NGOs take the European Commission to court to step up the EU’s climate ambition

Amid the global wave of climate change litigation against States and public institutions (including the European Central Bank, as we reported here), but also increasingly against companies, a number of climate NGOs have sued the European Commission before the Court of Justice of the European Union (CJEU) in two separate cases with respect to, respectively, the EU’s 2030 climate targets and the inclusion of aviation and shipping in the EU Taxonomy. Decisions in both cases are expected in 2026.

These cases are made under the EU Aarhus Regulation, which implements the UN Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, and allows environmental NGOs to request an internal review of EU acts by the Commission to assess whether these acts breach EU environmental law. The outcome of this review can then be challenged before the CJEU. 

Legal challenge against 2030 climate targets

The first case was initiated by Climate Action Network (CAN) Europe and the Global Legal Action Network (GLAN) against the Commission Implementing Decision (EU) 2023/1319 implementing the amended Effort Sharing Regulation that revised Member States’ annual emission allocations for the period from 2023 to 2030.The Effort Sharing Regulation sets targets for national emissions for sectors (such as buildings, transport, agriculture, waste and small industrial sites) not covered by the EU emissions trading schemes which account for more than half of the EU’s greenhouse gas emissions. 

In essence, the plaintiffs argue that the annual emissions allocations (AEAs) set for each EU Member State under the amended Effort Sharing Regulation are not based on the best science and are therefore “grossly inadequate”. The targets increased last year to a 55% emissions reduction by 2030 would not be sufficient to keep global warming to a maximum of 1.5°C above pre-industrial levels. The EU’s greenhouse gas emissions allocations would therefore be unlawful because they would be contrary to environmental law and international commitments, including the Paris Agreement, the Charter of Fundamental Rights of the European Union and Article 191 of the Treaty on the Functioning of the European Union. 

The NGOs’ request for an internal review of the Implementing Decision was considered unfounded by the Commission in December 2023. This decision was then challenged by the plaintiffs before the EU General Court in February 2024.  The NGOs submitted their second (and final) round of written arguments in August 2024, and the Commission must now submit its final written observations by September 2024. CAN Europe indicated in its press release that the case was “given priority over other cases by the President of the General Court of the EU”, with a hearing expected in 2025 and a judgment in 2026.

Legal challenge against “green” aircraft and ships

In addition, the EU Commission is also being sued by five NGOs before the EU General Court over the inclusion in the EU’s Taxonomy Regulation of new technical screening criteria (“TSC”) allowing fossil fuel aircraft and ships to be eligible for green finance in certain circumstances. 

This case was brought by Dryade, Fossielvrij NL and Protect our Winters Austria, supported by Opportunity Green and CLAW, in January 2024 against the Commission Delegated Regulation (EU) 2023/2485 which amended the  TSC of when certain economic activities can qualify as sustainable activities. 

The plaintiffs contend that changes made at the end of 2023, which allow new fossil fuel planes and ships to qualify as environmentally sustainable under EU Taxonomy if they meet allegedly weak fuel efficiency standards, would be contrary to the requirements of the Taxonomy Regulation as they would not be based on conclusive scientific evidence, not consistent with a 1.5°C pathway, and would hamper the development of low-carbon alternatives in these sectors. 

The NGOs’ request for an internal review was declared unfounded by the Commission in June 2024. Opportunity Green indicated in its press release of 28 August 2024 that proceedings have been initiated before the CJEU. Proceedings before the General Court take an average of one and a half years.

Decisions of the General Court can be appealed to the Court of Justice, but only on a point of law.