CAN Europe and the Global Legal Action Network just submitted their final set of written legal arguments to the General Court of the European Union in a climate case against the European Commission. The NGOs are calling on the Commission to revise the greenhouse gas emissions it has authorised Member States to emit between now and 2030, as set out in their annual emissions allocations under the Effort Sharing Regulation. The current levels authorised by the Commission are contrary to environmental law because the level of climate ambition is insufficient to protect fundamental human rights.
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This legal case relates to the Effort Sharing Regulation and its implementing decisions adopted by the European Commission. The Effort Sharing Regulation sectors include buildings, agriculture, waste, small industry, and transport and cover about 57% of the total EU‑27 greenhouse gas emissions. In parallel to establishing targets for the reduction of emissions in the Member States by 2030, the Effort Sharing Regulation defines annual emissions allocations (AEAs) for the years 2021 to 2030. For that purpose, the European Commission provides each Member States with an amount of emission allocations (each corresponding to a tonne of CO2 equivalent) for each of the years in the period, and the number of allowances decreases every year.
In 2023, the target in the ESR was amended following the Fit for 55% legislative package. The European Commission calculated revised AEAs for each Member States. These AEAs took effect in Commission Implementing Decision 2023/1319, which is the decision targeted by the applicants in this case. CAN Europe and the Global Legal Action Network (GLAN) allege that the AEAs decided by the European Commission are grossly inadequate to limit the greenhouse gases of the Union’s effort sharing sector and are contrary to environmental law.
CAN Europe and GLAN base their case on the fact that the AEAs are the direct result of the wider 2030 target, which sets emissions targets for the EU as a whole (a 55% reduction from 1990 levels), and for the effort sharing sector (a 40% reduction in aggregate), which is set by reference to the economy-wide 55% target. The applicants point to a series of legal flaws in the 2030 target and its accompanying Impact Assessment, from which it then followed that the AEAs contravene environmental law. In particular, the applicants allege that:
- The Union was obliged to make an adequate assessment of the global emissions reductions required to hold global warming to within 1.5°C, but did not make such an assessment in adopting the 2030 target, or the AEAs.
- The Union was obliged to assess what constitutes a reasonable measure of its fair share of the emissions reductions required globally, and failed to make that assessment in adopting the 2030 target, or the AEAs.
- The Union was obliged to make an adequate assessment of the domestic emissions reductions that are feasible for the EU to achieve by 2030 and to set its emissions reductions targets accordingly, and failed to make that assessment in adopting the 2030 target, or the AEAs. The EU explicitly declined to assess whether reductions beyond 55% are feasible.
- The Union was obliged to assess the impacts of climate change on relevant fundamental rights in the 2030 target impact assessment, and failed to make that assessment.
NGOs – unlike Member States – do not have direct access to the EU’s courts. To submit a case like the current 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 Aarhus Regulation. This first step was done in August 2023. The Commission rejected the request in December 2023. The NGOs are now challenging the Commission’s reply before the CJEU. In February 2024, GLAN and CAN Europe submitted an application to the EU Court. The European Commission provided its defence in July, and the NGOs provided their final round of written observations in August.
The application underlines that the EU´s overall climate ambition remains alarmingly off-track from the 1.5°C limit of the Paris Agreement. It is also a call on EU decision-makers to accelerate climate action and go beyond the inadequate level of ambition of the Fit for 55 legislative package, thus enabling steep emission reductions in the short term and achieving at least -65% gross emission reductions by 2030. The President of the General Court of the EU, where this case was brought, seems to have recognised this urgent aspect by deciding that this case should have priority over other pending cases. This important step demonstrates that the Court is taking this case seriously and will speed up the time taken to obtain a ruling.
The applicants in this case are CAN Europe and the Global Legal Action Network. GLAN is an independent organisation made up of legal practitioners, investigative journalists and academics.
With this case, the applicants seek the annulment of the erroneous decision from the Commission to reject their request for internal review. The applicants consequently request the Commission to revise the AEAs and take all steps necessary to rectify the contravention of environmental law. In practice, because the AEAs are ultimately based on the EU’s 2030 target, the annulment of the Commission’s decision to reject the request for internal review would require this institution to adopt immediate urgent actions additional to the Fit for 55 agreements to enable steep emission reductions in the short term and move substantially beyond the current emission reduction target by 2030.
This case comes a few months after the landmark ruling from the European Court of Human Rights in the Klimaseniorinnen case, in which the Strasbourg court held that States must adopt science-based emissions targets. This ruling could influence how the EU courts decide the current case, as they are yet to assess the compatibility of the current EU climate policies with EU environmental law and fundamental rights. In the past, CAN Europe supported the ‘People’s Climate Case’ in which the plaintiffs argued that the EU’s older target to reduce domestic greenhouse gases emissions by 40% by 2030, as compared to 1990 levels, was insufficient to avoid dangerous climate change and threatened plaintiffs’ fundamental rights. The Court rejected this case and held the plaintiff’s claims inadmissible on standing grounds for failing to demonstrate that they were individually impacted by Europe’s climate policy. It is therefore almost impossible for individuals and NGOs to challenge the EU climate laws directly before the EU Court. The current case attempts to challenge the inadequacy of EU climate change policies via a different legal avenue.
The ball is now in the European Commission’s court. The Commission will provide written observations one last time, in September 2024. The case will then turn to its oral phase, with a public hearing in Luxembourg. Usually, a hearing can reasonably be expected within the first half of 2025 based on priority treatment and a ruling can reasonably be expected within six months of the hearing. This timeline could be accelerated as the case was given priority by the president of the Court.
