On January 14 of this year, the so-called “Case of the century”(L’affaire du siècle) was heard before the Administrative Tribunal of Paris which rendered a judgment on Wednesday (TA Paris, 3 fev. 2021, n°1904967, 1904968, 1904972, 1904976/4-1). The case’s beginnings date back to December 2018, when four environmental organizations -la Fondation pour la Nature et l’Homme, Greenpeace France, Notre affaire à tous and Oxfam France-in a letter addressed to French President Emmanuel Macron, then Prime Minister Édouard Philippe and members of the government expressed their intention to take legal action against the French State on the basis of faulty omission (carence fautive) in the face of climate change. The Case was backed by 2,3 million French citizens who have signed the relevant petition and inevitably echoes the third pillar of the Aarhus Convention[1]enabling Access to Justice in Environmental Matters. These developments call for a closer look into aspects of climate justice and environmental litigation under French law. 

The Administrative Tribunal of Paris, taking into account the public rapporteur’s suggestion during the hearing, recognized the French State’s omission in what is being considered a historic verdict. More specifically, the Parisian Tribunal proceeded to decide three key outcomes, the first one of which was to condemn the State to pay the symbolic amount of 1€ for moral damages to the applicants. Secondly, it ordered an additional two-month instruction period so that the parties have sufficient time to review the interventions prepared by the Ministries involved. This was justified by the inadequacy of the current state-of-instruction, as recognized by the Court, as to what are the necessary measures to be undertaken to halt the aggravation of greenhouse gas emissions (GHG) established. 

A similar stay of proceedings was deployed in another judgment rendered by the French Council of State last November (CE, 19 Nov. 2020, no 427301). In that case, the French Community of Grande-Synthe, facing major flooding risks owing to the rise of sea levels, requested from the government to undertake more efficient measures against climate change in accordance with the country’s commitments under the Paris Agreement. The Council of State was asked to adjudicate whether the French government respected the carbon budget as enacted in Decree no 2020-457 issued on April 21st, 2020, and the Low Carbon National Strategy. Despite the Council judging inadmissible most claims on the basis that the Paris Agreement is deprived of direct applicability in the French legal order and the impossibility for the judicial power to punish the executive for legislative abstention, it pronounced a stay of proceedings for a three-month period so that the parties can elaborate their arguments regarding the necessary measures to be undertaken in order to bend the curve of GHG emissions in the light of international and national commitments. A combined read of the two judgments allows suggesting that the key to making climate justice fruitful under French judicial proceedings is to raise claims grounded on the existing national provisions. What is more, considering the novelty of climate justice, granting additional instruction periods seems to be the chosen method by French administrative courts to decide the most efficient way to integrate the urgency of climate change into the existing building blocks of French public law. 

Nevertheless, the most interesting component of the “judgment of the century” lies with the rejection by the TA of the request to pecuniary compensate the applicants, in spite of having recognized the existence of ecological damage. This subtle point cannot be understood in its entirety without referencing the Erika case (Cass, crim, 25 Sept 2012, no 10-82.938). In the facts of that maritime law case, the sinking of the oil tanker Erika off the coast of Bretagne caused a major oil spill in the French north coastline that contaminated and disrupted the local ecosystems. The natural disaster gave rise to the question of liability allocation. Marine pollution is addressed in provisions of the Code of Environment and the Criminal Code. More specifically, the captain of the vessel or its owner or the user faces pecuniary sanctions and one year of imprisonment if found guilty for the offenses contained in Rules 12,13,14,16, and 18 of Annex IV of the MARPOL Convention 73-78. Over the course of protracted litigation surrounding the oil spill, the notion of ecological damage was recognized by the French Courts including the French Cassation Court and its regime has since been codified into the French Civil Code in Chapter III as a subcategory of Civil Extracontractual Responsibility (articles 1246- 1252). Ecological damage is defined as damage caused to the environment and its ecosystems and is remediable under two conditions: 1) nature is the victim of the damage and 2) the damage caused exceeds a certain level of impact because by definition many human activities are nature -invasive. It is evident that through this vague qualification threshold, the legislator has preserved a considerable marge of interpretation for the judge to identify ecological damage. 

In the TA’s recent judgment, the existence of ecological damage is admitted by the Court and is attributed to the State. However, the TA refuses to compensate even symbolically the applicants given that they did not demonstrate the impossibility for the State to restore in kind the ecological damage. Therefore, in the opinion of the Court, the is no causality linking the moral damage of the environmental associations to the ecological damage caused. This is a loyal application of the first subparagraph of article 1249 of the Civil Code, according to which ecological damage is in principle remedied in kind, meaning ecological restoration and not by pecuniary means which would only be granted as a secondary remedy. 

Several conclusions can be drawn from the preceding analysis.

First, the two recent French cases can be described as compliant with the spirit of the third objective of the Aarhus Convention. They are illustrations of how legal proceedings transforming environmental rights into claims before Courts are available to citizens. Both cases encompass climate-related revendications and constitute examples of accessibility to justice stricto sensu. The claim that the Aarhus Convention would provide the adequate legal framework for climate justice to flourish, seems to be confirmed. Another a posteriori confirmable suggestion made at the time of the Convention’s adoption was that it would facilitate the implementation of the Polluter Pays Principle (PPP)[2] in France. According to this principle, “a company causing environmental damage is liable for it and must take the necessary preventive or remedial action and bear all the related costs” [3]. As explained above, this principle played a key role in the Erika case and the sentencing to damages for ecological damage of the vessel owning company alongside the energy company involved in the oil spill. 

Second, as the impact of climate change intensifies, climate-related litigation is expected to become more conventional. This will undoubtedly impel judges to delve deeper into climate analysis in order to settle questions of law. Point 16 of the judgment whereby the TA attempts to examine the climate context to decide whether there is inaction on behalf of the government serves as an example of what this hybrid analysis could read like. It is an interesting extract in comparison to more traditional judgments and it will be even more interesting to see how Courts of other jurisdictions will address these issues in their respective judgments. So far, the Dutch Courts were the first to set a precedent by ordering the Dutch government to revisit its objectives and reduce its GHG emissions. 

A third observation reveals the mixed nature of environmental litigation situated at the intersection of public and private law. For example, the associations in the Case of the century based their legal quality and interest to take legal action on Civil Code provisions despite addressing an administrative court. Furthermore, the judgment of the TA of Paris in point 20 explicitly refers to the obligation for climate mitigation contained in the Charter for the Environment. This text enjoys constitutional value since 2005 as part of the French Constitutional block alongside commendable texts such as The Declaration of Human and Citizen Rights of 1789. It can be deduced that Environmental Matters enjoy an elevated status in the French legal order. This in itself is a testament to the country’s dedication to environmental protection. Still, as the Case of the century implies, French citizens are revendicating more audacious actions from their government. 

In conclusion, it can be argued that if thus far the majority of French environmental litigation arose from liability disputes with regard to pollution and ecological damage, the recent judgment has operated a subtle yet crucial shift from environmentally-friendly connotated justice decisions towards trials that favor active environmental and climate protection.

Sources and Terminological Clarifications: 

*Terminological clarifications: Ecojustice is a term composite of Ecology + Justice designating the judicial trials related to environmental causes. Climate Justice is a broader term that can refer to two things: 

1. Lato sensu the term frames global warming as an ethical and political issue, rather than one that is purely environmental or physical in nature and relates the causes and effects of climate change to concepts of justice, particularly environmental justice and social justice, 

2. Stricto sensu the term is limited to the role judicial power plays in the advancement of measures against climate change. In this article, the term is employed stricto sensu. 

1. The UNECE Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters adopted on 25th June 1998 and approved by France on 8 July 2002. 

2. https://www.persee.fr/doc/rjenv_0397-0299_1999_hos_24_1_3593 

3. See European Directive 2004/35/EC, as amended.