Towards a fundamental rights-compliant European Green Deal

An HRBA to the Green Deal is grounded in international human rights treaties (to which all EU Member States are party) and is consistent with the EU’s horizontal obligations to respect and promote fundamental rights, as laid down in Article 6 of the TEU and Article 51 of the Charter of Fundamental Rights of the European Union. Horizontal rights and principles on equality and equal opportunities, social protection and inclusion, health, non-discrimination, environment and consumer protection are set out in Articles 8, 9, 10, 11 and 12 of the Treaty on the Functioning of the European Union (TFEU, see also Section 2.1) and the Charter. An HRBA aims to strengthen capacities of ‘duty-bearers’ to meet their obligations and ‘rightsholders’ to claim these rights, and is applicable to a range of policy areas.

The EU’s commitment to sustainable development and human rights is reflected in various policies and frameworks, including its commitment to advance the 2030 Agenda for Sustainable Development and the SDGs. 

‘The EU’s goal of accelerating its twin green and digital transitions, as well as implementing the SDGs through its recovery from the COVID-19 crisis, is reflected across this EUVR (EU Voluntary review). The EU is fully committed to becoming greener, more digital, more socially just, more inclusive and more resilient. The EU is fully committed to a human rights-based approach in the implementation of the 2030 Agenda.’

EU voluntary review on the implementation of the 2030 Agenda for Sustainable Development (p. 27)

All projects supported by the EU’s regional and structural policy programme must be implemented consistently with the programme’s horizontal principles. These include fundamental rights and principles enshrined in the Charter and the United Nations Convention on the Rights of Persons with Disabilities (CRPD), and the principles of gender equality and non-discrimination.

The EU has called for a fair transition to a climate-neutral economy and established the Just Transition Mechanism as a key initiative to address the social and economic effects of the green transition and to make sure that no one is left behind.

• Explicit grounding in human rights. An HRBA to the Green Deal would require the EU and its Member States to apply human rights obligations and principles at all stages of the development, implementation, monitoring and evaluation of climate policies. These are obligations and principles derived from the EU treaties and instruments – including the Charter, the European Pillar of Social Rights (EPSR) and international treaties such as the European Convention on Human Rights (ECHR), the Paris Agreement and the Aarhus Convention (UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) – in the development and implementation of legislation and policies designed to adapt to and mitigate climate change. Article 37 of the Charter, which addresses the principle of environmental protection, provides a key legal connection between environmental protection and human rights standards.
• Attention to people in situations of vulnerability. An HRBA calls for particular attention to be paid to the impacts of climate change and environmental degradation on people in vulnerable situations, such as those living in poverty or facing discrimination. At the same time, the commitment to leave no one behind is central to the SDGs and the Green Deal.

• Non-discrimination. This is a foundational principle of EU law which is also applicable in the context of climate change policies. Article 21 of the Charter prohibits discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. In this regard, intersectional aspects and underlying structures of discrimination must be considered by both the EU and its Member States. Approaching climate change from the perspective of fundamental rights requires ensuring equal protection of rights, including for those in vulnerable situations or at risk of discrimination, whether in respect of the impacts of climate change itself or in regard to measures designed to address climate change.
• Participation. Ensuring participation, especially for individuals and groups who are typically excluded, is a key operational principle of an HRBA. Participation in public, political and cultural life is a fundamental human right recognised in a number of international human rights treaties and instruments, including the Universal Declaration of Human Rights, which provides for the right to participate in government and free elections, the right to participate in the cultural life of the community, the right to peaceful assembly and association and the right to join trade unions.

Participation enables the advancement of all human rights. It plays a crucial role in the promotion of democracy, the rule of law, social inclusion and economic development.

UN, Office of the High Commissioner for Human Rights, Guidelines for States on the effective implementation of the right to participate in public affairs

In the context of climate policies, this means that citizens and local communities must be empowered to participate actively in the design and implementation of policies and initiatives aimed at implementing the Green Deal. The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, to which all Member States and the EU are party, emphasises the importance of meaningful participation of the local community and the public in environmental decision-making, including access to environmental information held by public authorities.

• Accountability in the context of the Green Deal requires that states and other entities comply with their human rights obligations and responsibilities and are held accountable for their actions or omissions in respect of climate policy. In assessing climate impacts and designing climate mitigation and adaption policies, states’ actions must be consistent with legal obligations enshrined in human rights instruments such as the ECHR, related case-law by the European Court of Human Rights (ECtHR), the Charter of Fundamental Rights of the European Union, as well as the European Social Charter (ESC) and core UN human rights treaties, including the CRPD and the UN Convention on the Rights of the Child. Accountability relies on a robust legal and regulatory framework that protects rights and provides effective redress mechanisms. The right to an effective remedy and to a fair trial is enshrined in the Charter (Article 47).
• Upholding the foregoing principles of an HRBA requires monitoring compliance with fundamental rights and gathering data on the impact of climate policy actions and climate change on the enjoyment of legally protected rights. This includes identifying impacts of the EU’s green transition on fundamental rights, mapping key legal and policy provisions to ensure a just transition and identifying fundamental rights risks for those already in vulnerable situations or at risk of discrimination. Addressing social inequalities in the green transition and the disparate impacts of climate policy on the rights of certain groups relies on effective monitoring and data collection. Human rights indicators are a key means to measure the fulfilment of human rights obligations and progress towards the targets set by Member States. The UN Office of the High Commissioner for Human Rights has developed a framework of indicators which has been applied by governments, human rights institutions and FRA in several of its reports (see for example: Implementing the UN Convention on the Rights of Persons with Disabilities: Human rights indicators, Monitoring framework for an EU Roma Strategic Framework for Equality, Inclusion and Participation: Objectives and indicators).
• An HRBA emphasises sustainable production and consumption to be implemented through human rights due diligence, as outlined in the UN’s Guiding Principles on Business and Human Rights. Through its adoption of the corporate sustainability due diligence directive (CSDDD) in May 2024, the EU has incorporated these principles into binding EU law.

In 2021, the EU adopted the strategy to strengthen the application of the Charter. It aims to integrate human rights in all legislation and policy files, both at the national and the EU levels. It is contended that this strategy embodies the EU’s own version of a commitment to an HRBA, a contention that is explored in more operational terms in the following sections.

Going forward – and in the implementation of the Green Deal – the EU should mandate the systematic use of fundamental rights impact assessments and ensure compliance with the Charter as an integral part of the development of future climate and environmental legislation and policies. Although impact assessments are carried out on a case-by-case basis in the context of the scrutiny and validation of EU legal or policy initiatives, a fundamental rights impact assessment should be carried out systematically by the EU institutions and the Member States in all contexts, and as required by the Charter strategy.