5 - The EU and International Climate Regimes

Question 1

What does this lecture on the EU and international climate regimes touch upon? (5)

Answer 1

1/ EU ability to effectively participate in int. climate regimes (ICRs)

2/ EU decision-making in participating in ICRs

3/ relationship EU-MS participating in ICRs

4/ role and place of trade liberalisation & investment protection objectives in ICRs

5/ EU’s ambitions in shaping ICRs

Question 2

Considerations on the UNFCCC? (6)

Answer 2

1/ concluded in 1992, into force 1994

2/ commitment to address climate change

3/ precautionary approach (art. 3(3))

4/ attempt to agree on differentiated system based on capabilities and exposure to CC (art. 3(2))

5/ all parties have soft obligations

6/ only developed country parties have mitigation obligations

Question 3

Considerations on EU in the UNFCCC? (5)

Answer 3

1/ pushed for its adoption

2/ market-based approach

3/ little influence on the details

4/ top down (EU) vs bottom up approach

5/ objectives vs policies

Question 4

Considerations on Kyoto Protocol? (2)

Answer 4

1/ concluded 1997, into force 2005

2/ failure of US ratification

Question 5

Considerations on EU and Kyoto Protocol? (5)

Answer 5

1/ top down emission reduction targets

2/ market-based flexibility mechanisms

3/ doubt of EU authenticity

4/ CBDR

5/ Russia as key player to reach ratification threshold for entry into force

Question 6

Considerations on the ‘failure of Copenhagen’? (4)

Answer 6

1/ Obama conducted negotiations outside official framework and proposed weak agreement

2/ disagreement on top down vs bottom up might have been the breaking point

3/ market-based system rejected in Copenhagen

4/ role of DCs

Question 7

Considerations on Paris Agreement? (6)

Answer 7

1/ concluded and entered into force in 2015

2/ objectives in Art. 2(1)

3/ prevention principle

4/ top down objectives

5/ bottom up approach (eg. NDCs)

6/ both developed and developing countries have core mitigation obligations (Art. 4(2))

Question 8

Considerations on EU Treaties post-Lisbon? (5)

Answer 8

1/ Art. 191 TFEU: climate change

2/ Arts. 2 & 3 TEU: values and objectives, no mention of environment

3/ Art. 21(2)(d)&(f) TEU: external objectives, small and limited reference to envt

4/ Art. 218 TFEU: int. agreements

5/ Art. 218(9) TFEU: position in IOs

Question 9

What is a general conclusion that can be drawn from the EU Treaties post-Lisbon? (2)

Answer 9

1/ questions of envtal protection are not prevalent

2/ reference to climate change only since Lisbon in Art. 191 TFEU

Question 10

Considerations on the EU’s competence and representation in the context of climate change? (6)

Answer 10

1/ there has been a change in EU representation in IOs post-Lisbon

2/ Art. 216 TFEU: 4 bases for EU adoption of an international agreement (almost always makes the EU competent)

3/ Art. 17(1) TEU: external representation

4/ Art. 218(4) TFEU: negotiator

5/ Art. 219(1) TFEU: EU delegations

6/ political statements depending on their aim and content

Question 11

How is competence to make political statements determined? (2)

Answer 11

1/ aim and content of measure (substance)

2/ not form

Question 12

Considerations on EU-Australia ETS case (2015)? (5)

Answer 12

1/ case about negotiating directives’ reach

2/ procedural vs substantive constraints on negotiation

3/ Art. 218(4) TFEU institutional balance

4/ rejection of arguments in favor of substantive constraints on negotiation

5/ question of democratic control

Question 13

Why is there a question about democratic control regarding the impossibility of imposing substantive constraints on negotiator? (2)

Answer 13

1/ EC has very little democratic legitimacy as opposed to national representatives within the Council

2/ leakage pbs could occur if all powers given to Council

Question 14

Considerations on the case of maritime protected areas (2018)? (4)

Answer 14

1/ case about the competence to make decision on the protection of maritime areas

2/ argument of exclusive competence dismissed by CJEU

3/ question of envtal policy vs other policies (tension?)

4/ Art. 11 TFEU (integration envtal objectives)

Question 15

Considerations on MS scope for action in int. bodies? (3)

Answer 15

1/ Art. 4(3) TEU: EU loyalty, constraining MS

2/ OIV case (2014): even if EU is not member of an IO, MS are kept in check by duty of loyalty where EU interests come into play

3/ PFOS case (2010): concerted position of EU prohibits MS from taking different position in IO

Question 16

Considerations on PFOS case (2010)? (5)

Answer 16

1/ CJEU held that Sweden violated duty of loyalty towards EU

2/ mixed membership

3/ concerted position of EU

4/ exclusive vs shared competences

5/ external vs internal action (Art. 193 TFEU EU minimum harmonisation)