Judicialization of climate change should not mean the institution of an actio popularis

On 5 November 2020, the European Court of Human Rights (ECHR) declared inadmissible application of Mr Le Mailloux who challenged in abstacto the Covid-19 measures taken by the French Government without demonstrating that he has been personally affected by such measures.[1] The ECHR has always rejected the actio popularis[2] and reiterates in this decision that “Article 34 of the Convention does not allow complaints in abstracto alleging a violation of the Convention. The Convention does not provide for the institution of an actio popularis, meaning that applicants may not complain against a provision of domestic law, a domestic practice or public acts simply because they appear contravene to the Convention. In order for applicants to be able to claim to be a victim, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect.”[3]

This reminder can only be welcomed in the current context of increasingly systematic judicialization by individuals or organizations claiming their right to represent the civil society. This judicialization is apparent regarding the climate change. The database of the Sabin Center for Climate Change Law identifies 1,106 climate lawsuits worldwide[4] and this trend is growing stronger. As rightly noted the report established by the research mission “Law and Justice” and the French National Research Council (CNRS), judicialization goes hand in hand with an unprecedented mobilization of environmental law by non-governmental organizations (NGOs)[5] related or not to political groups.

If the associations’ right of legal action has undergone considerable expansion, the French law still does not recognize the actio popularis

For many years, the Conseil d’Etat (the French highest administrative court) reiterated its refusal of the actio popularis that implies that everyone could challenge in court political and ideological choices. The Conseil d’Etat ruled for example that the right to live in a healthy environment stemming from the Environmental Charter did not in any way imply recognition of any person's interest in taking legal action against a decision of administrative authority on the ground that the latter has exceeded its powers.[6] In 2015, the Conseil d’Etat considered that Article 9 of the Aarhus Convention,[7] has “in any event neither the object nor the effect of giving any person a right of appeal against any decision having an impact on the environment.”[8]

In line with this case law, Article L. 142-1 of the French Environmental Code regulates the right of associations to legal action. In order to be admissible before administrative courts, legal action should be brought by an accredited association for the protection of environment. These associations can only act against administrative decision “with a direct relation to their purpose and statutory activities and generating harmful effects on the environment on all or part of the territory for which they are accredited where said decision arises after the date of their approval.”

In civil matters, Article L. 142-2 of the French Environmental Code allows to accredited environmental protection associations to “exercise the rights recognized as those of the civil party with regard to acts which directly or indirectly damage the collective interests that they defend and which constitute an infringement of the legislative provisions relating to the protection of nature and the environment.”[9] Like the Conseil d’Etat, the Court of Cassation (the French highest court in civil, commercial and criminal matters) verifies that association’s action has a direct correlation with its social purpose.[10] In its decision of 2018, the Court considered for example that an association whose social purpose was environmental protection could not seek compensation for damages resulting from dissemination of fake environmental information.[11] The Law of 8 August 2016 on biodiversity created a specific action for compensation for ecological damage.[13] This claim can be brought by association which have been established for at least five years at the time the claim is made and whose social purpose is protection of nature and the environment.[14]

Finally, a class action is now possible in the event of environmental damage and can be brought by associations designated by the legislator.[15] They can therefore act before civil or administrative courts to seek compensation for the personal harm of their members resulting from environmental damage and to request the cessation of the prejudicial behavior.

EU law limits the right of legal action against acts of EU institutions to those who are directly and individually concerned by these acts

EU Law is much stricter that the French law. Article 263 of the Treaty on the Functioning of the European Union only allows to institute “proceedings against an act addressed to [a natural or legal] person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.”

Since the Plaumann decision of 1963, the European Court of Justice conditions the access to judicial review of EU law to demonstration that the person is affected by the act “by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed.”[16]. Courts thus admit very rarely appeals of associations[17]. In People Climate Case of 2019, the legal action initiated by eleven families and one Swedish association challenging the EU’s 2030 climate target of reducing domestic greenhouse gas emissions considered as insufficient was declared inadmissible.[18]

Uncertainties in case law on the right of legal action will lead to the exponential growth of climate lawsuits

The French Duty of Vigilance Law[19] allows any person establishing an interest to bring a claim before a competent court to engage civil liability of a parent company obliging it to repair the damage that the respect of its vigilance obligations could allow to prevent. Associations that can bring these actions do not have to be accredited. Their action is not even subject to a condition of anteriority. Usually an association must have existed three to five years to have the right of legal action, when it has not directly suffered the damage.

As the first actions show, the French Duty of Vigilance Law is becoming the preferred vehicle for associations to bring the climate cause to the forefront, by bringing actions against States and now also against companies subject to this law. A victory won in one country is claimed by environmental protection associations around the world; most French associations are “sections” or “antennas” of powerful global associations, such as Greenpeace, Oxfam and others. Thus, the Urgenda decision of 2019[20] is used by environmental activist around the world as a trophy. By this decision, the Dutch Supreme Court confirmed that the Dutch State had acted unlawfully in taking unlawfully in taking insufficient action to prevent dangerous climate change and ordered it to immediately reduce its greenhouse gas emissions to 25% by 2020.

In its decision of 2020, while requesting the French State to provide more information on the actions taken to reduce greenhouse gas emissions, the Conseil d’Etat declared the appeal of the Commune of Grande Synthe admissible, despite the convincing argument of the French Ministry of Ecological Transition that all communes are exposed to climate change[21]. This decision seems to open to communes the actio popularis by allowing them to challenge decisions of the State whose effects are global and not specific. This is an unprecedented and hazardous shift that augurs a multiplication of climate processes in a highly connoted political context.

In France, there is already a first “climate lawsuit”, this time not against the French State, but against a private company, which is based on the law on the French Duty of Vigilance Law, a powerful tool for litigation.[22] Other actions are on the horizon. Indeed, last March, Notre Affaire à Tous claimed for example that 25 French multinational corporations failed to meet their obligations under the French duty of vigilance law as they did not take all necessary measures to reduce their greenhouse gas emissions in line with the Paris Agreement's goal to limit global warming to 1.5°C.[23]

Interpreting the right of legal action extensively allowing anyone to engage liability of a company for global damage risk to prevent the concept of liability of its meaning. Everyone would be responsible for everyone, and therefore no one would be individually responsible.



[1] ECHR, November 5, 2020, Renaud Le Mailloux v. France, No 18108/20.
[2] See notably ECHR, Segi and others & Gestoras Pro Amnistia and others v. 15 Member States of the European Union, May 23, 2002, No 6422/02, 9916/02; ECHR, June 29, 2010, Caron and others v. France, No 48629/08.
[3] para 11.
[4] http://climatecasechart.com/.
[5] M. Torre-Schaub, Les dynamiques du contentieux climatique. Usages et mobilisation du droit pour la cause climatique, December 2019, at 38-41.
[6] CE, August 3, 2011, No 330566.
[7] Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed on June 25, 1998.
[8] CE, October 26, 2015, No 392550.
[9] The second paragraph of this Article provides that : “This right is also granted, under the same conditions, to the associations which have been lawfully declared for at least five years at the date of the acts and which, by their charter, propose the safeguarding of all or part of the interests described in Article L. 211-1, in relation to the acts constituting an infringement of the
provisions relating to water, or the interests described in Article L. 511-1, in relation to the acts constituting an infringement of the provisions relating to classified facilities.”
[10] See notably Cass., 2e civ., May 27, 2004, No 02-15.700; Cass, 3e civ., September 26, 2007, No 04-20.636.
[11] Cass., 3e civ., May 24, 2018, No 17-18866.
[12] Law No 2016-1087 of August 8, 2016 on recovery of biodiversity, nature and landscape.
[13] Article 1246 of the French Civil Code: “Any person who caused environmental damage will be held liable.”
[14] Article 1248 of the French Civil Code.
[15] According to Article L. 142-3-1-IV of the French Environmental Code, these associations are “associations, accredited under conditions defined by decree of the Conseil d'Etat, whose statutory purpose includes the defense of victims of personal injury or the defense of the economic interests of their members; 2° Environmental protection associations accredited in application of Article L. 141-1.”
[16] ECJ, July 15, 1963, Plaumann & Co. v. Commission of the European Economic Community, Case 25-62.
[17] E. Trulhé and M. Hautereau-Boutonnet, Report, Le procès environnemental. Du procès sur l’environnement au procès pour l’environnement, May 2019, at 102.
[18] EGC, order, May 8, 2019, Armando Carvalho and others v. European Parliament and Council of the European Union, Case T-330/18.
[19] Law No 2017-399 of March 27, 2017 on the corporate duty of vigilance for parent and instructing companies.
[20] Dutch Supreme Court, December 20, 2019, The State of the Netherlands v. Stichting Urgenda, No 19/00135.
[21] CE, November 9, 2020, No 427301.
[22] V. Collen, Réchauffement climatique : Total assigné en justice par des collectivités locales, January 28, 2020, Le Monde.
[23] M. Dancer, "25 multinationales interpellées pour manque de « vigilance climatique", March 2020, La Croix.