On 25 March 2021, the Court of Justice of the European Union (CJEU) held that an action for annulment against several EU acts relating to greenhouse gas (GHG) emissions is inadmissible due to the lack of individual concern. The so-called People’s Climate Case, was brought by ten families from Europe, Kenia and Fiji and a Swedish association representing the indigenous Sami youth (Sáminuorra), all particularly affected by climate change. In one of the first climate action against European Union legal acts, the CJEU backed the General Court (GC) order of 2019.
Locus standi is the controversial issue in climate actions. In such actions, either individuals peculiarly affected by climate change or environmental interest groups seek the annulment of legislative acts that, in their opinion, are not far-reaching enough and/or complain about the government’s omissions with regard to measures targeting climate change. The barriers for environmental interest groups are typically very high, as standing for such representative actions is rather exceptional. Dutch law is one of the few exceptions as it gives public interest organisations standing if the public interest they seek to protect is affected (Art. 3:305a Dutch Civil Code) – a situation that resulted in the landmark Urgenda climate action.
Individuals also have a hard time. They typically have to demonstrate a direct relationship between the legal act or state omission and their situation. Time and again there is a hypothetical element to the claim: the damaging effects of climate change have often only just begun, and the true effects will only become apparent later – an event that the plaintiffs would like to avoid. At EU level, direct access to the CJEU for individuals against legislative acts of the Union, in general, has been a much-disputed issue. Admissibility is also the hurdle that most climate actions cannot overcome. Article 263(4) TFEU requires direct and individual concern. While the direct concern could also be disputed, individual concern is the decisive factor, also in the present case. In its (in)famous Plaumann decision, the CJEU has set the barriers for individual concern for natural or legal persons very high: the contested act must affect them “by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee.”
In the present case, the CJEU clarified that the applicants could not rely on a potential fundamental rights infringement to satisfy the Plaumann criteria. The Court was also unwilling to change the Plaumann case law or grant an exception in the specific circumstances at hand.
Background of the case
The case of Carvalho, publicly known as the People’s Climate Case, was brought in 2018 by 36 individuals in families and the Sáminuorra, all of whom are active in medium-sized agriculture and tourism in climate-sensitive areas in- and outside of Europe, such as the German North Sea coast or northern Kenya. Already suffering from sea-level rising, flooding or droughts – consequences of climate change – the applicants were unhappy with a 2018 legislative package regulating GHG emissions for the years 2021 to 2030: the Emission Trading Directive, the GHG Regulation, and the LULUCF Regulation. These EU instruments set an overall target to reduce the annual GHG emissions by 40% relative to 1990 emission levels. Claiming an infringement of their fundamental rights and relying on higher-ranking law, such as the Paris Agreement, the applicants combined two claims: an action for annulment and a claim for damages pursuant to Article 340(2) TFEU, not aimed at pecuniary damages but an order directed at the Council and the Parliament to adopt stricter GHG emission targets of 50% to 60%.
In 2019, just like the CJEU now, the GC did not touch on the no less interesting questions of substance if the EU should be obliged to set stricter GHG emission targets (which it is now at least planning to do with the EU Green Deal). It declared the actions inadmissible. Relying on a strict application of Plaumann, the GC decided that the applicants were not individually concerned. Furthermore, it held that the Sáminuorra did not fulfil the conditions under which case-law allows associations to bring an action for annulment. Lastly, as the damages claim, according to the GC aims to obtain the same result as the action for annulment, the GC also dismissed it.
The eternal tale of individual concern: the high barriers of Plaumann
The People’s Climate Case did not let that stand and appealed with the CJEU. Concerning the third and fourth grounds of appeal relating to the standing of the Sáminuorra and the action for damages, the CJEU backed the GC ruling – nothing particularly interesting or new to see here.
Yet, specifically, the first two grounds of appeal related to locus standi and individual concern are controversial and crucial, also for future climate actions against EU legislative acts. The applicants claimed (i) that they are in fact individually concerned in accordance with the Plaumann case law, and (ii) that the CJEU must modify the Plaumann case law.
With regard to (i) the applicants argued that the GC did not make sufficient reference to the evidence showing that they were affected differently by climate change. Even though nothing in the GC judgment indicates a deep examination of the applicants’ individual situations, the CJEU held that the GC has nevertheless dealt with the facts adequately.
Further, as expected, the applicant’s hope to rely on a (potential) fundamental rights infringement to satisfy the Plaumann conditions was quashed by the CJEU. The Court reiterated what it has recently also held in another climate action case (Sabo): “the claim that an act infringes fundamental rights is not sufficient in itself for it to be established that the action brought by an individual is admissible, without running the risk of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless.”
The Court did grant a broader approach in the Codorniu case, which the applicants relied upon before the GC. This comparison was not part of the appeal. Nevertheless, it demonstrates the EU courts’ twisted take when it comes to standing. In Codorniu, the CJEU held that the applicant established individual concern because an individual right, a trademark, was adversely affected by a legislative act. As the present case shows, an infringement of fundamental rights, on the other hand, is not sufficient. Apparently, in the Court’s view, the loss of a specific acquired right such as a trademark ranks higher as the infringement of a universal fundamental right – a questionable outcome.
The Court’s interpretation perfectly illustrates the high barriers the Plaumann formula erects, especially when compared to standing requirements on Member State level for individuals. Some Member States, such as Germany or Italy, give standing already if an applicant claims that a subjective right is affected. Even systems such as France that – like the CJEU – follow a so-called de facto concept only require that an applicant is personally and seriously affected. The standards set by Plaumann for direct access to the EU courts are higher – maybe too high?
The CJEU does not back down: Plaumann means Plaumann means Plaumann…
The Court dealt with just this question when it turned to point (ii).
Plaumann needs a revision in any case
The applicants first focused here on general arguments to overrule Plaumann, as suggested in the literature before. The CJEU was not impressed. It started this section with old news: the TFEU provides for a complete system of legal remedies and, without going beyond their jurisdiction, the Union Courts are bound by the conditions expressly laid down in the Treaties. As the applicants also rightfully stressed, the Plaumann formula is not set in stone and simply an interpretation of the condition of “individual concern” in Article 263(4) TFEU, which the CJEU can abandon anytime. And that is the crux of the matter: the Court does not want to go that far (maybe it fears an overload of work).
While para. 70 of the judgment indicates that the Court was at least in theory open to amend the Plaumann formula, the CJEU stressed that the wording of Article 263(4) TFEU would provide the limits. To define the limits of “individual concern”, in para. 73 of the judgment, the CJEU again refers to the Plaumann conditions – a classic circulus in probando: the limit of Plaumann is Plaumann. The Court did neither mention a word on the appellant’s arguments that individual concern could be interpreted more in accordance with the above-mentioned traditions of the Member States nor did it follow arguments aiming at a teleological interpretation along the lines of previous proposals by Advocate General Jacobs. Already ten years ago, the latter proposed a new test for individual concern. He suggested to focus on the question of whether an EU act “has, or is liable to have, a substantial adverse effect on his interests“, a concept the appellants touch upon in their third ground of appeal.
Plaumann goes too far in climate actions
In climate actions, especially, the Plaumann case law is too restrictive and does not allow appropriate access to justice. The problem is that climate change affects everyone, current and future generations. As the applicants argued, the fact that just because the effect is general and, thus, the damage is more serious, makes corresponding legal acts unsuitable for judicial review under Plaumann. The CJEU falls victim to a fallacy: the more serious the harm, the more people affected, the less chance for individual concern – a quite paradoxical outcome.
Even though the applicants did not rely on it in the present case, the Plaumann formula also does not sit well with the EU’s obligation under the Aarhus Convention. Article 9(3) is stating that “members of the public [must] have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.” In its 2011 and 2017 report, the Aarhus Convention Compliance Committee already held that the Plaumann criteria were “too strict to meet the criteria of the Convention” because “persons cannot be individually concerned if the decision or regulation takes effect by virtue of an objective legal or factual situation“. Yet, in this case again, the CJEU did not grant an exception.
The applicants raised several other points about why and to what extend the specific situation would be exceptional. They specifically brought forward that indirect access to the European Courts was not available. An action against Commission implementing acts with an incidental check of the underlying 2018 acts according to Article 277 TFEU would also fail on account of Plaumann. A recourse at actions against Member State implementing acts that could be referred to the CJEU through Article 263 TFEU would be inadmissible due to the minimum harmonisation nature of the 2018 package that allows Member States to even further reduce EU emission targets and the fact that complaints before the courts of all Member States would be increasingly burdensome on the applicants. Concerning the latter fact, the CJEU has previously acknowledged that additional cost and delay of an alternative procedure would be sufficient to allow direct access. Unfortunately, however, the Court did not address these issues at all. Plaumann will stay Plaumann, no exceptions.
With that, standing in climate actions against EU legislative acts will remain a difficult –if not impossible – hurdle to overcome. The EU as a pioneer in climate protection? Certainly not when it comes to individual legal protection in climate actions.