European Parliament calls to increase of the EU’s 2030 climate target from 40% to 55%. An increasing number of Member States already support the increase of the 2030 climate target to -55% and have urged the new Commissioner Timmermans to do so in a joint letter.
In support of the People’s Climate Case, Wendel Trio, Director of CAN Europe said: “ It is time for EU decision makers to understand that climate action is also about people’s lives and fundamental rights. For these families and the Sami youth, climate change is an everyday struggle. These people who put their trust in the EU to protect their future deserve to be heard. The EU shouldn’t need a court order to substantially and urgently increase its 2030 climate target to protect its citizens and their fundamental rights.”
CAN Europe calls for an increase of the EU’s 2030 domestic greenhouse emission reduction target from at least 40% to at least 65% compared to 1990 emissions. This should happen in the first half of 2020 so that the EU can play a leadership role in increasing global climate ambition before COP26 in November 2020.
The Case
An action was brought before the EU General Court by families, including young children, whose livelihood have been and will be put at risk by climate change. They claim that the EU’s existing 2030 climate target to reduce domestic greenhouse gas emissions by 40% by 2030, as compared to 1990 levels, is inadequate with respect to the real need to prevent dangerous climate change and not enough to protect their fundamental rights of life, health, occupation and property. With the existing 2030 climate target, the EU still allows 60% of emissions compared to 1990 to be allocated to industry and Member States – these emissions will further violate the fundamental rights of the plaintiffs.
They are asking the European General Court to mandate the EU law-making institutions (the European Parliament and the Council of European Union) to take more stringent measures of climate protection to protect their fundamental rights as well as the global environment.
Ten families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji and the Swedish Sami Youth Association Sáminuorra, are the plaintiffs of the People’s Climate Case.
The application of the People’s Climate Case has 2 parts: nullification and a claim for an injunction based on non-contractual liability.
The nullification action is challenging three EU legal acts:
- the Directive on emissions from large power generation installations (the Emissions Trading System Regulation – ETS)
- the Regulation on emissions from industry, transport, buildings, agriculture etc. (the Effort Sharing Regulation or Climate Action Regulation implementing the Paris Agreement” (CAR)
- the Regulation on emissions from and removals by land use, land use change and forestry (the LULUCF Regulation).
The application asks the Court to declare the three Acts null and void insofar as they allow for too many emissions by 2030, since they violate the plaintiff’s rights and are not in line with higher ranking law. In order not to create a vacuum the Court is to order that the three Acts shall be kept in force until a stronger version of them has been enacted. This part of the action is based procedurally on Art 263 of the Treaty on the Functioning of the EU (TFEU).
The application also argues non- contractual liability. The claim underlines that since damage to property and income, as well as health are already occurring due to climate change, the EU must prevent greenhouse gas emissions as much as it can in order to prevent additional damage to be caused.
This part of the action is based on Art. 340 of the TFEU.
The pleading is around one hundred pages long with annexes of several hundred pages, including a detailed account of the concern and damage of each plaintiff family.
It goes through the factual context about climate change effects on the applicants, then argues admissibility on the basis of Art 263 para. 4 TFEU and challenges the incompatibility of the three GHG Emissions Acts with the Charter on Fundamental Rights, EU primary law and the higher ranking law.
Essentially it is argued that the EU is legally obliged to do what it can to reduce emissions (do the best according to its potential) to protect the rights of the plaintiff families, and that the current legal acts do not fulfil this benchmark. Also, it argues that on the basis of the Paris Agreement and regardless of how a remaining global emission budget is allocated, the 40% target does not suffice.
The injunction on the basis of Art 340 essentially relies on the same argument, as part of the requirement of showing a breach of the law as well as damage. The plaintiffs do not seek monetary compensation, but climate protection.
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