Abstract
The division of internal and external competences between the European Community and the Member States is the first theme which needs to be considered when studying the participation of the EC and the Member States in an international treaty and the implications of this commitment in respect of joint and differentiated obligations and responsibilities of the Community and the Member States. Establishing a clear division of competences between the EC and the Member States is an essential starting point for the assessment of the participation of the EU in the international climate regime, where the EC and the Member States have jointly committed themselves to reducing their levels of greenhouse gas emissions. Nonetheless, it is important to keep in mind that once the reform of the EU Treaty, notably the Treaty of Lisbon on the Functioning of the EU, has entered into force, the EU will acquire international legal personality and replace the EC.
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Notes
- 1.
‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures’ (Article 308 EC Treaty).
- 2.
The Treaty of Rome established the European Economic Community (EEC) and was signed by France, West Germany, Italy, Belgium, the Netherlands and Luxembourg on 25 March 1957.
- 3.
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103, 25 April 1979, pp. 1–18; Council Decision 86/234/EEC of 10 June 1986 adopting multiannual R&D programmes in the field of the environment (1986–1990), OJ L 159, 14 June 1986, pp. 31–35; Council Directive 82/884/EEC of 3 December 1982 on a limit value for lead in the air, OJ L 378, 31 December 1982, pp. 15–18; Council Recommendation 81/972/EEC of 3 December 1981 concerning the re-use of waste paper and the use of recycled paper, OJ L 355, 10 December 1981, pp. 56–57.
- 4.
The body was renamed as the European Parliament in 1962.
- 5.
‘The Council […] shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174’ (Article 175(1) TEC).
- 6.
For a better understanding of and for further reading on the objectives and principles of European environmental law see, amongst others, Jans and Vedder (2008) and Krämer (2006).
- 7.
‘Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development’ (Article 6 EC Treaty).
- 8.
Epiney (2003), p. 46.
- 9.
Epiney (2003).
- 10.
Only Articles 133 (commercial policy), 310 (association agreements), 302–304 (relation between the EC and international organisations) refer explicitly to the EC’s external power.
- 11.
On this issue, see Bothe (2005b) and Neuwahl (1996).
- 12.
See Treaty on the Functioning of the EU (TFEU).
- 13.
This is the case with Community legislation aimed at the promotion of renewable energy sources and energy efficiency adopted on the basis of Article 175(1) TEC on the protection of the environment.
- 14.
This is the case, for instance, with Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity which was adopted having regard to Article 93 of the EC Treaty and which is based on the harmonisation of taxation legislation and on the necessity to ensure the proper functioning of the internal market and the achievement of the objectives of other Community policies.
- 15.
Craig and De Búrca (2007), p. 539.
- 16.
Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140, 5 June 2009, pp. 16–62.
- 17.
Proposal for a Directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources, COM(2008)19, Brussels, 23 January 2008, p. 9.
- 18.
This is the case with the following EC policies: development, environment, research and technology, monetary and foreign exchange matters, education, culture, health, and CCP.
- 19.
ECJ, case 22/70 Commission v. Council [1971] ECR 263, cases 3, 4 and 6/76 Kramer [1976] ECR 1279, opinion 1/76 (Draft Agreement Establishing a Laying-up Fund for Inland Waterway Vessels) [1977] ECR 741, opinion 2/91 re ILO Convention 170 on Chemicals at Work [1993] ECR I-1061, opinion 2/94 (Accession of the Community to the European Human Rights Convention) [1996] ECR I-1579.
- 20.
‘The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300. The previous subparagraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements’ (Article 174(4) EC Treaty).
- 21.
MacLeod et al. (1996), pp. 325–326.
- 22.
Judgment of the Court of 31 March 1971, Commission of the European Communities v. Council of the European Communities—European Agreement on Road Transport, case 22/70 [1971] ECR 263.
- 23.
See supra n. 19, pp. 1309–1311.
- 24.
On this matter, see also O’Keeffe (2000).
- 25.
For the new approach to harmonisation in the European Community, see Craig and de Búrca (2007), p. 620 et seq.
- 26.
ECJ, opinion 1/94 (WTO Agreement) [1994] ECR I-5267, para 96.
- 27.
ECJ, opinion 2/91 (ILO Convention) [1993] ECR I-1061.
- 28.
On this matter, see Rosas (2000), MacLeod et al. (1996), pp. 142–164, O’Keeffe and Schermers (1983) and Heliskoski (2001).
- 29.
Schermers (1983), pp. 25–26.
- 30.
MacLeod et al. (1996), p. 329.
- 31.
For instance, the United Nations Framework Convention on Climate Change (1994) or the United Nations Convention on Biological Diversity (1992).
- 32.
For instance, the UNECE Convention on Long-Range Transboundary Air Pollution (1979) or the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992).
- 33.
For instance, the Barcelona Convention for the Protection of the Mediterranean (1978) or the Convention for the Protection of the Rhine (1976).
- 34.
Article 2(8) of the Montreal Protocol: ‘(a) Any Parties which are Member States of a regional economic integration organization as defined in Article 1(6) of the Convention may agree that they shall jointly fulfil their obligations respecting consumption under this Article and Articles 2A to 2I provided that their total combined calculated level of consumption does not exceed the levels required by this Article and Articles 2A to 2I. (b) The Parties to any such agreement shall inform the secretariat of the terms of the agreement before the date of the reduction in consumption with which the agreement is concerned. (c) Such agreement will become operative only if all Member States of the regional economic integration organization and the organization concerned are Parties to the Protocol and have notified the secretariat of their manner of implementation.’
- 35.
See Chap. 2, n. 45.
- 36.
Ruling 1/78, ‘Draft Convention of the International Atomic Energy Agency …’ [1978] ECR 2151, para 35.
- 37.
See supra n. 27, paras 34–36, opinion 2/91 [1993] ECR I-1061, para 36, opinion 1/94 [1994] ECR I-5267, para 108 and opinion 2/00 [2001] ECR I-09713, para 18. This issue is considered in detail in Chap. 6.
- 38.
The question of the legal personality of the EU has not yet been resolved at the Treaty level. The Treaty of Maastricht (1992) modified the treaties establishing the three European Communities but did not replace them. The EC has legal personality while the legal personality of the EU was foreseen in the Treaty establishing a Constitution for Europe, which was rejected by the Netherlands and France in the referendums of 2005.
- 39.
‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force for the Treaty, became an integral part of the legal systems of the Member States and which their Courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves’, ECJ, case 6/64 Costa/ENEL [1964] ECR 585, para 3.
- 40.
Articles 1 and 32 FEU.
- 41.
For instance, the Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (Basel Convention), Articles 2(20) and 22(1).
- 42.
ECJ, ruling 1/78 (Draft Convention on the Physical Protection of Nuclear Materials) [1978] ECR 2151, paras 34–36.
- 43.
ECJ, opinion 2/91 (ILO Convention) [1993] ECR I-1061, para 36.
- 44.
ECJ, opinion 1/94 (WTO Agreement) [1994] ECR I-5267, para 19.
- 45.
ECJ, case C-25/94, FAO [1996] ECR I-1469, paras 48–49.
- 46.
MacLeod et al. (1996), p. 148.
- 47.
For instance, in 2009, the climate change negotiations on the adoption of the post-2012 regime were conducted under the flag of the Czech Republic in the first semester and under the flag of Sweden in the second semester.
- 48.
Council Decision 93/389/EEC of 24 June 1993 for a monitoring mechanism of Community CO2 and other greenhouse gas emissions, OJ L 167, 9 July 1993, pp. 31–33.
- 49.
Council Decision 94/69/EEC of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change, OJ L 33, 7 February 1994, p. 11.
- 50.
2413rd Environment Council meeting, Brussels, 4 March 2002.
- 51.
See Chap. 1, n. 1, recital 11: ‘The subject matter of the Kyoto Protocol comes under the heading of Community environment policy. This proposal is based on Article 174(4) of the Treaty establishing the European Community, in conjunction with the first sentence of Article 300(2) and the first subparagraph of Article 300(3). Article 174(4) confers express competence on the Community to conclude the Kyoto Protocol, while Article 300 lays down the procedural requirements. The Commission’s proposal is subject to approval by a qualified majority in the Council after consultation of the European Parliament.’
- 52.
Opinion 2/00 (Cartagena Protocol on Biosafety) 6 December 2001 [2001] ECR I-09713.
- 53.
Articles 5 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184,17 July 1999, p. 23.
- 54.
Commission Decision 2006/944/EC of 14 December 2006 determining the respective emission levels allocated to the Community and each of its Member States under the Kyoto Protocol pursuant to Council Decision 2002/358/EC.
- 55.
Article 4(2) of the UNFCCC touches upon several commitments of Annex I parties which affect different competences under the EU system.
- 56.
Craig and De Búrca (2003), p. 131.
- 57.
Doc. 9702/98 of 19 June 1998 of the Council, Annex I, reflecting the outcome of proceedings of the Environment Council of 16–17 June 1998.
- 58.
Council Directive 88/609/EEC of 24 November 1988 on the limitation of emissions of certain pollutants into the air from large combustion plants, OJ L 336, 7 December 1988, pp. 1–13.
- 59.
The Triptych approach considered the differentiation of commitments within the EU Bubble and was developed in the Netherlands during the EU Dutch Presidency (January–June 1997), see Groenenberg (2002).
- 60.
More information on this approach is available via the project ‘Burden sharing in climate policy agreements’ of CICERO and ECN (Netherlands Energy Research Foundation), at http://www.cicero.uio.no/projects/detail.asp?project_id=62&lang=en.
- 61.
Torvanger and Ringuis (2000).
- 62.
These were the poorest Member States in the EU in terms of GDP. See Dessai and Michaelowa (2001).
- 63.
See supra n. 57.
- 64.
See Haigh (1996).
- 65.
EEA (2005a).
- 66.
Communication from the Commission to the Council, the Parliament, the European Economic and Social Committee and the Committee of the Regions, Winning the battle against global climate change, COM(2005)35, Brussels, 9 February 2005.
- 67.
EEA (2005b).
- 68.
European Commission, Report of 15 December 2005: Progress towards achieving the Community’s Kyoto target, COM(2005)655, Brussels, 15 December 2005.
- 69.
EEA (2006b).
- 70.
Doubts on the real contribution of JI and CDM credits to filling the existing and future gaps have been raised by some scholars. See, for instance, JIKO (2006).
- 71.
EEA (2008b).
- 72.
EEA (2009).
- 73.
For instance, the ERUPT/CERUPT programme in the Netherlands, the Austrian JI/CDM programme, the Finnish CDM/JI pilot programme, the Danish carbon programme, the Swedish international climate investment programme (SICLIP) and the Belgian federal JI/CDM tender.
- 74.
Report from the Commission under Council Decision 93/389/EEC: First Evaluation of Existing National Programmes under the Monitoring Mechanism of Community CO2 and Other Greenhouse Gas Emissions, COM(1994)67, Brussels, 10 March 1994, p. 6.
- 75.
Second Evaluation of National Programmes under the Monitoring Mechanism of Community CO2 and Other Greenhouse Gas Emissions: Progress towards the Community CO2 Stabilisation Target. Report from the Commission under Council Decision 93/389/EEC, COM(1996)91, Brussels, 14 March 1996.
- 76.
Belgium, Finland, France, Germany, Ireland, Luxembourg, Netherlands and the UK, IEA, energy-related CO2 projections, June 1995.
- 77.
EEA (2008a).
- 78.
See Chap. 2, n. 44, pp. 32–46.
- 79.
Linking Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol’s project mechanisms, OJ L 338, 13 November 2004, pp. 18–23.
- 80.
The Czech Republic, Slovakia and Slovenia were added to the Annex I list by an amendment that entered into force on 13 August 1998, following Decision 4/CP.3 adopted at COP 3. Malta and Cyprus have ratified the UNFCCC but are not included in the Annex I list.
- 81.
Through ratification of an international treaty a state expresses its consent to be bound by it. In the case of the Convention and the Protocol, the secretariat must collect the ratifications of all states. Through ratification, the state commits itself to giving domestic effect to the treaty itself. See the Vienna Convention on the Law of Treaties 1969, Articles 2(1)(b), 14(1) and 16.
- 82.
Acceptance and approval have the same legal effect as ratification. These two instruments are often used by states whose constitutional law does not expressly require the treaty to be ratified to enter into force. See the Vienna Convention on the Law of Treaties 1969, Articles 2(1)(b) and 14(2).
- 83.
Accession has the same legal effect as ratification, and with this instrument a state agrees to become a party to a treaty already negotiated and signed by other parties. See the Vienna Convention on the Law of Treaties 1969, Articles 2(1)(b) and 15.
- 84.
See Chap. 2, n. 45.
- 85.
Slovenia is the only new Member States that will probably fail to meet its reduction targets domestically.
- 86.
Decision 15/CP.7 of the UNFCCC requires Annex I parties to ratify the Kyoto Protocol in order to be able to participate in the flexible mechanisms, see UNFCCC document FCCC/CP/2001/13/ADD.2.
- 87.
Case 181/73 Haegeman [1974] ECR 449.
- 88.
Case 104/81 Kupferberg [1982] ECR 3641, para 13.
- 89.
In terms of national capacity regarding climate policy, Malta established, in 1999, a National Board on Climate Change Affairs composed of experts from the University of Malta and in charge of preparing the first national communication and designing the national climate policy. This document was submitted to the UNFCCC on 1 April 2004. In 2005, Cyprus submitted to the European Commission a Strategic Plan for the reduction of greenhouse gases emissions, prepared by the National Observatory of Athens and commissioned by the Ministry of Agriculture, Natural Resources and Environment. The Strategic Plan provides an evaluation of the greenhouse gas emissions scenario up to 2020. As regards the European climate policy, i.e., the implementation of the EU ETS, both countries prepared national allocation plans for the distribution of the European allowances in both periods.
- 90.
The Annex I Expert Group is an ad hoc group of government officials from Environment, Energy and Foreign Affairs Ministries of countries listed in Annex I to the UNFCCC.
- 91.
The group was created at COP 6 in The Hague, and Malta and Cyprus also take part in this group as observers.
- 92.
The year indicates the establishment of the first national greenhouse gas inventory and is used to calculate the countries’ emissions targets.
- 93.
See UNFCCC document FCCC/CP/1996/15/Add.1.
- 94.
See UNFCCC document FCCC/CP/1998/16/Add.1.
- 95.
‘In the light of characteristic features of the process of economic transition, the period 1985–1987 which precedes the current economic recession is considered as the base period for comparison of the carbon dioxide emissions’, Hungary’s First National Communication under the UNFCCC, 1994, p. 8.
- 96.
The baseline chosen is 1988 because 1990 was a very special time for Poland from an economic and political point of view. The 1990 baseline represents neither the normal Polish emissions trend nor the real Polish economic situation as this was the first year after the economic and political reforms had been launched due to the recession.
- 97.
‘The pollutant emissions in Romania have decreased starting with 1989, especially due to the cut-down in the production activities, a situation which makes 1989 as a possible reference year when preparing reports on pollution abatement’, Romania’s First National Communication under the UNFCCC, January 1995, p. 8.
- 98.
‘The transformation of the political and economic systems in the late 1980s resulted in a temporary decline in industrial production and the standard of living in Slovenia. This in turn temporarily reduced greenhouse gas emissions’, Slovenia’s First National Communication under the UNFCCC, Ljubljana, July 2002, p. 8.
- 99.
Malta and Cyprus are not bound by any greenhouse gas emissions reduction commitment.
- 100.
Petkova and Faraday (2002), p. 49.
- 101.
Rizzo (2001).
- 102.
Structural changes included, for example, a shift toward cleaner fuels, such as natural gas, and a more diffuse use of energy-efficient devices. This was the case in the Czech Republic, Poland and Slovakia, which have produced essential energy efficiency gains in their economies (from 15 to 32%), see UNFCCC (2002), p. 15.
- 103.
See UNFCCC (2002), pp. 11–13.
- 104.
EEA (2003c).
- 105.
In Slovenia, which will probably have to reduce its emissions in order to meet the Kyoto Protocol targets, this is due to the high emissions growth in the early nineties. In Lithuania, the closure of the first Ignalina nuclear reactor in 2005 has affected the general level of emissions, while the second reactor will be closed in 2009. The Ignalina nuclear power station in Lithuania supplies 70–80% of national electricity consumption. The closure of its two reactors was agreed during the EU accession negotiations within the framework of the energy chapter.
- 106.
EEA (2008a).
- 107.
The ‘hot air’ issue was the subject of a long discussion within the AGBM in 1997. See also ECO (1997) and Woerdman (2005).
- 108.
Decision 5/CP.1 at COP 1 launched the pilot phase of AIJ, during which parties can implement, in the territories of other parties, projects to reduce greenhouse gas emissions or foster removals of greenhouse gas by sinks besides the business-as-usual activities. However, no credits can be generated by these projects.
- 109.
See Douma and Ratsiborinskaya (2007), in Douma et al. (2007), pp. 135–144.
- 110.
JUSSCANNZ stands for Japan, the US, Switzerland, Canada, Australia, Norway and New Zealand. See UNFCCC (2002), pp. 30–32.
- 111.
See UNFCCC (2000), pp. 58–59.
- 112.
See Chap. 2, n. 45.
- 113.
Literature on this principle is relatively scarce, see Klein (1984), Boleslaw (2005) and Malanczuk (1997).
- 114.
Klein (1984), p. 474.
- 115.
The only exception mentioned by Malanczuk in this case is when ‘the application of a particular treaty to a certain territory is incompatible with the object and purpose of that treaty’, Malanczuk (1997), pp. 164–165 and Boleslaw (2005), p. 138.
- 116.
On the principle of moving treaty borders and the reunification of Germany, see Malanczuk (1997), p. 164 et seq., Boleslaw (2005), p. 138 et seq., Tomuschat (1990), p. 415 et seq., and Timmermans (1990), p. 437 et seq.
- 117.
Another example is the unification of Yemen in 1990, when two states merged into one.
- 118.
This was the case, for instance, with the State Union of Serbia and Montenegro which was dissolved in 2006. Consequently, Serbia and Montenegro ratified the Kyoto Protocol on 19 October 2007 and 4 June 2007, respectively. However, this case concerned not only moving treaty boundaries but also state succession into multilateral treaties.
- 119.
Klein (1984), p. 475.
- 120.
Hoffmeister (2002b), p. 218.
- 121.
See ECJ, case 181/73 Haegeman v. Belgian State [1974] ECR 449.
- 122.
Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, OJ L 236, 23 September 2003, pp. 33–50.
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Massai, L. (2011). The EC and the Member States in the Kyoto Protocol. In: The Kyoto Protocol in the EU. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-571-1_4
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