Declic et al. v. The Romanian Government

On January 31, 2023, the NGO Declic and a group of individuals issued an application for judicial review before the Cluj Court of Appeal against the Romanian Government, the Ministry of Energy, the Ministry of Environment, Water and Forests, seeking that the court order the authorities to take all necessary measures to reduce greenhouse gas emissions (hereinafter GHG) by 55% by 2030 compared to 1990 levels and to achieve climate neutrality by 2050. They also demand that the Court order the Romanian Government et al. to take adequate measures to increase the share of renewable energy in final energy consumption to 45% and to increase energy efficiency by 13% by 2030. Last but not least, they requested the court to order the Romanian authorities to implement concrete and coherent climate change mitigation and adaptation plans, including annual carbon budgets, within a maximum of 30 days from the final judgment, in order to meet the objectives of the Paris Agreement. In a nutshell, there were three big questions needed to be answered by the Court: 1. Whether national authorities are in breach of their legal obligations by applying GHG emission reduction targets for 2030 that are significantly lower than the target agreed at EU level for 2030. 2. Whether, according to objective standards, the measures taken by central authorities are sufficient, proportionate and will result in limiting global warming to 1.5-2 degrees Celsius? 3. Are the measures taken by the defendants compatible with the rights and freedoms guaranteed by the Romanian Constitution, the EU Charter of Fundamental Rights and the ECHR (right to a future in accordance with human dignity, right to health and an ecologically balanced environment, right to life and privacy)? The defendants objected that the co-plaintiffs lacked standing and sufficient interest to bring the case to the court. They also argued that such an action, if granted, would violate the principle of the separation of powers. The Ministry of Environment, Water and Forestry had also raised the objection of passive standing in respect of the 2nd head of the claim- to take adequate measures to increase the share of renewable energy in final energy consumption to 45% and to increase energy efficiency by 13% by 2030. The legal reasoning of the Court of First Instance The trial judge rejected the objection of lack of locus standi and the objection of the lack of interest on the part of the applicants, essentially by holding that the present case concerned an unjustified refusal to deal with an application which had implications in terms of the right to life and to a healthy environment, so that Article 1 of the Administrative Litigation Act No. 554/2004 ought to be applied. In determining the objections raised by the defendants, the Court duly took into account Article 95, Article 20 (6), Article 3, and Article 5 of GEO No. 195/2005- Law on Environmental Protection, in conjunction with Article 3 of Declic’s Articles of Association. The Court of First Instance dismissed the objection of passive standing in relation to the 2nd head of claim on the ground that a shared/interdependent power is established between the Ministry of the Environment, Water and Forestry and the Ministry of Energy with a view to ensuring an increase in the share of renewables in the final energy consumption and an increase in energy efficiency. Moreover, the trial judge noted that the question of the existence or non-existence of the rights and obligations asserted in relation to certain specific measures necessary to achieve the quotas set out in the application is a matter of substance, not of standing. At the same time, the trial judge expressed neatly that in the case of a complex action which comprises several heads of claim which interfere with each other, the existence of the defendants' passive standing must be analysed in relation to the whole of the action, and not in relation to each head of claim, in a piecemeal manner, as such an analysis would be hollow and devoid of legal finality. However, when considering the merits of the case, the Court of First Instance dismissed the co-pliantiffs’ application, for the following key reasons:  Granting the application: when the operative part of the judgment does not because it cannot, identify what measures are necessary and the concrete and coherent plans to achieve the climate objectives, would result in the delivery of a judgment which is unenforceable and which would constitute a violation of Article 6 of the European Convention on Human Rights, with reference to the case law of the European Court of Human Rights, which has held that the right to apply to a court would be illusory if the domestic legal order of a Contracting State allowed a final and binding judgment to be ineffective to the detriment of a party (Imobiliara Saffi v Italy - 1999, paragraph 63; Dorneanu v Romania - 2007, paragraph 32).  By granting a judgment allowing the claimants' action, without indicating any criteria on the basis of which the claim contained in the enforceable title becomes certain (the claimants leaving the defendants free to decide on the measures to be taken, even though the premise of the present dispute is, from their point of view, precisely the inadequacy of the measures taken), the judgment debtors are left free to refuse or to determine the scope and application of the enforceable title themselves. The plaintiffs appealed against the judgment. They also submitted a memorandum to the Romanian Supreme Court, requesting it to ask the European Court of Human Rights for an advisory opinion under the 16th Protocol to the ECHR on the following points: (1) Does the decision of the court of first instance dismissing the action for failure to identify a specific measure to which the defendants are to be obliged infringe the doctrine of the margin of appreciation enshrined in the case-law of the ECtHR? (2) The question to be answered by the ECtHR is whether, having regard to the individual circumstances of the present case, the national court can be considered to have taken a decision on the merits of the case concerning the rights alleged to have been infringed, within the meaning of Article 13 ECHR and as consolidated in ECtHR case-law? (3) Whether the refusal to hear the case on the ground that the collective effort to combat climate change entails the jurisdiction of a supranational jurisdiction violates the procedural rights under Articles 6 and 13 ECHR? (4) Whether the removal of soft-law interpretation tools from the case, without giving reasons constitutes a violation of Articles 6 and 13 ECHR? (5) Whether the violation of the rights of access to a court and to an effective remedy amounts to a violation of Articles 2 and 8 ECHR, as well as the constitutional right to a healthy and ecologically balanced environment?