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

Josephine Van Zeben

doi:10.1017/glj.2021.78

Abstract

AbstractClimate 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.

Highlights

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
The use of human rights in climate litigation is in many ways a logical extension of the use of human rights in environmental protection more generally
This development has been problematized in specific ways; most significantly, through the objection that the protection of the environment based on human rights reflects a deeply anthropological approach to environmental degradation, which does not reflect the intrinsic importance of the environment apart from, and beyond, its relation to human welfare

Summary

Introduction

This Article has played a central role in addressing some of the weaknesses of the EU’s approach to implementing the Aarhus Convention,63 for example with respect to the standing of environmental associations.64 The general principle of effective judicial protection has a long history in the European courts’ jurisprudence and is arguably a broader one than that articulated in Article 47 of the Charter.65 Recent analysis of the CJEU’s case law on this topic, up to December 2019, shows that in general terms, the Court has increasingly used Article 47 to boost the effectiveness of the Aarhus Convention, even if there is no clear underlying right that would trigger the application of the Charter.66

Results

Conclusion