The right to climate protection and the essentially comparable protection of fundamental rights: Applying Solange in European climate change litigation?

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AbstractIn an action for annulment against the European Union (EU) Emissions Trading Directive, both the EU General Court and the Court of Justice of the EU (CJEU) found the claim to be inadmissible because the applicants did not satisfy the infamous Plaumann criteria. Conversely, at the national level, the German Federal Constitutional Court (GFCC) accepted to decide on a claim by individuals arguing that the German Climate Protection Act violated their fundamental rights. In its decision, the GFCC makes far‐reaching statements on the protection of fundamental rights in times of global climate change. Some might even argue the GFCC established a fundamental right to climate protection. By contrast, the CJEU did not yet decide on the effective protection of intertemporal rights or a right to climate protection respectively. Almost 50 years after the Solange I decision, one must ask whether there is a substantial deficit of fundamental rights protection at the EU level.