
The Changing Climate of EU Accession to the ECHR – Consequences and Challenges for Climate Change Litigation?
The year 2024 marks a significant milestone in climate change litigation, with ECtHR delivering its first judgment recognizing a violation of a State’s positive obligations to ensure adequate protection against the harmful effects of climate change. While the judgment in Verein KlimaSeniorinnen and Others v. Switzerland brought significant implications for the doctrine of the ECtHR, it also sheds light on the enduring challenge of harmonizing the jurisdictions of the ECtHR and the CJEU. This piece examines a critical yet frequently overlooked dimension of the KlimaSeniorinnen judgment: its implications for the EU’s expected accession to the ECHR.
The Verein KlimaSeniorinnen Case and Climate Change Litigation
On 9 April 2024, the European Court of Human Rights (ECtHR) delivered its first judgment on the impact of climate change on the human rights enshrined in the European Convention on Human Rights (ECHR): in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the Court found a violation of the substantive and procedural obligations under the right to respect for private and family life (Article 8) and the right to a fair trial (Article 6) for the State’s failure to provide sufficient measures to combat climate change.
The judgment is embedded in the rising phenomenon of climate change litigation, through which applicants aim at holding States or non-state actors accountable for the negative effect of man-made climate change before various judicial and quasi-judicial bodies at the domestic, regional, or universal levels. Rights-based climate litigation, a subcategory of climate change litigation, focuses on the impact of climate change on the enjoyment of human rights, particularly on the right to life, development, food, health, water, sanitation, and housing. However, environmental rights are not explicitly incorporated in the major international human rights treaties, as those were adopted before the international legal framework for climate change was developed. Victims of climate change, therefore, can primarily rely on evolutive interpretation of human rights, which allows for the interpretation of human rights in present-day conditions, also taking into account climate change as one of the greatest global challenges of the 21st century.
Although no environmental rights are expressly recognized in the ECHR, the Court developed its environmental jurisprudence based on substantive and procedural Convention rights, such as the right to life (Article 2), the right to respect for private and family life (Article 8), the right to a fair trial (Article 6), or the right to an effective remedy (Article 13). Furthermore, the recognition of a self-standing right to a healthy environment has been on the agenda of the Parliamentary Assembly of the Council of Europe since the late 2000s in the form of an additional protocol to the ECHR, however, its adoption remains pending.
Against this background, the ECtHR encountered its first climate change cases in the 2020s, including the KlimaSeniorinnen case, Carême v. France, and Duarte Agostinho and Others v. Portugal and 32 Other States. The other two applications were considered inadmissible for procedural reasons, primarily the lack of victim status and the non-exhaustion of domestic remedies, which remain significant hurdles for applicants of climate cases in the jurisprudence of other judicial and quasi-judicial bodies as well (e.g. Sacchi et al. v. Argentina et al., decision adopted by the Committee of the Rights of the Child).
For the purposes of this piece, the KlimaSeniorinnen judgment is remarkable for two main reasons. Although the ECtHR did not consider that the four individual applicants (elderly women claiming to be more severely impacted by the negative effects of climate change) were directly and individually affected by the State’s failure to address the negative impacts of climate change, the Court granted standing to the applicant non-governmental organization (NGO) that acted on behalf of its members (paras 521–535). The Court’s approach to grant standing for the applicant NGO – among other aspects of the judgment – received heavy criticism from Judge Tim Eicke in his separate opinion, as according to the Judge, recognizing the locus standi of the NGO for advocating on behalf of its members constitutes a de facto actio popularis, which is not allowed under the ECHR. This conclusion was drawn from the fact that the Court did not require that the members on whose behalf the association advocated have to meet the victim status requirements (paras 22–51, separate opinion). Although it could be argued that this approach has no precedent in the Court’s jurisprudence, it seems that this innovation is justifiable on the grounds of the special features of climate change, namely that climate change has multiple causes and its adverse effects are not the concern any one particular individual but rather a “common concern of humankind”, as noted by the ECtHR (para 489).
Second, the KlimaSeniorinnen judgment is remarkable for the Court’s extensive use of the relevant international legal sources under the principle of systemic integration.[i] In addition to relevant sources of the United Nations framework, including the system of the UN Framework Convention on Climate Change, resolutions adopted by the UN General Assembly and the Human Rights Council, the relevant work of UN human rights treaty bodies, and other regional human rights instruments of the Inter-American and the African systems, which, on the other hand, explicitly recognize environmental rights.[ii]
The ECtHR also examined the case law of the Court of Justice of the European Union (CJEU) under the relevant EU framework and explicitly referred to Carvalho et al. v. the European Parliament and the Council (the “People’s Climate Case”) and Sabo and Others v. the Parliament and Council (the “EU Biomass Case”), the first two climate change lawsuits brought before the CJEU. The applicants of both cases, individuals and NGOs, challenged the compatibility of certain EU legislative acts with the Treaties and the EU Charter of Fundamental Rights, particularly the right to equality and non-discrimination (Article 21), the right to pursue an occupation (Article 15(1)), the right to property (Article 17(1)), and the rights relating to children (Article 24) in the first case, and the right to effective judicial protection (Article 47) in the second. While recognizing the likelihood of being affected by climate change, the CJEU in both cases found that the applicants (individuals and NGOs) had no standing based on the Plaumann test elaborated in Plaumann v. Commission, which requires a direct and individual concern for establishing the locus standi of the applicants.
Therefore, it could be concluded that the two courts, the CJEU and the ECtHR, while both rejecting the standing of individuals in climate cases, have adopted differing approaches to evaluating the standing of NGOs. Namely, the CJEU relied on the strict criteria laid down in 1963(!) in the Plaumann test, while the ECtHR demonstrated a certain degree of flexibility by establishing the standing of the applicant NGO for representing its members, whose victim status did not reach the threshold of Article 34 of the ECHR. The evolutive interpretative method – although also embraced by the CJEU – is a particularity of the ECtHR that aims to adapt the Convention to present-day conditions, for which the Court usually insists on the existence of a European consensus or at least a significant trend in the legislation or practice in the States Parties towards the chosen interpretation. The two courts’ approach to the locus standi of associations in climate change litigation certainly shows that the ECtHR could extend the interpretative frames of the Convention and develop its jurisprudence further, while the CJEU, at the moment, does not seem to be ready for such a big step. In the author’s view, the diverging jurisdictions, as shown in this comparative example, are problematic from the perspective of the harmonization tendencies of the two jurisdictions primarily stemming from Article 6(2) of the Treaty on European Union.
The EU’s Accession to the ECHR in Light of Diverging Jurisdictions
The difference between the CJEU’s and the ECtHR’s approach to climate change litigation is embedded in the broader problem of the EU’s accession to the ECHR. While the ECHR has a prominent role among the international human rights treaties for the interpretation of the Charter, the relationship between the two courts was further strengthened by Article 6(2) of the Treaty on European Union (TEU), which – while raising the Charter to the level of the Treaties – provides that the Union shall accede to the Convention, which shall not affect the Union’s competences as defined in the Treaties. However, the accession process was halted by the CJEU: in Opinion 2/13 of 18 December 2014, the CJEU assessed the compatibility of the draft accession agreement and concluded that such an accession could endanger the autonomy of EU law, as it would create a quasi-hierarchical relationship between the two courts, in which the ECtHR would be in the position to interpret EU law as well. Although the accession negotiations resumed in 2020, the prospect of accession remains distant at this moment, as it is likely to be complicated by the diverging approaches of the two courts, as evidenced in climate change cases.
The ECtHR significantly raised the standards of human rights protection under the Convention by departing from its prior environmental jurisprudence. The recognition of the standing of NGOs in such cases may pave the way for more climate change cases in the future, advocating not only for elderly women but other groups particularly vulnerable to the negative effects of climate change, such as children and young people, displaced people, rural populations or residents of coastal areas susceptible to sea level rise. In the author’s opinion, such claims may be on the border of actio popularis, which is entirely forbidden in the European human rights system. Other human rights courts, such as the Inter-American Court of Human Rights (IACtHR) however, embraces a more flexible approach regarding the victim status of communities, as it can be seen from their Advisory Opinion OC-23/17 of November 15, 2017 (Furthermore, there is also a pending advisory opinion before the same court which may bring about significant conclusions regarding various aspects of climate change and human rights, including the standing of individuals and NGOs.)
To sum up, in this light, while it may seem that the ECtHR’s approach in the KlimaSeniorinnen case departed from the well-established victim status criteria, this solution may not be unique in the context of other human rights instruments, however, the ECtHR should not extend the limits set in the Convention.
Despite the concerns about the actio popularis nature of climate change cases, the KlimaSeniorinnen judgment remains a milestone in the ECtHR’s jurisprudence, for which there is no counterpart in the CJEU’s case law so far. The CJEU, however, is not formally obliged to follow the ECtHR’s jurisprudence, although Article 6(3) provides that fundamental rights, as guaranteed by the ECHR shall constitute general principles of EU law. Furthermore, if it is still the EU’s intention to accede to the ECHR, harmonization of the case law of the two courts will be inevitable in order to operate in one jurisdiction, as required by Article 6(2), however, in any case, the need to harmonize the two jurisdictions must primarily stem from the CJEU and not other EU institutions.
[i] The principle of systemic integration as a treaty interpretation method is laid down in Article 31(3)(c) the Vienna Convention on the Law of Treaties which requires that relevant rules of international law that is applicable in relations between the Parties shall be taken into account for the interpretation of a treaty. The ECtHR’s jurisprudence regarding the relevant rules of international law was systematized in Demir and Baykara v. Turkey.
[ii] See: Article 11 of the San Salvador Protocol to the American Convention on Human Rights and Article 24 of the African Charter on Human and Peoples’ Rights.
Enikő KRAJNYÁK is an Assistant Lecturer and PhD Candidate in Human Rights Law at the Department of Public International and Comparative Law at the University of Miskolc, and a Scientific Researcher at the Central European Academy in Budapest, Hungary. In 2023, she received the Diploma of Excellence in International and Comparative Human Rights Law from the René Cassin Foundation in Strasbourg, France. In 2024, she received an LLM Diploma in European Human Rights Law at the Eötvös Loránd University in Budapest, Hungary, and a Master of Laws Diploma in European Public Law at the European Public Law Organization in Athens, Greece.