Multilayered Non-Majoritarianism: European Courts and National Climate Action

Table of Contents: 1. Introduction. – 2. The role of the ECtHR after KlimaSeniorinnen. – 3. The role of the ECJ beyond Carvalho. – 4. National climate litigation. – 5. Interactions between regional and national courts. – 6. Multilayered non-majoritarianism in action: between the ECHR, national law, and EU law. – 7. Conclusions.

Abstract: Litigants ask regional and national courts in Europe to rule on the structural failures of states to adopt adequate climate measures. ‘Adequate’ is understood to mean staying within these states’ ‘fair share’ of the global carbon budget scientifically linked to a likelihood of staying below 1.5 °C. This litigation expresses dissensus about the majority’s failure to take adequate climate action (climate dissensus). Europe is characterized by its multilayered legal and judicial landscape, where laws and case law of national and regional origin interlock and strengthen each other. The European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) are empowered to act as institutional counterweights to national politics within their respective legal frameworks of EU law and the European Convention of Human Rights (ECHR). The ECtHR did so in the ground-breaking general emission reduction case of KlimaSeniorinnen. The ECJ, by contrast, rejected Carvalho. This article is a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis. In relation to the third challenge, this article traces how dissensus about inadequate majoritarian climate action is voiced through litigation before European and national courts. It demonstrates how the interactions within the multilayered legal landscape push and empower courts to act as non-majoritarian counterweights to the directly or indirectly elected domestic institutions, including the ECJ vis-à-vis the other EU institutions. 

Keywords: climate litigation – multi-layered legal landscape – non-majoritarian institutions – general emission reduction cases – KlimaSeniorinnen – non-majoritarian instruments.

1.   Introduction

While most people in Europe acknowledge that human-caused climate change exists and has far-reaching climate impacts,[1] the issue of what to do about the climate crisis has become subject to a deep dissensus.[2] Science widely confirms that, globally, rich polluting states do not do enough to attain the objectives of the Paris Agreement, namely to keep long-term global warming below 1.5 °C.[3] Europe, including the EU, its Member States and all other Contracting Parties to the ECHR, is no exception.[4] Citizens give starkly different priority to the climate crisis when voting and making individual life choices. We can speak of a deep disagreement on values, ideologies, and conceptions of the self in the world that qualifies as dissensus.[5] The underlying differences cannot simply be deliberated away but subsist and must be given a place for democracy to work.[6]

Dissensus understood in this way often implies and reflects that those dissenting with public policy do not feel (sufficiently) represented within the directly or indirectly elected institutions, i.e., Parliaments and Governments, where majoritarian decision-making takes place. In the climate context, we have on the one end of the spectrum climate activists, the highly educated, and (other) traditional left-wing voters. They dissent with the current climate policies that are inadequate to stay below 1.5 °C. On the other end, we find the fossil fuel and other highly-polluting industries, other economic actors, and traditional right-wing voters. They (believe to) benefit economically from protecting the fossil-dependent status quo and push back on strengthening climate policies.[7]

This article focuses on a subset of the former types of climate-aligned cases, namely judicial challenges brought by individuals and NGOs to demand from states more stringent general emission reductions. Many other forms of climate litigation exist, e.g., cases against companies, cases aiming to restrict climate policies, adaptation cases, loss and damage cases. Yet, general emission reduction cases are often seen as particularly problematic for majoritarian democracy.[8] More so, than when courts enforce laws adopted in the domestic majoritarian decision-making process (implementation cases). This is why these cases are more salient than implementation cases for the investigation of how non-majoritarian instruments and institutions interact in Europe’s multilayered legal landscape (multilayered non-majoritarianism).

Europe has seen disproportionately many general emission reduction cases, i.e. cases that are first and foremost aiming to increase public ambition to reduce emissions, e.g., by challenging targets or budgets.[9] Until 31 March 2025, at least seven (partially) successful and nine unsuccessful cases that meet these criteria have been reported in the Sabin Center’s Climate Litigation Database before national courts – partially in several instances.[10] Before regional courts, we also saw two unsuccessful case before the General Court and then the European Court of Justice (ECJ)[11] and one successful and five unsuccessful cases before the European Court of Human Rights (ECtHR).[12]

This article addresses the question of how the interaction of non-majoritarian institutions and instruments in the multilayered legal and judicial landscape of Europe influences the capacity of national courts to act as non-majoritarian institutions and allow dissensus with inadequate national majoritarian climate action. ‘Non-majoritarian institutions’ refers to stable architectures of governance in the sense of the EU or state institutions that are not directly or indirectly elected and cannot make a reasonable claim to rely on some form of majority. The ECtHR, the ECJ and national courts are prime examples, but also agencies and technocratic bodies. ‘Non-majoritarian instruments’ is a less familiar term. The literature does not make a clear distinction between institutions and instruments.[13] In this article, non-majoritarian instruments, in line with this Special Section’s introduction, is used in relational understanding.[14] It captures all legal instruments (law) that originate outside the sphere of autonomous influence of a (set of) majoritarian institution(s). These instruments are therefore capable of confining majoritarian politics of the day without being themselves subject to amendment by these institutions (alone). International treaties, including their founding treaties, are subject to the customary international law rule of pacta sunt servanda,[15] which means that state parties agree on norms that bind government and parliament into the future. This allows these treaties to take in that future the role of non-majoritarian instruments in relation to national majorities of the day.

The two European sets of non-majoritarian institutions and instruments of the Council of Europe and the EU, respectively, share the historical purpose of reigning in national sovereignty and preventing that the atrocities of the first half of the 20th century reoccur.[16] While having different roles they necessarily set boundaries to sovereign power, exercised by governments and parliaments. Yet, their nature is ambivalent (in different relationships non-majoritarian and majoritarian) as they were ratified by national parliaments or, in the case of EU secondary law, adopted by majorities in the Council (national representatives) and the European Parliament. 

This article contends that the interaction between legal and judicial layers not only reinforces the position of national courts as non-majoritarian institutions but also constrains their ability to refrain from assuming that role. The ECtHR’s decision in KlimaSeniorinnen significantly strengthened the capacity of national courts to give voice to climate dissensus.[17] It also puts pressure on the ECJ, who has thus far not engaged with challenges of EU climate targets but stuck to its restrictive interpretation of the individual standing requirements in direct actions.[18] The decisions of the two regional courts push the issue back to the national realm. While this seems justifiable for the ECtHR as a regional human rights court, the ECJ – as will be explained – plays a double role as highest domestic court of the EU legal order and a (quasi-)federal reviewer of Member States’ climate actions. I.e., when the EU’s own climate policy is at stake the ECJ should take the role of the domestic judiciary. 

Section two sets out the role of the ECtHR and its landmark ruling of KlimaSeniorinnen. Section three reflects on the role of the ECJ and its decision in Carvalho. Section four sketches the many national general emission reduction cases. It reflects on how these cases relate to the ECHR and the ECtHR’s case law and EU law and the ECJ’s case law, respectively. Section five considers what these cases reveal about how the multi-layered legal landscape of Europe influences the capacity of courts to act as non-majoritarian institutions. Section six zooms in on the first and still pending case before the ECtHR that directly concerns the interplay of the ECHR, national and EU law: Max Müllner. As the first case in which the climate policy of an EU Member State is challenged, Müllner will likely test the triangular relationship between the three legal spheres. It offers a compelling basis for analysing multilayered non-majoritarianism.

2.   The role of the ECtHR after KlimaSeniorinnen

The Council of Europe is Europe’s primary human rights organisation. The ECtHR is the authoritative interpreter of the ECHR as the ‘constitutional charter of Europe’ – whether this is always appreciated or not.[19] Its rulings have interpretative value for the obligations of all the 46 contracting parties in cases before national courts. National courts routinely refer to the ECtHR’s case law.[20] Together, climate cases before the ECtHR have the potential to emerge as a body of case law with exceptional, either direct constitutional or at least strong interpretative weight in all jurisdictions across Europe.[21]

They create prevailing norms, which are taken as a point of reference in the exchanges before lower or national courts. Judges may distinguish their case and argument from norms, interpret them narrowly, and emphasise their exceptional nature, but when Convention rights are raised by the parties, they formally have to engage with them. 

The legal and practical relevance of the ECHR in the national legal order differs among the Contracting Parties. Yet, the ECtHR’s rulings enjoy (some) persuasive authority in the jurisdictions of all Contracting Parties, certainly the jurisdictions here examined.[22]The degree of authority largely depends on whether the state has a monist or dualist legal system and whether it has a constitutional court.[23] This also explains why the ECHR is given very different attention in the here discussed climate cases. In the German case of Neubauer, a decision of a strong constitutional court in a dualist system, the ECHR was all but ignored.[24] In Urgenda, by contrast, a decision of the highest civil court in the Netherlands, which is a (moderate) monist system, the ECHR and the case law of the ECtHR were leading.[25] The UK as a dualist system without constitutional court exemplifies the great persuasive relevance that the ECHR may have under such conditions. The 1998 Human Rights Act gives domestic legal effect to the ECHR, but it does not oblige Parliament to legislate compatibly or courts to disregard laws that are incompatible with the Convention. Yet, this does not take away from the relevance of the ECtHR’s case law. In Plan B, the UK Court of Appeal explicitly looked for authoritative case law of the ECtHR supporting the case of the claimants.[26]

About a dozen climate-related cases have been brought to the ECtHR.[27] They all express dissensus about the climate action of states adopted in majoritarian decision-making. KlimaSeniorinnen[28] was the first case to be decided on 9 April 2024 by the Grand Chamber, whose decisions enjoy exceptional judicial authority.[29] Four elderly women and the association Verein KlimaSeniorinnen challenged the alleged omissions of the Swiss federal government to quantify a national fair share carbon budget and adopt a regulatory framework to develop adequate climate protection policies.[30] They argued that elderly women are particularly severely affected by climate impacts, such as heatwaves. In a novel interpretation of the standing requirements under the ECHR, the Court granted the association victim status and standing to represent the human rights claims of elderly women as a particularly vulnerable group. It denied standing to the four women individually.[31] Substantively, KlimaSeniorinnen confirmed the relevance of the Convention as ‘a living instrument’ for the unfolding climate crisis.[32] It established that Article 8 ECHR entails a positive obligation to quantify a national fair share of the global carbon budget scientifically associated with staying below 1.5 °C.[33] This amounts to a procedural duty (to quantify a budget) with a substantive yardstick (in light of fairness principles). The ECtHR also found Switzerland to violate Article 6 ECHR by having unduly denied the association judicial engagement with the merits of its claim. 

The precise consequences of regional European articulations of norms may be difficult to pin down. They rest on a complex combination of binding adjudicatory powers of the ECtHR. On the one hand, Contracting Parties have a prevailing duty to comply with Convention rights as interpreted by the ECtHR. On the other, the principle of subsidiarity and the margin of appreciation[34] give state institutions, including national courts, a degree of independence to interpret and give effect to this duty. As a result, they cannot but enter into a ‘deliberative engagement’ and usually ultimately make a claim of compliance.[35] This is also what Switzerland did in the process following KlimaSeniorinnen.[36] This claim of compliance – albeit unfounded – enhances at the same time the authority of the system. In light of the already numerous references of litigants and judges to KlimaSeniorinnen, the landmark judgment can hardly be overestimated in terms of non-majoritarian counterweight in Europe.

3.   The role of the ECJ beyond Carvalho

EU law pursues very different objectives from the ECHR. It is an integrationist framework for ‘ever-closer’ cooperation[37] that exercises prescriptive and distributive regulatory powers in a wide range of policy fields. The ECJ conceives of itself as the guardian of (the autonomy of) the EU legal order, i.e., a domestic court in an autonomous domestic legal order.[38] In relation to the Member States, the ECJ is also the venue of centralized judicial review in a (quasi-)federal system, ensuring the ‘primacy, unity, and effectiveness’ of EU law within the national legal order.[39]

The EU has the legal competence and ambition to be a relevant climate actor. It has adopted a wide array of climate-related measures in what is widely referred to as the European Green Deal, the corner stones of which are the EU climate law, Emission Trading System (ETS), and the Effort Sharing Regulation (ESR).[40] They set out EU-wide reduction targets and impose emission reduction obligations on the Member States. However, so far, it has proven impossible to challenge EU targets before the ECJ.[41]The ECJ dismissed direct challenges based on the restrictive standing requirements of direct and individual concern in line with its settled case law.[42] However, in particular the requirement of distinctiveness, i.e., that applicants need to demonstrate that they are uniquely affected, is widely criticized as overly formal and ‘paradoxically denying legal protection when harm is serious and wide-spread’, as is precisely the case in the climate crisis.[43] Instead of reconsidering its settled case law in the context of the climate crisis, the ECJ routinely points to the preliminary reference procedure as an (unconvincing) alternative.[44]

In other words, the ECJ has so far refrained from acting as a domestic court in this context. It has not taken up the role of a non-majoritarian institution in relation to the EU institutions.[45] This is highly problematic, since, while the Green Deal was certainly a significant achievement, the EU does not have targets that meet the test of bringing us collectively to meeting the long-term temperature goal in the Paris Agreement.[46] In addition, we can see the EU rolling back on the Green Deal.[47]

The role of the ECJ vis-à-vis the EU institution reviewing the lawfulness of EU law is different from its role vis-à-vis the Member States. Only in relation to the latter EU law is a non-majoritarian instrument that constrains national majorities of the day. This difference also maps on the difference in stringency of review that scholars have pointed out.[48] The ECJ has in many areas a strong track record of enforcing EU law, including EU international agreements, vis-à-vis the Member States, while it is more lenient vis-à-vis the EU institutions. The ECJ’s failure to act as a domestic counterweight in relation to the EU institutions in the climate crisis fits well with its traditional stance. Yet, it deprives the EU legal order of an internal institutional interaction with autonomous participants that considered the touchstone of legitimacy in constitutional democracies committed to separation of powers and the rule of law.[49]

International treaties have become a reference point giving substance to human rights-based mitigation obligation of states (and corporate actors), notably the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.[50] The UNFCCC and the Paris Agreement are mixed agreements that bind the EU and its Member States, not only under international but also EU law.[51] Regardless of how national law defines the status of international law, the EU Treaties confer upon the Paris Agreement—at least insofar as it falls within the EU dimension of the mixed agreement—the primacy of EU law over national law.[52] The ECJ routinely demands from states as EU Member States compliance and consistent interpretation with international law binding on the EU.[53] Member States’ compliance with the Paris Agreement and the UNFCCC could be raised in a preliminary ruling procedure.

The ECJ’s restrictive position on standing in annulment actions shields the interinstitutional exchanges within the EU from dissenting voices that wish to challenge the EU’s compliance with human rights and international law.[54] As a result, most climate cases are brought before national courts and against the Member States. However, as the next section shows, the ECJ’s unwillingness to offer judicial review of EU climate targets also has a negative knock-on effect in national courts. By contrast, the ECtHR’s strong stance in KlimaSeniorinnen contributes, with certain caveats, to the capacity of the national judiciary as non-majoritarian institutions.

4.   National climate litigation

This section sets out how national courts have acted as non-majoritarian institutions in general emission reduction cases. Many other forms of climate litigation exist, notably implementation cases and cases against corporate actors. These other forms may arguably take over from general emission reduction cases in terms of numbers and effect.[55] However, within the scope of this article, we must limit our observations to general emission reduction cases and to a salient example of multilayered interaction between non-majoritarian institutions and instruments.

Before the ECtHR’s ruling in KlimaSeniorinnen in April 2024 and the ECJ’s final rejection of Carvalho in March 2021,[56] national courts in the Netherlands, Ireland, and Germany had already delivered cases upholding litigants’ claims demanding more stringent mitigation measures (Urgenda, the Irish Climate Case, and Neubauer).[57] The latter two cases referred to the landmark case of Urgenda to support their reasoning. In this case, the Dutch Supreme Court held that the rights to life and to private and family life (Articles 2 and 8 ECHR) obliged the state to reduce emissions from its territory. Neither of these provisions directly refers to the climate and, while the ECtHR had earlier interpreted these rights to cover situations where people’s (private) lives were affected by environmental pollution,[58]the courts in Urgenda pioneered by interpreting the ECHR to entail mitigate obligations. KlimaSeniorinnen confirmed this.

Between Carvalho and KlimaSeniorinnen, further cases were decided in Belgium, France, Czech Republic, Spain, and the UK. In all of them, except for Plan B in the UK (rejected[59]), at least one party referred to Carvalho. The plaintiffs in the Belgian Klimaatzaak took Urgenda in first instance as their blueprint and based their claim on civil liability in combination with Articles 2 and 8 ECHR.[60] In first (2021) and second instance (2023), the Belgian courts established both civil liability and a violation of the plaintiffs’ Convention rights. Klimaatzaak extensively referenced and literally cited Neubauer and Urgenda.[61] The Court of Appeal, besides imposing a minimum reduction obligation, emphasized national procedural autonomy and rejected for that reason the relevance of the ECJ’s narrow interpretation of standing within the EU legal order.[62]

In 2023 and 2024, the Czech Supreme Administrative Court, the Spanish Supreme Court, and the Court of First Instance in Rome accepted EU law at different stages of the procedure to be an obstacle to judicial review.[63] In the Czech and Spanish cases, EU law led to a restrictive interpretation of judicial powers in light of separation of powers. In the Italian case, it led to a declaration of inadmissibility. In addition, the Court of Appeal in Klimaatzaak heavily relied on EU law to construe a yardstick of what is the absolute substantive minimum of emission reduction. Thus, even where EU law does not exclude judicial review, it may affect the way national judges review national climate policy on the merits.

Since KlimaSeniorinnen was delivered, it has been relied on in many national proceedings.[64] In 2024, the District Court of The Hague declared admissible the climate case brought by Greenpeace Netherlands representing the interests of the people of Bonaire challenging among other things the Dutch target for 2030.[65] By contrast, it denied the eight individual claimants standing referring to KlimaSeniorinnen.[66] This appears to be motivated at least also by the assumption that the interests of individual plaintiffs are represented by the litigating NGO. Similarly, KlimaSeniorinnnen was the central argument in the Swedish case of Aurora (2025) to justify denying standing to individuals.[67] In the Finnish Climate Case I, the Supreme Administrative Court referred to the ECHR and KlimaSeniorinnen in support of the appellant organisations’ standing to ask for review of the ‘need for additional measures under the Climate Act’.[68] The Court noted that KlimaSeniorinnen affirmed the central role of national climate laws—and their effective implementation—as key mechanisms through which states secure compliance with their human rights obligations.[69]KlimaSeniorinnen further emphasised the central role of national courts in providing the ‘particularly relevant’ judicial remedies ‘to assess whether the State has exceeded its margin of appreciation’.[70] The ECtHR had the domestic arena in mind as the venue for giving effect to Convention rights, including via judicial review. The tension with the EU as a climate actor and the ECJ’s claims to be a domestic court but not exercising this function is apparent.

Individuals struggle to demonstrate in court a sufficient interest in litigating because they cannot demonstrate how an inadequate emission reduction target or policy directly affects them. In Carvalho and KlimaSeniorinnen, the ECJ and the ECtHR denied standing to individuals in the autonomous procedural context of their respective jurisdictions. The ECtHR arguably denied standing to the individuals in the exceptional context of climate litigation because it widened the standing of NGOs to represent diffuse interests in an organised manner.[71] However, it remains worrisome what the consequence of limiting access to justice for individuals means for national jurisdictions that do not offer broad standing to public interest organisations. In the next section, we reflect deeper on how the different legal layers interlock and influence the powers of courts as non-majoritarian institutions.

5.   Interactions between regional and national courts

National law, EU law, and the ECHR create together a multilayered legal landscape, in which different judicial actors interpret the law from different starting points. Neither the different legal orders, nor the judicial actors stand in a straightforward hierarchical relationship with each other and the starting point of each actor results in a different hierarchy. The judicial actors cannot – irrespective of whether a monist or dualist legal order is concerned – annul each other’s decisions. Yet, the different layers interlock and have great influence on each other.[72] As we have seen in the previous subsection, decisions of regional courts shape the national judicial process. 

International cooperation and democracy, in order to function and deliver policy outcomes, necessarily require some limits to the majoritarian decision-making of the day. International treaties are binding agreements between sovereign states that entrench the agreed norms and by doing so, make cooperation possible.[73] This entrenchment outside the influence of individual states makes these treaties non-majoritarian instruments in relation to day-to-day national politics. 

Both EU law and the ECHR create rights for individuals, who are entitled to defend these rights before the ECJ and the ECtHR. The ECJ and the ECtHR confirm in settled case law that they interpret their respective law as ‘a new legal order’ and a ‘living instrument’, respectively.[74] Decentralised enforcement structures in combination with dynamic judicial interpretation are the basis for significant constraining potential of multilayered legal structures. This combination has arguably vested the EU legal order with a claim to be a domestic legal order, subject to principles of constitutional law rather than for example reciprocity or sovereignty considerations prevalent in international law.[75] One could summarise this as: Regional non-majoritarian institutions (the ECJ and the ECtHR) rely on and shape non-majoritarian instruments (EU law and the ECHR, see above[76]) to strengthen their capacity to counter national majority positions. This is also what makes regional courts a particularly powerful venue for voicing (climate) dissensus.

To point out but one specific example: despite several political endorsements,[77] the Contracting Parties of the ECHR had so far refrained from enshrining the right to a healthy environment in a legally binding and judiciable manner into the Convention. KlimaSeniorinnen establishes a positive duty to mitigate the climate crisis by establishing and implementing an effective legal framework and quantifying a fair share national carbon budget.[78] This interpretation creates an enforceable right that arguably falls within the area that proponents of enshrining a right to a healthy environment would have liked to see covered. It also arguably went beyond the Court’s prior case law on environmental matters. While this interpretation is completely aligned with and endorsed by the subsequent Advisory Opinion of the ICJ,[79] a certain tension may be observed between KlimaSeniorinnen – even if the ruling falls short of recognising a general right to a healthy environment but rigorously confined itself to climate issues – and the decision of the current majority position in the Contracting Parties not to enshrine a right to a healthy environment.

In addition, KlimaSeniorinnen broadens not only standing of collective representation via associations before the Strasbourg Court but also, and in line with the principle of subsidiarity, requires Contracting Parties to offer associations access to national courts.[80] In other words, the ruling in KlimaSeniorinnen also strengthens national enforcement of the climate-related rights under Article 8 ECHR. The example of KlimaSeniorinnen is an illustration how regional non-majoritarian institutions (ECtHR, ECJ) that rely for their legitimacy on dynamically interpreted non-majoritarian instruments (ECHR and EU law, see above) have an exceptional capacity to empower national courts as non-majoritarian institutions in the national democratic process. 

However, the reinforcement does not go one way but is mutual. The ECtHR also built on the prior national cases, such as Urgendaand Neubauer. More importantly, both regional courts rely for the effectiveness of their rulings on the compliance of domestic institutions, including the judicial review of compliance by domestic courts. Overall, the three layers of judicial and substantive rights protection in Europe strengthen each other’s authority, reinforce the role of judicial review in the democratic process, and make national courts more powerful non-majoritarian institutions.

The EU, the ECHR, and– to different degrees – the majority of EU Member States adhere to the conception of constitutional democracy and the rule of law. Constitutional democracies acknowledge democratic merit of constitutional constraints and courts as non-majoritarian institutions. They see them as both fundamental and instrumental in engendering and preserving the conditions of deliberation that complement and legitimize majoritarian decision-making by representative institutions.[81] This may be contrasted with other conceptions, such as the starting points of Parliamentary Sovereignty and a ‘thin rule of law’ in the UK.[82] Under the latter conception, the judiciary is usually seen as outside and limiting the democratic process. The conceptually different understanding of democracy in the UK has arguably led to greater political and scholarly pushback against EU membership in the past and ECHR participation in the present, including against KlimaSeniorinnen.[83] This is not a debate that can be brought to a conclusion here, but it is important to realize that these different institutional settings and different conceptions of democracy play an important – but often implicit – role in the assessment of the democratic merit or demerit of judicial review and review by regional courts.[84]

The multilayered legal and judicial landscape of Europe, where no actor enjoys the power of the final word, also strengthens the dynamic cyclical nature of the democratic process. No majoritarian decision within a particular community, national or European, or the ruling of any one court, domestic or regional, can end the search for the right balance of rights and interests involved in the complex transition away from fossil fuel dependency.[85] Winning a climate case in any of these judicial fora is only the beginning of the processes that may or may not lead to change.[86] General emission reduction cases largely leave open how to reduce emissions; who has to give up privileges and vested interests; and whose rights and interests are considered. So far, the different judicial actors have left such questions to the representative political institutions in the democratic process. Dissenting voices continue to struggle for participation and representation in majoritarian and non-majoritarian institutions to have their point of view included in the debates. Parliamentary representation is formally equal and arguably the most central but not the only form. This may also explain why in practice the two perspectives of ‘a constitutional democracy’ and the alternative of a ‘political constitution’ are closer than it may conceptually seem.[87]

At the same time, the commitment to constitutional democracy, a ‘thicker’ rule of law, and the high level of transnational cooperation form part of the multilayered non-majoritarianism in Europe. This commitment forms part of the setting that allows the different judicial actors to reinforce each other’s capacity to channel dissensus about majoritarian positions into the interinstitutional exchange.

6.   Multilayered non-majoritarianism in action: between the ECHR, national law, and EU law

The case of Max Müllner, pending before the ECtHR, alleges that Austria’s climate policies infringe the applicant’s rights under the Convention. This case differs from KlimaSeniorinnen in several respects, including in the for the current discussion pertinent aspect that Austria is an EU Member State. In addition, Austria does not have a national legal framework for climate mitigation but relies on EU law for this purpose. For this reason, Müllner is an opportunity for the ECtHR to put additional pressure on the ECJ to ensure Convention compliance of the EU and remind national courts that they cannot hide behind EU law.

KlimaSeniorinnen confirmed that individual applicants still qualify as (climate) victims under Article 34 ECHR if they are ‘subject to a high intensity of exposure to the adverse effects of climate change’, and (ii) face ‘a pressing need for individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm’.[88] Max Müllner has multiple sclerosis and other health conditions, which worsens with rising temperatures. The exceptionally grave effects of the climate crisis on his personal situation should qualify as meeting the high threshold of individual standing outlined by the Court.[89] On the merits, this case should then show whether the ECtHR is willing to offer a non-majoritarian counterweight to the failure of both EU and national majorities to adequately mitigate the climate crisis.

Highly relevant for the relationship between the different legal layers is the ECtHR’s Bosphorus doctrine. This doctrine protects international cooperation by presuming compliance with the Convention when states give effect to their obligations via an international organization. This presumption stands ‘as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides.’[90] The ECtHR generally confirms such equivalence for the EU and refrains from reviewing Member States’ non-discretionary implementation of EU law. Austria attempts to hide behind Bosphorus.

If the ECtHR did not find Bosphorus applicable and hence reviewed Austria's EU-based climate policy – which I here argue is the correct position – Müllner and similar follow up cases against other EU Member States would put great pressure on the ECJ to exercise jurisdiction over EU climate targets. If the ECtHR exercised its review powers but the ECJ stayed silent, the latter would miss the opportunity to have any say about the human rights compliance of the EU’s mitigation targets. It would leave the role of non-majoritarian institutions entirely to national courts (and at the ECtHR). 

I argue that Bosphorus does not apply, for the four following main reasons. First, the ECtHR confirmed in several cases that it carries out an in-depth review of Member State action where they had discretion under EU law.[91] The EU adopts all emission reduction measures under a competence that allows Member States to adopt more stringent measures (minimum harmonisation).[92]Minimum harmonisation constrains Member States less than allowing discretion. When exercising discretion, Member States may act within a circumscribed framework formulated by secondary EU law, while in cases of minimum harmonisation they may adopt any measure that does not endanger the minimum requires by EU law. Thus, Bosphorus is even less applicable in cases of minimum harmonisation (emission reduction) than in cases where Member States have discretion. 

Secondly, the EU Charter of Fundamental Rights is not applicable to Member State actions in areas where EU law is limited to minimum harmonisation.[93] Hence, if the ECtHR found Bosphorus applicable, differing from situations where Member States implement EU law, the primary EU law instrument of human rights protection that forms part of the presumed equivalent protection would not be applicable. As a result, individuals would be not enjoying (fully-fledged) human rights protection by either of the two regional legal orders.

Thirdly, the fact that no (accessible) remedies are available before the ECJ to challenge inadequate EU emission reduction targets makes EU human rights protection procedurally ‘manifestly insufficient’, which leads to a rebuttal of the presumption of equivalent protection.[94] This alone should make Bosphorus inapplicable. In addition, however, the lack of national judicial remedies in Austria for challenging climate (in-)action[95] would result in a complete denial of justice if the ECtHR (incorrectly) applied Bosphorus and did not step in. 

Fourth, prior case law of the ECtHR establishes that even without discretion, Member States can only rely on Bosphorus if they have deployed the full range of remedies under the EU system.[96] As we have seen, no direct actions are available to the litigants either before Austrian or EU courts against national and EU climate mitigation targets, respectively. As a result, no domestic court has had the opportunity to review Austrian climate (in-)action. In addition, no preliminary reference could be asked (because of the lack of a national procedure). This unavailability of any remedies under the EU system (including preliminary references) also excludes relying on Bosphorus. 

Thus, EU Member States cannot count on hiding behind Bosphorus. The ECtHR should ask them to justify their inadequate climate actions in light of the Convention. As to the ECJ, good reasons should make the ECJ ‘wish to ensure that the EU offers at least as much protection as the Convention’.[97] This discussion is far from hypothetical. The ECtHR has established a set of obligations in KlimaSeniorinnen with which the EU does not currently comply.[98] Müllner may bring this indirectly to the fore when discussing Austria’s reliance on EU climate targets. This would call on the ECJ to make true its own claim to be the domestic court of the EU. Let’s hope it does so.

7.   Conclusions

Public institutions representing political majorities in the Member States but also in the EU have so far failed to adopt emission reduction targets that are in line with their ‘fair share’ of the global carbon budget that would allow the world to stay below the long-term-temperature-goal of 1.5 °C.[99] Those deeply concerned and fundamentally questioning the ability and willingness of the political branches to adequately address the climate crisis bring cases to national and regional courts. This is an expression of climate dissensus.

Both national and regional courts are prime example of non-majoritarian institutions that channel dissensus into the institutional interaction. They share the historical purpose of reigning in national sovereignty. Hence, it is neither by accident nor inherently problematic that regional courts cannot compete with parliaments on the parameter of democratic legitimacy through equal representation. Regional courts are set up within more entrenched legal spheres (EU law and the ECHR), which may be characterised themselves as non-majoritarian instruments in relation to national majoritarian decision-making.[100]

The interaction of non-majoritarian instruments and institutions in Europe enhances the capacity of national courts to act as non-majoritarian counterweights in the national democratic process. Cross-references and reliance on each other’s reasoning give additional authority to the cited judicial decisions. Regional courts establish norms that either prevail directly because of accepted primacy, as is the case for EU law, or at least enjoy persuasive power in practice as it is the case for the ECtHR’s interpretation of the ECHR. Relying on these norms, which are beyond the reach of the national political majorities of the day strengthens the position of national courts vis-à-vis the other branches of government. 

However, the jury is still out on the ECJ’s role in and influence on mitigating the climate crisis. So far, the ECJ has denied standing to the applicants in direct action against EU’s climate targets. The growing pressures from national courts and the ECtHR, including in the pending Müllner case, may hopefully lead the ECJ to engage and take up its role as the domestic court of the EU.

Yet, the examined cases also indirectly highlight that the growing fault lines on climate matters do not lie between the ECJ and the ECtHR or between the European and national courts. They lie between majoritarian and non-majoritarian institutions. The former rely on the legitimacy of equal representation and majoritarian decisions, while they, in the context of the climate crisis, fail to take adequate action and structurally misrepresent science and legal obligations.[101] The judiciary reminds the majoritarian institutions of their constitutional, legal, and international commitments into which they or previous governments entered, and which bind them now and into the future. Courts in the examined climate cases have not demanded any greater commitment or more climate protection than what domestic governments and legislatures had already agreed. These commitments rely on majoritarian decisions of past and often even present governments and parliaments. However, as carbon budgets are exhausted and we have past the 1.5 °C – if not yet as the long-term temperature but already for an entire year[102] – courts could very well be placed in a position that they have to intervene more forcefully and set out more concrete climate measures. This would increasingly turn them from non-majoritarian into counter-majoritarian actors.

An often voiced fear is that strong interventions of non-majoritarian institutions provoke themselves backlash.[103] This also appears also to be the origin of the warning of Judge Eicke that the ECtHR’s decision in KlimaSeniorinnen may not be able to ‘adequately or at all contribute to (rather than hinder) the fight against climate change in the absence of any clear or agreed measures or guidelines’.[104] However, in the debate on potential backlash, we should not forget three things: First, it is climate litigation that voices dissensus about the course of action chosen by the representative majoritarian institutions, not the other way around. Suppressing dissenting voices rather than feeding them into the debate seems unlikely to make democracy more resilient. Second, in the cyclical democratic process, courts do not have the last word. Political actors remain able to take the heft in the hand and formulate their positions on climate mitigation, including in relation to judicial decisions. Third, postponing climate mitigation does not seem to be a viable strategy in the longer term, including for maintaining the resilience of democracy. Some of the courts that have ruled favourably on emission reduction demands have pointed this out quite clearly.[105]