EU's Climate Obligations Open for Judicial Review at the ECJ
The European Court of Justice (ECJ) is set to review the compatibility of the EU-Mercosur Deal with EU law, as concerns regarding its potential impact on the climate crisis continue to mount.
The ECJ's opinion procedure allows for a general and abstract ex ante assessment of an envisaged international agreement to avoid commitments that run counter to EU law. This review is pressing due to the potential for the agreement to increase emissions and undermine climate policies, and the growing human rights and economic costs of the climate crisis.
The EU-Mercosur Deal, if implemented, may make beef cheaper on the EU markets by significantly reducing import tariffs. However, this could be difficult to justify in light of the EU's climate mitigation obligations. Trade in high-emission goods may lead to greater and cheaper availability and higher consumption, increasing greenhouse gas emissions.
For the EU, "doing its part" consists of staying within its fair share of the global emissions budget associated with the long-term temperature limit (LTTL) of 1.5°C and taking all feasible emission reduction measures. The Intergovernmental Panel on Climate Change (IPCC) and the European Scientific Advisory Board (ESAB) are recognized and publicly endorsed scientific bodies that provide advice on feasible emission reduction measures for the EU.
Courts and tribunals have established that a state is obliged "to do its part" in mitigating the climate crisis. The ECtHR, in its decision on KlimaSeniorinnen on 9 April 2024, specified the climate-related obligations of Contracting Parties to the European Convention on Human Rights (ECHR). Embedded emissions are within the scope of human rights protection.
The ICJ, in its landmark climate decision in July 2025, legally bound countries to the 1.5-degree warming limit and enforced climate neutrality obligations for industrialized nations including the EU. The ICJ is the authoritative voice on international obligations, not only under the 1994 UN Framework Convention on Climate Change (UNFCCC) and the 2015 Paris Agreement but also international human rights and customary international law.
The rebalancing mechanism in the EU-Mercosur Deal offers a procedural setting for the Contracting Parties to challenge each other's climate policies, including the implementation of the Green Deal, even where such policies do not undermine rights but only have the (vague) consequence of substantially impairing a "trade benefit".
The EU is responsible for trade-related emissions, which constitute a large share of the emissions of rich consumer markets like the EU. The opinion procedure can review both procedural and substantive compatibility with EU law, providing a crucial check on the agreement's impact on the climate crisis.
The ECJ depends on other EU institutions or Member States, as privileged applicants, to request an opinion. The demand for justification from the ECJ regarding the EU-Mercosur Deal is pressing, as the agreement would fully open Mercosur's markets to passenger cars with combustion engines over 15 years, while the sale of these polluting cars is prohibited in the EU from 2035.
The ECJ's opinion could be its first significant statement on the EU's climate mitigation obligations under European and international law. As the climate crisis continues to escalate, the court's decision will play a crucial role in shaping the EU's approach to international trade agreements and its commitment to addressing climate change.
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