Over the past five years, there has been a significant “turn to rights” in environmental and climate litigation, particularly within the European Union (EU). The EU has increasingly positioned itself as a leader in addressing climate change, adopting various pieces of climate legislation such as the European Climate Law, the Corporate Sustainability Reporting Directive (CSRD), the Corporate Sustainability Due Diligence Directive (CSDDD), and the EU Emissions Trading System (ETS 2). This raises the question of whether a similar shift toward human rights, particularly the right to a healthy environment, has occurred before the Court of Justice of the European Union (CJEU).
An analysis of CJEU case law up until December 2022, as discussed in a publication by Sanderink and the author, suggests that while human rights have not played a dominant role in the Court’s environmental and climate rulings, there have been some developments that deserve attention. One notable example is the Grand Chamber judgment in Ilva (2024), which could signal a potential shift in how environmental rights are approached within the EU legal framework. Despite these advancements, a full “turn to rights” remains absent in Luxembourg, especially concerning the explicit right to a healthy environment (R2HE) under the EU Charter.
Article 37 of the EU Charter: A “Principle” Rather Than a “Right”
Article 37 of the EU Charter is noteworthy for its recognition of environmental protection as a guiding principle for EU policy, stating: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” While this provision is unique among regional and international human rights frameworks, as few systems feature a self-standing right to a healthy environment, its status as a “principle” rather than a “right” limits its judicial application. The difference is crucial: principles are only used to interpret acts and assess their legality, whereas rights under the Charter have broader enforceability.
Moreover, Article 37’s language does not significantly differ from other provisions in the Treaty on the Functioning of the European Union (TFEU), such as Article 11 and Article 191(2), which also focus on environmental policies and actions but do not carry the same implications as rights that are enforceable by individuals before the Court.
The Limited Role of Environmental Rights in CJEU Case Law
While EU law has provisions for environmental protection, the Court has primarily relied on “shield” rights such as the right to property (Article 17), freedom to conduct business (Article 16), and other non-environmental provisions in opposition to environmental measures. These shield rights are often used to challenge environmental regulations, as seen in cases like Križan and Symphony Environmental Technologies. The CJEU’s strict standing requirements further hinder the development of a robust “rights turn” in EU environmental law, as demonstrated by the Carvalho case. The applicants in Carvalho argued that the EU’s insufficient action on climate change violated various Charter rights, but the Court rejected their claim, stating that the applicants did not show they were individually concerned by the contested acts, as required by the Plaumann test for standing.
The Role of the ECtHR and Possible Developments in the CJEU
The European Court of Human Rights (ECtHR) has been more open to recognizing the right to a healthy environment, as seen in its Cordella case, where it found that pollution violated the right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR). Interestingly, the CJEU’s Ilva ruling referenced the ECtHR’s jurisprudence, highlighting the complementary relationship between the two courts on environmental rights issues. In Ilva, the CJEU integrated both Article 37 of the Charter and Article 35 (right to health care) to interpret EU environmental directives, particularly Directive 2010/75 on industrial emissions, emphasizing the close link between environmental protection and public health.
While Ilva could signal a shift in the CJEU’s approach to environmental rights, it remains to be seen whether this will lead to a broader acceptance of rights-based approaches to environmental protection in the future.
Explaining the Absence of a Rights Turn: Silent Rights and Locus Standi
One key reason for the limited role of rights in EU environmental and climate case law is the availability of “silent rights” in EU secondary legislation. These rights, which do not explicitly invoke the Charter, are embedded in specific directives and regulations that provide clear obligations on environmental protection. As a result, there has been little need to rely on Charter rights in many environmental cases.
Additionally, the CJEU’s strict locus standi requirements—particularly the individual concern test—have made it difficult for individuals and associations to bring climate cases before the Court. The Carvalho case exemplifies this barrier, where the CJEU ruled that the applicants, who argued that insufficient EU climate action violated their rights, lacked the necessary standing because they could not demonstrate how the contested acts uniquely affected them.
The Path Forward: A Potential Rights Turn?
In their earlier work, the author and Sanderink argued for a more prominent “rights turn” before the CJEU, suggesting two possible avenues for greater human rights engagement. First, the CJEU could derive positive obligations from the Charter’s provisions on the right to life (Article 2) and the right to respect for private life (Article 7), as the ECtHR has done in its case law. Second, the CJEU could more extensively utilize Article 37 as an interpretative tool to promote environmentally friendly interpretations of EU law. Notably, the European Climate Law (recital 6) explicitly refers to Article 37, signaling that this avenue may become more significant in the future.
Conclusion: A Right to a Healthy Environment?
The recognition of a separate right to a healthy environment within the EU legal framework would be a significant development, though it is not a panacea for all environmental challenges. The Ilva judgment, however, may signal a move towards a more rights-based approach in EU environmental law. Whether this marks the beginning of a broader rights turn will depend on how the CJEU integrates human rights into its jurisprudence in the coming years, particularly as climate litigation continues to rise across Europe and globally.
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