European Law Journal最新文献

The Rights of Nature (RoN) concept is an evolving theory in environmental law. It advocates that natural objects be respected and allowed to exist, thrive and flourish for themselves and not for utilitarian purposes. However, attempts to apply the rights often result in litigation. The outcomes of these cases have grave implications for the impact of the RoN concept on the development of jurisprudence and environmental protection, which will further determine its acceptance or rejection by the international community. An examination of some key cases reveals some positive developments that can enhance the implementation of the concept, but it also demonstrates that there are some challenges in the approach adopted by the courts. The article concludes that the RoN can be a jurisprudential tool to enhance environmental protection only where, in addition to well-written constitutional and legislative provisions, court decisions in these cases are of practical consequences.

This article explores how judicial approaches to science relate to the procedural legitimacy of rulings in cases where the plaintiffs seek a change in a government's overall climate policy. It reviews challenges in court interaction with climate science and compares two prominent cases: Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany. The selected lawsuits yield comparative interest in aiming for changes in national climate policies and emission mitigation targets, involving the same kind of evidence (Assessment Reports by the Intergovernmental Panel on Climate Change) but resulting in partially opposing decisions. The analysis reveals that scientific inputs informed courts about climate change risks and mitigation measures. It also suggests that differing approaches to scientific reports influenced contrasting decisions regarding mitigation targets. Finally, it provides insights into how engagement with evidence might impact judgments' legitimacy from a procedural perspective.

Few studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter-American Court) and national human rights protection bodies (the Mexican Commission) to determine the adequacy of each from the perspective of potential litigants. We address institutional, procedural and positive law within the context of water scarcity. We find that while institutional and procedural aspects reveal the potential of the Inter-American Court in ruling on climate displacement cases, the application of the positive obligations doctrine by the Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground the course of action of potential litigants.

Access to justice in the EU is to be assured via both the CJEU and national courts through direct and indirect action procedures. Following this, the main argument developed throughout this analysis is that the CJEU differentiates the revision standard when interpreting the obligations of EU institutions and those of Member States. It is concluded that this kind of interpretation maintains the limitations to access to justice for individuals in the EU (the ‘incurable’), even when faced with the attempt to overcome this restrictive interpretation in the specific case of strategic climate litigation (‘curing the incurable’). The specific case of strategic climate litigation is used as an example to illustrate the negative consequences of limitations to access to justice for individuals in the EU. In conclusion, it is assessed whether there are any other ‘real cures’ for this deadlocked situation and what the rationale is behind these double standards.

Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well as a conflict-solving institution. From the existing literature, it becomes less clear however to what extent it served as an effective agent for societal change. Obtaining clarity on this issue seems imperative in the current day and age, considering the gargantuan challenges of accelerating climate change and environmental degradation: if the ECJ generally manages to ‘deliver’, at least some further progress could realistically be expected on this front also. The present article conducts an examination reviewing the experiences in the green domain from a comparative perspective, seeking to discern possible patterns and draw common inferences. Thus, it aims to expose how and when judges prove successful in recalibrating the conduct or opinions of real people in actual practice. Those insights may well inform future progress in different fields—the ecological as much as anywhere.

Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as “interventionist” or “political”. However, judicial decisions emphasise compliance with constitutional mandates without necessarily encroaching on policy-making realms. The constitutionalisation of environmental rights has had a strong influence on the judiciary's approach, but in combination with other factors, particularly civic mobilisation, institutional changes and an evolving public ethos on environmental protection. Proactive judicial engagement with the full extent of its powers to ensure that policy-makers meet their constitutionally mandated obligations can compel policy-makers to address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst for more effective environmental governance offers useful insights for European courts.

Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus call for policy intervention. This article reviews how existing and proposed laws in Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing protection. We find that the novel legislative measures attain that goal to varying degrees. However, the collective welfare perspective may prove useful to both support a risk-based approach to the enforcement and provide guidance as to which practices should be addressed as priority.

This article looks at three main issues raised by the PNR scheme: (i) the base-rate fallacy and its effect on false positives; (ii) built-in biases; and (iii) opacity and unchallengeability of the decisions generated, and at whether the Court has properly addressed them. It concludes that the AG and the Court failed to address the evidentiary issues including the base-rate fallacy—a lethal defect. It also finds that neither the Member States nor the Commission have even tried to assess whether the operation of the PNR Directive has resulted in discriminatory outputs or outcomes; and that the Court should have demanded that they produce serious, verifiable data on this, including on whether the PNR system has led in practice to discrimination. But it also finds that the AG and the Court provided important guidance on the third issue, in that they made clear that the use of unexplainable and hence unreviewable and unchallengeable “black box” machine-learning artificial intelligence (ML/AI) systems violates the very essence of the right to an effective remedy. This means that any EU Member State that still uses such opaque ML/AI systems in its PNR screening will be in violation of the law.

The use for security purposes of airline passenger data (PNR) has gradually come to the fore especially in EU-US relations because of the tension between those who considered the use of PNR an effective tool in the fight against terrorism and those who considered the interference in citizens' privacy disproportionate. The Court of Justice intervened decisively on the issue in June 2022 with the “Ligue des Droits Humains” Judgment C-817/19. This ruling should have been followed by a review of the national legislations that transposed the Directive. On the contrary, the Member States are still going in the opposite direction to that indicated by the Court.