Armando Carvalho and Others v. European Parliament and Council of the European Union [2021]

By Myles Crewe

Country	European Union (EU)
Defendant	State (EU)
Law Applied	International Environmental Law; International Human Rights Law; EU Emissions Trading Directive;EU Effort Sharing Regulation; EU Land-Use, Land-Use Change and Forestry Regulation.
Key words	Mitigation; Human Rights; Just Transition.

Case Information:

Last Update: 2021

Court: European Court of Justice (ECJ)

Dissenting Judgement? No

Filing Date: 2018

Last Update: 

Status: Appeal Dismissed

ISSUES

Whether the claims of Armando Carvalho and the 36 other fellow applicants, regarding an EU legislative package aimed at lowering greenhouse gas emissions [1], were admissible on standing grounds, on appeal to the European Court of Justice (ECJ) [2]. 

MATERIAL FACTS/BACKGROUND

Armando Carvalho, from Portugal, as well as 36 fellow applicants from countries such as Kenya, Fiji, and Sweden, brought an appeal to the ECJ which centred around the ways in which the EU’s climate change regime could achieve more to lower greenhouse gas emissions to combat climate change [3]. The cumulative aim of the legislative package was to give effect to a goal of reducing emissions by 40% [4]. The acts at issue were the ‘Emissions Trading Directive’, the ‘Effort Sharing Regulation’ and the ‘Land-Use, Land-Use Change, and Forestry Regulation’ [5, 6, 7]. The claims originally brought to the General Court of the European Union were dismissed on the grounds that the claimants lacked standing. Armando Carvalho and Others therefore appealed to the ECJ. 

1. GENERAL COURT DECISION

THE ARGUMENTS OF THE PARTIES

The Plaintiffs’ Arguments:

The plaintiffs’ substantive objections to the legislative package were, in essence, that it was not ambitious enough. At the general court, the applicants argued that:

1. The package conflicted with higher ranking fundamental rights, specifically the Right to life and health, Rights of children, Right to an occupation, Right to property and Right to equal treatment, as derived from the Charter [5]. It also conflicted with obligations derived from customary international law (the ‘no-harm rule’), the Paris Agreement (the obligation to hold warming “well below 2 degrees C”) [8]. 

The Applicants claimed that these fundamental rights and international laws obliged the EU to “take all measures of which [it is] technically and economically capable”, because the protection of climate rights can only be limited where necessary and justified [9]. The 40% reduction was said not to meet this obligation [10].

2. Both annulment of the legislation and an injunction ordering the Union to cease its allegedly unlawful conduct were sought [11].

The Defendant’s Arguments:

The Council and Parliament raised pleas of inadmissibility [12]. They argued that:

1. The legislative package did not directly affect the applicants’ legal position because the legislation allows Member States and the Commission “at least some discretion” in the implementation of the obligations it lays down, and because for the rights invoked to be affected, the greenhouse gas emissions must first take place [13].

2. To find that every applicant, and indeed everyone in the world, is individually concerned by the legislative package would render the individual concern requirement of paragraph 4, Article 263 of the Treaty on the Functioning of the European Union (TFEU) “entirely meaningless” [14].

OUTCOME

The substantive arguments were not considered by the General Court because it ruled that the claims were inadmissible on standing grounds [15].

1. The General Court decided that the legislative acts were not, as per the second prong of the fourth paragraph of Article 263 TFEU, “of direct and individual concern” to the applicants. Therefore, they were not entitled to bring these claims [16]. 

2. The claimants’ argument, that breaches of individual fundamental rights brought about by the effects of climate change necessitate instances of individual concern as per Article 263, was rejected. The court stated that “the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application” [17]. The judgement proposed that such an approach would render standing rules meaningless by allowing standing for all [18]. The court thereby dismissed the application.

2. ECJ APPEAL DECISION

THE ARGUMENTS OF THE PARTIES

The Plaintiffs’ Arguments:

Following the dismissal by the General Court, Armando Carvalho and Others appealed to the ECJ. Their most significant grounds of appeal were that:

1. Their claim did satisfy the “individual concern” test, otherwise known as the ‘Plaumann’ [19] test, because their fundamental individual rights were, are, and will be infringed in factually distinct ways. 

2. Alternatively, in order to guarantee effective legal protection of fundamental rights, the Plaumann test should be adapted to allow standing in cases where there is no other route to an effective remedy, such as this case [20].

OUTCOME

The ECJ rejected the applicants’ appeal on all grounds and ordered them to pay certain costs [21]. They reached this conclusion on the basis of the following arguments.

1. The ECJ affirmed that the General Court had taken sufficient account of the factual distinction between how separate individuals are affected by climate change [22]. It also held that the General Court was entitled to hold that the invoking of a breach of a fundamental right does not infer individual concern. This was because the rights breach did not qualify as an effect (of the act) that distinguished them individually just as if they were addressed directly by the act [23]. That is to say, the Plaumann threshold of individual concern was not met.

2. The ECJ also referred to previous case law and the reasoning of the General Court’s judgment to declare that, although “Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection”, a widening to include cases such as this one would overstep the jurisdiction of the Court of Justice of the European Union (CJEU), namely that of the General Court and the ECJ [24, 25]. This reflected a development of the General Court’s argument that the interpretation of standing rules requested by the applicants would create a universal standing, or standing for all [26]. The Court thus used a constitutional justification for not widening this standing criterion – to do so would be to step on the toes of the treaty’s authors.

The ECJ also refused standing for the Association Sáminourra on the same basis as any other natural or legal person [27]. The General Court’s conclusion that the claim for an injunction must be held as inadmissible because it had the same aims as the annulment claim was also upheld on appeal [28].

Please find the full judgement and other case documents here. Last edited 27 May 2022, with thanks to the case editor, Charlie Bevis.

References:

[1] Armando Carvalho and Others v European Parliament & Council of the European Union [2019] Case T-330/18, ECLI:EU:T:2019:324, available at http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2018/20180524_Case-no.-T-33018_application.pdf [Accessed 27 May 2022].
[2] Case C?565/19 P, Armando Carvalho and Others v European Parliament & Council of the European Union, Appeal Judgement [2021] ECLI:EU:C:2021:252, available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62019CJ0565&from=EN [Accessed 27 May]
[3] Armando Carvalho and Others v European Parliament & Council of the European Union [2019] Case T-330/18, ECLI:EU:T:2019:324, para. 89. See also, European Council, Conclusions EUCO 169/14, 24/10/2014, available at  https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/145397.pdf [Accessed 17 May 2022]. 
[4] European Commission, 2030 Climate & Energy Framework (European Commission, N/A), available at https://ec.europa.eu/clima/eu-action/climate-strategies-targets/2030-climate-energy-framework_en#greenhouse-gas-emissions—raising-the-ambition [Accessed 27 May 2022].
[5] Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814 (OJ L 76, 19.3.2018).
[6] Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013 (OJ L 156, 19.6.2018).
[7] Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU.
[8] Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104; Case T-330/18, Armando Carvalho and Others v European Parliament & Council of the European Union, [2019] General Court Order, paras 224, 254, and 263.
[9] Ibid., para 225.
[10] Ibid.
[11] Ibid., paras 413 – 416.
[12] Case T-330/18, Armando Carvalho and Others v European Parliament & Council of the European Union, [2019] General Court Order, para 48.
[13] Case C?565/19 P, Armando Carvalho and Others v European Parliament & Council of the European Union, Appeal Judgement [2021] ECLI:EU:C:2021:252, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019CJ0565 [Accessed 23 May 2022], paras. 17-18.
[14] Case T-330/18, Armando Carvalho and Others v European Parliament & Council of the European Union [2019] ECLI:EU:T:2019:324, para 58 25-27.
[15] Case T-330/18, Armando Carvalho and Others v European Parliament & Council of the European Union, [2019] General Court Order, para 33, available at http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2019/20190515_Case-no.-T-33018_judgment-1.pdf [Accessed 27 May].
[16] Ibid.
[17] Ibid., para 50.
[18] Case T-330/18, Armando Carvalho and Others v European Parliament & Council of the European Union, [2019] General Court Order, para 48.
[19] Case T-330/18, Armando Carvalho and Others v European Parliament & Council of the European Union, Applicant’s Reply to the Defendants’ Pleas of Inadmissibility [2019] paras 46 – 55, available at http://climatecasechart.com/wp-content/uploads/sites/16/non-us-case-documents/2018/20181210_Case-no.-T-33018_reply.pdf [Accessed 27 May 2022]
[20] Ibid., paras 23, 97.
[21] Case C?565/19 P, Armando Carvalho and Others v European Parliament & Council of the European Union, Appeal Judgement [2021] ECLI:EU:C:2021:252,  available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019CJ0565, para 110.
[22] Ibid., paras 37, 41 – 42; Plaumann and Others. v European Commission [1963] Case 25/62, ECR 00095.
[23] Case C?565/19 P, Armando Carvalho and Others v European Parliament & Council of the European Union, Appeal Judgement [2021] ECLI:EU:C:2021:252, paras 53-65.
[24] Ibid.
[25] Ibid., para 42-43.
[26] Ibid., paras 40, 89. For previous case law, see Unión de Pequeños Agricultores v Council of the European Union [2002] Case C-50/00 P, ECLI:EU:C:2002:197 and Inuit Tapiriit Kanatami and Others European Parliament and Council of the European Union [2013] Case C?583/11 P, ECLI:EU:C:2013:625.
[27] Case C?565/19 P, Armando Carvalho and Others v European Parliament & Council of the European Union, Appeal Judgement [2021] ECLI:EU:C:2021:252, para 89. 
[28] Ibid., para 106.