EU climate ambition: ensuring it is lawful 

NGOs have increasingly looked to the courts for action on climate change. Now the Court of Justice of the EU is the focus.

Two non-governmental organisations have just submitted final written arguments to the Court of Justice of the European Union, in a climate case against the European Commission. Climate Action Network (CAN) Europe and the Global Legal Action Network (GLAN) are calling on the commission to revise the authorised greenhouse-gas emissions allocated annually to EU member states between now and 2030 under the Effort Sharing Regulation.

The levels authorised by the commission are contrary to environmental law, the litigants claim. They say the current numbers did not take the protection of  fundamental human rights into consideration.

Decreasing allocations

The Effort Sharing Regulation takes in emissions from buildings, agriculture, waste, small industry and transport, which cover about 57 per cent of the EU total. Establishing targets for the reduction of emissions in the member states by 2030, it defines decreasing annual emissions allocations (AEAs) from 2021 to the end of the decade, in tonnes of carbon-dioxide equivalent.

In 2023 the targets in the regulation were amended, following the ‘Fit for 55’ legislative package to reduce emissions overall by 55 per cent from 1990 four decades on. The commission calculated revised AEAs for each member state.

The relevant Implementing Decision (2023/1319) is the focus of the applicants in this case. CAN Europe and the GLAN allege that the AEAs determined by the commission are grossly inadequate to limit greenhouse gases emitted by the union’s effort-sharing sector and contrary to environmental law.

Legal flaws

CAN Europe and the GLAN base their case on the fact that the AEAs are the result of the wider 2030 target for the EU (-55 per cent) and the effort-sharing sector (-40 per cent in aggregate). The applicants point to legal flaws in the 2030 target and its accompanying impact assessment, from which it follows that the AEAs contravene environmental law.

In particular, they allege that, in adopting the 2030 target and the AEAs, the commission was obliged—yet failed—adequately to assess:

• the global emissions reductions required to hold global warming to within 1.5C above preindustrial times;
• what would constitute a reasonable measure of the EU’s fair share of the emissions reductions required globally;
• the domestic emissions reductions feasible for the EU to achieve by 2030, setting targets accordingly (it explicitly declined to assess whether reductions beyond 55 per cent were feasible), and
• the impacts of climate change on relevant fundamental rights in the 2030 target impact assessment.

NGOs—unlike member states—do not have direct access to the EU’s courts. To submit a case, they first need to complete an administrative step known as an ‘internal review request’. The legal source for this procedure stems from the EU regulation applying the Aarhus Convention on access to information, public participation and justice in environmental matters.

This first step was taken in August 2023. The commission rejected the request in December. The NGOs are now challenging the commission’s reply before the Court of Justice of the EU. In February, the GLAN and CAN Europe submitted an application to the EU court. The commission provided its defence in July and the NGOs submitted their final round of observations last month.

Inadequate ambition

The application underlines that the EU´s climate ambition remains alarmingly off-track from the 1.5C limit of the Paris Agreement. It is a call on EU decision-makers to accelerate climate action and go beyond the inadequate ambition of the Fit for 55 package to achieve at least 65 per cent gross emission reductions by 2030.

The president of the chamber of the General Court of the EU seems to have recognised the urgency by deciding this case should have priority over others pending. This important step demonstrates that the court is taking the case seriously and should foreshorten the time to obtain a ruling.

The applicants seek annulment of the decision by the commission to reject their request for internal review. They request that the commission revise the AEAs and take all steps necessary to rectify the contravention of environmental law.

Because the AEAs are ultimately based on the EU’s 2030 target, annulment of the commission’s decision to reject the request for internal review would in practice require this institution to adopt immediate actions beyond Fit for 55. These would enable steep emission reductions in the short term and move substantially beyond the current 2030 emissions-reduction target.

Landmark ruling

This case comes a few months after the landmark ruling by the European Court of Human Rights—which adjudicates claims stemming from the Council of Europe’s European Convention on Human Rights—in the Klimaseniorinnen case. The Strasbourg court held that the organisation’s 46 member states must adopt science-based emissions targets. This ruling could influence how the Court of Justice of the EU decides the current case, as it has yet to assess the compatibility of current EU climate policies with EU environmental law and fundamental rights.

CAN Europe previously supported the ‘People’s Climate Case’, in which the plaintiffs argued that the EU’s older target to reduce domestic greenhouse-gas emissions by 40 per cent by 2030, compared with 1990, was insufficient to avoid dangerous climate change and threatened fundamental rights. The Court of Justice held the claims inadmissible on grounds of standing: the plaintiffs had failed to demonstrate, it ruled, that they were individually affected by Europe’s climate policy.

It is therefore almost impossible for individuals and NGOs to challenge EU climate laws directly before the court. The current case attempts to address the inadequacy of EU climate-change policies via a different legal avenue.

The ball is now in the commission’s court. It will furnish final observations this month, before a public hearing in Luxembourg. This can reasonably be expected within the first half of 2025, with a ruling within a further six months—although that timeline could be accelerated, given the accepted priority of the case.