Possibilities and Approaches of European Court of Human Rights and Court of Justice of the European Union in Fundamental Rights Protection in the Context of Environmental Litigation

• Author: Tímea Lazorčáková
• Position: University of Trnava
• Pages: 73-94

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

POSSIBILITIES AND APPROACHES OF THE EUROPEAN

COURT OF HUMAN RIGHTS AND COURT OF JUSTICE OF

THE EUROPEAN UNION IN FUNDAMENTAL RIGHTS

PROTECTION IN THE CONTEXT OF ENVIRONMENTAL

LITIGATION / Tímea Lazorčáková

JUDr. Tímea Lazorčáková, PhD.

Chief State Advisor

Government Office of the Slovak

Republic

Lecturer

Trnava University, Faculty of Law

Hornopotočná 23

918 43 Trnava

Slovak Republic

timea.lazorcakova@gmail.com

ORCID: 0009-0002-2736-8756

The paper presents a partial output

within the research project APVV-20-

0576 entitled “Green Ambitions for

Sustainable Development (European

Green Deal in the Context of

International and National Law)”

Abstract:

Two judicial bodies, but both without right to protect the

environment established. This is also how the coexistence of the

two important judicial bodies located in the European area could

be briefly characterized. The European Court of Human Rights

and the Court of Justice of the European Union were created for

different purposes, but their jurisprudence in the area of

environmental protection and the protection of people's lives and

health from the negative consequences of climate change

overlap more than it might seem at first sight. We find certain

similarities in terms of ensuring a certain degree of protection of

fundamental rights in the context of the environment. The

European Court of Human Rights has a priority in terms of the

protection of fundamental rights in Europe, but in the field of the

environment it faces several problems. Especially when we are

talking about the protection of rights for future generations,

where there is no direct victim or direct violation of fundamental

rights, only a very high risk of their violation. On the other hand,

the Court of Justice of the European Union has a much greater

assumption of effectiveness, which has the potential to change

the legislation of the member states and thereby indirectly ensure

the protection of people's lives and health. Recently, the activity

of the European Commission has been increasing in the interest

of achieving climate neutrality, and this also means greater

pressure on the states in the interest of the complete and correct

transposition of European regulations in the field of the

environment. In case of deficiencies, the European Commission

can intervene by filing a lawsuit according to Article 258 of the

TFEU, and achieve the required remedy. Although, such a

procedure is not primarily aimed at the protection of fundamental

rights, the positive impact on their protection cannot be

neglected.

Submitted:

07 June 2023

Accepted:

28 September 2023

Published:

29 December 2023

Key words: European Court of Human Rights; Court of Justice of

the European Union; Standards of the Environmental Protection;

Environmental Litigation for Future Generations

Suggested citation:

Lazorčáková, T. (2023). Possibilities and Approaches of European

Court of Human Rights and Court of Justice of the European Union

in Fundamental Rights Protection in the Context of Environmental

Litigation. Bratislava Law Review, 7(2), 73-94.

https://doi.org/10.46282/blr.2023.7.2.391

74

T. LAZORČÁKOVÁ

BRATISLAVA LAW REVIEW

Vol. 7 No 2 (2023)

1. INTRODUCTION

In the European area, there are two judicial institutions with a strong influe nce, a

strong basis of functioning and a relatively extensive decision-making activity. In a

relatively small space, two significant bodies for the protection of legality, European

standards and human rights coexist, which are the European Court of Human Rights

(hereinafter „ECHR“) and the Court of Justice of the European Union (hereinafter „CJEU“).

These two judicial bodies have a different basis of functioning, they were created within

two different organisations and with a relatively different focus of decision-making

activity. Nevertheless, they can overlap in some areas.

These two judicial bodies work side by side and respect each other's positions.

For stability and a high level of protection and enforceability of rights in Europe, it is

important that their decision-making activities do not contradict each other, but they

must mutually understand the peculiarities that their legal bases bring. At the same time,

it is very important that they do not question their decision-making activity.

The ECHR cannot interpret the law of the European Union in the proceedings,

even if the complainant invoked it. Although the ECHR can also use legally binding acts

of the European Union, it does not approach their interpretation as such. Only the CJEU

is responsible for the interpretation of treaties and acts of institutions or bodies of the

European Union. Other judicial authorities, including the ECHR, would not have to perceive

all the significance and nature that characterise the law of the European Union.

On the other hand, the CJEU takes into account the European Convention on

Human Rights as a minimum standard for the protection of fundamental rights. Charter

of Fundamental Rights of the European Union binding the meaning and scope of the

rights guaranteed by the Convention for the Protection of Human R ights and

Fundamental Freedoms shall be the same. T his provision shall not prevent Union law

providing more extensive protection.1

It is therefore obvious that these judicial bodies function differently, but they

respect each other. Their decision-making power should be the same, but practice shows

that the effectiveness and enforceability of their decisions is different.

The research issue answered in this paper is the following: Which judicial

authority in Europe represents a more appropriate and effective tool for the protection of

fundamental rights in the context of the environment? This question can be answered by

evaluating the approaches and possibilities of th e CJEU and the ECHR in proceedings

related to the environment and fun damental rights. The aim of the article is to gradually

examine the existing jurisprudence and proceedings initiated in recent years at the CJEU

and the ECHR and, based on them, reach conclusions on the limits and possibilities of

effective protection of fundamental rights. A significant part of the article is the third

chapter, which contains an overview of the jurisprudence of the CJEU and the ECHR from

recent years in climate cases. The aim of this part is to define the approach of both

judicial bodies to clima te cases, how they deal with the fact that international legal

documents aimed at the protection of fundamental rights do not include the right to

protect the environment, and how such climate cases become the subject of

proceedings. Examining these cases leads to an analysis of the approach of both judicial

bodies to the possible resolution on climate cases. In the cases of the ECHR, it is

particularly important to focus on the protection of the environment for the future and

therefore to point out to the new climate cases that have been initiated at the court and

are aimed at protecting the life and health of future generations. In the cases of the CJEU,

1 Article 52 point 2 of Charter of Fundamental Rights of the European Union.