Università di Pisa – Facoltà di Scienze Politiche
Corso di laurea magistrale in Studi Internazionali (LM-52)
Tesi di laurea in diritto dell’Unione europea e diritto internazionale
The EU’s contribution to fighting climate
change: between unilateralism and
multilateralism
Relatore
Prof.ssa Sara Poli
Candidato
Lucilla Leonardini
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Ringraziamenti
Voglio ringraziare tutti coloro che mi sono stati vicini lungo questo percorso, reso difficile soprattutto da sfide e problemi che spesso sono andate al di là della sfera universitaria. Un percorso faticoso proprio per questo, ma pur sempre un percorso bello, intenso, appassionante. Avere la possibilità di parlare di una materia che così tanto mi appassiona è stato fonte di grande responsabilità ma al contempo di grande soddisfazione.
In particolare, voglio ringraziare i miei genitori, Luisa e Umberto, insieme al compagno di mia madre, Domenico, per essermi stati vicini sin dall’inizio della mia carriera universitaria, nel lontano 2011. Mi è stato dato grande supporto spirituale, sono stata incoraggiata a fare di più, a migliorarmi, senza però necessariamente raggiungere il massimo risultato. Questo è un loro grande merito per cui non li ringrazierò mai abbastanza.
Voglio ringraziare anche la mia professoressa, Sara Poli, per l’eccellente supporto didattico e umano che mi ha fornito in questi mesi di collaborazione. Sono molto felice di essermi rivolta a lei per redigere questo lavoro di ricerca perché è stata molto presente e ha avuto molte attenzioni, tra cui rendermi partecipe di diverse opportunità di soggiorno e tirocinio all’estero che mi hanno permesso di crescere e di rendermi più indipendente e consapevole. Voglio ringraziare anche una persona, entrata da relativamente poco nella mia vita ma per me già molto importante, che mi ha subito dato supporto psicologico e morale, specialmente nei momenti più difficili: il mio fidanzato, Michael. Ha cambiato la mia vita in meglio, arricchendola, e non mi ha mai permesso di buttarmi giù, anche quando le mie insicurezze volevano sopraffarmi.
Un ringraziamento finale, ma non meno importante, va ai miei amici, in particolar modo a Jasmine e Giorgia, per essermi stati vicini e per aver sopportato le mie debolezze e i miei momenti bui, ricordandomi che posso essere forte e posso riuscire in qualsiasi ambito io voglia, se solo mi impegno. Vi sono molto grata per il supporto che mi avete dato in questi ultimi anni, senza il quale probabilmente non sarei arrivata alla fine di questo percorso soddisfatta di me stessa e con qualche sicurezza in più. La vostra vicinanza è stata fondamentale per aiutarmi a costruire, con fatica, la persona che sono oggi.
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Index
Introduction ... 4
1. Legal background of international climate policies in the 1990s ... 6
1.1 Breaking with the past: a new idea of environment in the Rio Declaration and Agenda 21’s proactive plan of action ...6
1.2 The UNFCCC: the first ground-breaking, encompassing international environmental treaty ... 11
1.3 The Kyoto Protocol and its binding targets as necessary steps towards emissions reduction ... 16
2. The European environmental legislation and the implementation of international commitments ... 23
2.1 The EU legal basis in the field of environmental policy ... 28
2.2 The difficult yet ambitious experiment of EU Emissions Trading Scheme ... 34
2.3 A flawed, perfectible system or a total failure? Evaluating the EU ETS’ past and present implementation ... 51
2.4 Joint Implementation and Clean Development Mechanism as fruitful additional tools to promote climate change mitigation and sustainable development ... 54
2.5 Assessing the EU’s role in the promotion of a responsible usage of international credits... 60
3. The EU’s significant yet controversial contribution to tackle emissions from international civil aviation: between unilateralism and multilateralism………..….63
3.1 EU policy-making in the air navigation field ... 66
3.2 EU’s evolution towards the integration of international civil aviation in its Emissions Trading Scheme ... 69
3.3 The inclusion of aviation activities in the EU ETS ... 78
3.4 Timidly tackling climate change on an international level: ICAO’s general discussions on market-based measures to address aviation emissions and the first reactions to the controversial inclusion of international civil aviation in the EU ETS ... 86
3.5 The ECJ’s judgement in the ATA case: clarifying or cautious? ... 92
3.6 ICAO’s enhanced pressure on the EU’s unilateral measure and EU’s U- turn as promoters of concrete progress on an international level ... 103
3.7 The introduction of CORSIA, the first global market-based measure ... 113
3.8 The EU’s extension of the derogation as a response to international developments ... 118
3.9 ETS and CORSIA: strengths and weaknesses of two innovative ways to tackle emissions from international civil aviation... 122
3.10 Can the EU’s contribution be considered as game-changing? ... 126
4. The evolution of international climate policy from Kyoto to Paris ... 130
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4.2 The Paris Agreement: a new way to address climate change ... 141
4.3 The EU’s external and internal action in a new era for international climate change policy ... 151
Conclusions ... 158
4
Introduction
The dissertation aims at providing a comprehensive overview on both international and European environmental law since the 1990s, focusing on EU legislation and on the EU’s contribution to the international fight against climate change, both by legal and diplomatic means.
The essay begins with a legal background of international climate policies in the 1990s, specifically the Rio Declaration and its Agenda 21, the United Nations Framework Convention on Climate Change and its Kyoto Protocol, with their innovative declarations of intents and emissions reduction and limitation targets, especially addressing developed countries and exonerating developing ones from binding commitments. This legal framework is necessary to understand the context in which EU environmental law has evolved, both through general ambitious objectives and market-based measures to contribute to the fight against climate change.
In particular, in order to understand EU’s contribution, in the second chapter I will analyse the three flexibility mechanisms enshrined in the Kyoto Protocol: the Emissions Trading Scheme (ETS), alongside the Joint Implementation (JI), which opens to the possibility of achieving domestic targets with the contribution of emissions reduction units coming from other developed countries, and the Clean Development Mechanism (CDM), which consists in contributing to domestic targets through certified emissions reductions from projects in developing countries.
The EU ETS, unprecedented in scope and nature, is currently the largest carbon market worldwide, accounting for three-quarters of international carbon trading, and covers the most polluting sectors, such as energy activities, production and processing of ferrous metals, mineral industry, aluminium and chemical production, aviation activities. The installations and/or operators must comply with the scheme’s requirements to regularly monitor and report their emissions and surrender an amount of emission allowances equal to the actual emissions levels for the preceding year, incurring sanctions in case of non-compliance.
The third chapter is dedicated to the controversial inclusion of international civil aviation in the EU ETS. It is particularly relevant with regards to the EU’s contribution to climate change mitigation beyond its borders: in fact, with directive 2008/101/EC, the scheme planned the inclusion of the aviation sector from 2012, encompassing the total of emissions produced by
5 aircrafts departing from and landing on EU’s territory, regardless of the portions of flight overseas or over third countries’ airspace. The measure raised concerns in the international community and led to an important controversy that involved the major international airline companies and their countries of registration, which persuaded the EU to temporarily reduce the scope of the directive to intra-EEA flights, in order to favour progress within the International Civil Aviation Organization (ICAO) towards a global market-based measure. After long negotiations, in 2016 ICAO decided to introduce a global market-based measure called Carbon Offsetting Reduction Scheme for International Aviation (CORSIA), to begin operating in 2021. Both the directive, even if not welcomed by the international community, and EU’s diplomatic pressure relaunched negotiations in international fora towards the adoption of an effective measure to tackle emissions from aviation as a rapidly growing, yet not regulated, sector.
The final chapter contains a brief overview on the recent developments of international environmental law, highlighting the main steps towards the adoption of the Paris Agreement, with a focus on the innovations brought by it in the way of tackling climate change on a global scale. In fact, the agreement introduces a “hybrid” approach that combines both top-down (an international reviewing mechanism) and bottom-up elements (nationally determined contributions), going beyond the limits of the Kyoto Protocol and calling everyone to action. In the negotiations leading to the adoption of the Paris Agreement, after the failure of COP15 in Copenhagen in 2009, the EU left its strictly normative approach behind, as it was premature and counter-productive in a complex and reluctant international community. The EU managed to play a pivotal role both as leader and as mediator, building broad coalitions and promoting common action to achieve climate change mitigation on an international level, but paying the price of scaling down its external action’s ambitions, while still increasing its domestic commitment.
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1. Legal background of international climate policies in the 1990s
At the beginning of the 1990s, the number of discussions in official fora about the worrying effects of climate change and catastrophic repercussions of irresponsible human activity began to increase considerably. Since the Stockholm Declaration in 1972, not much had been done in order to raise awareness on the subject at an international level, so real action was needed. Even though several sectoral agreements have been adopted regarding the depletion of the ozone layer, pollution of the oceans, expanding deserts and rapid extinction of plants and animals1, the most important international achievements in tackling
the phenomenon are represented by the Rio Declaration and Agenda 21, the United Nations Framework Convention on Climate Change and the Kyoto Protocol, all dating back to the 1990s.
1.1 Breaking with the past: a new idea of environment in the Rio Declaration
and Agenda 21’s proactive plan of action
The Rio Declaration results from the United Nations Conference on Environment and Development, the so-called Earth Summit, which took place in Rio de Janeiro from 4th to 13th June 1992. The Declaration recalls the 1972 Stockholm Declaration and aims at establishing new objectives for environmental protection. Here, the direct connection to the human character of environment, which was the key point of the previous declaration, disappears: environment starts to be a separate entity, which must be protected and safeguarded since it is “our home” and it has a complex “integral and interdependent nature”2. International agreements must work to
guarantee the integrity of the environment, without hampering the development of all countries, especially less developed ones.
A list of principles follows, saving several features of the Stockholm declaration while integrating them with a clear focus on sustainable development, which is necessary to guarantee safe conditions of growth to present and future generations.
1 Among them, we recall: the London Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter (1972); the Vienna Convention for the Protection of the Ozone Layer (1985) and its Montréal Protocol on Substances that Deplete the Ozone Layer (1987); the Convention on Biological Diversity (1992); the United Nations Convention to Combat Desertification (1994).
7 Sustainable development and environmental protection are strictly and directly connected, therefore they can’t be conceived or pursued separately. Eradicating poverty is functional to global sustainable development, as well as the removal of unsustainable production and consumption patterns and the promotion of demographic policies.
A new principle has been introduced: Common But Differentiated Responsibilities (thereafter, “CBDR”)3, which will be recalled further on. It acknowledges that every single reality all over the world has contributed to the environment’s degradation but in different ways and measures, so their commitment must be proportionate to the damage caused. This will be the key point at the basis of both UNFCCC and Kyoto Protocol and of the distinction between developed and developing countries.
Raising public awareness is a key point to best handle environmental issues: institutions must stimulate dialogue and access to clear and impartial information on the current environmental situation.
In principle 12, international cooperation is strongly recommended and unilateral action from single parties is discouraged, while principles 15 and 16 lay the basis for two of the most important international environmental principles: the precautionary principle and the polluter pays principle. The precautionary principle aims at stimulating an active response to a potential threat to the environment, not allowing States to use the lack of scientific certainty as an excuse for inaction, while the polluter pays principle pursues the internalization of environmental costs and the polluter’s accountability for bearing the cost of pollution.
The Declaration also recognizes the women’s role of promoting environmental protection and sustainable development: their full participation at all levels must be guaranteed.
Finally, in principle 25 peace, development and environmental protection are considered as interdependent and indivisible: this means that they must be pursued at the same time and with the same intensity, because warfare, pollution, underdevelopment might hamper them.
8 During the same summit, which proved to be an unprecedented occasion for international debate, Heads of State and Government, delegates and representatives approved Agenda 21 by consensus. The representatives who agreed on this Agenda for the XXI century represented, at the time, over 98% of the world’s population. The high consensus can be explained by its non-binding nature.
The Agenda aimed at reconciling high-quality environmental protection with a healthy worldwide economy, therefore identifying key areas of responsibility and estimating costs for their achievement.
Work on Agenda 21 did not begin in 1992: in fact, starting from Resolution 38/161 in December 1983, the United Nations General Assembly (UNGA) convened the World Commission on Environment and Development. It began working to an encompassing report, presented at the UNGA in 1987 and spread worldwide. This report, “Our Common Future”, was a milestone in speaking up about environmental protection and economic growth, linking them through the concept of sustainable development and urging Parties to intervene and promote action towards it. This directly led to convening the famous Earth Summit. Even if there was general consensus about the Agenda, that does not mean that all expectations and requests had been satisfied or that everyone’s best interests were taken into account: the broader picture mattered the most.
In an overview of the 700-pages Agenda, four different sections can be identified, corresponding to the major committees of the delegates.
Starting from the Preamble, Agenda 21 is considered a dynamic program, which aims at beginning a new global partnership while adapting to different situations and needs.
The first section, which deals with the socio-economic dimension, calls for several actions. Among those, acceleration of sustainable development is deemed necessary, and can be achieved by building a dynamic and growing economy based on “open, equitable, secure, non-discriminatory, and predictable multilateral trading system”, allowing fair trade and prices free of tariff and non-tariff barrier, especially with regards to developing countries. Combating poverty is another key responsibility, which must be achieved by improving access to safe water, health and care system, access to resources, empowerment of disadvantaged people. The least expensive, but
9 still important, target is changing consumption patterns by raising awareness on the amount of waste produced for having a certain lifestyle, educating people on alternatives, removing unnecessary packaging. Since humanity is rapidly growing but still has to face several health issues, its well-being should be safeguarded by adequate population policies, which have to be implemented right next to economic development programs. Health is pivotal in these considerations, so it must be pursued at least at a basic level, as well as guaranteeing sustainable urban settlements, with particular attention to disadvantaged people. Finally, the Agenda calls on action by governments in order to promote sustainable policies, to integrate environmental protection, degradation, restoration costs in decision-making and deal with them by investing in research and development.
The second section deals with conservation and management of resources. It calls for action in several matters: guaranteeing sustainable land use and agriculture and rural development, by rediscovering ancient agriculture techniques in order to cultivate in a safer and less toxic manner and by allowing natural regeneration; protecting the atmosphere by working on alternative and renewable energy resources; combating deforestation and conversion of land usages for production purposes, as well as desertification and drought caused by unsustainable management of water resources and lack of compensation through planting programs; guaranteeing sustainable mountain development by investing in anti-erosion and wildlife preservation policies; preserving biological diversity; promoting the exportation of biotechnologies to developing countries so as to improve productivity, life quality and sustainable agriculture; protecting and managing both oceans and fresh water, for biological and health purposes; using toxic chemicals in the safest and less harmful way possible, limiting their exploitation to when it’s deemed necessary and banning high-risk substances; managing wastes of all kinds, from hazardous in general to radioactive.
The third section aims at strengthening the role of major groups: it means that everyone should be able to take action towards sustainable development. Several communities and groups of people which are often victims of discrimination, like women or indigenous people, should be able to participate in the ecosystem management and in sustainable development practices; children and youth should
10 have the possibility to be educated and trained to a new way of thinking and conceiving development and growth, allowing them to participate to fora about measures tackling the environment4; involving non-governmental organizations, workers and trade unions, business and industry, local authorities, groups of farmers, scientists and technologists is the best way to guarantee awareness and participation at all levels, without sacrificing anyone’s interests and leaving important contributions out of the picture. In fact, sustainable development must be pursed at all levels, governmental and non-governmental, economic and social, public and private, scientific and practical ones.
The final section, which is dedicated to means of implementations, deals with the practical aspects of guaranteeing achievement in the said areas of responsibility. First of all, financing sustainable development bears high costs with it: developing countries must be financially helped in order to deliver sustainable targets and developed countries must commit to funding operations by contributing directly with a share of their own GNP. They actually did so, because they accepted the UN target of 0.7% share and to implement it “as soon as possible”. The estimated costs for guaranteeing overall sustainable development is high: 561.5 billion dollars total.
Technology transfer is also necessary in order to allow developing countries to use the same technologies as developed ones, therefore creating the conditions for economic sustainable development. But research does not stop here: further scientific discoveries are necessary to improve actual tools for delivering sustainable growth. Without education and training, though, change cannot go too far, because people and society must be aware of pollution, of potential and real dangers to the environment, of ways and measures to incorporate a more sustainable lifestyle. Skills, education, awareness are necessary at all levels, since projects should be based on more sustainable capacity building and know-how. On an international level, institutions must be created or be made accountable for laying the grounds for promoting sustainable development. A Commission on Sustainable Development is therefore created and it must answer to the UNGA through the Economic and Social Council. It must work, together with the UN as whole and governments, on international
4 For this purpose, the Agenda calls for governments to guarantee, by 2000, access to secondary education or
11 agreements that will create universally agreed standards for environmental protection and nations’ rights and obligations in pursuing sustainable development. In case of disputes, which shall be avoided, the International Court of Justice is the official forum for resolution.
Both the Declaration and the Agenda, even if they bear unprecedented principles and provisions with them, they are soft law instruments. This has been proven to not be sufficient to address the pressing issue of climate change: a real, binding international framework for environmental action was needed.
1.2 The UNFCCC: the first ground-breaking, encompassing international
environmental treaty
The United Nations Framework Convention on Climate Change (UNFCCC) is an international environmental agreement that acknowledges the need to take action and contain the global temperature increase caused by human activity, since it is radically “changing the way the energy from the sun interacts with and escapes from our planet’s atmosphere”5. Unlike the instruments above, it is binding for Parties that
decide to adhere. It was approved in March 1992 during the Earth Summit and entered into force in May 1994. As of today, 189 countries have ratified the Convention.
The preamble of the Convention recalls some key elements. First of all, change in Earth’s climate and its adverse effects are causing concrete issues to all mankind and action shall be taken, while considering the gap between developed and developing countries with regards to their historical and current emissions, stating the CBDR principle. Moreover, climate change is a highly uncertain phenomenon for its timing, magnitude and regional patterns, so it is hard to predict how it will develop throughout the years. What’s certain is that mankind contributed significantly to increasing the concentration of greenhouse gases (thereafter, “GHGs”) in the atmosphere, enhancing the so-called greenhouse effect and warming up the surface of the planet. Both marine and terrestrial ecosystems bear sinks and reservoirs of GHGs which we must not forget: their dispersion might cause further harm to our ecosystem. The
5 “Understanding Climate Change: a Beginner’s Guide to the UN’s Framework Convention”, available at
12 Parties to the Convention also stress the need for action supported by continuous scientific research, which will deliver further knowledge. A lot of realities, such as the low-lying or small island countries, low-lying coastal, areas or semi-areas liable to floods, drought and desertification are particularly vulnerable, together with developing countries in general, also for their frequent high reliance on fossil fuels. Economic and social development must be pursued in a coordinated manner with an adequate response to climate change, thereby recalling the idea of sustainable development.
The aim of the Convention, and of the documents and protocols deriving from it, is to achieve “stabilization of the GHG concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. By doing so, the ecosystems shall have the possibility to naturally adapt to climate change, food production shall not be threatened and sustainable development shall be enabled6.
Article 3 contains the fundamental principles of the Convention. In fact, it sets out several ambitious objectives: the need for climate system protection for both present and future generations of mankind, the precautionary principle, the special attention to developing countries as those more in need and often facing the adverse effects of climate change, the promotion of a worldwide sustainable development which should be accessible to all thanks to the promotion of a supportive and open international economic system. As principles, they’re not binding commitments, which is why the Parties decided for “should” rather than “shall” in this section.
Commitments are, indeed, listed in Article 4. The mechanism within this article has been called, during the negotiations, “pledge and review”, meaning that countries generally pledge to reducing and limiting emissions and must review and report the progress made. After general commitments to drafting national plans, considering CBDR, promoting sustainable development, educational and training activities on the subject, investing in scientific and technological research, exchanging knowledge and technologies, the Parties that are mainly called to action are developed countries. They shall take action through national or regional7 plans and take correspondent
6 Article 2 of the UNFCCC.
13 measures on mitigating climate change, both by limiting its anthropogenic greenhouse gas emissions and by enhancing GHG reservoirs and sinks. The objective is returning to 1990 CO2 emissions levels by 2000. Developed countries are in charge of taking the lead in modifying longer-term trends in anthropogenic emissions, therefore giving an example and, if needed, offering support to countries in difficulty. This is, indeed, a top-down approach.
Within six months from the entry into force of the Convention, developed countries should report detailed information on policies and measures adopted to mitigate climate change and on resulting projected anthropogenic GHG emissions, with the aim of returning to their 1990 levels, individually or jointly. Annex I and Annex II countries8 shall commit to help developing countries, since they are dealing
with incremental costs deriving from adaptation to new mitigation targets, costs deriving from adjusting to the adverse effects of climate change, obsolete scientific and technological know-how, lack of financial instruments to contribute to overall reduction commitments. The commitments in Article 4, paragraph 2 have been considered as not sufficiently binding and effective during COP1, thus speaking up about the need for precise emissions targets and leading to the adoption of the Kyoto Protocol.
The Conference of the Parties (thereafter, “COP”), as the supreme body to the Convention, must guarantee its full implementation and periodically review Parties’ obligations with regards to the objective of the Convention, to the experience gained and to new available scientific and technological knowledge. It also has a role as promoter and facilitator in exchanging information and coordinating measures, in evaluating the overall effects deriving from the implementation of the Convention to GHG emissions and to reservoirs and sinks of GHG, in making recommendations and mobilizing financial resources. The COP shall be convened each year, unless it decides otherwise. The first COP session has been convened in 1995 in Berlin.
Participation as observers is allowed to third parties and organizations, such as UN agencies, International Atomic Energy Agency and States not part to the Convention.
14 Together with COP, a Secretariat, a Subsidiary Body for Scientific and Technological Advice and a Subsidiary Body for Implementation are established, as contributions to the overall achievement of the targets of the Convention and to the update on available information and national or regional implementation.
Since financing activities are part of the Convention, a financial mechanism must be established: it must represent all Parties equitably and have a transparent governance mode. It aims at supervising financial activities, investments, subsidies, financial aid to developing countries, guaranteeing that they are conducted in compliance with the Convention.
Article 12 contains general provisions addressed to all Parties to the Convention and specific provisions for developed countries, thereby distinguishing their binding commitments from a more flexible approach towards developing countries, given different conditions and starting points. First of all, each Party must communicate their national inventory on GHG emissions and levels of sinks and reservoirs, generally describe their commitments for the implementation of the Convention and report any other useful information. Developed countries, however, shall provide further details on specific policies and measures adopted to comply with the commitments of the Convention in Article 4 and their expected outcomes. Initial communications on their plans for implementation have mandatory deadlines for developed countries (within six months from the entry into force of the Convention) and flexible terms for developing ones. They might also, on a voluntary basis, propose emissions reduction projects for obtaining financial aid from developed countries through the Secretariat’s coordination.
Looking at the thorny issue of dispute settlement, negotiation and other peaceful means are auspicated in order to solve controversies emerging from the interpretation or the application of the Convention. Parties involved can submit a written instrument declaring that disputes may be settled before the International Court of Justice or through an arbitration procedure, in accordance with the procedure established within COP, thus agreeing that they accept their compulsory and binding outcome. Submitting disputes to the ICJ is allowed only to Parties not identifying as regional economic organizations, but settlements through arbitration procedure are open to every contracting Party: in fact, according to paragraph 2, regional economic
15 integration organizations may submit a declaration for working on disputes through an arbitration procedure. As a residual measure, in the framework of the arbitration dispute settlement, if Parties could not solve their controversies by negotiation and other peaceful means within 12 months, they should constitute a conciliation commission, composed of equal numbers of both Parties’ members and a chairman appointed jointly. The conciliation produces a recommendatory award, which the Parties shall take into consideration “in good faith”.
Like the Protocol, proposal for amendments can be presented by all Parties to the Convention. They must be approved by consensus during the COP but, if not possible, a qualified three-fourth majority vote of Parties present and voting is required.
Article 17 is the legal basis for the Kyoto Protocol, since it allows the COP, at any ordinary session, to adopt protocols to the Convention. Only Parties to the Convention can be considered Parties to the Protocol but Parties to the Convention can choose not to be Parties to the Protocol. In this case, COP meetings under the Protocol itself will be attended only by those who are part of it.
The EU’s special right to vote is enshrined in Article 18, paragraph 2, since it allows a regional economic integration organization to cast as many votes as the number of Member States participating to the Convention. However, if one of these States exercises its own right to vote, the organization can’t, and vice versa.
The Depositary of the Convention and the Protocols, as well as of ratification, approval, acceptance, accession instruments is the United Nations Secretary General.
According to Article 22, paragraphs 2 and 3, regional economic integration organizations can be part of the Convention without its Member States being part of it as well: this implies that obligations are binding only for the organization and do not have repercussions on its Member States. If, as in the case of the EU, Member States and their organization both decide to be Parties to the Convention, they must organize their commitments and declare the extent of their competences, therefore notifying their respective position to the Depositary for everyone to know, while separately exercising rights within the Convention. This provision forbids organizations and their Member States to take advantage of their position to gain more importance and more benefits from the agreement than other Parties do.
16 The entry into force is possible only when the 50th instrument of ratification, approval, accession or acceptance has been deposited. In order to avoid duplication, every instrument deposited by a regional organization cannot be counted as additional to those of its member states.
Withdrawal is possible after three years from the entry into force of the Convention, by giving written notification to the Depositary. The withdrawal will be effective only a year after its notification. This deferred schedule guarantees that changes in political balances and governments do not excessively affect the scope of the Convention itself. The same timing has been adopted within the Paris Agreement, thus delaying the possibility of withdrawal for at least 4 years in total.
These general yet ambitious objectives needed to be put into action and turned into concrete targets by a dedicated legal instrument, which was agreed on in 1997: the Kyoto Protocol.
1.3 The Kyoto Protocol and its binding targets as necessary steps towards
emissions reduction
The Kyoto Protocol was adopted on December 11th, 1997 and entered into force only in 2005, after Japan, Canada and Russia deposited their instruments of ratification9. Currently, 83 countries signed the Protocol and 191 States and one regional economic organization (the EU) are part of it, meaning that they have adopted and ratified the agreement. Among the signatory countries, the United States, even if it is one of the largest emitters worldwide10, decided not to ratify the Protocol in 2001, under G. W. Bush’s republican administration. Canada, on the other hand, signed the Protocol in 1998 and ratified it in 2002, but withdrew from it in 2012.
More light should be shed on the controversial entry into force of the Protocol.
9 Article 25 of the Protocol explains the conditions that allow its entry into force: at least 55 countries,
incorporating Annex I Parties, accounting for no less than 55% of total CO2 emissions for 1990, must deposit their ratification, approval, acceptance or accession instruments. The total CO2 emission for 1990 refers to the data submitted by the Annex I Parties in their first national communications before or on the date of the adoption of the Protocol. For this purpose, the EU’s (or other regional economic integration organizations’) instrument of ratification does not count as additional to those of its Member States.
17 According to the Japan Times, Japan “[held] the swing vote on the future of the landmark environmental pact in the wake of the US’ withdrawal”. On one hand, it did not want to emerge as guilty for the Protocol’s failure; on the other hand, it wanted to discuss US’ return before proceeding with ratification. Japan’s reluctance was also caused by the fear of competitive disadvantage for Japanese firms, compared to US’ ones. It finally decided to ratify the Protocol in June 2002, giving a significant contribution to the overall reduction targets, since it was one of the largest economies, accounting for 10% of worldwide GHG emissions. Moreover, diplomatic pressure deriving from winning “most of the concessions it had wanted from the EU over the target-achieving mechanisms”11 left little room for hesitation.
With regards to Russia, The Guardian, in 200412, affirmed that, since US and
Australia13 decided not to ratify the Protocol, it seemed to be the only one that could save the Protocol, enabling its entry into force by contributing significantly to worldwide reduction targets. According to the author of the article, N.P. Walsh, the Protocol’s ratification would be perceived as a way of seeking favour by the EU, which has attacked Russia for its repeated human rights abuses. M. Delyagin, head of the Institute for Globalisation Problems and a former government economic adviser, affirmed that "signing Kyoto [was] a bone thrown to Europe to make them shut up". Putin announced the intention to ratify the Protocol after a meeting with EU officials in May 2004. On the same day as Putin’s statement, the EU decided to drop objections to Russia joining the World Trade Organization, after a 11-year pending application14. Inevitably, Russia’s shift strengthened EU’s role as a global leader and secured the future of the Protocol.
A clear focus on the Kyoto Protocol’s provisions is necessary in order to understand its significant contribution to the international environmental legal framework.
In order to pursue the objectives enshrined in Article 3 of the Convention, the Parties to the Protocol agreed to work on several matters: improving energy
11 H. Masaki, “Japan ready to seek ratification of the Kyoto Protocol”, The Japan Times, October 12, 2001. 12 N. P. Walsh, “Russian vote saves the Protocol”, The Guardian, October 2004. Available at:
https://www.theguardian.com/world/2004/oct/23/society.russia.
13 Australia decided to join the Protocol only at the end of 2007.
18 efficiency, reducing and reutilizing waste, reducing methane emissions deriving from transportation and waste management, adopting measures to limit and/or reduce emissions of GHGs not controlled by the Montréal Protocol on Substances that Deplete the Ozone Layer15, developing a sustainable agriculture, reducing and gradually phasing out fiscal incentives, exemptions on taxes and duties to activities producing CO2 emissions and going against the objective of the Convention, promoting the sustainable forest management, afforestation and reforestation, promoting research and investments on renewable energy and protecting sinks and reservoirs of GHGs.
Moreover, Parties are encouraged to cooperate for enhancing individual and coordinated policies and measures, therefore pursuing objectives in article 4, paragraph 2(e)(i) of the Convention16.
In article 2(2) of the Protocol, Parties in Annex I (which includes developed countries) shall commit themselves to reduce GHG emissions deriving from aviation and shipment, collaborating through the International Civil Aviation Organization (thereafter, “ICAO”) and the International Maritime Organization (thereafter, “IMO”)17.
While implementing policies within the Convention, the Parties should coordinate their actions through the Conference of Parties in order to reach commitments more effectively and minimize adverse effects on economic, social, environmental impacts on other countries, especially developing ones. Different circumstances and capabilities must also be taken into account, therefore recalling the CBDR principle. In article 3, the Protocol explains Annex I Parties’ duties. In fact, they must not exceed the amount of carbon dioxide emissions that are established as limitations by their individual commitments. Moreover, by 2005 they must demonstrate their developments. Changes in carbon stocks deriving from changes in land use, deforestation, reforestation and afforestation shall be reported in a transparent and
15 This is the main protocol to the 1985 Vienna Convention on the Protection of the Ozone Layer.
16 […] Each of these Parties [to the Convention] shall: coordinate as appropriate with other such Parties,
relevant economic and administrative instruments developed to achieve the objective of the Convention […].
17 This is one of the controversial points which has been recalled as an argument for invalidating directive
2008/101/EC before the European Court of Justice (C-366/10). Chapter 3 of this dissertation will be dedicated to the controversy regarding the extension of the ETS to international civil aviation through said directive.
19 verifiable manner as well. Additional human-induced activities related to changes in GHGs must be subtracted or added to their national commitments.
During the first commitment period, from 2008 to 2012, Annex I parties are allowed to emit within the thresholds established in Annex B and referring to their 1990 aggregate anthropogenic carbon dioxide equivalent emissions of the GHGs listed in Annex A. Further commitments for following periods must be considered within the COP as main body to both the Convention and the Protocol. Even the Secretariat and the Subsidiary and Advisory Bodies of the Convention serve as bodies to the Protocol.
In article 4, the Protocol opens to the possibility of a joint agreement on reduction and limitation commitments. This agreement must be notified to the Secretariat and every single part of it is accountable for their own emissions reduction targets. In article 4(4), there is a specific reference to regional economic integration organizations and their possibility to reach an agreement as well. This allowed the Member States to the then European Community (EC) to cooperate jointly in this regional institutional framework. However, any following alteration in the composition of the organization does not affect existing commitments: this means that the EC accession procedures pending while ratifying the Protocol will not affect in any way EC commitments thereunder.
Each Party must work, by 2007, on a national system for the estimation of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montréal Protocol. The guidelines for these systems must be determined by COP and methodologies for their estimation must answer to international standards established by COP and the Intergovernmental Panel on
20 Climate Change18. The European Union has regularly submitted its National Inventory Reports (NIRs) and its Common Reporting Formats (CRFs) since 200319.
Article 6 introduces new ways of reducing emissions by sources and enhancing removal by sinks of GHGs, through Emission Reduction Units (ERUs). They might be originated by emissions reduction projects and transferred from, or acquired by, Annex I Parties in order to contribute to reduction and limitation targets under the Protocol. It is important to remind the additional nature of these reduction units, since Parties should work primarily on their own domestic commitments20. There must be compensation mechanisms between transferring or acquiring Parties in calculating the amount of their emissions reduction commitments.
Article 10 explicitly deals with the practical aspects of the CBDR principle, therefore considering the socio-economic situation of each Party involved and never imposing further burdens on non-Annex I parties. While Annex I Parties must contribute by submitting information on new projects in their national programmes, non-Annex I parties shall submit their national communications and, “as appropriate”, insert information on programmes that they believe to be beneficial to reducing greenhouse gas emissions. Developed countries are also encouraged to commit themselves to financing projects and activities in developing countries and to
18 The Intergovernmental Panel on Climate Change (IPCC) is the leading international body for the assessment
of climate change. It was established by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) in 1988 after the endorsement of the UNGA on its creation. Its aim is to provide a clear scientific view on the current climate change status and on its environmental and socio-economic repercussions, while reviewing and assessing the most recent scientific, technical and socio-economic information produced worldwide and related to a better and inclusive view on climate change. It does not conduct any research nor does it monitor climate related data or parameters. As an intergovernmental body, membership of the IPCC is open to all member countries of the United Nations (UN) and WMO. Currently 195 countries are Members of the IPCC. [Information on the IPCC and its activity are available at
https://www.ipcc.ch/].
19 This is the first year of inventory submissions from Annex I countries, according to the official UNFCCC
site. In fact, at its 8th session, the COP requested the secretariat to publish both NIRs and CRFs on its website.
The NIRs contain detailed descriptive and numerical information and the CRFs contain summary, sectoral and trend tables for all greenhouse gas (GHG) emissions and removals, and sectoral background data tables for reporting implied emission factors and activity data. [Information related to the official documents submitted are available at https://unfccc.int/process-and-meetings/transparency-and-reporting/reporting-and-review-under-the-convention/greenhouse-gas-inventories-annex-i-parties/national-inventory-submissions-2018]
20 Article 6(1)(d): For the purpose of meeting its commitments under Article 3, any Party included in Annex I
may transfer to, or acquire from, any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy, provided that: […] The acquisition of emission reduction units shall be supplemental to domestic actions for the purposes of meeting commitments under Article 3.
21 cover incremental costs that non-Annex I parties are facing in order to meet the existing commitments under Article 4.
The COP, acting as Conference for the Protocol, during its first session, shall establish some non-compliance measures to be adopted in case Parties fail to reach their individual or joint targets. If mechanisms entailing binding consequences for non-complying countries are introduced according to this provision, the Protocol must be amended in order to integrate them. When considering non-compliance, the COP should take into account cause, type, degree and frequency and redact an “indicative list of consequences”. This provision, implicitly, stresses the greater weakness of international treaty law: the inability of introducing binding commitments and the need for voluntary compliance to achieve objectives on a global scale.
Every Party is entitled to one vote, except for regional economic integration organizations like the EU, which have a number of votes equivalent to the number of Parties that compose it and are, at the same time, Parties to the Protocol.
In conformity with the conditions established in Article 24(3), which explains how regional economic integration organization shall submit their ratification or approval instruments, the EC describes its competences in a specific declaration, clarifying the distribution of matters under this Protocol between the Community and its Member States21.
The EU works towards its quantified emissions reduction commitment through both its own and its Member States’ action within their respective competences and it has already adopted legal binding instruments on Member States to govern matters covered by the Protocol. It also committed itself to regularly submit further information to ensure its compliance.
The Kyoto Protocol gave Parties general freedom on how to implement their commitments, but not on defining their form and nature, representing a prevalent top-down approach. In fact, the type of commitment, its scope, gases covered and offset
21 The Community’s share of competence in environmental matters found its legal basis in the Treaty on the
European Community (TEC) and, in particular, in Article 175(1). In fact, according to this provision, the EC contributes to pursuing the following objectives: preserving, improving and protecting the quality of the environment; protecting human health; using national resources in a prudent and rational way; promoting international measures to deal with regional or world-wide environmental issues.
22 mechanisms (such as Clean Development Mechanism and Joint Implementation) have been imposed by the Protocol itself.
The obsolescence of the developed and developing countries division and the lack of flexibility contributed to overall shrinking participation: in fact, for the initial Kyoto targets covering the period from 2008 to 2012, only around 25% of global emissions was addressed, while countries accepting commitments throughout 2020 for a second commitment period accounted for only 14%22. In fact, when the Protocol first entered into force in 2005, Parties decided to move back towards a more flexible, bottom-up approach, autonomously deciding whether to accept the Kyoto targets.
Even if the Protocol, for its first commitment period, contained specific provisions for the establishment of an accounting system to determine effective compliance, it was not supported by an adequate enforcement framework, which represented a limit to ensure commitment from all contracting parties.
The need for a change, in order to engage other countries in the post-2020 era, stimulated Parties to elaborate innovative soft-law instruments, which led to the adoption of the Paris Agreement. We will discuss this subject thoroughly in Chapter 4.
22 D. Bodansky, S. Day O’Connor, E. Diringer, “Evolution of the international climate effort”, Center for
23
2. The European environmental legislation and the implementation of
international commitments
The European Union has actively responded to the urge for emissions reduction that has been discussed within the Convention and the Protocol throughout the 1990s.
Unilaterally, at the beginning of the 1990s, the EU had already committed, together with its Member States, to stabilize its GHG emission levels by 2000, even before international negotiations produced some concrete results. In fact, in March 1990, the Commission released a recommendation23, which considered a collective “1990 by 2000” stabilization target. Since that, the Community started to push towards a comprehensive, multilateral action to curb GHG emissions worldwide, despite the US’ opposition to a “targets and timetables” approach.
The UNFCCC was the result of a compromise between the ambitious, proactive EU’s position and the reluctant US’ attitude24. Despite the absence of strict reduction targets, the objective of stabilizing greenhouse gas in the atmosphere at a “safe level” was achieved. Despite some initial scepticism, the EU embraced and defended the CBDR principle, even against the reluctant US’ position, which was in favour of mitigation action to be undertaken by major developing countries such as China and India as well.
The EU’s role as an international leader emerged only in 1995 when it managed to host the first COP under the UNFCCC in Berlin. Being the host country of such an important international meeting added further political pressure on Germany to make the occasion a success. By taking advantage of Presidency of the Council, it managed to work bilaterally with both Non-Governmental Organizations and developing countries in order to put pressure on the US and OPEC to sign the Berlin Mandate. It aimed at extending the lifetime of the Conference of the Parties and calling for the adoption of a Protocol during COP3 in Kyoto25.
23 “Community Action Programme to limit CO2 emissions”, SEC(90)2404, Brussels, Commission of the
European Communities.
24 K. Bäckstrand, O. Elgström, “The EU's role in climate change negotiations: From leader to 'leadiator'”, in
Journal of European Public Policy, 2013, pp. 7-8.
25 A. Jordan, T. Rayner, “The evolution of climate policy in the European Union: an historical overview”, in
“Climate Change Policy in the European Union”, ed. A. Jordan, D. Huitema, H. van Asselt, T. Rayner & F. Berkhout, Cambridge University Press, 2010, pp. 61-62.
24 Immediately prior to COP2 in Geneva in 1996, the European Environment Council had already agreed to seek “significant overall reductions” in emissions after 2000, thus fixing a 2°C target as the maximum raise in temperature accepted. It was a key turning point because before that, Member States only agreed to emissions limitation or stabilization, as mentioned above. During the Environmental Council meeting in March 1997, in preparation for the Kyoto meeting, a burden sharing agreement was approved. This document had a very ambitious goal: a specific GHG emissions reduction target of 15% in 2010 (compared to 1990 levels) and its tailored implementation among all 15 Member States. It envisaged an overall 9.2% reduction in emissions and saw the year 2010 as the single target year. The hope was to achieve more ambitious reductions thanks to an international agreement.26
Not all the European proposals and targets have been taken into account in the Protocol, mainly because of the divergent positions among major emitters. For example, in Berlin, while the EU aimed at a general 15% emissions reduction for developed countries, the US wanted to pursue a smaller stabilization target and to extend the scope of commitments to emerging countries like China and India. These two actors, on their side, did not want the same binding targets as the developed countries because of considerable differences in their historical responsibilities: they had the right to emit as a necessary consequence for their development, considering that they did not have the possibility to do so before and they have not been primarily responsible for global warming. Despite these divergencies, the negotiations led to the establishment of a 5-8% reduction commitment from 1990 levels in the Kyoto Protocol for the first period (2008-2012), much lower than the EU’s proposed target, regarding developed countries. Other compromises that the EU was forced to accept concerned several aspects: acceptance of differentiated targets, even among developed countries27; inclusion of other greenhouse gases28; adoption of different baselines for
26 S. Oberthür and M. Pallemaerts. “The EU’s Internal and External Climate Policies: an Historical Overview”,
ed. S. Oberthür and M. Pallemaerts, “The New Climate Policies in the European Union”, Brussels University Press, 2010, p. 34.
27 For example, Japan and USA decided to set their targets respectively to 6% and 7%.
28 Hydrofluorocarbons (HFC), perfluorocarbons (PFC) and sulphur exafluoride (SF6) were added to the list of
25 different gases29; acceptance of a multi-year averaging with compliance based on performance over a five-year period30.
EU’s diplomatic action was an overall success, despite the important yet necessary compromises reached to ensure the adoption of the Kyoto Protocol.
It became part of the European Union’s legal framework with Council decision no. 2002/35831. The EU proceeded to the ratification as a single bloc, but not without controversy. In fact, the UK clearly rejected the Commission’s proposal of applying qualified majority instead of unanimous voting as a base for deciding on the Protocol’s clauses32. This
was mainly due to the complex nature of these provisions, that had to be discussed and implemented unanimously by all Member States, therefore stressing the intergovernmental, rather than European, nature of policy making in this field.
The decision recalls some key elements of both the Convention and the Protocol, stressing the EU’s commitment to their implementation.
The objective pursued within the UNFCCC33, which the Protocol is a part of, is to achieve stabilization of GHG concentrations in the atmosphere so as to prevent any anthropogenic interference with the climate system, as already mentioned.
The need for further agreement that goes beyond 2000 had already been stressed by COP1, because the long-term goal of preventing anthropogenic interference could not be reached unless developed countries, individually or collectively, pursued more effective policies than the ones pursued until 2000 on reducing CO2 and other GHG emissions not listed in the Montréal Protocol. That is why, on 11th December 1997, the Kyoto Protocol was adopted.
29 For carbon dioxide (CO2), methane (CH4) and nitrous oxide (N2O), the base year was 1990, while for the
other gases it was 1995.
30 A. Jordan, T. Rayner, “The evolution of climate policy in the European Union: an historical overview”, p.
65.
31 OJ L 130, 15.5.2002.
32 The legal basis allowing such procedure was article 175(2) TCE (as amended by the Treaty of Nice): By way
of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 95 [approximation of national provisions towards the establishment and functioning of the internal market], the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt: (a) provisions primarily of a fiscal nature; b) measures affecting: town and country planning, quantitative management of water resources or affecting, directly or indirectly, the availability of those resources, land use, with the exception of waste management; (c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.
26 The Buenos Aires Plan of Action was necessary in order to agree on the implementation of said Protocol within COP6 in Bonn (19-27 July 2001).
Under article 4 of the Protocol, Parties shall fulfil their commitments enshrined in article 3 jointly, acting within the UNFCCC and cooperating with a regional economic organization. This gave the legal basis for the EU to declare its intention to adopt the Protocol, together with its Member States. It implied that Member States had to act jointly with EU’s institutions to take adequate measures to “ensure fulfilment” of obligations taken at a European level, in conformity with article 10 of TEC.
Each Member’s contribution to the overall European reduction commitment was determined in Council conclusions of 16th June 1998. Each contribution was different due to
each state’s energy mix, expectations for economic growth and level of industrial development. Once an agreement has been reached within the Council, it has been included in this decision and communicated to the Secretariat of the UNFCCC, according to Article 4(2) of the Protocol.
The base year for calculating and reducing emissions was established once the Protocol entered into force. Starting from the base year, emissions levels had to be calculated in terms of tonnes of CO2. 1990 has then been established by most of the countries as their base year, with some exceptions regarding certain types of GHGs and some Member States.
European institutions jointly committed to accelerate agreements on commitments and to rapidly ratify the Protocol, in order to start organizing its implementation for encouraging its (unfortunately not) immediate entry into force.
The quantified emissions limitation and reduction commitments, agreed on by the EU and all Member States and covering the first compliance period between 2008 and 2012, are set out in Annex II of the Decision. The general 5% GHG emissions reduction commitment below 1990 levels, contained in Article 3 of the Protocol, has been upgraded by the European Community as a whole, taking it to an overall ambitious 8% target, with consistent differences among the Member States (ranging from Luxembourg’s 28% reduction to Portugal’s 27% increase).
We can safely say that the European Union’s stance on the matter of climate change has proven to be unique: it took the lead in negotiations, mediated among reluctant actors and promoted very ambitious emissions reduction targets. As Jan Pronk, President of COP6, famously stated, the EU was “the only game in town”, even if this Conference, which took
27 place in The Hague in 2000, failed to deliver its purpose. Its failure was mainly attributed to the US’ call for further flexibility and waivers in asking that credits coming from carbon sinks could be counted as emissions reductions, requests that were strongly opposed by some EU Member States, which wanted to defend the integrity of the Protocol.
At the European level, several unilateral measures on emissions reduction had been put in place right before decision no. 2002/358. For example, in 1998 and 1999 voluntary agreements with vehicle manufacturers in Europe, Japan and Korea had been reached in order to reduce average emissions from new cars. They were the result of a Commission’s strategy to reduce CO2 emissions from cars34 and improve vehicle efficiency by 25% in 10 years35. Then, directive 1999/31/EC on the landfill of waste reduced the scope of this practice and, secondarily, addressed the worrying phenomenon of methane emissions deriving from it, ensuring proper waste management but also the prevention or reduction of negative effects on environment.
The commitment from the EU did not stop there: while implementing the provisions enshrined in the Kyoto Protocol, it embraced the idea market-based instruments could help achieve the fixed targets. Even if article 17 of the Protocol considered the possibility to trade emissions in order to fulfil national limitation and reduction commitments, the formula adopted by the EU was unprecedented in scope and nature. Despite reluctance towards flexible mechanisms shown during the Protocol’s negotiations, the EU quickly concluded that an internal emissions trading system could help achieve the Kyoto targets, indulging the favour of European firms for market-based mechanisms.
The most significant, game-changing aspects of the Protocol’s implementation at the EU level can be found in three main mechanisms: the Emissions Trading Scheme, the Joint Implementation and the Clean Development Mechanism. They aimed at lowering the costs for emissions reduction, creating an ad-hoc market for tradable emissions units and rewarding those who limited significantly their emissions by directly investing in abating their emissions and/or by purchasing certified credits from foreign emissions reduction projects. An exhaustive analysis of these three instruments is the focus of this chapter.
34 “Communication from the Commission to the Council and the European Parliament: A Community strategy
to reduce CO2 emissions from passenger cars and improve fuel economy”, COM(95)689 final.
28
2.1 The EU legal basis in the field of environmental policy
In the last four decades, environmental protection has become one of the most important areas for EU external and internal action, with the first sectoral measures adopted in the 1960s in order to contribute to the creation of the internal market. In fact, in its early stages, environmental policy has been considered as functional to the development of the common market.
The first implicit legal basis was represented by two main provisions of the Treaty Establishing the European Economic Community (EEC Treaty, 1957): article 100 and article 235. The first one gives the Council the power to adopt directives for the approximation of administrative and legislative provisions of the Member States which have direct impact on the establishment or functioning of the Common Market, providing legal basis for the first environmental measures. The second one theorises the implied powers doctrine, by stating that the Community can act beyond its conferred competence if its action is necessary in order to achieve the objectives set out in the Treaty. As recalled by E. Orlando36, the principles and objectives of the Community were, inter alia, the promotion of “harmonious development of economic activities”, the “raising of the standard of living”, and “the constant improvement of the living and working conditions of their people”, so the Community had the possibility to exert its powers even beyond its explicit “mandate” in order to achieve them.
In the 1960s and early 1970s, environmental protection was at its early stages: in fact, the EU considered it as functional to the economic integration and did not consider it as a separate, yet integrated, objective to be pursued through a set of cohesive and articulated policies.
The introduction of the Stockholm Declaration on the Human Environment in 1972, together with public mobilisation on environmental issues, stimulated the EU to play a more significant role in the environmental sector. From 1973, a series of five to ten-year Environmental Action Programmes (EAP) has been adopted. While the first one consisted in a general framework of principles and objectives, the third one
36 E. Orlando, “The Evolution of EU Policy and Law in the Environmental Field: Achievements and Current
Challenges”, in Transworld – The Transatlantic Relationship and The Future Global Governance, Working Paper 21 | April 2013, ISSN 2281-5252, p. 3.
29 represented a step towards shaping EU environmental policy and legislation, directly addressing emissions reduction and promoting the idea of preventive action.
The first act that introduced explicit environmental provisions was the Single European Act (SEA), adopted in 1986. In its new seventh title, dedicated to the environment, the SEA described the Community’s action with regards to protection, preservation and improvement of the quality of the environment, together with protection of human health and a “prudent and rational utilization of natural resources”37.
Furthermore, an “embryonal” form of the principle of integration has been introduced in the SEA: in fact, it stresses the need to consider “[e]nvironmental protection requirements” as “a component of the Community's other policies”38.
Alongside the “polluter pays” principle, the rectification at source of environmental damages and the principle of preventive action as base for the Community’s environmental action, the then European Community was acknowledged with both internal39 and external40 competence in the field of environmental protection, conferring explicit powers to the institutions of the Community and, in particular, to the Council. The Single European Act represented a “milestone in the European integration process”41, strengthening the bond between the social, environmental and economic dimensions of the Single Market. With the Fourth EAP, environmental policy became the cornerstone for a durable social and economic development.
During the 1980s, environmental policy grew considerably, reaching over 200 legislative measures by 198742.
The contribution of the European Court of Justice (ECJ) has been game-changing in consolidating both internal and external environmental competences of the
37 Article 130r(1) of the EEC Treaty. 38 Article 130r(2) of the EEC Treaty.
39 The Community shall take action relating to the environment to the extent to which the objectives referred to
in paragraph 1 can be attained better at Community level than at the level of the individual Member States. Without prejudice to certain measures of a Community nature, the Member States shall finance and implement the other measures. [Art. 130r(4)]
40 Within their respective spheres of competence, the Community and other Member States shall co-operate
with third countries and with the relevant international organizations. The arrangements for Community co-operation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 228. [Art. 130r(5)]
41 E. Orlando, “The Evolution of EU Policy and Law in the Environmental Field: Achievements and Current
Challenges”, p. 5.
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