Germany’s Renewable Energy Law (eeg) has come under pressure. The European Commission announced in December 2013 that it would perform an investigation for violation of state aid rules. The eeg subsidizes the production of renewable energy and requires electricity consumers to pay an “eeg surcharge”. The Commission is concerned that energy-intensive industries are largely exempt from paying the eeg surcharge and considers the privileges as illegal state aid. Germany disagrees arguing that they are a necessary means to balance the interest of the environment and those of industry burdened with high energy costs. Compromise is feasible, however, and negotiations are ongoing. Arguably more threatening is the legal prospect from Ålands Vindkraft, a case in which the Court will judge whether the restriction of feed-in-tariffs to domestic sources violates Article 34 tfeu. If the Court follows the opinion of General Advocate Bot, Germany may have to open the eeg subsidy scheme to renewable sources outside the country, surely leading German voters to question the legitimacy of the eeg altogether.
An eu Perspective
Moritz von Unger
Moritz von Unger
The key legal text governing public access to EU documents is Regulation 1049/2001. In contrast to the previous legal regime, the Regulation dismisses the so called authorship rule, which aligns it with recent developments in the field of the law of transparency and, notably, of international environmental law (Aarhus Convention). The European institutions are hence tasked with making all documents accessible to the public, which include both those originating with them and those from third parties. Yet unlike the Aarhus Convention, the Regulation has a blind spot, which leads to the important question of whether a Member State can simply order the institutions to withhold any of its documents whenever it chooses to do so. For the first time, the European Court of Justice is being asked to hand down a judgment on this question. The author suggests that the Court may wish to consider an interpretation of Regulation 1049/2001 that adjusts it further to the international standard as set by the Aarhus Convention.
Sigrid Boysen and Moritz von Unger
The practice of governing by action-driven conclusions is particularly evident in the field of climate and energy policy, in which a large number of substantial decisions, at a remarkable level of detail, are pre-set by the Council or the European Council, before they enter the formal decision-making process. The article discusses whether there are formal requirements for the adoption of Council conclusions and conclusions of the European Council, respectively. It also questions whether the practice of either body to channel a wide range of policy details through the adoption of conclusions by consensus is in line with the constitutional architecture of the Treaties.
Charlotte Streck, Paul Keenlyside and Moritz von Unger
The adoption of the Paris Agreement is a milestone in international climate politics and brings years of near deadlock negotiations to a conclusion. The Agreement creates a global process of engagement, follow-up, regular stock-take exercises and cooperative action. On the one hand, it represents a step forward, overcoming the many divisions that had marked the Kyoto area: between developed and developing countries, between industrialized nations inside the Protocol and those outside, and between those supportive of market mechanisms and those that vehemently opposed them. On the other hand, individual country contributions fall short of the overall climate goal, and the risk is that the Paris Agreement remains a shell without sufficient action and support. It thus remains to be seen whether the Paris Agreement is the right framework through which to address the collective action problem of climate change.
Charlotte Streck, Moritz von Unger and Nicole Krämer
The adoption of the “Paris rulebook” at Katowice in late 2018 marks the most significant milestone in international climate policy making since the adoption of the Paris Agreement in 2015. Through a package of decisions, Parties to the Paris Agreement fulfilled almost all of the Paris mandate and moved towards the full implementation of the treaty. With the exception of the discussion on the future of carbon markets, negotiators managed to find common ground across negotiation items ranging from mitigation action to ensuring transparency and follow-up, including through “global stocktakes”, climate finance and technology transfer. Most obligations will apply to all countries, replacing the “bifurcation” of the Kyoto Protocol with a common set of rules for all Parties. Developing countries can make the case for additional time and assistance to comply with the full set of requirements. Several matters are left for future sessions – concerning, in particular, the harmonization of the timeframes of mitigation goals, markets and finance mobilization– and structural challenges – not least concerning the integration of non-state actors – remain. However, in building on accountability, trust, and compliance through facilitation, the new Paris rules may ultimately prove decidedly more robust and sustainable than those of the Kyoto Protocol.
Charlotte Streck, Thiago Chagas, Moritz von Unger and Robert O’Sullivan
The outcomes of the Durban climate change conference leave plenty of room for interpretation and are generally ambivalent. Climate negotiators launched a new negotiation track that is expected to result in a legally meaningful agreement by all parties (developed and developing) to kick-in in 2020. The establishment of the Durban Platform for Enhanced Action signaled a significant departure from the developed/ developing country divide that permeates the Protocol. It further committed countries to a process leading an ‘outcome with legal force’; arguably more than a mere political agreement.
Durban also succeeded in securing a second commitment period under the Kyoto Protocol, albeit with fewer developed countries. However, the conference did not succeed in extracting any new substantive commitments from countries. The wording of the Durban Platform is unspecific and contains ample room for interpretation. The diversity and complexity of the issues at hand help explaining the slow progress on the substance. While international negotiators continue to seek compromise on many issues, subnational governments, private actors, and civil society have started implementing climate solutions. If the climate challenge is to be overcome, international climate talks must be able to pick up on these initiatives and more quickly step-up to its role as a central coordinator and catalyst of efforts.