ESG Enforcement Tracker

Key facts:

In December 2023, the Paris Administrative Tribunal issued a significant decision in what has been called the “case of the century” (L’Affaire du Siècle).

The case started in 2019; brought by four NGOs that sought an order from the tribunal recognising that the French state was responsible for its failure to fight climate change. In the first case of its kind, in February 2021, the tribunal held that the French state was responsible for failing to take sufficient action to reduce greenhouse gas emissions. The French state was said to be legally responsible for its failure to meet the national targets that had been set in the aftermath of the 2015 Paris Agreement. The tribunal recognised that the state did not comply with its first carbon budget (set for 2015-2018) and failed to carry out adequate steps that it itself recognised would mitigate greenhouse gas emissions.

The tribunal ruled that the NGOs were entitled to compensation for non-pecuniary losses, in the symbolic sum of €1 to each of the four NGOs. The tribunal, however, declined to order damages for the ecological harm. Instead, it ordered a further investigation and set a further deadline for the parties to exchange submissions, before deciding whether the French state should be ordered to take additional measures to combat climate change.

In September 2021, a second hearing was convened in the case, at which the findings and recommendations of the further investigations were considered. In its judgment, in October 2021, the tribunal instructed the French state to take all appropriate measures to repair the ecological damage and prevent further damage by 31 December 2022, and determined the ecological damage to be equal to the uncompensated share of the greenhouse gas emissions under the first carbon budget set for 2015-2018.

The tribunal emphasised that the case was limited to the question of the ecological damage caused by the greenhouse gas emissions exceeding the first carbon budget set for 2015-2018 but declined to rule on the adequacy of the measures likely to assist in achieving the objective of reducing greenhouse gases by 40% by 2030.

In terms of calculating the ecological damage, the tribunal noted that the cap set for 2015-2018 had been exceeded by 62 million tonnes of “carbon dioxide equivalent” (i.e. Mt CO2eq) but that, since the damage was assessed as at the date of the judgment, the substantial reduction in greenhouse gas emissions in 2020 (linked to the Covid-19 crisis) must also be taken into account. As such, the tribunal evaluated the damage to be repaired to be equal to 15 Mt CO2eq.

The tribunal ordered the French Prime Minister and the relevant ministers to take all appropriate sectoral measures to mitigate the damage, but considered that it had no jurisdiction to decide on the nature of the measures to be taken.

In December 2022, the NGOs notified the relevant ministries that the state had not complied with the terms of the October 2021 judgment and that the NGOs would be seeking substantial damages. In June 2023, the NGOs filed their further claim against the French state. The applicants requested a €1.1 billion penalty to be imposed on the state for its alleged failings, and €122.5 million penalty for any additional delay in complying with the tribunal’s directions.

In its decision of December 2023, the tribunal rejected the NGOs’ request and held that the state’s actions were late but sufficient to remedy the ecological harm caused by carbon emissions. In February 2024, the NGOs announced that they would be appealing this decision to the Council of State.