Is there anybody out there?
(EU climate law and policy before and after
Leonardo Massai
CLEER Workshop
EU environmental norms and third countries: the
EU as a global role model?
TMC Asser Institute, The Hague
19 April 2013
Background of International and EU climate law
Post Copenhagen
Climate change negotiations
UNFCCC: developing and developed countries
Kyoto Protocol: no US
Art. 3(9) KP: negotiations for future commitment periods KP shall start no
later then 2005!
CMP1 (2005): Ad-hoc Working Group on Further reduction commitments
under the KP (AWG-KP)
COP13 Bali Action Plan: Ad-hoc Working Group on Long-term
Cooperative Action (AWG-LCA)
Shared vision, mitigation, adaptation, finance, technology transfer
and capacity building
Bali Roadmap
2 years negotiations – 8 meetings
2 tracks: AWG LCA and AWG-KP
UNFCCC: institutional framework
UNFCCC: bodies
EU climate law and policy
(before Copenhagen) (I)
2000: European Climate Change Programme (ECCP)
• US said no to the Kyoto Protocol
• EU assuming leadership on climate change worldwide
• European Commission: 3 key draft proposals, including EU
2002: ratification KP, Council Decision 2002/358/EC
EU Burden Sharing Agreement (only EU15!)
Directive 2003/87/EC EU ETS
EU climate law and policy
(before Copenhagen) (II)
2007: EU leaders agreed on 20+20+20 targets (by
• Reduction of greenhouse gas emissions
• Promotion of renewable energy
• Promotion of energy efficiency
• Adoption of the integrated climate and energy
package (6 acts)
• Moving to 30% reduction GHG emissions
• Entry into force of the Treaty of Lisbon
• Climate diplomacy
EU treaties after Lisbon
Art. 3(5) TEU: 5. In its relations with the wider world, the Union shall uphold and
promote its values and interests and contribute to the protection of its citizens. It
shall contribute to peace, security, the sustainable development of the Earth,
solidarity and mutual respect among peoples, free and fair trade, eradication of
poverty and the protection of human rights, in particular the rights of the child, as
well as to the strict observance and the development of international law, including
respect for the principles of the United Nations Charter
Art 21(2) TEU: The Union shall define and pursue common policies and actions,
and shall work for a high degree of cooperation in all fields of international
relations, in order to:
• (d) foster the sustainable economic, social and environmental development of
developing countries, with the primary aim of eradicating poverty
• (f) help develop international measures to preserve and improve the quality of
the environment and the sustainable management of global natural resources,
in order to ensure sustainable development;
Art. 191(1):
• ‘Union policy on the environment shall contribute to pursuit of the following
objectives: .. promoting measures at international level to deal with regional or
worldwide environmental problems, and in particular combating climate
Copenhagen Summit
‘The final cut’
AWGs did not complete its work in time
28 or so countries negotiated the Accord
US + BASIC (5 countries) leading role
EU no single voice
Public announcements on the media (“we have a deal”)
Final plenary COP15/CMP5 :11 hours
Points of order and procedural irregularities
Express objections by a few Parties
Final result rescued by Ban-Ki Moon
‘The COP takes note of the Copenhagen Accord of 18 December 2009’
Consensus issue
Empty text: no numbers! Only reference to 2 degrees C
No clarity on the future of negotiations
Many negotiated texts still pending
Legal and political implications of association
Post-2012 regime: where do we
Durban (COP17):
AWG on the Durban Platform for enhanced action (ADP) finalized to
‘complete its work as early as possible but no later than 2015 in
order to adopt this protocol, legal instrument or agreed
outcome with legal force at COP21 and for it to come into effect
and be implemented from 2020’
COP18/CMP8 Doha:
Conclusion of AWG-LCA
Kyoto Protocol: amendment adopted to launch the 2nd commitment
ADP: text to be finalized no later than 2015
Draft negotiating text no later than COP20 (December 2014)
Negotiating text before May 2015
ADP still missing a plan of action or even an agenda
Possible building blocks new regime
Option A
Option B
Option C
Legal Form
A protocol
A COP decision
Political declaration to
implement legal
instrument at national
Commitment on national
emissions target
Legally binding numerical
targets (e.g. KP)
Non-binding voluntary
numerical goals
No indications of
emissions levels
Commitments on
mitigation actions,
policies and measures
Legally binding mitigation
Non-binding domestic
mitigation actions, with
international assessment
No indicatsions of
mitigation actions,
policies and measures
Use of carbon trading
market mechanisms
Cap and trade at the int
level; full use of other
crediting mechanisms
Linkage of domestic
emissions trading
schemes, with some
offsets and crediting
No indications of use of
carbon market
Financial mechanism
Financed only by public
funding from developed
Financed by various
resources including
private investments
No indications of use of
financial mechanisms
Common but
responsibilities (CBDR)
Current grouping, which is
Annex I and non-Annex I
Re-grouping of countries
according to formulas
such as GDP per capita
No more grouping of
countries, and CBDR will
be attained by other
Source: NIES, Japan (2013)
Current level EU GHG emisisons
Source: European Commission (2011)
EU target towards 2020
Source: European Commission (2011)
EU after Copenhagen
Limitations to ambition of EU wide targets
Establishment of DG Clima
• Review
• Carbon leakage
• Aviation case
• Position on the new market based mechanism
Moving to 30% reduction?: Analysis of options beyond 20% GHG
emission reductions (costs and benefits and ensuring equitable
treatment of Member States)
Support to the Kyoto Protocol 2nd commitment period
EU and G77: regular bilateral meetings
Public consultation
Green Paper on 2030 framework
for climate and energy policies
• COM(2013)169
What type, nature and level of climate and energy targets should be set
for 2030?
How can coherence between different policy instruments be attained?
How can the energy system best contribute to EU competitiveness?
How can Member States' different capacities to act be taken into
Fostering competitiveness EU economy:
Internal market legislation critical
Future exploitation of indigeneous oil and gas resources in
environmentally sound manner
Diversification energy supply routes
Engage further with third countries
ETS measures to limit impacts on competitiveness of energy intensive
Consultation on 2015
international CC agreement (I)
•COM(2013)167: The 2015 International Climate Change Agreement: Shaping
international climate policy beyond 2020
•Be inclusive, by containing commitments that are applicable to all countries, developed
and developing alike;
•Focus on encouraging and enabling countries to take on new and ambitious
commitments to cut their GHG emissions;
•Include commitments ambitious enough to limit warming to 2°C;
•Be effective, by enabling the right set of incentives for implementation and compliance;
•Be perceived as equitable in the way it shares out the effort of cutting emissions and
the cost of adapting to unavoidable climate change;
•Be legally binding;
•Learn from and strengthen the current international climate regime;
•Respond to scientific advances and be sufficiently dynamic and flexible to adjust as
scientific knowledge develops further and as technology costs and socio-economic
circumstances change;
•See a broader range of countries share responsibility for providing financial support to
help poor countries tackle climate change.
Consultation on 2015
international CC agreement (II)
Need for more ambition
Single comprehensive regime:
• Moving beyond North-South paradigm
• Attracting participation all major economies
Reinforce broader sustainable development:
• Integration CC objectives into relevant policy areas
• Encourage bilateral, multilateral and regional initiatives
2015 agreement:
• Applicable to all
• Legally binding
• Equitable distribution of mitigation commitments
• Means of implementation (finance, technology, NMM)
Improving accounting: robust compliance system
Preparing the path for the 2015
•UN negotiating process: COPs ‘open-ended participation and
decision-making by consensus often results in only agreeing on
•Ideas to strengthen the effectiveness and efficiency of UN
•developing rules of procedure to better facilitate reaching decisions than through the consensus rule
applied under the Convention;
•revisiting the frequency of the annual COPs, where the Convention is one of the few that provides
for an annual conference. In doing so, it will be important to find a balance between the continued
need for political attention for climate change and avoiding the expectation of ground breaking new
progress at every meeting;
•rather than working with a single annually rotating COP Presidency, options such as grouping
countries into joint Presidencies over more than one year or having two year Presidencies;
•keeping the current frequency of formal meetings for technical work, the intensity of which is likely
to increase in the coming years;
•streamlining and consolidation of the large number of specific agenda items, more informal
exchanges ahead of formal technical meetings as well as setting clear priorities in order to contain
the overall cost of meetings;
•opportunities to further strengthen the contributions of stakeholders, including expert views from
business and non-governmental organisations;
•a strengthened role for the Convention Secretariat.
Way ahead
Political willingness and leadership still lacking globally
2015 deadline ?
EU not perceived as leading actor on climate change
Reform Treaty of Lisbon: will it ever apply to climate change?
Consultation and discussion with Member States, EU institutions and
Enhanced cooperation with third States

Climate Change & Development Reducing Emissions from