In 2019, the UN High Commissioner for Human Rights claimed that “[t]he world has never seen a threat to human rights of this scope” as that posed by climate change.

Awareness of this issue is growing, which is why we see more and more cases where the emergency of the climate change crisis is being brought before the Courts. Climate-related lawsuits are multiplying around the world.

Year 2023 started with the first climate trial in Romania where Declic Association, a Romanian NGO, together with 4 other Romanian citizens, took the State to the Cluj Court of Appeal. They contend that the State has a weak policy against climate change issues, which affects their fundamental rights and calls on the Government for action to combat climate change. In response, in June 2023, the Court of Appeal of Cluj dismissed as unfounded the sue petition. But the plaintiffs challenged this first climate judgment in Romania by filing an appeal.

It is firstly alleged by the plaintiffs that the defendants have failed to comply with their legal obligation to reduce greenhouse gas (GHG) emissions by at least 55% below 1990 levels in accordance with Regulation 2021/1119. They say that this is needed to help achieve the “1.5°C target” outlined in the Paris Agreement, to which Romania is a party. This goal aims to secure a good quality of life in line with human dignity and in the future if all countries follow through with their commitments.

What is being challenged before the Court?

Under the Integrated National Energy and Climate Change Plan (INECP), said to be the only national document addressing climate change, there is a commitment to reduce GHG emissions by 44% below 2005 levels up to 2030 through the implementation of the GHG emissions trading scheme. The plaintiffs note that the reference date is different from that provided for in the Regulation 2021/1119, as the percentage reduction refers to 2005, when Romania’s reported emissions were considerably lower, and not to 1990. Consequently, it is argued that a percentage reported to 2005 means that Romania’s obligation to reduce GHG emissions is in fact much lower than 40%. It is also alleged that Romania is only assuming a percentage reduction through the Emissions Trading Scheme and that the defendants have not taken all possible measures to reduce emissions.

Secondly, the plaintiffs claim that Romanian authorities’ target to increase the share of renewable energy sources to 30.7% by 2030 through the INECP and to 29% through the National Recovery and Resilience Plan (NRRP) is significantly lower than the 45% target set by the REPowerEU Plan. The focus on biomass and hydropower projects, ongoing projects and investments involving fuels, investment programmes in the solar energy sector considered inefficient and the tendency to report data that does not reflect the reality on the ground to create an impression of national progress are further contested. Therefore, it is argued that the defendants’ targets do not meet the standard of the highest possible climate ambition, given the favourable geographical conditions for offshore and onshore wind and solar energy.

In addition, for the energy sector, reputedly the main GHG emitter, national ambitions are described as non-existent in terms of increasing energy efficiency, although at EU level there are clear growth targets by 2030 (compared to 2020) of 9% and 13% respectively, set by Fit for 55 and REPowerEU.

The influence of climate change on fundamental rights

The right to health protection, the right to a healthy and ecologically balanced environment and the right to a future in accordance with human dignity

The plaintiffs argue that the lack of firm measures, coherent plans, monitoring and reporting mechanisms creates an immediate and substantial risk to the plaintiffs’ collective and individual fundamental rights.

Although not explicitly enshrined in the European Convention of Human Rights (ECHR), the right to health protection and the right to a healthy and ecologically balanced environment are foreseen by the Romanian Constitution and the Charter of Fundamental Rights of the European Union (CFR).

As climate change affects people’s health protection, the plaintiffs claim that the pursuit of the defendants’ current policies may completely deprive them of this right.

Regarding the right to a future in accordance with human dignity, it is emphasized that sustainable development is a fundamental principle of environmental law enshrined at national, European and international level, which guarantees fundamental freedoms in the long term as well as human dignity. It is pleaded that in the absence of a legal framework regulating climate change, sharing responsibilities and overseeing how the former are met, the defendants are jeopardising the plaintiffs’ right to a future in accordance with human dignity.

The plaintiffs assert that these constitutionally guaranteed freedoms (Articles 1, 35, 45 and 47 of the Romanian Constitution) correspond to the defendants’ constitutional obligation under Article 135(2)(d-f) to protect the natural foundations of life and that the obligation to maintain the ecological balance and to create the conditions necessary to improve the quality of life relates, besides the classical environmental factors such as water, air, and soil, also to the climate.

The right to life, the right to private and family life and the right to property

The right to life (enshrined in Article 2 of the ECHR, Article 2 of the CFR and Article 22 of the Romanian Constitution) is also considered to be at stake as the State influences the level of national CO2 emissions. It therefore follows that this creates liability and responsibility for the State. With reference to the application of the precautionary principle by the European Court of Human Rights (ECtHR) in cases concerning violations of Article 2 ECHR, the plaintiffs argue that, since the loss of human life is irreversible, the obligation to enforce is firstly aimed at preventing further accumulations of emissions in order to ensure effective respect for the right to life.

It is alleged that the right to privacy (Article 26 of the Romanian Constitution, Article 8 of the ECHR, Article 7 of the CFR) is violated or will be violated at least at some point because the defendants have not taken measures to protect their citizens from dangerous results of climate change. In support of this assertion, the plaintiffs rely on the ECtHR’s case-law concerning the protection of Article 8. Here it is provided that a clear link between the dangerous effects of the activity and the likelihood that the plaintiff would be exposed to those effects is sufficient for this protection to apply. They mention that, in another ECtHR judgment, this article imposes a positive obligation on the State to protect citizens against the effects of environmental pollution, even in cases where such pollution is not life-threatening.

The plaintiffs claim that a situation of unlawful and ongoing endangerment for which the state is responsible leads almost automatically to a violation of Articles 2 and 8 of the ECHR. Meanwhile, it is stated that the absence of any possibility to hold the State accountable for the level of CO2 emissions would amount to the lack of an effective remedy for the violation of the plaintiffs’ rights under Articles 2 and 8 of the Convention. It is therefore alleged that this would be a breach of Article 13 of the ECHR, which guarantees the existence of an effective remedy.

It is further argued that the violation of the right to private property (Article 1 of Protocol 1 to the ECHR) stems from the restriction to exercise this right caused by changes in the climate system (e.g.: the impossibility or the difficulty of cultivating agricultural land, the loss of the family home or the migration of the affected population). Therefore, it is claimed that the lack of clear and effective measures to prevent and combat the effects of climate change on Romania’s territory leads to the infringement of the plaintiffs’ private property rights.

What did the plaintiffs ask for?

Accordingly, the plaintiffs mainly asked the Court to order the defendants to:

• take all necessary measures aimed at reducing GHG by 55% by 2030 and to achieve climate neutrality by 2050;
• take all necessary measures to increase the share of renewable energy sources in final energy consumption to 45% and to increase energy efficiency by 13% by 2030;
• adopt within a maximum of 30 days of the date when the judgment becomes final and definitive, concrete and coherent climate change mitigation and adaptation plans, including annual carbon budgeting, in order to achieve the previously mentioned targets, as well as annual reporting and monitoring mechanisms on the progress towards achieving these targets.

The Court’s point of view: The dismissal of the sue petition

First of all, the Court mentions that the dangers resulting from climate change and the impact of pollution on the right to a healthy living environment are undeniable.

Nevertheless, the Court holds that, given the wording of the above-mentioned counts, admitting the case would lead to an unenforceable judgment likely to infringe Article 6 of the ECHR. This is because the counts of the action do not specify the necessary measures and plans to meet climate targets, making it impossible to implement if the case proceeds. In essence, it is stated that without concrete measures and plans outlined by the plaintiffs in the counts of the action, the decision cannot be practically enforced.

By relying on the ECtHR case law, the Court refers to the fact that the right to bring an action before a court would be illusory if a final judgment would be ineffective against a party.

According to the Court, by issuing a ruling admitting the plaintiffs’ claim in these circumstances, the defendants could essentially determine the extent and nature of the actions themselves. It is stated that this could lead to non-identifiable/quantifiable measures, which is contrary to what the plaintiffs are seeking, as they argue that the current measures in place are inadequate.

Hence, relying on the principle of availability governing civil proceedings, the Court considers there is no need to carry out a review regarding the ECtHR case law related to Article 8 of the ECHR, on which the plaintiffs based part of their argument. It follows that, even if the defendants were found to have infringed the protection of public health and the environment, the formulation of counts is not such as to eliminate the breach.

The Court considers as well that there is a risk of substitution of legislative power by the plaintiffs and the courts at the enforcement stage by prescribing measures intended to achieve the objectives pursued by the plaintiffs.

Attention is also drawn to the fact that climate change legislation is constantly changing and that therefore the assessment of the measures adopted by Romania should be made with regard to the EU legislation on the basis of which they were created. While analyzing INECP, the Court observes that references are made to Regulation 2018/1999 and therefore it considers that the plaintiffs are mistakenly referring to Regulation 2021/1119 concerning the GHG emissions target as the latter was not taken into account when drafting the national plan of measures. Accordingly, it is concluded that the target of 32% renewable energy consumption in 2030 is in line with the one set out in Article 2 section 11 of Regulation 2018/1999.

The Court also found that the alleged incorrect reference date for setting the GHG emissions ceiling – in relation to Article 4 paragraph 1 of Regulation 2018/842 – is unfounded, given that the European Commission has set a 2% reduction target for Romania in 2030 compared to the 2005 level.

Referring to INECP, other strategies and the Long-Term Strategy for the Reduction of Greenhouse Gas Emissions on which Romania is currently working, the Court argues that there is no question of a manifest disregard for the achievement of environmental objectives coming from the defendants.

It is also pointed out that climate change is a cross-border challenge, implying that coordinated action at Union level is needed to complement and strengthen national policies effectively.

Moreover, while recognising the importance of actions protecting against climate change, the Court stresses that the transition to climate neutrality requires both changes in all policies and a joint effort by all sectors of the economy and society. The Court emphasizes as well the need for acting with caution without irreversibly jeopardizing certain sectors of the national economy. It subsequently refers to the elimination of energy subsidies incompatible with the environmental objective, particularly those for fossil fuels, and argues that this should be done gradually, without endangering efforts aimed at reducing energy poverty.

The Court notes that the plaintiffs seek through their criticism to replace the public authority’s grounds of opportunity in achieving the environmental objectives with their own grounds of expediency. This is exemplified by the plaintiffs’ disapproval of the defendants’ measures relating to the EU Emissions Trading Scheme (EU ETS), whereas it follows from Regulation 2021/1119 that the EU ETS is an essential tool for reducing GHG emissions in a cost-effective manner.

Further, it is stated that it is up to EU Member States to decide how to achieve the necessary transition to a climate-neutral society by 2050 and how to achieve energy efficiency. Therefore, the Court concludes that it cannot be given the connotation sought by the plaintiffs that Romania believes it can achieve the objectives through projects which do not have the same objectives as those claimed by the plaintiffs. It further finds that, had there been any problem in this regard, the Council would have referred to Article 192(2)(c) TFEU.

The Court holds that, according to recital 36 of Regulation 2021/1119, the Commission should periodically evaluate the Member States’ progress and, if it concludes that Romania is in breach of its obligations, it may initiate the procedure foreseen by Article 258 TFEU as it did when it failed to fulfill the obligation foreseen by Article 15(1) of Regulation 2018/1999.

Concerning the targets set in the Fit for 55 and REPowerEU documents for the share of renewable energy in final energy consumption, the Court considers that they are irrelevant at the moment as long as these measures have not been transposed into EU legislation. Morevorer, it is underlined that the defendants committed to update the INECP in line with the concrete objectives resulting at the end of the Fit for 55 package and the REPowerEU plan negotiations.

Consequently, the Court dismissed the sue petition filed by the plaintiffs.

What’s next?

The plaintiffs have lodged an appeal against this judgment to be settled by the Romanian High Court of Cassation and Justice. It is mainly contested that the judge refused to rule on the present case, which is according to them a manifest denial of justice prohibited by the national law. This is considered to be a violation of article 6 of the Romanian Code of Civil Procedure, of article 13 of ECHR and of article 47 of the CFR. It is challenged as well that some of the judgment’s recitals are contradictory, that the judge did not examine whether the defendants exercised their discretion excessively and that the judgment is based on the wrong interpretation/application of substantive law rules.

Overall the appealed judgment clearly outlines the challenges of addressing climate change through legal action. While the Court acknowledges the undeniable dangers of climate change on the right to a healthy living environment, this does not counterbalance the fact that the plaintiffs did not ask for specific measures and plans to achieve the climate objectives. Consequently, there is a concern regarding the risk of the courts substituting legislative power by determining the extent and nature of actions to address climate change.

The case raises thus a question regarding the formulation of the counts. According to the plaintiffs, the counts were formulated precisely to comply with the constitutional principle of the separation of powers, granting defendants the freedom to determine how to achieve climate goals, while having sufficient leeway to decide how to comply with the court’s judgment. Hence, imposing measures and plans through the counts and subsequently by the Court, would, in their view, have disrupted this principle.

Ultimately, two other interesting aspects in addressing climate change involve, on the one hand, the individual commitment of a Member State in terms of its obligations at EU and international level and, on the other hand, the joint effort of Member States. In this respect, it is mentioned that: “it is irrelevant that the Union’s strategies are merely soft law instruments, as long as the percentages indicated in them are the only ones capable of guaranteeing that our country will fulfill the commitments undertaken by a binding legal instrument: the Paris Agreement.”

In the same train of thoughts, the Supreme Court of the Netherlands stated in the  Urgenda v. the Netherlands case that “the Netherlands is obliged to do its part in order to prevent dangerous climate phenomena, even if it is a global problem” and that “each State is responsible for its part”.

The point is that, even when discussing a cross-border phenomenon – such as climate change – addressed by international and European rules, the effectiveness of these measures depends considerably on the individual commitment of Member States. In essence, each Member State must do its part to ensure that these measures have the desired impact. Subsequently, this can be subject to scrutiny by the national courts, which control whether the State in question fulfills its obligations.

The case is therefore ongoing and it’s worth noting that the plaintiffs requested the High Court of Cassation and Justice to ask the ECtHR for an advisory opinion under Article 1 of Protocol No 16 of the ECHR.