How to Challenge Insufficient EU Climate Action Before the European Court of Justice? Joint Creative Thinking on Overcoming the Well-known Obstacles

Workshop organised by Christina Eckes & Alberto Nicotina

The climate emergency is unfolding. Efforts to reduce greenhouse gas emissions are severely insufficient to hold global warming below the 1.5°C temperature limit. This is the case globally, but also within the European Union and its Member States. Civil society actors and citizens increasingly resort to strategic climate litigation in the attempt to address these public institutional failures.

The EU has extensive competence to mitigate the climate crisis. It has adopted a wide array of climate laws, setting targets, establishing expert bodies, implementing its political objectives, and obliging Member States to take climate action. However, despite the EU’s climate activities, most cases of strategic climate litigation in Europe have been brought to national courts, challenging national climate targets and policies. This is the case – among other things – because bringing (strategic climate) litigation to the EU courts is very difficult: procedurally, very restrictive standing requirements limit the possibilities for direct actions against general acts. Preliminary requests are procedurally depending on the national judge and cannot offer a novel engagement with the facts. Actions for failure to act require a positive obligation of the EU institutions to succeed. Substantively, the EU courts have also shown great deference towards the EU institutions when it comes to reviewing decisions relating to technical and scientific information.

At the same time, the European Court of Justice (ECJ) routinely refers to the European Convention on Human Rights (ECHR) and the Strasbourg Court’s case law. This raises the question of whether the recent decisions of the European Court of Human Rights (ECtHR) – above all, in KlimaSeniorinnen – may themselves create opportunities to make the ECJ change its established positions? And, if so, how?

This workshop brings together academics and practitioners to identify and creatively think about legal opportunity structures in EU law. We take the above-mentioned well-known obstacles as a starting point and open a conversation about what may work under EU law and before the ECJ. The objective is to identify and develop new avenues to bring cases to Luxembourg that could lead to more effective climate policies in Europe.

Confirmed Speakers

• Ana Bobic, Référendaire at the Court of Justice of the European Union
• Maria del Mar Campins Eritja, University of Barcelona
• Clemens Kaupa, Vrije Universiteit Amsterdam
• Clara Mathis, University of Lille
• Stefano Romoli (Legal Service, European Commission)
• Daniel Sarmiento, Universidad Complutense of Madrid