Principles of EU law in climate litigation

Disharmonization in the Regulation of Transgenic Plants in Europe

A rejoinder to Benoit Mayer's response to our article "Causality and the fate of climate litigation: The role of the social superstructure narrative" 1 .

The judgment of the European Court of Justice in Eurofood IFSC Ltd., C-341/04, explores several key provisions of the European Insolvency Regulation (Council Regulation (EC) No. 1346/2000 of 29 May 2000 on insolvency proceedings), notably Articles 3(1), 16(1) and 26. The Court interpreted Article 3(1) on the basis of Recital 13 and held that the presumption whereby the centre of main interests (COMI) of a company is situated in the Member State where its registered office is situated can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which locating at that registered office is deemed to reflect. By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated, the mere fact that its economic choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption. In this context the Court reminded the national courts that it is inherent in the principle of mutual trust that the court of a Member State hearing an application for the opening of main insolvency proceedings checks that it has jurisdiction having regard to Article 3(1), i.e. examines whether the COMI is situated in that Member State. On Article 16(1) the Court held the main insolvency proceedings opened by a court of a Member State must be recognised by the courts of the other Member States, without the latter being able to review the jurisdiction of the court of the opening State. The Court gave an autonomous interpretation to the words “judgment opening insolvency proceedings” in Article 16(1) as meaning every decision handed down by a court of a Member State, based on the debtor's insolvency and seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves the divestment of the debtor and the appointment of a liquidator referred to in Annex C to the Regulation, irrespective of whether that decision was regarded as “opening” the insolvency proceedings under the national law. Finally, the Court held that under Article 26 a Member State may refuse to recognise insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard, which a person concerned by such proceedings enjoys. The article gives a critical assessment of the decision, noting in particular the dangers of allowing Member States to open insolvency proceedings on the basis of ex parte applications for provisional measures.

After decades of ineffective state-led global climate governance that has been dominated by mostly short-term Northern political and corporate interests, we are now witnessing an increased recognition of the planetary scale of the climate crisis and its impacts on present and future life on Earth. The Anthropocene is argued to be the new geological epoch and is associated with fast-approaching planetary boundaries and a new understanding of promethean humans as a powerful geological force. The Anthropocene introduces a new context for thinking about the climate crisis and its associated multiple patterns of differentially distributed injustices, including the temporal aspects of justice. At the same time, the climate crisis prompts the need to embark on new strategies to ensure a safe and just operating space for all present and future generations within planetary limits. While traditionally marginalized in national, regional and United Nations political fora, and largely ignored by the high rhetoric of multilateral environmental agreements that have been unable to operationalize intergenerational justice in day-to-day governance, young people are now actively claiming their position as representatives of present and future generations. They do so through protests, but also through more formal avenues to deliberately assert claims for intergenerational justice. One increasingly popular and often successful strategy is climate litigation. In this paper, we explore the shift in understanding and the practicing of intergenerational justice in the deep time context of the Anthropocene, and how young people are becoming more powerful political actors that use climate litigation to ensure intergenerational justice. We briefly reflect on the 2021 decision of the German Constitutional Court in Neubauer et al versus Germany as an example of successful youth-led climate litigation.

Addressing the climate crisis involves changing climate law and governance. Climate litigation can facilitate this change. How and why does change occur? A multilevel perspective can assist in answering these questions. There are three levels: niches, regimes and landscapes. Actors in the protected spaces of niches develop ideas and legal arguments in climate litigation. Through a process characterised by the phases of emergence, diffusion, adaptation and cumulation, the ideas and arguments are incorporated by domestic courts' decisions into the law of the land. This process is facilitated by exogenous developments at the landscape level. The changing climate and the changing responses of the international community and international law exert contextual pressure on domestic courts' decision‐making. The combined pressures from the niche and landscape levels create tensions in the regime, making it receptive to incorporate the novel ideas and arguments and change climate law and governance. Other actors in the regime respond to this change in the law. The legislature and executive, the private sector and legal profession, adjust their behaviours accordingly. In sum, there is regime change. This process of change is illustrated using the ideas and arguments of inter‐ and intra‐ generational equity.

The rational choice theory approach has consistently marked the relations between WTO agreements and domestic courts in the European Union, despite that traditionalism has been accorded on the role of domestic judges regarding other areas of international law. The ECJ has a mixed position on international trade agreements in general and does not grant WTO agreements direct effect, as opposed to association agreements. This Chapter examines significant cases through which the ECJ has construed its case law with regards to WTO rules, focusing on the GATT and the Antidumping Agreement to check how the rational choice theory approach works in the real world and to examine its impact in domestic litigation. Due to the unique features of the European Union legal order, this Chapter also assesses the degree of cooperation of national courts of the European Union member states with the ECJ case law in relation to the WTO Agreements, with particular attention to German and Italian courts case law. As constitutional courts of European member states may occasionally be offered the opportunity to confront ECJ case law in domestic litigation, their responses to confirm or not the ECJ decisions in relation to the WTO Agreements are therefore relevant.

How Much Trust in Times of Distrust: National Courts, the ECJ and Criminal Cooperation in an Era of Rule-of-Law Backsliding Trust is an essential prerequisite for cooperation between EU Member States and EU institutions and between the Member States. This is especially evident in the Area of Freedom, Security and Justice (AFSJ). It is undisputable that national courts play a pivotal role in the EU legal order and that their role has become increasingly more prominent in the AFSJ, especially when it comes to the balancing of protection of fundamental rights with the principle of mutual trust. It is in this field that it has become clear that the quality of the rule of law in one EU Member State has strong implications and affects the rule of law and fundamental rights protection in other Member States. In this context, Polish judges sent numerous preliminary references asking the ECJ whether judicial independence is still guaranteed in Poland. Similarly, national courts in other Member States, such as the Netherlands or Ireland, referred multiple questions to Luxembourg in essence asking various times whether the automaticity required by the principle of mutual trust can be maintained in the EU in the light of rule-of-law backsliding and erosion of judicial independence. In this article two different dimensions of trust – that is, the principle of mutual trust and the trust of national courts in the ECJ – are combined to address the question of the extent to which national courts trust the ECJ in relation to preliminary rulings that affect the operation of the principle of mutual trust with respect to the independence of the judiciary.

Climate litigation is a hot topic. Worldwide, jurisdictions are being presented with novel legal cases aiming to address the devastating effects of climate change. Domestic, regional and international courts are facing the challenge, deciding climate-related cases by using a myriad of approaches. Latin America is host to many of these climate litigation cases. Yet, in mainstream climate litigation literature, the role of litigation in Latin America is often overlooked, especially the role of litigation in ‘peripheral’ claims. We argue that limiting the definition of climate litigation to cases that directly invoke climate-change-related claims, albeit useful, ignores a significant number of cases with potentially strong influence in climate governance. We contend that Latin America provides a wide and relevant range of climate cases that could inform how climate governance is shaped, but that the majority of these cases rely on ‘peripheral’ climate claims: that is, on claims that may not directly mention climate change laws or data but which nevertheless have an impact on climate governance. Some of these claims refer to biodiversity protection (ie in the Amazon basin), while others appeal to climate change causes (ie air pollution). Furthermore, cases with innovative approaches such as those invoking the Rights of Nature or Intergenerational Equity also touch upon climate governance and the human–nature relationship. This article draws on the expanding body of climate-related cases in Latin America in order to assess the role of the region in advancing climate litigation.

In the realm of intergenerational justice, green constitutionalism underscores the necessity for present generations to make choices that do not jeopardize the capacity of future generations to fulfill their needs independently. The climate verdict defending the rights of future generations by the German Federal Constitutional Court (Bundesverfassungsgericht) of March 2021 was a game changer in that regard. For the first time in Germany’s climate litigation, the fundamental rights of future generations were subject to constitutional claim and enforceable. They were no longer just a normative claim. Constitutional courts can be seen as defenders of the fundamental rights of future generations where constitutions include such normative perspectives. While the Court upheld the infringement of the fundamental rights of the adolescent plaintiffs in the future, the representation of not-yet-born generations remains unclear. This article examines how the 2021 German climate verdict and constitutional provisions address the representation and protection of the interests of future generations represented by the plaintiffs concerning climate change on the one hand and discusses the potential of protecting the fundamental rights of not-yet-born future generations. The article considers the implications for intergenerational justice and explores how these legal frameworks provided by the Constitution may contribute to the formulation of sustainable policies aimed at ensuring the long-term well-being of future generations. There is an urgent need to develop an institutional regime where the needs and rights of future generations are being considered and included in decision-making processes.

The Union is the direct successor to the three communities that were set up in the 1950s by six European States. Just as over time the references to the three Communities became one reference to the ‘European Community’, now the supranational organisation that is referred to has grown since 1992 and the general name by which it is known is

Academic research into international climate change litigation has shown that the courts yield significant power in bringing about an awareness of climate impacts as well as firmly entrenching rights and responsibilities for claimants and defendants. In April 2022, the IPCC’s Sixth Assessment Report noted in some detail how climate litigation is shaping climate governance. This article considers these statements within the framework of how courts have drawn on fundamental constitutional rights even without an exclusive reliance on the right to a healthy environment within the jurisdiction of South African climate litigation. The objective of this study is to investigate this claim by analysing the available legal mechanisms in South Africa and what legal strategies have been used in climate litigation to determine how South African climate litigation has shaped climate governance in comparison to climate litigation from the Netherlands. The core analysis examines firstly what the litigation is seeking to achieve, secondly which legal mechanisms and avenues were relied upon and thirdly, how this resonates between different jurisdictions. The key results will contribute to an understanding of the contribution that South African and Dutch climate litigation lends to global climate governance, the extent to which litigation relies on entrenched fundamental rights; it further tracks how, if at all, transnational climate governance litigation has developed in this respect.

This paper analyzes the decision of the European Court of Justice (ECJ) to protect fundamental human rights in a series of important cases between 1969 and 1974. It addresses the central question of what prompted this jurisdictional expansion – was the court simply channeling the preferences of member states, was it acting independently in the quest for self-empowerment, or is the narrative more complicated? Drawing from a case study of its Stauder (1969), Internationale Handelsgesellschaft (1970), and Nold (1974) decisions, I argue that the Court did not broaden its jurisdiction into the rights domain in an offensive burst of judicial activism; rather, the Court’s strategy was a defensive response to increased resistance towards ECJ jurisprudence from both domestic constitutional and administrative courts. Yet because domestic courts and governments are subject to different sets of preferences, I argue that the Court was not merely acting as an agent of EU member states. Rather, the Court’s decisions support a theory of disaggregated sovereignty that emphasizes the role of transnational judicial networks and the contentious relationship between domestic and supranational courts. Indeed, it was precisely because domestic courts threatened the existence of the EU legal order that the ECJ was forced to pronounce that EC law guaranteed protection for fundamental rights – an outcome that neither the ECJ nor member states independently sought to achieve at the time.

While investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

The subject. This article examines the dialogue between the EAEU Court and national courts, on the one hand, as the application by national courts of the court of the integration organization, on the other hand, – as a recourse by the supranational court to the legal constructions that have been developed in the case law of the Member States’ courts.The purpose of the article is to confirm or disprove hypothesis that judicial dialogue between the court of the integration association and the courts of its Member States is the key to the effective application of supranational law.The methodological basis of the research is the doctrine of EU law, as well as the practice of Court of Justice of the European Union. The formal legal interpretation of the EAEU Court decisions and decisions of national Supreme Courts is also used.The main results, scope of application. One of the characteristics that differentiates the law of an integration organization from universal international law is its active application not only by the judicial body of such an organization, but also by the national courts. The plurality of actors in charge of the application of the law raises the question which of them have the authority of interpreting the integration law and the modalities of such an interpretation. One of the instruments that could help overcome the lack of uniformity of approaches regarding the interpretation and application of supranational law by the courts of several member states is the preliminary reference procedure. In the absence of such a procedure the burden of interpretation of supranational law rests on the national courts. Such a situation has arisen in the Eurasian Economic Union where the EAEU Court is empowered to interpret the law of the Union while settling disputes regarding the respect of EAEU law by its Member States, the challenge of the Eurasian Economic Commission's actions (failure to act) and decisions as well as delivering advisory opinions. The courts of the Member States, in turn, interpret the law of the EAEU in various fields of relations, including the ones where regulatory powers have been transferred to the supranational level. The analysis of national case law shows that in their application of EAEU law they premise their judgments on the principle of its primacy over national legislation.Conclusions. Judicial dialogue allows to prevent the non-uniform interpretation of the Union law by the court of the 5 Member States. It is a form of exchange of legal positions and concepts between the judicial bodies which, as a result, leads to a mutual enrichment of the legal orders by borrowing legal constructions and approaches.

This article maps the shared legal anatomy of climate and environmental lawsuits, in which plaintiffs claim protection for future generations before domestic or international courts. By closely analyzing the litigation strategies of plaintiffs and the inquiry of courts, the article argues that these proceedings revolve around structurally similar legal standards across domestic and international jurisdictions, which correspond to five normative requirements flowing from the rule of law: namely, respect for human rights, certain quality of law requirements, prohibition of arbitrary exercise of governmental powers, non-discrimination, and access to justice. The cross-jurisdictional analysis shows that courts appear to be increasingly willing to protect future generations against arbitrary treatment by present-day decision makers. The article appraises whether such an intergenerationally sensitive reinterpretation of the rule of law could help to change the short-termist paradigm of environmental and climate law.