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glebzter/AdobeStock
21
janvier
2025

Towards a Fundamental Rights-Compliant European Green Deal

Climate change affects the daily lives of everyone in the EU and has significant environmental, economic, social and health impacts. To tackle this, the European Green Deal was adopted in 2019. This report examines the Green Deal from a fundamental rights perspective, with the aim of protecting the right to a safe, clean, healthy and sustainable environment for all. It highlights the lack of fundamental rights in EU climate policy and the need to incorporate these rights into future legislation. It also considers how applying a human-rights-based approach to climate policy could support a fair and inclusive transition.

Fundamental rights are an integral and foundational part of EU law, and the EU and Member States have obligations to respect, protect and fulfil them. For fundamental rights to be effectively addressed in the implementing legislation of the Green Deal, they must be explicitly and systematically reflected in each and every legal and policy measure and at all stages of policy design, implementation, enforcement, monitoring and evaluation. The following section includes examples of how fundamental rights compliance could be ensured, both in the implementation of existing legislation and in future policy files in the EU green transition. Further research is warranted on gaps and challenges, definitions and concepts, along with more detailed guidance on how to integrate fundamental rights systematically and effectively in the Green Deal going forward, strengthening EU legal and policy coherence to ensure a just transition.

The emergence of an international ‘human right to a safe, clean, healthy, and sustainable environment’ attests to the role and relevance of fundamental rights for a just transition in the EU. Most pertinently, the Charter can guide action in ensuring that ‘no one is left behind’ in the Green Deal.

The just transition to a sustainable future for all relies on a comprehensive fundamental rights analysis, of both structural and intersectional factors that threaten or present risks to the rights of certain individuals and groups, which are then exacerbated by climate change or under additional threat due to policies designed to address climate change. EU institutions should therefore systematically and comprehensively address fundamental rights in their impact assessments, explore whether policy actions taken pursuant to the Green Deal take full and appropriate account of the fundamental rights impacts they may entail, and work to ensure that all such actions comply with the rights and principles outlined in the Charter.

To develop a comprehensive understanding of the challenges faced by vulnerable groups and how climate adaption and mitigation policies and actions can result in unintended negative impacts that compound their exclusion or undermine their enjoyment of fundamental rights, detailed ex ante assessments of climate policies and actions would be necessary. An HRBA to the green transition requires the explicit integration of relevant fundamental rights standards in climate and environmental protection policy and legislative files, at both the EU and national levels. An assessment of fundamental rights compliance should be consistently and systematically undertaken within the impact assessments conducted in the EU and in Member States, in line with the ‘Better regulation: guidelines and toolbox’ and the strategy to strengthen the application of the Charter. Such fundamental rights impact assessments should be done before developing climate policy measures, to ensure that relevant and applicable legal obligations relevant to fundamental rights as underlined in the Charter are considered, thereby ensuring policy coherence and the respect, protection and fulfilment of legally protected rights. Such assessments should also consider and address any conflicts that may arise between different fundamental rights and between the rights and the imperative to protect the environment and mitigate climate change.

FRA activity - fundamental rights impact assessments in national lawmaking

In the context of the 25th anniversary of the Charter’s proclamation in 2025, FRA will assess whether and how the Charter is considered in impact assessments and legal scrutiny in the context of national lawmaking. FRA will collect promising practices and get insights on challenges, gaps within relevant services and policies measuring the impacts of legislation on human/fundamental rights. This will include issues such as human/fundamental rights impact assessments and legal scrutiny of legislative proposals at the national level, along with evaluations of impacts on human/fundamental rights of adopted legislation, especially by national governments and parliaments, or other bodies having such competences.

The foregoing is consistent with an HRBA to climate policy. Applying an HRBA in implementing the Green Deal and mainstreaming fundamental rights obligations in climate policy and related legislation and policy documents could support more inclusive and just outcomes that protect people in vulnerable situations and benefit all members of society. In practical terms, this can be achieved through undertaking HRIA and evaluations. Such assessments should also consider and address any conflicts that may arise between different fundamental rights and between fundamental rights and the public policy imperative to protect the environment and mitigate climate change. Including references to the Charter in all relevant EU secondary law, policy documents and strategies does not guarantee the full and effective application of the Charter, but it goes some way to reducing the risk of overlooking or downplaying relevant and applicable charter provisions, including in the national implementation of relevant EU law.

In addition, all strategic foresight exercises relating to the green transition and climate change policies can benefit from a fundamental rights perspective and from relevant guidance developed by FRA.

The integration of fundamental rights legal obligations and principles in the Green Deal measures is necessary to ensure that the transition to a sustainable economy is environmentally sustainable, socially just and complies with the Charter. The main EU instruments for a just transition, namely the Just Transition Mechanism and the SCF, do not systematically or comprehensively integrate human rights obligations enshrined in the Charter. Such explicit integration could help ensure that measures adopted under the Green Deal are consistent with the provisions of the Charter and protect Europe’s most vulnerable, marginalised and discriminated.

The EU’s commitment to upholding fundamental rights, as enshrined in the Charter, requires that in policy terms, these principles are systematically and comprehensively integrated into the operation of EU funds. This integration is a moral imperative and a legal obligation for EU institutions and Member States. The horizontal enabling conditions of the EU funds (Annex III), which concern the effective application and implementation of the Charter and the implementation and application of the CRPD, are critical in this regard. However, their effective enforcement, implementation and monitoring remain a challenge.

Moreover, certain thematic enabling conditions (Annex IV), particularly those applicable to the European Regional Development Fund, the European Social Fund Plus and the Cohesion Fund, such as the ‘National strategic policy framework for social inclusion and poverty reduction’ (4.4), ‘National Roma inclusion strategic policy framework’ (4.5) or the ‘Strategic policy framework for health and long-term care’ (4.6), could help ensure that the EU climate and environment acquis is implemented in compliance with fundamental rights.

For policy coherence and consistency, the enabling conditions set out in the common provisions regulating EU funds should be applicable to all funds, including the NextGenerationEU Fund and the SCF. By integrating fundamental rights in the design, implementation and monitoring of all EU funds implementing the Green Deal, the EU can ensure that its climate and environmental goals are achieved in a way that promotes social justice, equality and human dignity.

There is currently no comprehensive monitoring framework to evaluate the impact of environmental factors or policies on fundamental rights, which could be applied to assess the just transition. The Parliament study Policy instruments to tackle social inequalities related to climate change proposes further steps in the design of relevant policies and the use of EU funds to assess the impact of the green transition more clearly, and to address the social impacts of current climate policies on fundamental rights, including equality.

It is necessary to establish mechanisms to systematically assess, monitor and evaluate the impact of green policies on human rights, including the right to health, work and a clean environment. This includes investing in and building relevant capacities for data collection, indicator development and monitoring bodies, both at the EU and Member State levels. Most of the existing monitoring frames and indicators link only implicitly to particular fundamental rights, by referencing SDG indicators or, more generally, to the Charter. The development of a holistic and systematic monitoring of the just transition linking explicitly to the embedded fundamental rights is needed.

The collection of data on climate change impacts and the effectiveness of climate policies is essential for ensuring that climate justice is achieved. However, these data must be collected in a way that explicitly considers fundamental rights and respects the right to privacy and data protection rights. Data collection should follow the principles of transparency and accessibility to the public.

There is a need to develop specific human rights indicators  to assess the effectiveness of green policies in upholding human rights standards and enabling evidence-based decision-making. It is crucial to engage with civil society organisations and human rights defenders to gather qualitative data on the ground, capturing the lived experiences of communities affected by green transitions. The role of equality bodies and national human rights institutions could be strengthened in this regard, in particular by providing sufficient resources and building the necessary capacity, as outlined in several FRA reports.

FRA, in close cooperation with the Commission and the Member States, has already developed human-rights-based monitoring indicators and provides guidance in different areas and EU strategies, such as  Roma people and Travellers, anti-racism, disability and rights of the child. The data to populate these indicators are collected in dedicated surveys by FRA, as large-scale data collection across the general population typically does not cover certain groups. The derived indicators are valuable tools for assessing the impact of EU policies on fundamental rights and could be adapted to monitor the implementation of the Green Deal.

Human rights frameworks have evolved significantly to emphasise participation and enforcement, including in regard to environmental issues. The UN Human Rights Council has repeatedly affirmed the importance of public participation in climate action. The Paris Agreement and other climate frameworks now explicitly recognise the importance of public participation and human rights in climate action, demonstrating the increased integration of rights-based approaches in climate governance.

All stakeholders, including civil society organisations and marginalised communities, should be involved in decision-making processes related to climate policies, to ensure effective participation of affected groups and individuals and that the views of those most affected are fully integrated, thereby helping uphold accountability, transparency and respect for human rights.

Climate assemblies are increasingly relied upon to guide government climate policy decisions and have the potential to influence and shape the work of governments and parliaments. National Climate Assemblies are events that bring together people from different backgrounds to discuss and deliberate on climate issues. These assemblies, which are held at the national, regional and local levels, aim to involve the public in addressing climate change. They provide a platform for citizens to contribute to the development of climate policies and the transition to a more sustainable future.

For example, Ireland held its first Children and Young People’s Assembly on Biodiversity Loss in October 2022. The assembly acknowledged that biodiversity loss affects children’s rights to a healthy and safe environment, so it is important for children and young people to be involved in decision-making; it yielded 58 calls to action across seven themes, including waste reduction, habitat protection and raising awareness.

Citizens, collectively as well as individually, should have access to complaints mechanisms and effective remedies to address delays and gaps in the implementation of legislation and to hold governments accountable for their obligations to implement a swift and fair green transition in compliance with fundamental rights obligations.

Similarly, in the private sector domain, the 2024 CSDDD requires companies to implement due diligence obligations, including establishing accountability and redress mechanisms, thereby enhancing access to justice for victims of human rights abuses.

Access to justice plays a crucial role in climate and environmental matters, by allowing individuals and civil society to bring claims to enforce their fundamental rights in the context of climate change, and ensuring accountability, particularly in addressing the collective impacts of climate change. The Parliament report Can Nature Get It Right? A study on rights of nature in the European context emphasised empowering civil society to ensure effective implementation of environmental law and aligning with Green Deal goals by promoting broader access to justice.

The role of strategic litigation should also be acknowledged. By selecting cases that aim to effect systemic change and set important precedents and protection standards, climate lawsuits can help embed an HRBA into climate mitigation and adaptation policies, advance climate action and hold governments and corporations accountable. Strategic litigation facilitates effective access to justice in climate change and can drive policy changes in this area.

In landmark cases across the EU, such as Neubauer v. Germany or Urgenda v. State of the Netherlands, domestic courts have clarified the human rights obligations of states linked to climate policies. The ECtHR, in three landmark rulings delivered on 9 April 2024, affirmed for the first time that the adverse impacts of climate change fall within the scope of human rights protection under the convention, obliging states to implement effective mitigation measures, and outlining criteria that climate policies should meet to comply with positive obligation of states to safeguard the right to private and family life (Article 8 of the ECHR).

Legal corner - Dutch and German climate cases with a significant impact on climate change policies and litigation

Urgenda Foundation v. State of the Netherlands: this landmark case was brought by the Urgenda Foundation and 900 Dutch citizens against the Dutch government. In 2019, the Supreme Court of the Netherlands ordered the government to reduce greenhouse gas emissions by at least 25 % below 1990 levels by the end of 2020, finding that the government had a duty of care to protect citizens’ rights under the ECHR.

Neubauer et al. v. Germany: in 2021, the German Constitutional Court ruled that the government’s climate protection law was insufficient and violated the constitutional rights of young people, ordering the government to set more ambitious emissions reduction targets.

Sources: Urgenda v. State of the Netherlands; Neubauer v. Germany.

Strategic litigation is therefore increasingly used as a tool to inform the development and implementation of just transition policies in a fundamental-rights-compliant manner. This is reflected in the growing number of environmental lawsuits filed globally, from around 800 between 1986–2014 to 1 200 in the subsequent 8 years until mid-2022. Such litigation can be expected to grow in the future, potentially informing the implementation of future just transition in practice, in Member States and beyond.

At the same time, these climate litigation trends point to a broad-based failure of States to act and to human rights violations emanating from states’ omissions; they therefore signal the need for more effective and comprehensive legal and policy measures, including legislation at the national level. Litigation by itself is not a cure-all and cannot replace policy measures, which, as confirmed by the ECtHR, fall under positive obligations of states.

Moreover, strategic litigation is no substitute for legislative or policy action, but can serve as a valuable and effective complement to them. In particular, it can help identify gaps in fundamental rights protection in the green transition and facilitate the implementation of specific state measures. Successful lawsuits have prompted legislators around the world to act on climate change, making them a key social driver supporting decarbonisation measures. Additionally, litigation can foster and invigorate coalitions among civil society, institutional actors and other stakeholders.

Nevertheless, significant limitations exist in terms of legal standing (locus standi) before certain courts, which can impact the ability of parties to bring cases forward. In Verein KlimaSeniorinnen Schweiz and Others v.  Switzerland, the ECtHR clarified the locus standi of individuals and associations under Article 34 of the ECHR in the context of complaints concerning harm or risk of harm resulting from alleged failures by the State to combat climate change. The Court of Justice of the European Union, for its part, has maintained a strict interpretation of the standing criteria for private parties to bring direct actions under Article 263 of the TFEU, requiring applicants to show they are individually concerned by an EU act. As a result, a Parliament comparative study on legal standing argues that the preliminary reference procedure does not adequately compensate for the lack of direct access of individuals to the Court, which further underscores the importance of strategic litigation.

In conclusion, while strategic litigation and access to justice are important tools in addressing climate change, they must be complemented by robust legislative and policy measures and effective implementation of court decisions to effect meaningful change.