Access to justice and strategic climate litigation in the EU: Curing the incurable?

• Published date: 01 May 2023
• Author: Angelika Krężel
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12487

ORIGINAL ARTICLE

Access to justice and strategic climate litigation in

the EU: Curing the incurable?

Angelika Krężel

*

Abstract

Access to justice in the EU is to be assured via both the CJEU and national courts through

direct and indirect action procedures. Following this, the main argument developed throughout

this analysis is that the CJEU differentiates the revision standard when interpreting the obliga-

tions of EU institutions and those of Member States. It is concluded that this kind of interpreta-

tion maintains the limitations to access to justice for individuals in the EU (the ‘incurable’),

even when faced with the attempt to overcome this restrictive interpretation in the specific

case of strategic climate litigation (‘curing the incurable’). The specific case of strategic climate

litigation is used as an example to illustrate the negative consequences of limitations to access

to justice for individuals in the EU. In conclusion, it is assessed whether there are any other

‘real cures’for this deadlocked situation and what the rationale is behind these double

standards.

1|INTRODUCTION

Access to justice in environmental matters is a component of EU environmental policy.

1

Moreover, it draws

increased attention in scholarship as one of three pillars of a new paradigm of ‘environmental democracy’, based

on the concept that ‘land and natural resource decisions adequately and equitably address citizens’interests'.

2

It

offers three-pillar procedural guarantees for citizens: access to information, public participation in decision-making

*

PhD Candidate, University of Wrocław, Poland.

1

As expressed in Art 9 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

(Aarhus Convention), OJ L 124, 17.5.2005, 4–20, as well as in the recent environmental policy documents: Communication from the Commission to the

European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Improving Access to Justice in

Environmental Matters in the EU and Its Member States (Access to Justice Communication), COM/2020/643 final; Communication from the Commission

to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions,

COM/2019/640 final, para. 4.

2

Environmental Democracy Index, Background and Methodology, available at https://www.environmentaldemocracyindex.org/node/2728.html.

Received: 11 July 2023 Revised: 7 February 2024 Accepted: 9 February 2024

DOI: 10.1111/eulj.12487

Eur Law J. 2023;29:265–280. wileyonlinelibrary.com/journal/eulj © 2024 John Wiley & Sons Ltd. 265

and access to justice.

3

In contrast with the well-established approach to environmental decision-making deter-

mined exclusively by governmental actors, the new paradigm of environmental democracy confers more proce-

dural guarantees on the private sector of individuals and environmental NGOs. Through these procedural

guarantees, courts address citizens' key concerns with regard to environmental matters and become arenas for

societal changes.

The third component of environmental democracy in the EU, access to justice, is to be assured via both the

Court of Justice of the European Union (CJEU)

4

and national courts.

5

The procedural foundations of this twofold

structure are the direct action procedure under Article 263 TFEU

6

initiated directly at the EU level and the prelimi-

nary question procedure under Article 267 TFEU initiated at the national level. These at first sight inherently differ-

ent legal avenues to reach the CJEU, when taken together, are meant to form a complete system of legal remedies in

the EU.

7

The main argument of this analysis is that the CJEU differentiates the revision standard

8

when interpreting obli-

gations of EU institutions and those of Member States. This kind of interpretation maintains the limitations to access

to justice for individuals in the EU (the ‘incurable’), even when faced with the attempt to overcome this restrictive

interpretation in the specific case of strategic climate litigation (‘curing the incurable’).

9

In conclusion, it will be

assessed whether there are any other ‘real cures’for this deadlocked situation and what the rationale is behind

these double standards.

Since there is an ongoing debate in the literature regarding the ‘completeness’of the EU system of legal reme-

dies, while the Court's interpretation of standing for individuals in direct actions remains very restrictive, the first

section of this article will outline the overall picture of access to justice in the EU. This part of the analysis will con-

clude with a tentative assessment of the effectiveness of the combination of the two aforementioned legal avenues

of access to justice for individuals.

In the second section, the concept of strategic litigation will be introduced. The specific case of strategic climate

litigation will be used as an example to illustrate the negative consequences of limitations to access to justice for

individuals in the EU. As elaborated below, neither strategic nor climate litigation is uniformly defined in the litera-

ture. The primary function of the former is using law for legal or social change,

10

which goes further than litigation

3

Environmental democracy gained increased traction in the aftermath of the Rio Declaration on Environment and Development, UN Conference on

Environment and Development, A/CONF.151/26 (Vol. 1) and its Principle 10, further developed into the more clear-cut international duties in the Aarhus

Convention; H. Schoukens, ‘Access to Justice before the EU Courts in Environmental Cases against the Backdrop of the Aarhus Convention: Balancing

Pathological Stubbornness and Cognitive Dissonance?’, in C. Voigt (ed.), International Judicial Practice on the Environment (Cambridge University Press,

2019), 75–76.

4

CJEU refers to the Court of Justice and the General Court at the same time, according to Art 19(1) Consolidated Version of the Treaty on European Union

(henceforth referred to as the TEU), OJ C 326, 26.10.2012, 13–390.

5

As pointed out by the Commission: ‘Access to justice in environmental matters, both via the Court of the Justice of the EU (CJEU) and the national courts

as Union courts, is an important support measure to help deliver the European Green Deal transition and a way to strengthen the role which civil society

can play as a watchdog in the democratic space’. (Access to Justice Communication, para. 2).

6

Consolidated version of the Treaty on the Functioning ofthe European Union (henceforth referred to as the TFEU), OJ C 326, 26.10.2012, 47–390.

7

The direct action under Art 263 TFEU together with the indirect action under Art 267 TFEU, complemented with the plea of illegality under Art 277 TFEU

are meant to create a complete system of legal remedies at different levels of the EU legal order, which presumably provides sufficient protectionfor

individuals against any EU acts; Case 294/83, Parti écologiste ‘Les Verts’v. European Parliament, ECLI:EU:C:1986:166, para. 23 (henceforth referred to as

the Les Verts Case); Case C-583/11, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the European Union, ECLI:EU:C:2013:625, para.

92 (henceforth referred to as the Inuit Case); opinion of the Court of 8 March 2011 on the creation of a unified patent litigation system, 1/09,ECLI:EU:

C:2011:123, para. 80; P. Craig and G. de Burca, EU Law: Text, Cases, and Materials, Seventh Edition (Oxford University Press, 2020), 536.

8

In the Oxford English Dictionary, ‘revision’is defined as ‘the action or an act of revising something; critical or careful examination or perusal of a text,

judgment, code, etc., with a view to making corrections, amendments, or improvements’, and the standard is defined as ‘a rule, principle, criterion, or

measure by which something can be judged or evaluated’, available at https://www.oed.com/search/dictionary/?scope=Entries&q=revision. Following

this, the revision standard in this article is understood as a set of rules (also referred to as the interpretation) relied on in the act of judicial review of

legislative, administrative and judicial decisions in question.

9

In the author's opinion, the strict requirements regarding the standing test in climate cases constitute the main obstacle in challenging climate legislation at

the EU level, as most of the cases become inadmissible in the first, formal phase, simultaneously not passing the phase which allows for the substantive

review. Therefore, by ‘incurable’, the article considers the formal limitations in challenging climate legislation, such as limited standing, which constitute

limitations in the access to justice.

10

B. Batros and T. Khan, ‘Thinking Strategically about Climate Litigation’, available at https://www.openglobalrights.org/thinking-strategically-about-

climate-litigation/, J. Peel and H. Osofsky, Climate Change Litigation: Model for Understanding Litigation's Regulatory Impact (Cambridge University Press,

2015), 29.

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