Several NGOs are considering filing an application to the administrative court of Paris in 2019. However, French law may be more rigid than Anglo-Saxon law, which has already convicted several other states on this matter. EURACTIV France reports.
Pakistan, Colombia and the Netherlands have already been convicted in court for their failure to take action in combating climate change. France could run the same risk.
Four French NGOs – Greenpeace, France Nature Environnement (FNE), Oxfam and Notre affaire à tous [‘Our common issue’] – took a gamble by initiating a long process intended to challenge the French climate policy.
The specifics of the French justice system make the case a difficult one. In France, the administrative court is competent in this area. To date, successful applications have taken the more direct routes of Anglo-Saxon law, where proceedings can be taken to a court of common law.
“In Anglo-Saxon countries, there is the notion of ‘common law’: the law is built by case law, which facilitates applications,” acknowledged Marie Toussaint, head of Notre affaire à tous and candidate on the list of Europe Ecology – The Greens for the European elections.
In civil law, it must be shown that the action of the state is detrimental, based on which the administrative judge can initiate proceedings after a request has been filed.
The NGOs have therefore started by filing a preliminary application for compensation with all of the ministries concerned, as well as with the French prime minister.
They believe that if there is no response after two months, an application could be filed with the administrative court of Paris.
“This approach may appear to contradict our advocacy work,” recognised Cécile Duflot, director general of Oxfam France. “But the lack of action by governments since COP21 forces us to use the courts,” said the former French environment minister.
In the preliminary application, the NGOs refer to the French state’s shortcoming in protecting the environment and human health. However, they do not provide a figure for possible compensation.
This is a situation which raises questions for Arnaud Grossement, a lawyer in the field of environmental law, who is concerned that the application will be dismissed on legal grounds.
“The harm should be qualified, but here the application is very vague,” believed the specialist, who also questioned the value of acting as legal persons, which is less convincing than acting as natural persons.
In the absence of class actions, at the same time as making their statement on their potential application, the NGOs launched a petition to involve citizens on the L’affaire du siècle [‘The case of the century’] platform.
Some NGOs, such as the WWF, which campaigns for the imperative of climate protection to be incorporated in the French constitution, preferred not to be associated with the legal action. If the word ‘climate’ were incorporated in the constitution, legal proceedings would then be more readily admitted.
Emmanuel Daoud, the lawyer for Notre affaire à tous, was confident that the application would be taken into account.
“We’re here to win, it’s not a symbolic application. And when the administrative court makes its decision in 2021, the state will have to take it into account,” he said, building on the precedent of the Netherlands, where a judge sentenced the state to reduce its CO2 emissions by 25% by 2020.
The Dutch state appealed but the case helped to step up political pressure on the matter, to the extent that the country became the first to have adopted a law providing for a reduction of 95% of its CO2 emissions by 2050.
At European level, Notre affaire à tous is also participating in legal action against the European Commission, “which complements what is happening in France,” said Daoud. Comparable legal action is also under consideration in Italy and Germany.
As is the case in France, the application filed with the Court of Justice of the European Union has not been formally accepted by the supreme judge of the EU.
The interpretation of the constitutional text may be sufficiently broadened to include environmental risk. This was demonstrated by the French constitutional council when it considered that the principle of fraternity set out in the constitution took precedence over the crime of solidarity by people who had hosted illegal migrants.