From the ECTHR to the CJEU: the hermeneutic potential of the Klimaseniorinnen case for climate protection in the European Union legal order

Abstract

This article examines the hermeneutic potential of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, decided by the European Court of Human Rights (ECtHR) in 2024, for climate protection within the European Union legal order. It argues that the existing literature has framed the problem incompletely, by opposing the procedural openness attempted in Strasbourg to the rigidity of Article 263(4) of the Treaty on the Functioning of the European Union (TFEU). It demonstrates, by contrast, that EU law is structurally asymmetrical, since it restricts direct access by individuals to the Court of Justice of the European Union (CJEU), as illustrated by Carvalho and Sabo, while requiring Member States to ensure increasingly broad access to national judicial remedies in environmental matters, a duty developed through the case law from Lesoochranárske zoskupenie to Deutsche Umwelthilfe. It follows that the repercussion of KlimaSeniorinnen lies not at the level of the Plaumann test, but in the concretisation of Article 47 of the Charter of Fundamental Rights of the European Union as addressed to Member States, through Article 52(3) and the preliminary reference procedure under Article 267 TFEU. Adopting a legal-dogmatic and comparative approach, the study examines the conditions and limits of that influence – the field of application under Article 51, the nature of Article 37 as a principle, and the horizon of EU accession to the European Convention on Human Rights (ECHR) – and identifies Regulation (EU) 2021/1119 as the reference norm rendering climate preliminary references viable. It concludes that the consolidation of a European climate constitutionalism depends less on the creation of new rights than on the systematic, coherent and climate-sensitive reinterpretation of rights, principles and procedural guarantees already recognised in EU law.