Chapter 13 on Common but Differentiated Responsibilities and Respective Capabilities provides a critical analysis of this cornerstone principle of international climate law and its implications for climate litigation. The principle recognises the differentiated responsibilities and capabilities of countries in addressing climate change, acknowledging the historical contribution of developed nations to global greenhouse gas emissions and the greater capacity these nations possess to mitigate climate change and adapt to its impacts. The author critically analyses key cases where the principle has been raised, and assesses the legal reasoning employed by courts and tribunals that have given it a specific meaning. The author then identifies instances of emerging best practice where the principle has been interpreted and applied in ways that enhance climate justice outcomes. She notes that such instances do not yet constitute a uniform trend but they nonetheless illustrate the potential of this principle in shaping the delineation of responsibilities in climate lawsuits, considering fairness, equity, and historical responsibility.

In September 2020, six Portuguese children and young adults filed a climate change case with the European Court of Human Rights (‘ECtHR’) against thirty-three European states, comprising Europe’s major emitters. This chapter outlines the basis on which they argue that these states are violating their rights under the European Convention on Human Rights (‘ECHR’) by failing to adopt the radical measures required to safeguard their futures. In particular, it outlines how principles of shared state responsibility are invoked alongside a related general principle of law applicable in situations involving causal uncertainty and multiple wrongdoers to address the ambiguity surrounding the extent of states’ respective ‘fair shares’ of the necessary global mitigation effort. These principles are relied upon to reinforce the paramountcy of the need to achieve the 1.5°C target of the Paris Agreement to realize the rights of the youth-applicants. That various core principles of ECHR jurisprudence, including the margin of appreciation and the principle of effectiveness, support this view is further outlined. The chapter also outlines, with reference to the landmark Urgenda decision, how the approach taken by the youth-applicants in this case can reinforce the efforts of domestic climate change litigators in Europe and beyond.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.

This chapter studies the balancing function of Article 101(3) TFEU individual exemptions/exceptions. It reveals a great divergence in the frequency with which the Commission, national competition authorities, and EU and national courts have invoked and accepted the Article 101(3) TFEU, as well as their interpretations of the types of relevant benefits, the balancing process, and the intensity of control. Moreover, it uncovers the ‘death’ of Article 101(3) TFEU defence in the Commission’s practice following modernisation.