Climate change litigation and the rule of law in the European Union

Rule of law is a complex concept, with a manifold meaning that is highly dependent on the specific context in which it is applied. Yet, in all systems one of its essential components is an effective system of fundamental rights that are protected by inde-pendent and impartial courts. In this framework, climate change lit-igation is an important test for the impact and evolution of the rule of law. It is a recent but highly significant phenomenon, through which individuals, groups and associations use litigation in order to force a change in the way in which climate change is addressed (‘regulation through litigation’). This trend (which exists also in other areas of environmental protection), is developing on a global scale, but has specific features that depend on the characteristics (institutions, principles and rules) of the legal system where the ju-dicial action is brought and handled. This is true also for the EU, which is a multi-level system, with an integrated system of judicial protection, comprising both the European Court of Justice and na-tional courts. The analysis of a recent leading case, Carvalho (de-cided in 2019 by the General court and on appeal by the Court of justice in 2021), shows that the limits for judicial review of the va-lidity of EU acts by individuals are very narrow, due to both the way in which the rules (art. 263(4) TFEU) are formulated and the interpretation that the courts have given to them. The conservative position of case law stands in stark contrast with the active and progressive character of EU legislation on environmental protec-tion, and also with the gradual emergence of case law protecting fundamental rights related to the environment in various national legal systems.