I Introduction

  The narrowness in the legal standing of individuals and NGOs under European Union law has been criticized and discussed. Article 263 (4) of the Treaty of Functioning of the European Union (TFEU) demands fulfillment of certain conditions: an act addressed, an act that is of direct and individual concern to applicants, or a regulatory act that is of direct concern to applicants and does not entail implementing measures. Individuals and NGOs have difficulty challenging the legality of EU measures before the Court of Justice of the European Union (CJEU). The case of Carvalho, in which individuals and an NGO brought proceedings against EU measures before the General Court and appealed, and their applications were rejected before the Court of Justice, showed such a difficulty.

   This paper discusses the possibilities of extending the legal standing of individuals and NGOs under Union law in climate litigation. First, it examines whether the EU’s legal order has established a complete system of legal remedies and procedures. Second, I question whether Plaumann judgment is absolute established case law. Third, I raise a question about the adherence to Plaumann judgment from the viewpoint of the EU’s accountability towards the EU citizens.   

II A complete system of legal remedies and procedures?

   The CJEU has held that EU treaties have established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of the measures adopted by the institutions. This complete system is ensured by the annulment procedures in Articles 263 and 277 TFEU and the preliminary rulings procedure in Article 267 TFEU. This expression of a complete system is connected to the concept of the rule of law. It is very true that individuals and NGOs may file lawsuits in national courts and be recognized as plaintiff in such cases. Indeed, admissibility criteria regarding legal standing certainly depend on national procedural laws; however, national courts are required to interpret, to the fullest extent possible, the procedural rules as the conditions to be met to bring proceedings in a manner consistent with the obligations (ex. ensuring the right to justice) arising from the Aarhus Convention (ex. Case C-873/19).

   Then, are there any problems?’ Yes, there are several limitations. First, the legal standing of NGOs is not recognized by all Member States. Second, even if the EU system of legal remedies and procedures with the combination of the annulment procedure and the preliminary rulings procedure worked well, it could be considered a complete system that no longer applies to climate change litigation. The climate crisis is imminent, and continuing litigation for several years renders the filing of lawsuits meaningless.

III Possibilities and necessities of change of the narrow interpretation on the concept “individual concern”

The Plaumann judgmentin 1963 defines what an individual concern is. Since this Judgment, the CJEU has always referred to the Plaumann judgment when the legal standing of individuals and NGOs is at issue and has rejected their application by stating that they do not fulfil the condition for the individual concerned. It is very true that the Plaumann judgment is established case law. However, I will discuss whether the Plaumann judgment is absolute.

1 Precedence binding?

   Judgments by the CJEU have binding in each case but do not have precedence binding. This differs from the common law system such as that in the UK. Six original members of the European Community of Coal and Steel belong to the continental legal system (civil law system), in which judgments are not precedent-binding. Therefore, one can argue the interpretation of legal standing can be changed because judgments of the CJEU do not have precedence binding, even if the established case law has an effect beyond each individual case, to ensure legal certainty. It is true that there is settled case law under the Union law. The principles of primacy, direct effect, and State responsibility are not explicitly laid down in EU Treaties. The Court of Justice has created principles that are indispensable for the functioning of the EU and ensuring the effectiveness of the EU law. The Plaumann judgment is also settled case law. However, this Judgement is just an interpretation of Article 263 (4) of the TFEU and therefore differs from the judgments that created those principles. In fact, Advocate General Jacobs indicated another interpretation of Article 263 (4) TFEU in the case of Unión de Pequeños Agricultores. He suggested that a person is to be regarded as individually concerned by a Union measure where, by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests. Furthermore, changes in interpretation differ from amendments to provisions. An amendment of provisions needs the will of all the Member States, i.e. “Herren des Vertrages.” The Plaumann judgment is very interpretation on the notion “individual concern” of Article 263 (4) TFEU.

The interpretation of the provisions of the EU Treaties can be changed; rather, it would be necessary. For example, in the case of Keck, the Court of Justice did so, which can be considered a change in the established case law. The Court held that “by contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment.”. In this case, after using the words “contrary to what has previously been decided,” the Court changed the interpretation of the provision of Article 34 TFEU.

2 Article 47 of the Charter

   The Chater is legally binding and has the same legal values as the EU treaties. Article 47 of the Charter provides the right to an effective remedy and fair trial and concretizes the principle of effective judicial protection. The Court relied on Article 47 of the Charter in several fields and developed an interpretation of the provision. In the case of Deutsche Umwelthilfein 2022, where the issue was the right to access justice in the context of the Aarhus Convention, the Court of Justice held that Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of the EU or national law to confer on individuals the right that they may rely on as such.

   In addition, we can also argue from the rule of law as a Union value. The legal standing of natural and legal persons under Article 263(4) of the TFEU was extended by the Treaty of Lisbon. In the case of Venezuela, the Court of Justice extended the legal standing under Article 263 (4) of the TFEU. The Court held that the term “legal person” used in Article 263 (4) of the TFEU cannot be interpreted restrictively. Furthermore, the Court held that the existence of an effective judicial review system designed to ensure compliance with the provisions of EU law was inherent in the existence of the rule of law. Finally, the Court of Justice acknowledged Venezuela’s position as a Third Country.

   This extension of legal standing is combined with one of the EU values: the rule of law. This judgment shows the possibility of extending the legal standing of individuals and NGOs according to Article 263 (4) of the TFEU.

3 Human Rights and climate litigation

  First, the Chater also stipulates that human rights are related to climate litigation. The Charter applies to EU institutions, including the European Parliament and the Council as legislators; the European Commission, which proposes measures; and the CJEU, which must ensure effective legal protection (Article 51 (1) of the Charter).

Climate litigation is related to human rights. In the Urgenda case, the Court of Appeals relied on Articles 2 and 8 of the ECHR for the first time to establish a positive state obligation to take action against climate change. Article 2 of the ECHR concerns the right to life, which includes environment-related situations that affect or threaten the right to life, and Article 8 protects the right to private life and family and may also affect environment-related situations. The case of Urgenda of the Supreme Court confirmed this. Before the ECtHR, elderly people sued Switzerland before the ECtHR (KlimaSeniorinnen case). In addition, six young people in Portugal sued 33 countries before the ECtHR (Agostinho case).

Second, if the ECtHR acknowledges the rights of applicants based on Articles 2 and 8 of the ECHR in the cases of KlimaSeniorinnen and Agostinho, the CJEU should respect the interpretation of these articles. Article 2 of the Charter lays down the right to life, which is equivalent to Article 2 of the ECHR, and Article 7 of the Charter is related to the right to privacy, which is Article 8 of the ECHR; the meaning and scope of the articles of the Charter shall be the same as those laid down by the ECHR according to Article 52 (3) of the Charter.

Third, as the CJEU itself held that the Charter was a “living document”, it should be interpreted over time. In the case of Centraal, the Court of Justice held that “the Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today, with the result that regard must be had to change in values and ideas, both in terms of society and legislation, in the Member States.” The Plaumann judgment was issued in 1963. This implies that the Judgment was made by seven judges approximately 60 years ago. The interpretation provided by the Judgment should be examined “in the light of present-day conditions and of the ideas prevailing in democratic States today” and if necessary, the interpretation should be changed.

IV Transfer of competence and accountability for the EU citizens

   I discuss the legal standing of individuals and NGOs from different perspectives. Member States have transferred their sovereign rights to the Union; therefore, the Union has the competence to legislate and conclude international agreements. Member States transferred their sovereign rights to the Union in the field of the environment under Article 192 of the TFEU. Consequently, the Union has shared competence in this field and exercises competence in compliance with the principle of subsidiarity. The EU has taken many measures related to climate change, including the emissions trading system and European Climate Law, and has concluded international agreements, including the Paris Agreement. As the Union has exercised its competence in the environmental field, Member States cannot do so to that extent (Article 2 (2) TFEU). Modern states are based on national sovereignty. This means that the sovereignty of each Member State is derived from its citizens, and the very constitutional authority is that of citizens. The EU institutions, including the CJEU, have accountability towards EU citizens, including individuals and NGOs, as far as they are transferred competence from the Member States and thus the EU citizens in the field of climate change issues. Individuals are subject to the Union’s legal order. Individuals have fundamental rights under the Charter. If their rights are violated by the measures of EU institutions, they should have the right to a legal remedy under Article 47 of the Charter and rely on it.   

V Concluding remarks   

The hurdle of the condition “individual concern” in Article 263 (4) TFEU seems almost impossible to be overcome. Similar to other researchers, I pointed out some possibilities and necessities to change Plaumann judgment in climate litigation. Legislators, judges, and individuals live on Earth, which is affected by global warming. Climate litigation is a tool used to raise alarms. Hence, this tool should be provided to both individuals and environmental NGOs, in particular which represent future generations.    

Prof. Yumiko Nakanishi is a professor of European Union law at the Graduate School of Law, Hitotsubashi University, Tokyo, Japan. She studied at Graduate School of Law, Hitotsubashi University (LLM in 1993), while enrolling in the University of Münster, Germany from 1993-1998 (Magister Legum in 1995 and Ph.D. in 1998). After serving as a lecturer, associate professor, and professor at the Faculty of Law, Senshu University, she was appointed to the current position in 2012. She is the organizer of the Hitotsubashi Association of European Union Law, and the editor-in-chief of the journal Review of European Law (Shinzansha). Her research interests span from the EU constitutional law, EU environmental law, to EU external relations law. Her main publications include Yumiko Nakanishi (ed.), Contemporary Issues in Environmental Law-The EU and Japan (Springer 2016); Contemporary Issues in Human Rights Law-Europe and Asia (Springer, 2018). Her most recent books are A Guide to EU Environmental Law (Horitsubunka, 2021), A Guide to the Court of Justice of the European Union (Shinzansha, 2022), and an Introduction to EU Fundamental Rights (Horitsubunkasha, 2024)