The contours of ecological justice before EU courts in the light of recent case-law
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The contours of ecological justice before EU courts in the light of recent case-law Franck Lecomte1
© @ ERA 2020
Abstract As a result of the ongoing ecological crisis, a new generation of strategic litigation has come before the courts of the Member States. Some such litigation also arrived in the EU courts through direct actions, and has faced difficulties, specifically with regard to rules on admissibility. Yet, one should not lose sight of the conventional procedures that have made litigation a success before EU courts, in particular the preliminary ruling procedure. In addition, the uniform interpretation of EU law has made possible the assessment of the position of parties before national courts and the strengthening of their access to courts. Lastly, these and other recent developments in the case-law have arguably contributed to the emergence of an “ecological rule of law”. Keywords Strategic litigation · Access to EU courts · Ecological rule of law
1 Introduction EU law provides a substantial amount of ecological1 regulation in Europe. Because of this, the enforcement of these laws through judicial mechanisms is of paramount 1 The term “ecology” and its derivatives will be preferred here in that it makes it possible to include all
living beings and their environments, whilst taking into account their interactions, without limiting itself to environmental or climatic considerations. Disclaimer: All opinions expressed herein are personal to the author. I would like to thank L. Coutron, C. Sobotta and J. Wildemeersch for earlier discussions. The usual disclaimer applies.
B F. Lecomte
[email protected]
1
Référendaire (Legal Secretary), Court of Justice of the European Union, CJEU, L-2925 Luxembourg, Luxembourg
F. Lecomte
importance for living organisms and their environment, as well as for the European integration project. Infringement proceedings, which are actions initiated most of the time by the European Commission, have greatly contributed to the enforcement of ecological norms, although individuals and non-governmental organisations (NGOs), together constituting “civil society”, have also played a crucial role in bringing legal issues in these domains before the courts. In recent years, due notably to the increasing severity of the ecological crisis, strategic litigation2 brought before the courts of the Member States has increased,3 with the aim of encouraging either the legislative or executive branches or major companies to act, or of contesting their allegedly insufficient actions.4 These disputes have also come before EU courts.5 Whilst disruptive strategies attempt to advance the case-law, it is not often likely, or even possible, that this will be reconsidered. This is particularly true for direct actions brought before the EU Courts, and specifically with regard to rules on admissibility. Moreover, one should not lose sight of other procedures that have made litigation at the EU level a success in the past. On this matter, a more conventional EU procedure, namely the refere
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