Wolfgang Kahl, Marie-Christin Stürmlinger

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 19 (2021), Issue 2, Page 173 - 185

Using the example of climate protection law, the paper deals with the process of Europeanization through legal comparison and through the effects of national legal systems among themselves and at the Union level (Europeanization “bottom up”). For this purpose, it examines the phenomenon of "expertification", which – together with participation and juridification (climate change litigation) – is currently the most important development trend in this policy area. To support the “expertification”-thesis, the paper analyzes the competencies, normative anchoring and democratic legitimacy of the German “Expert Council on Climate Issues” compared to its counterparts in the UK and at EU level. Based on this, reform proposals for the currently underpowered German expert council are made.

Marie-Christin Stürmlinger

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 18 (2020), Issue 2, Page 169 - 185

In December 2019, the highest civil court in the Netherlands sentenced the Dutch state to reduce the country's greenhouse gas emissions by 25 % by the end of 2020 compared to the reference year 1990. This obligation arose from the duty to protect in Art. 2 and Art. 8 ECHR, which, based on the broad international consensus and the state of climate science, oblige the Netherlands to comply with this standard. In Germany, such an action will be dealt with at the Administrative or Constitutional Court, although the legal standing is problematic. Unlike in the Netherlands, the ECHR is not directly applicable. However, its evaluations must be taken into account when interpreting the fundamental rights of the Constitution. The state's duty to protect is part of the fundamental rights of the German Constitution. However, the state has a wide margin of appreciation in the fulfilment of its duties to protect. Thus, the courts can only examine whether the existing regulations for the protection of the endangered fundamental rights are completely unsuitable or completely inadequate.

Esther Shari Kosa

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 18 (2020), Issue 1, Page 17 - 25

Non-state actors such as NGOs, private enterprises or cities have been participating in climate action for a long time without having any written rights or obligations. The Paris Agreement from December 2015 was a first important step for including non-state actors in an official way as it leaves it up to each individual state to determine national contributions (NDCs) and thereby creates the opportunity for non-state actors to engage in stronger participation. The wide range of activities such as their involvement in the Climate Change Conferences, private standard setting, surveillance of the implementation of the NDCs or suing governments for the violation of environmental regulations show the increasing importance of their cooperation in this field. However, due to a lack of formal rights their options of making a sufficient impact on climate change are still limited. This provides an opportunity to reevaluate the system of international law and adjust it to the transnationality of climate change particularly in the way of giving non-state actors certain formal rights.

Erika Wagner

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 17 (2019), Issue 2, Page 185 - 193

The following article demonstrates the need to establish collective actions in Austrian civil procedure law in connection with so-called climate claims. Collective actions of non-governmental organisations (NGOs), which devote themselves to the protection of the environment, have so far not been enforced on a legal level in Austria. In order to bring an action concerning international climate litigation, the introduction of a Climate Liability Directive at EU level, which contains the corresponding collective claim rights, is required. To ensure the effective legal protection of individual interests, it is necessary in light of the procedural safeguards of Art. 6, Art. 13 ECHR and Art. 47 CFREU to establish an additional legal procedure. Too big are the hurdles, if the individual has to bring climate action against corporations to protect his or her legal interests. In the absence of truly realistic options, it would be necessary to supplement the constitutional standard of individual legal protection with collective models of legal action. The new proposal of the EU for a directive on representative actions for the protection of the collective interests of consumers confirms the trend towards collective redress, but only concerns consumer protection law. The proposal contains many aspects that would also be a suitable basis for climate liability cases. In order to open the scope of application of the EU Directive for the area of climate protection law, it would be urgently necessary to extend the appendix to climate-relevant legal acts of the EU law, such as the certificate trading Directive etc. Climate protection law would then become relevant for private-law suits.

Thomas Groß

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 17 (2019), Issue 3, Page 353 - 363

The scientific evidence on climate change is overwhelming, but the measures on the national, European and global level to reduce emissions are insufficient. Therefore in many countries courts are approached in order to enforce the duties of governments to take action. The article gives an overview on case law in Europe and discusses some of the legal problems concerning positive obligations derived from human rights.

Claudio Franzius

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 15 (2017), Issue 2, Page 166 - 175

The Paris agreement on climate protection, adopted in December 2015, was politically celebrated as a milestone of international climate policy. However, in the German speaking jurisprudential literature it found comparably little attention. In contrast to the Anglo-American literature restrained approval dominated. Is it possible, that only German environmental activists are capable to assess the gravity of the situation? Nearer lies the assumption that the conceptual transition of the perspective of international law is not taken into consideration properly.