A first in Europe : Families attack the European Union for its climate inaction

The families come from Europe and elsewhere. Their common connection: they affirm being direct victims of the effects of climate change. In six years, Maurice Feschet, a lavender producer in Drôme, has lost 44% of his crops due to climate changes. The hotel restaurant of the Recktenwald family, located on an island in the North Sea, is threatened by rising water. Armando Carvalho lost his oak plantations following the forest fires in Portugal in 2017. But the damage does not stop at Europe’s borders. The Qaloibau family, from the Fiji Islands, has lost their restaurant, boat and land, due to cyclones. In Kenya, a family of goat breeders is facing extreme heat waves threatening water resources.

According to the families, the objectives for reducing greenhouse gas emissions, to which the EU is committed following the Paris Agreement, would be inadequate in effectively tackling global warming. Firstly, the families' action targets the cancellation of three legislative texts, in accordance with Article 263 of the Treaty on the Functioning of the European Union (TFEU):

- Directive (EU) 2018/410 of March 14, 2018 amending Directive 2003/87/EC in order to strengthen the cost-effectiveness of the reductions in emissions and promote low-carbon investments, and Decision (EU) 2015/1814;

- Regulation (adopted on May 14, 2018, whose publication is pending) on the mandatory annual reductions in greenhouse gas emissions by member States from 2021 to 2030 in favour of a Resilient Energy Union and in order to comply with the commitments made under the Paris Agreement;

- Regulation (adopted on May 14, 2018, whose publication is pending) on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry into the 2030 climate and energy framework;

Secondly, the action invokes the non-contractual liability of the EU with regard to climate change and its consequences, in accordance with Articles 268 and 340 of the TFEU. Under this last provision, the EU must repair the damage caused by its institutions or agents whilst carrying out their duties.

The families' action is part of a global movement for climate justice. In all corners of the world, citizens are invoking the liability of their governments and of businesses in climate change.

Let us recall the resounding success of the Urgenda case, the first action of this type initiated in Europe. In 2015, the Urgenda Foundation, representing nearly 900 citizens, secured the conviction of the Dutch Government to reduce greenhouse gas emissions by at least 25% by 2020. This victory inspired a wave of similar actions worldwide. Accordingly, the Court of Appeal in Hanover agreed on November 13, 2017 to review the application from a Peruvian farmer, holding the German company RWE responsible for 0.47% of climate change and for the melting of a glacier which is threatening his village . Likewise, a farmer has secured the review of his application against the Pakistani Authorities whose failure to implement the policy on climate change is endangering water supply and food safety .

The road to successful action against the EU is, however, not without pitfalls. The General Court will initially have to rule on the admissibility of the action. Under Article 263(4) of the TFEU, the families will have to prove the existence of direct and individual harm in the case of each applicant. Yet, as things currently stand, the restrictive case law of the Court of Justice of the European Union makes access to justice particularly difficult for citizens and environmental organisations.

The General Court will also have to rule on the share of liability of the EU in climate change-related damage, suffered by the families. Proving a causal link is a recurring obstacle in matters of climate justice.

Global developments in climate justice are marking a turning point in international environmental law. It remains to be seen if the General Court of the European Union will choose to be part of this promising movement.