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21
January
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.

An HRBA to the Green Deal is grounded in international human rights treaties (to which all EU Member States are party) and is consistent with the EU’s horizontal obligations to respect and promote fundamental rights, as laid down in Article 6 of the TEU and Article 51 of the Charter of Fundamental Rights of the European Union. Horizontal rights and principles on equality and equal opportunities, social protection and inclusion, health, non-discrimination, environment and consumer protection are set out in Articles 8, 9, 10, 11 and 12 of the Treaty on the Functioning of the European Union (TFEU, see also Section 2.1) and the Charter. An HRBA aims to strengthen capacities of ‘duty-bearers’ to meet their obligations and ‘rightsholders’ to claim these rights, and is applicable to a range of policy areas.

Definition - a human-rights-based approach

‘A human rights-based approach (HRBA) is a conceptual framework that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyse obligations, inequalities and vulnerabilities and to redress discriminatory practices and unjust distributions of power that impede progress and undercut human rights. Under a human rights-based approach, plans, policies and programmes are anchored in a system of rights and corresponding obligations established by international law.

[…]

In practical terms, a human rights-based approach can be used to guide policies and measures of climate change mitigation and adaptation. It can inform assessments, and strengthen processes, ensuring access to essential information, effective participation, and the provision of access to justice (remedies).’

Source: United Nations, Office of the High Commissioner for Human Rights, n.d., Applying a human rights-based approach in climate change negotiations, policies and measures’.

The EU’s commitment to sustainable development and human rights is reflected in various policies and frameworks, including its commitment to advance the 2030 Agenda for Sustainable Development and the SDGs. 

‘The EU’s goal of accelerating its twin green and digital transitions, as well as implementing the SDGs through its recovery from the COVID-19 crisis, is reflected across this EUVR (EU Voluntary review). The EU is fully committed to becoming greener, more digital, more socially just, more inclusive and more resilient. The EU is fully committed to a human rights-based approach in the implementation of the 2030 Agenda.’

EU voluntary review on the implementation of the 2030 Agenda for Sustainable Development (p. 27)

All projects supported by the EU’s regional and structural policy programme must be implemented consistently with the programme’s horizontal principles. These include fundamental rights and principles enshrined in the Charter and the United Nations Convention on the Rights of Persons with Disabilities (CRPD), and the principles of gender equality and non-discrimination.

The EU has called for a fair transition to a climate-neutral economy and established the Just Transition Mechanism as a key initiative to address the social and economic effects of the green transition and to make sure that no one is left behind.

Definition - just transition and just resilience

The terms ‘just transition’ and ‘just resilience’ have been used in different contexts and there is no agreed underlying definition or concept. The concept of just transition emerged in response to job losses in the face of environmental protection policies. It is reflected both in the Paris Agreement – which is since 2015 the legally binding international treaty on climate change – and in Guidelines for a just transition towards environmentally sustainable economies and societies for all, issued by the International Labour Organization in the same year. It describes just transition as a process ‘towards an environmentally sustainable economy which needs to be well managed and contribute to the goals of decent work for all, social inclusion and the eradication of poverty.’ A just transition is a process of greening the economy in a way that is as fair and inclusive as possible to everyone concerned, creating decent work opportunities and leaving no one behind.

  • Explicit grounding in human rights. An HRBA to the Green Deal would require the EU and its Member States to apply human rights obligations and principles at all stages of the development, implementation, monitoring and evaluation of climate policies. These are obligations and principles derived from the EU treaties and instruments – including the Charter, the European Pillar of Social Rights (EPSR) and international treaties such as the European Convention on Human Rights (ECHR), the Paris Agreement and the Aarhus Convention (UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) – in the development and implementation of legislation and policies designed to adapt to and mitigate climate change. Article 37 of the Charter, which addresses the principle of environmental protection, provides a key legal connection between environmental protection and human rights standards.
  • Attention to people in situations of vulnerability. An HRBA calls for particular attention to be paid to the impacts of climate change and environmental degradation on people in vulnerable situations, such as those living in poverty or facing discrimination. At the same time, the commitment to leave no one behind is central to the SDGs and the Green Deal.

Definition - to leave no one behind

‘Leave no one behind’ is one of the six guiding principles of the 2030 Agenda for Sustainable Development and its SDGs; it is also a principle undergirding the Green Deal. It aims to address the causes and consequences of poverty and inequality and represents the unequivocal commitment of all UN Member States to eradicate poverty in all its forms, end discrimination and exclusion and reduce inequalities and vulnerabilities, including to the impacts of climate change and environmental degradation.

  • Non-discrimination. This is a foundational principle of EU law which is also applicable in the context of climate change policies. Article 21 of the Charter prohibits discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. In this regard, intersectional aspects and underlying structures of discrimination must be considered by both the EU and its Member States. Approaching climate change from the perspective of fundamental rights requires ensuring equal protection of rights, including for those in vulnerable situations or at risk of discrimination, whether in respect of the impacts of climate change itself or in regard to measures designed to address climate change.
  • Participation. Ensuring participation, especially for individuals and groups who are typically excluded, is a key operational principle of an HRBA. Participation in public, political and cultural life is a fundamental human right recognised in a number of international human rights treaties and instruments, including the Universal Declaration of Human Rights, which provides for the right to participate in government and free elections, the right to participate in the cultural life of the community, the right to peaceful assembly and association and the right to join trade unions.

Participation enables the advancement of all human rights. It plays a crucial role in the promotion of democracy, the rule of law, social inclusion and economic development.

UN, Office of the High Commissioner for Human Rights, Guidelines for States on the effective implementation of the right to participate in public affairs

In the context of climate policies, this means that citizens and local communities must be empowered to participate actively in the design and implementation of policies and initiatives aimed at implementing the Green Deal. The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, to which all Member States and the EU are party, emphasises the importance of meaningful participation of the local community and the public in environmental decision-making, including access to environmental information held by public authorities.

  • Accountability in the context of the Green Deal requires that states and other entities comply with their human rights obligations and responsibilities and are held accountable for their actions or omissions in respect of climate policy. In assessing climate impacts and designing climate mitigation and adaption policies, states’ actions must be consistent with legal obligations enshrined in human rights instruments such as the ECHR, related case-law by the European Court of Human Rights (ECtHR), the Charter of Fundamental Rights of the European Union, as well as the European Social Charter (ESC) and core UN human rights treaties, including the CRPD and the UN Convention on the Rights of the Child. Accountability relies on a robust legal and regulatory framework that protects rights and provides effective redress mechanisms. The right to an effective remedy and to a fair trial is enshrined in the Charter (Article 47).
  • Upholding the foregoing principles of an HRBA requires monitoring compliance with fundamental rights and gathering data on the impact of climate policy actions and climate change on the enjoyment of legally protected rights. This includes identifying impacts of the EU’s green transition on fundamental rights, mapping key legal and policy provisions to ensure a just transition and identifying fundamental rights risks for those already in vulnerable situations or at risk of discrimination. Addressing social inequalities in the green transition and the disparate impacts of climate policy on the rights of certain groups relies on effective monitoring and data collection. Human rights indicators are a key means to measure the fulfilment of human rights obligations and progress towards the targets set by Member States. The UN Office of the High Commissioner for Human Rights has developed a framework of indicators which has been applied by governments, human rights institutions and FRA in several of its reports (see for example: Implementing the UN Convention on the Rights of Persons with Disabilities: Human rights indicators, Monitoring framework for an EU Roma Strategic Framework for Equality, Inclusion and Participation: Objectives and indicators).
  • An HRBA emphasises sustainable production and consumption to be implemented through human rights due diligence, as outlined in the UN’s Guiding Principles on Business and Human Rights. Through its adoption of the corporate sustainability due diligence directive (CSDDD) in May 2024, the EU has incorporated these principles into binding EU law.

In 2021, the EU adopted the strategy to strengthen the application of the Charter. It aims to integrate human rights in all legislation and policy files, both at the national and the EU levels. It is contended that this strategy embodies the EU’s own version of a commitment to an HRBA, a contention that is explored in more operational terms in the following sections.

Legal corner - fundamental rights impact assessment

The updated 2021 strategy to strengthen the application of the Charter of Fundamental Rights in the EU underscores the requirement to apply the Charter in impact assessments and invites Member States more explicitly to ‘use impact assessments and legislative scrutiny procedures to ensure that initiatives implementing EU law comply with the Charter and develop guidance and training for national and local administrations.’

In 2019 the Commission took stock of its better regulation policy and developed guidelines (2021) and a toolbox (2023). In accordance with the better regulation guidelines and toolbox, an impact assessment is required for the preparation of a legislative or policy proposal, which is ‘likely to have significant economic, environmental or social impacts or which entail significant spending, and where the Commission has a choice of policy options.’

The guidelines and toolbox cover the entire policy cycle and include guidance on how the Commission should consider fundamental rights and equality obligations in impact assessments.

Tool #29 of the toolbox underscores that questions on fundamental rights should be addressed during the early preparatory stage of any envisaged initiative, i.e. from the planning stage or at the latest when drafting the ‘call for evidence’. Stakeholder consultations and studies should include – wherever possible – collection of data on any potential impacts on fundamental rights. According to the tool, all identified policy options should be screened against the fundamental rights checklist. In addition, the promotion of equality is addressed in a specific checklist.

Going forward – and in the implementation of the Green Deal – the EU should mandate the systematic use of fundamental rights impact assessments and ensure compliance with the Charter as an integral part of the development of future climate and environmental legislation and policies. Although impact assessments are carried out on a case-by-case basis in the context of the scrutiny and validation of EU legal or policy initiatives, a fundamental rights impact assessment should be carried out systematically by the EU institutions and the Member States in all contexts, and as required by the Charter strategy.

FRA activity - foresight on fundamental rights and environmental protection

The Commission uses strategic foresight to ‘anticipate trends, risks, emerging issues, and their potential implications and opportunities in order to draw useful insights for strategic planning, policymaking and preparedness.’

The Commission communication on better regulation (COM/2021/219) integrates strategic foresight into EU policymaking, as indicated in the ‘Better regulation toolbox’: ‘The EU must make sure that it develops policies that are robust and future-proof, and that policymakers and institutions are prepared to anticipate changes to proactively shape the future according to the EU’s political priorities.’ It is important that any strategic foresight exercise takes account of the EU’s horizontal obligations to respect and promote fundamental rights (as laid down in Article 6 of the TEU and Article 51 of the Charter).

In November 2023, the FRA hosted a foresight workshop on the intersection between fundamental rights and environmental protection. A wide range of experts, including representatives of EU institutions, Member States authorities, civil society organisations and independent experts, explored trends and developments in climate change and environmental protection, and reflected on how these could impact on the future of fundamental rights in the EU to 2040 – both positively and negatively.

The workshop concluded that future developments in climate change and environmental degradation were likely to put further pressure on fundamental rights in the EU and its Member States, with certain population groups already in vulnerable situations expected to suffer the most severe consequences. It highlighted that without solutions to mitigate climate change and environmental degradation, prices for basic goods and services will increase as resource scarcity and food insecurity grow. Climate pressures might also lead to larger migratory flows, both within the EU and from other world regions. While prompting the need for integration measures, the arrival of migrants and refugees could help reduce labour market and skills shortages and increase societal diversity.

The green transformation of infrastructure, industry and society to achieve a ‘net zero’ carbon Europe will require significant financial investment. This will increase competition for limited budgets between the support of industry transformation and the funding of just transition measures.

Digitalisation will continue to be a key enabler for unlocking the benefits of a circular economy: material passports, large-scale environmental monitoring, harvesting of energy efficiency gains and the promotion of sustainable consumption decisions all depend on digital technologies.