journal for european environmental &

planning law 15 (2018) 42-68

brill.com/jeep

The Climate Policy of the European Union from the

Framework Convention to the Paris Agreement

Marcin Stoczkiewicz
ClientEarth, Warsaw
[email protected]

Abstract

This article presents the development of the climate policy of the European Union
(eu) which is analysed in terms of the legal measures adopted to implement it. The
main goal of the study is to verify the thesis that the eu climate policy which is ex-
pressed in eu law is part of the eu policy in the field of environmental protection. In
order to verify this thesis, the study presents and analyses the major acts of the second-
ary legislation of the eu in the field of the climate. The study considers, in particular,
the objectives of these acts, their Treaty bases and the main principles on which they
are based.

Keywords

climate policy – Framework Convention on Climate Change – Paris Agreement

1 Introduction

Neither the Treaty on European Union nor the Treaty on the Functioning of
the European Union mention climate policy although they regulate such eu
policies as the common agricultural policy, the common transport policy, com-
petition policy, energy policy or environmental protection policy. However, the
acts of the eu secondary legislation leave no doubt as to that the European
Union de facto implements its climate policy. F. Stangl proposed a definition
of eu climate policy where it is a set of coordinated activities of eu institu-
tions designed to tackle climate change; especially, through greenhouse gas

© koninklijke brill nv, leiden, 2018 | doi 10.1163/18760104-01501004

The Climate Policy of the European Union 43

r­ eductions and the mitigation of the effects of climate change, in particular,

through adaptation to climate change.1
In its Article 191(1), the Treaty on the Functioning of the European Union
provides that “Union policy on the environment shall contribute to pursuit of
the following objectives: – preserving, protecting and improving the quality of
the environment, − protecting human health, − prudent and rational utilisa-
tion of natural resources, − promoting measures at international level to deal
with regional or worldwide environmental problems, and in particular com-
bating climate change”.2 Thus, it follows from the tfeu that climate change is
an environmental problem and that combating climate change is one of the
eu policy objectives in the field of the environment. Given that an objective of
the eu is to promote combating climate change at international level, combat-
ing climate change itself is an objective of the eu. Therefore, it seems that eu
climate policy is part of its environmental policy. Indeed, the climate is an ele-
ment of the natural environment and the problems related to climate change
are in fact environmental problems.
This article presents the development of the climate policy of the European
Union (eu) which is analysed in terms of the legal measures adopted to im-
plement it. The aim of the study is to present the development of eu climate
policy over several dozen years. Such an approach to this subject may contrib-
ute to the understanding of its main development trends. The study discuss
the major acts of the secondary legislation of the eu in the field of the cli-
mate. This analysis distinguishes, in particular: (i) the objectives of these acts,
(ii) their Treaty bases, as well as (iii) the main principles on which they are
based.

2 The United Nations Framework Convention on Climate Change.

The Emergence of International and European Climate Policy

eu climate policy arose from the international policy in the field of climate pro-
tection, in particular, from the 1992 United Nations Framework Convention on
Climate Change3 and constitutes the eu contribution to the implementation

1 F. Stangl, eu Climate Policy, in: E. Woerdman, M. Roggenkamp & M. Holwerda (eds.), Essen-
tial eu Climate Law, 2015, p. 13.
2 The Treaty on the Functioning of European Union, oj 2012 C 326/01, 26.10.2012 (tfeu).
3 The United Nations Framework Convention on Climate Change, New York, 9 May 1992, in
force 21 March 1994 (Framework Convention).

journal for european environmental & planning law 15 (2018) 42-68

44 Stoczkiewicz

of the objectives of this Convention. The history of international climate pol-

icy and eu climate policy demonstrates that these policies have developed in
tandem and supported each other.4 At the same time, within the framework of
eu climate policy its mutually interpenetrating international and internal as-
pects can be distinguished. It is impossible to understand domestic eu climate
policy without understanding international climate policy.
The legal regulations on climate protection emerged as part of a trend in the
development of the international law on the development of the atmosphere
which was initiated in the 1980s. The first essential act of international law
concerning atmospheric pollution in its global aspect was the Vienna Conven-
tion for the Protection of the Ozone Layer and the Montreal Protocol which
developed its provisions.5 The qualitative change which made the Vienna Con-
vention, along with its Montreal Protocol, different from the earlier acts on
environmental protection was that they focused on a global problem and its
global dimension. The Vienna Convention was a framework act and its main
purpose was to provide the basis for the creation of implementing acts in the
form of protocols. The main purpose of the Montreal Protocol was to limit or
freeze the consumption of such substances as cfcs and hcfcs and to cre-
ate a timetable for constraints until their complete reduction. The Montreal
Protocol was one of the most effective international agreements in the field of
environmental protection. As a result of it, in the period from 1989 to 2005, the
gases which deplete the ozone layer were reduced by 95%.6
For the first time the international community became concerned about
dangerous climate change in the mid-1970s. The first conference on climate
change was held in Geneva in 1979. Even then a resolution was adopted call-
ing on states to tackle an anthropogenic impact on the climate. The reports
of the Intergovernmental Panel on Climate Change (ipcc), which was estab-
lished in 1988 under the joint auspices of the United Nations Environment
Programme and the World Meteorological Organisation, were of fundamental
importance for making the world aware of the scale of the threat. The ipcc is
an ­independent scientific body which has been established to assess the most

4 S. Oerthür & M. Pallemaerts, The eu’s Internal and External Climate Policies: an Historical
Overview, in: S. Oerthür & M. Pallemaerts (eds.), The New Climate Policies of the European
Union, 2010, p. 27.
5 The Vienna Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985, in force
22 September 1988. The Montreal Protocol on Substances That Deplete the Ozone Layer,
Montreal 14–16 September 1987, in force 1 January 1989.
6 K. Winter, International Law Has Spoken: Invest Wisely, Responsible Investor 2016 (4), p. 2.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 45

recent climate research.7 It is expected to provide the public and decision-

makers with information on the current state of scientific knowledge on cli-
mate change.8 In its first report in 1990, the ipcc expressed its certainty that
there was a greenhouse effect and that human activities contributed to it. The
ipcc has published its reports on a cyclical basis. The last report was published
in 2014. This report stated that in order to avoid catastrophic climate it was
necessary to limit the temperature growth to below 2°C. It indicated that in
order to keep the limit the temperature growth below 2°C it would be neces-
sary to significantly reduce the emissions of CO 2 and other greenhouse gases
in the subsequent decades and to achieve almost zero emissions by the end of
this century.9
By calling for immediate action to be taken, the first ipcc report greatly
motivated the international community to sign the United Nations Framework
Convention on Climate Change. The Climate Convention was opened for sig-
nature in June 1992 in Rio de Janeiro, during the so-called “Earth Summit”. At
present, its Parties include 195 states and one international organisation – the
European Union.10
In its preamble, the Framework Convention states that the Parties thereto
acknowledge that “change in the Earth’s climate and its adverse effects are a
common concern of mankind” and are determined “to protect the climate
system for present and future generations”. In its preamble, this Convention
clearly draws attention to the fact that “human activities have been substan-
tially increasing the atmospheric concentrations of greenhouse gases”, which
may adversely affect natural ecosystems and mankind as a whole. According
to its Article 2, “The ultimate objective of this Convention and any related le-
gal instruments that the Conference of the Parties may adopt is to achieve,
in accordance with the relevant provisions of the Convention, stabilization of
greenhouse gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system. Such a level
should be achieved within a time frame sufficient to allow ecosystems to adapt
naturally to climate change, to ensure that food production is not threatened

7 D. French, B. Pontin, The Science of Climate Change: a Legal Perspective on the ipcc, in:
D.A. Farber & M. Peeters, (eds.), Climate Change Law, 2016, pp. 9–19.
8 Stangl, supra note 2 at p. 14.
9 http://www.ipcc.ch/news_and_events/docs/ar5/ar5_syr_headlines_en.pdf, p. 2, accessed
on 1.05.2016.
10 L. Karski, Prawo ochrony klimatu – aspekt międzynarodowy, wspólnotowy i krajowy, in:
J. Jendroska & M. Bar (eds.), Wspólnotowe prawo ochrony środowiska i jego implementacja
w Polsce trzy lata po akcesji. 2008, p. 303.

journal for european environmental & planning law 15 (2018) 42-68

46 Stoczkiewicz

and to enable economic development to proceed in a sustainable manner”.11

There is no doubt that at least two of the principles adopted in the Framework
Convention (the precautionary principle and the principle of sustainable de-
velopment) are also the principles of eu environmental law.12 In its Article 4, it
defines the framework obligations of the Parties, among others, in the scope of:
reporting of all greenhouse gas emissions, adaptation to the effects of climate
change and financing of protection and adaptation measures.13 Its greatest
achievement is that the Parties thereto started their institutional international
cooperation to protect the climate and establish a framework for climate gov-
ernance.14 The Conference of the Parties was established as the supreme body
of the Framework Convention and its tasks include a review of the implemen-
tation of the Convention and the adoption, within its mandate, of the deci-
sions necessary to promote the effective implementation of the Convention.15
The European Community (now the European Union) ratified the Frame-
work Convention by the Council Decision of 15 December 1993.16 The Com-
munity and its Member States signed the Framework Convention as a “mixed
agreement” which implied that it would be implemented in part by the
Community and in part by its Member States. Article 22 of the Framework
Convention enables an “economic integration organisation” to become a Party
thereto. As a result, the Community and its Member States had to decide on
their individual responsibilities for the fulfilment of their commitments, while
the Community had to declare the scope of its competence in the particular
matters in the document of ratification. In the document of ratification, it
was declared that “the commitment to limit anthropogenic CO 2 emissions set
out in Article 4 (2) of the Convention will be fulfilled by the Community as a
whole, through action by the Community and its Member States, within the
respective competence of each”.17
The first initiatives to protect the climate date back to the 1980s.18 Since its
beginnings the Community’s climate policy has developed in strict connection

11 Framework Convention, supra note 4, Article 2.

12 tfeu, supra note 3, Article 191(2).
13 Framework Convention, supra note 4, Articles 4(1)–(10).
14 L. Rajamani, The United Nations Framework Convention on Climate Change: a Frame-
work Approach to Climate Change, in: D.A. Farber & M. Peeters (eds.), Climate Change
Law, 2016, p. 215.
15 Framework Convention, supra note 4, Articles 7(1) and (2).
16 Council Decision 94/69/ec, oj L 33, 07/02/1994, p. 11.
17 Id. at p. 11, Annex C.
18 Stangl, supra note 2 at p. 21.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 47

with international climate policy. In the period until the adoption of the Kyoto
Protocol in 1997 the Community adopted several quite soft climate protection
mechanisms. The first serious attempt to adopt an ambitious instrument of
the Community climate policy was a proposal for a Directive introducing a
tax on CO 2 emissions and energy which was submitted by the Commission.19
As proposed by the Commission, this Directive was to be adopted pursuant
to Article 130s of the eec Treaty (now Article 192(2) tfeu), which requires
unanimity of the Council in adopting provisions primarily of a fiscal nature.
A small group of countries led by the uk strongly objected to the adoption of
this measure. As a result, the CO 2 tax has never been adopted in the eu.20 The
objection of certain Member States to the Directive on the CO 2 tax became
one of the sources of the criticism of the principle of unanimity required in
adoption of environmental protection measures of a fiscal nature.21
This spectacular defeat motivated the Commission to seek climate protec-
tion measures the adoption of which, as they were not “provisions primarily
of a fiscal nature”, would not require the unanimity of the Member States. It
also caused a setback in the harmonisation of the Member States’ activities
intended to protect the climate and to move them to the national level. Mea-
sures to ensure full harmonisation in selected areas were also sought. There-
fore, it was decided that Article 100a of the eec Treaty (now Article 115 tfeu)
would be chosen as the ground for achieving full harmonisation of selected
product standards, as part of the functioning of the common market. On this
basis, Council Directive 92/42/eec on efficiency requirements for new hot-
water boilers fired with liquid or gaseous fuels was adopted, followed by Di-
rective 96/57/ec of the European Parliament and of the Council on energy
efficiency requirements for household electric refrigerators, freezers and com-
binations thereof.22 The Member States had to ensure that only those products
that met the standards would be allowed on the common market (now “the
internal market”). The mandatory product standards were supplemented by
the provisions of the Framework Directive 92/75/ewg introducing harmon-
ised labelling and standard information on energy consumption by household

19 European Commission, Proposal for a Council Directive introducing a tax on carbon di-
oxide emissions and energy, com (92) 226 final.
20 S. Oerthür & M. Pallemaerts, supra note 5 at p. 31.
21 Friends of the Earth, Proceedings of the Conference “Energy Taxes in the eu”. The Monti
Directive and its Perspectives, 1999.
22 Directive 96/57/ec of the European Parliament and of the Council on energy efficiency
requirements for household electric refrigerators, freezers and combinations thereof, oj
1996 L 236/36.

journal for european environmental & planning law 15 (2018) 42-68

48 Stoczkiewicz

­appliances.23 Directive 92/75/eec was supplemented with daughter Directives

concerning the individual types of equipment: household electric refrigera-
tors, freezers and their combinations (Directive 94/2/ec), household washing
machines (Directive 95/12/ec), household electric tumble driers (Directive
95/13/ec), household combined washer-driers (Directive 96/60/ec), house-
hold dishwashers (Directive 97/17/ec) and household lamps (98/11/ec). The
Framework Directive 92/75/eec introduced general requirements, while the
daughter Directives laid down detailed provisions applicable to each type of
equipment.
Moreover, in the first period of the development of the climate law of the
European Community, the Directive to limit carbon dioxide emissions by im-
proving energy efficiency was adopted. It was based on the present Article
192(1) tfeu which was not of a fiscal nature. The aim of Council Directive
93/76/eec to limit carbon dioxide emissions by improving energy efficiency
(SAVE) was to limit Community CO 2 emissions by improving energy efficien-
cy in its Member States. In the preamble to this Directive, reference was made
to the Treaty requirement for “a prudent and rational utilization of natural re-
sources”, which should be deemed to refer to the Treaty-based precautionary
principle. The Member States were obliged to implement the SAVE Directive
with different types of measures and national programmes. In addition to legis-
lative measures, the programmes were expected to include as well administra-
tive instruments, information, education and so-called voluntary agreements.
At the same time, when the SAVE Directive was adopted, the Council also
adopted the altener programme, which was the first Community instru-
ment for the promotion of renewable energy source, with the budget of ecu
40 million for the period from 1993 to 1997.24 Moreover, the Council adopted
its Decision 93/389/eec for a monitoring mechanism of Community CO 2 and
other greenhouse gas emissions.25 This Decision was addressed to the Member
States which were obliged to establish and forward to the Commission their
national programmes for limiting carbon dioxide emissions and to report their
CO 2 emission levels to the Commission. In the 1990s, so-called voluntary agree-
ments were also concluded with the automotive industry so as to reduce CO 2

23 Council Directive 92/75/eec on the indication by labelling and standard product infor-
mation of the consumption of energy and other resources by household appliances, oj
1992 L 297/16.
24 Council Decision 93/500/eec concerning the promotion of renewable energy sources in
the Community (Altener programme), oj 1993 L 235/41.
25 Council Decision 93/389/eec for a monitoring mechanism of Community CO 2 and other
greenhouse gas emissions, oj 1993 L 167/31.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 49

emissions from vehicles placed on the Community market.26 These commit-

ments were commonly called “voluntary agreements”.27 Commitments of this
type were not completely voluntary, since they made by the industry under
the threat of the introduction of regulations. Indeed, the voluntary agreements
were a flagship measure emblematic of the new Community (eu) approach
to climate policy, which stressed at that time liberalisation, deregulation and
decentralization (“better regulation” and “new models of governance”).28
All the above-mentioned climate protection measures proved to be ineffec-
tive. Although CO 2 emissions initially fell this was an effect of the unification
of Germany and the fall of a part of the heavy industry in the eastern part
of this country, as well as a shift in the uk energy policy from coal to gas as
the basic energy raw material. The ineffectiveness of the first Community legal
acts to protect the climate became more conspicuous when greenhouse gas
emissions started to grow again in 1994.29 In particular, the so-called voluntary
agreements, which had been expected to provide a free market alternative to
the solution of environmental problems by adopting regulations, proved to be
ineffective. The Community’s first legal measures to reduce greenhouse gases
referred to the objective of the protection of the climate as an element of the
environment. Thus, they were an expression of the implementation of climate
policy as one of environmental policies.

3 The Era of the Kyoto Protocol in the European Climate Policy

The environmental roots of climate policy and law are confirmed by the fact
that the external climate policy of the European Community (the European
Union) was shaped by the Environment Council. It was exactly the Environ-
ment Council that formulated the negotiation mandate of the Community for
the issues of external climate policy, in particular, in respect of the preparatory
work for the adoption of the most important protocol to the Framework Con-
vention.30 The European Community is generally considered to have played a

26 S. Oerthür & C. Roche Kelly, eu Leadership in International Climate Policy: Achievements

and Challenges, The International Spectator 2008 (43:3, 35:50), p. 40.
27 P. ten Brink, Mitigating CO2 Emissions from Cars in the eu (Regulation (ec) No. 443/2009),
in: S. Oerthür & M. Pallemaerts (eds.), The New Climate Policies of the European Union,
2010, p. 183.
28 C. Hey, The German Paradox: Climate Leader and Green Car Laggard, in: S. Oerthür &
M. Pallemaerts (eds.), The New Climate Policies of the European Union, 2010, p. 212.
29 S. Oerthür & M. Pallemaerts, supra note 5 at pp. 32–33.
30 Id. at pp. 40–41.

journal for european environmental & planning law 15 (2018) 42-68

50 Stoczkiewicz

leading role in the negotiations which led to the adoption of the Kyoto Proto-
col on 11 December 1997.31 The Protocol contained detailed commitments to
reduce greenhouse gases. The Community acceded to the Kyoto Protocol pur-
suant to Council Decision 2002/358/ec of 25 April 2002.32 The Member States
were obliged to ratify the Protocol by 1 June 2002. In March 2001, the President
of the United States George W. Bush announced that the United States would
not ratify the Protocol which was signed by his predecessor, Bill Clinton. In
light of this, the Community took enormous diplomatic efforts to save the Pro-
tocol without the participation of the United States. The Community ratified
this Protocol on 31 May 2002. Finally, the Kyoto Protocol entered into force on
16 February 2005.33 This Protocol was ratified by 141 countries, responsible as a
total for 61% of the global greenhouse gas emissions. Nevertheless, when con-
sidering the reduction targets under the Kyoto Protocol, they only represented
one fourth of the global CO 2 emissions.34 The fact that the United States was
not a Party to the Protocol significantly affected its effectiveness.35 This Pro-
tocol expired on 31 December 2012. The European Union and the countries
associated in the European Economic Area (i.e. Norway, Iceland, Monaco,
Switzerland and Liechtenstein) undertook to extend their commitments un-
der the Kyoto Protocol to 2020.36 The new treaty which the European Commis-
sion proposed on 6 November 2013 in the form of the Doha Amendment to the
Kyoto Protocol was not ratified by a sufficient number of Parties, including the
European Union, and did not enter into force.
The Kyoto Protocol was based on support for sustainable development
to which its Article 2(1) clearly referred. The aim of the Kyoto Protocol was
not only to stabilise but also to reduce greenhouse gas emissions. In accor-
dance with the principle of common but differentiated responsibilities, the
Kyoto Protocol imposed on all the Parties listed in Annex I to the Framework
­Convention (high-income countries and those with economies in transition)

31 G. Loibl, The Role of the European Union in the Formation of International Environmen-
tal Law, The Yearbook of European Environmental Law, 2002(2), pp. 229–230.
32 Council Decision 2002/358/ec concerning the approval, on behalf of the European Com-
munity, of the Kyoto Protocol to the United Nations Framework Convention on Climate
Change and the joint fulfilment of commitments thereunder, oj 2002 L 130/1.
33 The Kyoto Protocol to the United Nations Framework Convention on Climate Change,
Kyoto, 11 December 1997, in force 16 February 2005 (Kyoto Protocol).
34 D. Bodansky & S. Day O’Connor, The Legal Character of the Paris Agreement, Review of
European, Comparative & International Environmental Law, 2016 (25), pp. 142–150.
35 For an assessment of the Kyoto Protocol see: J. de Cendra de Larragan, The Kyoto Protocol,
with a Special Focus on the Flexible Mechanisms, in: D.A. Farber & M. Peeters (eds.), Cli-
mate Change Law, 2016, pp. 235–236.
36 http://unfccc.int/resource/docs/2012/cmp8/eng/13a01.pdf.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 51

the obligation to reduce their emissions of the greenhouse gases specified in

Annex B (CO 2, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons
and sulphur hexafluoride) to the levels laid down in Annex B, defined as per-
centage reductions relative to the base year. 1990 was adopted as the base year,
but the former socialist countries were allowed to adopt 1988 as their base year.
The countries listed in Annex I to the Framework Convention committed to re-
ducing their aggregate anthropogenic greenhouse gas emissions by at least 5%
relative to the base year in the period from 2008 to 2012 (Article 3(1)). Annex B
laid down the individual commitments of the countries listed in Annex I to the
Framework Convention.
Using the opportunities offered by Article 4 of the Kyoto Protocol, the Eu-
ropean Community decided to jointly fulfil the reduction commitments. This
meant that both the Community and the individual Member States which
were the Parties to the Kyoto Protocol had a joint target of a 8% reduction in
the first commitment period (2008–2012) and a 20% reduction (30% under
certain conditions) in the second commitment period (2013–2020). Domestic
eu law assigned the Kyoto commitments in the first and second commitment
periods. Thus, a country which failed to fulfil its individual commitment un-
der the Kyoto Protocol violated the eu law on the sharing of the reduction
commitments.37 In addition to the commitment to reduce greenhouse emis-
sions, the Kyoto Protocol provided for a number of additional commitments
to be fulfilled by the State Parties: the enhancement of energy efficiency; the
protection and enhancement of the efficacy of sinks of greenhouse gases, in-
cluding the promotion of sustainable forest management; the promotion of
sustainable forms of agriculture; increased use of new and renewable energy
sources and carbon dioxide sequestration technologies; progressive phasing
out of subsidies inconsistent with the objective of the Framework Convention;
measures to reduce carbon dioxide emissions in transport; the limitation of
methane emissions; and the establishment of national systems for anthropo-
genic greenhouse gas emission inventories by 2007. Those commitments pro-
vided the basis for many later legal instruments for climate protection in the
European Union.
The Kyoto Protocol failed to fulfil the expectations. First of all, by 2010 the
total global CO 2 emissions grew by 49% relative to the base year.38 On the
other hand, this Protocol was a first specific step towards stabilisation and re-
duction of greenhouse gases. This treaty was a direct stimulus inducing the

37 Stangl, supra note 2 at p. 23.

38 http://www.tyndall.ac.uk/communication/news-archive/2011/global-carbon-emissions
-reach-record-10-billion-tonnes-threatening-t, accessed on 26.06.2016.

journal for european environmental & planning law 15 (2018) 42-68

52 Stoczkiewicz

­development of climate protection law in the eu and the adoption of the so-
called first climate and energy package in the European Union.
In the first commitment period under the Protocol, the individual reduction
targets were assigned to the Member States of the European Community in the
so-called Burden-Sharing Agreement. This legally binding agreement, which
took the form of Council Decision 2002/358/ec,39 imposed on the Mem-
ber States obligations in accordance with the principle of intra-Community
solidarity, which meant that relatively richer countries had to reduce their
emissions, whereas poorer countries were even authorised to increase their
emissions. E.g. under Council Decision 2002/358/ec Germany was obliged to
reduce its emissions by 25% by 2010, whereas Greece had to ensure that its
emissions relative to the same year did not grow by more than 30%.
In order for the Community to fulfil the reduction commitments under the
Kyoto Protocol, a number of legal instruments were adopted. In September
2001, Directive 2001/77/ec on renewable energy sources was adopted.40 Ac-
cording to the preamble to this Directive, the Community recognised the need
to promote renewable electric energy sources as a priority measure given that
their use contributed to environmental protection and sustainable develop-
ment. According to the preamble to Directive 2001/77/ec, support for renew-
able energy sources constituted an important part of the package of measures
needed to comply with the Kyoto Protocol. In accordance with its Article 3,
the Member States were obliged to take appropriate steps to encourage greater
consumption of electricity produced from renewable energy sources in con-
formity with the differentiated indicative national targets. The Directive re-
ferred to the principle of sustainable development.41 Directive 2001/77/ec set
out a direction for the development of eu law in this area. Characteristically,
Directive 2001/77/ec was adopted as an environmental protection measure
pursuant to the present Article 192(1) tfeu.
In 2003, Directive 2003/87/ec establishing a scheme for greenhouse gas
emission allowance trading was adopted.42 This Directive established a

39 Council Decision 2002/358/ec concerning the approval, on behalf of the European Com-
munity, of the Kyoto Protocol to the United Nations Framework Convention on Climate
Change and the joint fulfilment of commitments thereunder, oj 2002 L 130/15.
40 Directive 2001/77/ec of the European Parliament and of the Council on the promotion of
electricity produced from renewable energy sources in the internal electricity market, oj
2001 L 283/33 (Directive 2001/77).
41 Case C-66/13, Green Network, ecli:eu:c:2014:2399, para. 55.
42 Directive 2003/87/ec of the European Parliament and of the Council establishing a
scheme for greenhouse gas emission allowance trading within the Community and
amending Council Directive 96/61/ec oj 2003 L 275/32 (Directive 2003/87).

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 53

­flagship instrument of eu climate policy, commonly called “emissions trading”

or “the European Union Emission Trading Scheme” (eu ets).43 When Direc-
tive 2003/87/ec was adopted it was assumed that the eu ets scheme would
cover the reduction of CO 2 emissions from power plants and industrial instal-
lations responsible for 40% of the eu emissions of this gas.44 In 2004, Directive
2003/87/ec was complemented with Directive 2004/101/ec which linked the
eu ets scheme to the project mechanisms of the Kyoto Protocol.45 The eu ets
scheme implemented the Treaty-based principles of environmental protection
policy; in particular, the polluter pays principle, which was discerned by the
case-law of the Court of Justice of the European Union.46 In this context, it
is important to note that the acts of eu secondary law on climate protection
seldom refer directly to the principles of environmental protection policy. In
N.de Sadeleer’s opinion, this results from the fact that the European treaties
themselves refer to the principle of a high level of environmental protection
and improvement of the quality of the environment (Article 3(3) of the Treaty
on European Union), as well as the precautionary principle, the principle that
preventive action should be taken, that environmental damage should as a
priority be rectified at source and that the polluter should pay (Article 191(2)
tfeu). In light of this, there is no need to repeat these principles in the acts of
eu secondary law.47 The objectives of Directives and their legal bases are more
important. As regards the legal basis, both Directive 2003/87/ec and Directive

43 M. Peeters, Greenhouse Gas Emissions Trading in the eu, in: D.A. Farber & M. Peeters
(eds.), Climate Change Law, 2016, pp. 377–387.
44 See: U. Ellinghaus, P. Ebsen, & H. Schloemann, The eu Emissions Trading Scheme (eu ets):
a Status Report, jeepl, 2004 (1), pp. 3–9; J.Anderson & I.Skinner, The European Union’s Ap-
proach to Reducing Greenhouse Gas Emissions, jeepl, 2005 (2), pp. 92–100; D. Ellerman
& B.K. Buchner, The European Union Emissions Trading Scheme: Origins, Allocation, and
Early Results, Review of Environmental Economics and Policy, 2007 1(1), pp. 66–87; F. Con-
very, D. Ellerman & Ch. de Perthius, The European Carbon Market in Action: Lessons from
the First Trading Period, jeepl, 2008 (5.2), pp. 215–23; M.J. Mace & J. Anderson, Legal and
design issues arising in linking the eu ets with existing and emerging emissions trading
schemes, jeepl, 2009 (6.2), pp. 197–232.
45 Directive 2004/101/ec of the European Parliament and of the Council 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 2004 L 338/18.
46 Case T-16/04, Arcelor [2010], ecr ii-00211, para.30; Case C-127/07, Société Arcelor Atlan-
tique et Lorraine [2008], ecr i-09895, para. 30; Case-370/11, Poland v. Commission [2013],
not reported yet, paras. 90 and 109; Case T-614/13, Ramonta, [2013] not reported yet,
para. 81.
47 N. de Sadeleer, The Precautionary Principle and Climate Change, in: D.A. Farber &
M. Peeters (eds.), Climate Change Law, 2016, pp. 23–24.

journal for european environmental & planning law 15 (2018) 42-68

54 Stoczkiewicz

2004/101/ec were adopted as measures of environmental protection, pursuant

to the present Article 192(1) tfeu.

4 The First Climate and Energy Package. eu Climate Policy until 2020

Whereas the European climate policy in the 1990s and the first years of the 21st
century was determined by the influence of international commitments and
the Kyoto Protocol, starting in 2007 the eu began to implement its unilateral
climate and energy policy. In that period, it combined the objectives of cli-
mate protection policy with the objectives of the economic transition to a low-
emission economy and the objectives of energy security. Such a combination
of objectives required a new, integrated approach to the creation of climate
protection law.48 Thus, climate policy became one of the most important eu
policies, significantly affecting the economic policies of both the eu and its
Member States. In 2007, the Council agreed the 3x20 targets until 2020. These
targets included: the reduction of greenhouse gas emissions by 20%; a 20%
share of energy from renewable resources in the eu energy mix; and energy
efficiency improved by 20%.49 The climate and energy package adopted as
a result of this decision included important provisions significantly amend-
ing environmental law, energy law and also, to some extent, eu competition
law. In order to emphasise the role of the eu as the leader in tackling climate
change and to encourage large greenhouse gas emitters to conclude a new cli-
mate agreement, in the Council Conclusions the target of a 20% reduction of
these gases was complemented with a conditional 30% reduction as a contri-
bution to the conclusion of a new global climate agreement in the post-2012
period on the condition that other developed countries made their appropri-
ate commitments.50 The climate and energy package adopted at the turn of
2008 and 2009 is considered to have been a step towards fully harmonized and
Community-based eu climate policy.51 The eu climate policy in the period
from the expiration of the Kyoto Protocol to the adoption and entry into force
of the Paris Agreement has sometimes been called climate unilateralism. It
was characterised by the adoption of unilateral commitments and measures

48 Stangl, supra note 2 at p. 27.

49 European Council, Presidency Conclusions of 8th and 9th of March 2007, 7224/1/07;
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/93135.pdf;
accessed on 24.07.2016.
50 Id. at point 31.
51 S. Oerthür & M. Pallemaerts, supra note 5 at p. 52.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 55

despite the absence of an international comprehensive legal framework for

action to protect the climate.52
The climate and energy package was adopted under a compromise reached
by the European Council on 11–12 December 2008. The package included:

(1) Directive 2009/29/ec amending Directive 2003/87/ec;53

(2) Directive 2009/28/ec amending and subsequently repealing Directives
2001/77/ec and 2003/30/ec;54
(3) Directive 2009/31/ec on the geological storage of carbon dioxide;55
(4) Decision No. 406/2009/ec on the effort of Member States to reduce their
greenhouse gas emissions to meet the Community’s greenhouse gas
emission reduction commitments up to 2020;56

The sensu largo climate and energy package also included the legal acts the
proposals for which had been prepared by the Commission before 2008, but
which – in light of the common objective – were adopted at the same plenary
session of the European Parliament. They included:

(5) Directive 2009/30/ec amending Directive 98/70/ec as regards the speci-

fication of petrol, diesel and gas-oil;57

52 J. Scott & L. Rajamani, eu Climate Change Unilateralism, The European Journal of Inter-
national Law 2012 (23), p. 470.
53 Directive 2009/29/ec of the European Parliament and of the Council amending Directive
2003/87/ec so as to improve and extend the greenhouse gas emission allowance trading
scheme of the Community, oj 2009 L 140/63 (Directive 2009/29).
54 Directive 2009/28/ec of the European Parliament and of the Council 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 2009 L 140/16 (Directive 2009/28).
55 Directive 2009/31/ec of the European Parliament and of the Council on the geological
storage of carbon dioxide and amending Council Directive 85/337/eec, European Parlia-
ment and Council Directives 2000/60/ec, 2001/80/ec, 2004/35/ec, 2006/12/ec, 2008/1/ec
and Regulation (ec) No. 1013/2006, oj 2009 L 140/114 (Directive 2009/31).
56 Decision No. 406/2009/ec of the European Parliament and of the Council on the effort
of Member States to reduce their greenhouse gas emissions to meet the Community’s
greenhouse gas emission reduction commitments up to 2020, oj 2009 L 140/136 (Decision
406/2009).
57 Directive 2009/30/ec of the European Parliament and of the Council amending Direc-
tive 98/70/ec as regards the specification of petrol, diesel and gas-oil and introducing
a mechanism to monitor and reduce greenhouse gas emissions and amending Council
Directive 1999/32/ec as regards the specification of fuel used by inland waterway vessels
and repealing Directive 93/12/eec, oj 2009 L 140/88 (Directive 2009/30).

journal for european environmental & planning law 15 (2018) 42-68

56 Stoczkiewicz

(6) Regulation (ec) No. 443/2009 setting emission performance standards

for new passenger cars as part of the Community’s integrated approach
to reduce CO 2 emissions from light-duty vehicles.58

The following acts which were adopted two and a half years later should also
be included here:

(7) Directive 2012/27 on energy efficiency59 and the

(8) Community guidelines on State aid for environmental protection 2008/C
82/1.60

The reform of the emission allowance trading scheme is considered to have

been the greatest achievement of the first climate and energy package.61 Direc-
tive 2009/29/ec amending Directive 2003/87/ec was adopted as a measure of
environmental protection, pursuant to the present Article 192(1) tfeu. The ba-
sic change was that the eu ets was transformed from a decentralised scheme
into a centralised one.62 This put an end to the previous so-called better regu-
lation policy which emphasised self-regulation and decentralisation in eu
climate policy.63 The eu ets scheme which was established under Directive
2003/87/ec was decentralised in the sense that it left most decisions within
the competence of the Member States which adopted the National Allocation
Plans (naps),while the total cap of allowed greenhouse gas emissions was the
sum total of these naps. The allowances were allocated to plant operators free
of charge, taking into account their past emissions. The change introduced by
Directive 2009/29/ec consisted in the adoption of an eu-wide carbon dioxide

58 Regulation (ec) No. 443/2009 of the European Parliament and of the Council setting
emission performance standards for new passenger cars as part of the Community’s inte-
grated approach to reduce CO2 emissions from light-duty vehicles, oj 2009 L 140/1 (Regu-
lation 433/2009).
59 Directive 2012/27 of the European Parliament and of the Council on energy efficiency,
amending Directives 2009/125/ec and 2010/30/eu and repealing Directives 2004/8/ec
and 2006/32/ec, oj 2012 L 315/1 (Directive 2012/27).
60 Community guidelines on State aid for environmental protection, oj 2008 C 82/1 (2008
Guidelines).
61 J.Birger Skjaertseth & J. Wettestad, The eu Emissions Trading System Revised (Directive
2009/29/ec), in ; S. Oerthür & M. Pallemaerts (eds.), The New Climate Policies of the
European Union, 2010, p. 65.
62 S. Bogojevic, Legislative Comment. The eu ets Directive Revised: Yet Another Stepping
Stone, Env. L. Rev. 2009 (11(4)), pp. 279–285.
63 C. Hey, supra note 29 at p. 214.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 57

emission cap to replace the limits adopted by the individual Member States
and approved by the Commission.64 Moreover, Directive 2009/29/ec replaced
the allocations of free emission allowances to plant operators by the principle
of their sales at auctions. In accordance with the new wording of Article 10
of Directive 2003/87/ec, starting in 2013 the Member States have sold at auc-
tions all the allowances which have not been allocated free of charge. A dis-
tinction between electricity generators and industrial installations was also
introduced. The auctioning of allowances became the rule for power plants,65
but the power generation sector in so-called new Member States, including, in
particular, Poland, was able to make use of a temporary derogation from the
principle of allowance auctioning.66 Although the objective of the amended
Directive 2003/87/ec continued to be environmental protection consisting in
greenhouse gas reductions designed to avoid dangerous climate change,67 it
deeply intervened into economic processes, in particular, those in the energy
sector and industry.
Directive 2009/28/ec was another key legal act which made up the climate
and energy package.68 This Directive established a common framework for the
promotion of energy from renewable sources. It laid down mandatory national
overall targets for the total share of energy from renewable sources in gross
final consumption of energy and for the share of energy from renewable re-
sources in transport. Each Member State was obliged to achieve a total share
of energy from renewable resources in gross final consumption of energy at a
level laid down in Annex I (e.g. the target for Poland was 15%, it was 18% for
Germany and 39% for Sweden). These mandatory national overall targets are
consistent with the target of a 20% share of energy from renewable sources

64 In many cases, the Commission’s approval or disapproval of naps has been taken to
the ecjeu. See M. Nowacki, Prawne aspekty bezpieczeństwa energetycznego w ue,
pp. ­187–199. See also J. Anderson & I. Skinner, The European Union’s Approach to Reduc-
ing Greenhouse Gas Emissions, jeepl 2005 (2), pp. 92–100.
65 Directive 2003/87/ec as amended by Directive 2009/29/ec, Article 10a(3).
66 M. Stoczkiewicz, The Emission Trading Scheme in Polish Law. Selected Problems Related
to the Scope of Derogation from the General Rule of Auctioning in Poland, yars 2011 (4),
pp. 96–113.
67 Directive 2003/87/ec as amended by Directive 2009/29/ec, Article 1.
68 M. Peeters & T. Schomerus (eds.), Renewable Energy Law in the eu: Legal Perspectives on
Bottom-up Approaches, New Horizons in Environmental and Energy Law Series, 2014;
M. Peeters, Governing towards renewable energy in the eu: competences, instruments, and
procedures, Maastricht Journal, 2014 1(21); R.L. Ottinger, Renewable Energy law and Devel-
opment: Case Study Analysis, 2013; T.M. Rusche, eu Renewable Electricity Law and Policy:
From National Targets to a Common Market, 2015.

journal for european environmental & planning law 15 (2018) 42-68

58 Stoczkiewicz

in the eu in 2020. Each country will also ensure that its share of energy from
renewable resources in all transport modes in 2020 is at least 10% of the final
consumption of energy in that Member State.69 Directive 2009/28 was adopt-
ed pursuant to the present Article 192(1) tfeu, except for its Articles 17–19.
The latter Articles which laid down sustainability criteria for biofuels and bi-
oliquids were adopted pursuant to the present Article 114 tfeu. As indicated
by T. Howes, the eu policy on renewable energy sources has emerged from
environmental protection policy and from its legal basis, which is Article 192
tfeu.70 L. Krämer pointed out that this Directive had several objectives relat-
ing to environmental protection, the internal market, transport and the energy
sector. However, it was not necessary to set any binding national targets for
either transport or the energy sector. Rather, the binding targets laid down in
Directive 2009/28/ec resulted from the need to achieve the greenhouse gas
reduction targets laid down in the Kyoto Protocol. In L. Krämer’s opinion, the
main goal of this Directive was, therefore, environmental protection by tack-
ling climate change. For this reason, in the opinion of that author, Article 192
tfeu was the appropriate legal basis for its adoption.71
The first climate and energy package also included Directive 2009/31/ec
on the geological storage of carbon dioxide.72 This Directive was an attempt
to support the technology for combustion of fossil fuels (mainly coal) which
would cause no greenhouse gas emissions into the atmosphere.73 It was as-
sumed that by means of the carbon capture and storage (ccs) technology CO 2
captured from an installation (e.g. a coal-fired plant) would be transported to
sites in a rock formation where it could be safely stored for hundreds or thou-
sands of years.74 Its supporters considered ccs to be a bridging technology in

69 Directive 2009/28/ec, supra note 54, Article 3.

70 T. Howes, The eu’s New Renewable Energy Directive (2009/28/ec), in: S. Oerthür &
M. Pallemaerts (eds.), The New Climate Policies of the European Union, 2010, p. 122.
71 L. Krämer, eu Environmental and Energy Policy and Member States’ Energy Mix, in: M.
Stoczkiewicz & A. Warso-Buchanan (eds.), Derogations from a Transition. Free eu ets
Allowances for the Electricity Sector in Poland, 2015, pp. 18–19.
72 See: I. Havercroft, R. Macrory & R.B. Stewart (eds.), Carbon Capture and Storage: Emerging
Legal and Regulatory Issues, 2011; M. Roggenkamp & E. Woerdman (eds.), Legal Design of
Carbon Capture and Storage – Developments in the Netherlands from and International
and eu Perspective, 2009.
73 J. Chiavari, The Legal Framework for Carbon Capture and Storage in the eu (Directive
2009/31/ec), in: S. Oerthür & M. Pallemaerts (eds.), The New Climate Policies of the
­European Union, 2010, pp. 151–177.
74 B. Metz (ed), ipcc – Report on Carbon Capture and Storage, 2005, p. 246.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 59

the transition from fossil fuels to renewable energy sources.75 Thus, the aim
of the Directive was to protect the environment in two dimensions: the global
one, by contributing to the tackling of climate change, and the local (regional)
one, by protecting the environment and human health against the possible
adverse effects of the implementation of ccs projects. Understandably, the
present Article 192(1) tfeu was its legal basis.
Decision No. 406/2009/ec on the effort of Member States to reduce their
greenhouse gas emissions to meet the Community’s greenhouse gas emission
reduction commitments up to 2020 was also an important element of the cli-
mate and energy package.76 This Decision was adopted pursuant to the present
Article 192(1) tfeu as a measure of environmental protection, with a clear ref-
erence in its preamble to the Framework Convention and the Kyoto Protocol.
Decision No. 406/2009/ec (the Effort Sharing Decision or the esd Decision)
replaced its predecessor, i.e. Council Decision 2002/358 (the Burden-Sharing
Decision).77 In this context, it should be noted that Directive 2003/87/ec (the
eu ets Directive) covered only 45% of the total greenhouse gas emissions
from all the Member States. Therefore, Decision No. 406/2009/ec should cov-
er all the remaining 55% emission sources (sectors) which were not covered
by the eu ets regulations. The scope of regulation of this Decision applies
to: (1) the energy sector (in the scope of fuel combustion and fugitive emis-
sions from fuels); (2) industrial processes; (3) solvent and other product use;
(4) agriculture; and (5) waste.78 The aim of the implementation of Decision
No. 406/2009/ec is to reduce greenhouse gas emissions from non-eu ets sec-
tors by 10% by 2020 relative to their 2005 levels. This Decision assigns to each
Member State a binding national greenhouse gas emission reduction target.
In accordance with the solidarity principle, these targets are different for the
individual Member States (the targets for richer countries are more ambitious
than those for countries with a lower gdp. E.g. the reduction target for Bulgaria

75 N.S. Ghaleigh, Carbon Capture and Storage as a Bridging Technology, in: D.A. Farber &
M. Peeters (eds.), Climate Change Law, 2016, pp. 189.
76 See: M. Peeters & M. Stallworthy, Legal consequences of the Effort Sharing Decision for
member state action, pp. 15–38, in: M. Peeters, M.Stallworthy & J. De Cendra De Larragán
(eds.), Climate Law in eu Member States. Towards National Legislation for Climate
Protection, 2012; C. Haug & A. Jordan, Burden Sharing: Distributing Burdens or Sharing
Efforts?, pp. 83–102, in: A. Jordam, D. Huitema et al. (eds.), Climate Change Policy in the
European Union: Confronting the Dilemas of Mitigation and Adaptation?, 2010.
77 N. Lacasta et al, From Sharing the Burdens to Sharing the Effort: Decision 406/2009/we on
the Member States Emissions Targets for non-ets Sectors, in S. Oerthür & M. Pallemaerts
(eds.), The New Climate Policies of the European Union, 2010, pp. 93–116.
78 Decision No. 406/2009/ec, supra note 54, Article 2(1) and Annex i.

journal for european environmental & planning law 15 (2018) 42-68

60 Stoczkiewicz

is +20%, for Denmark it is −20%, −14% for Germany and +14% for Poland).79
The literature indicates that the adoption of the esd meant an important step
towards the decarbonisation of the economy,80 which should be considered as
progress in relation to the decarbonisation target of the electricity and indus-
try sector resulting from the eu ets. In contrast to the strong centralization of
the eu ets, the reduction of non-ets emissions was based on the esd’s broad
discretion in the selection of regulatory measures by Member States, which
was limited by monitoring by European Commission and legally binding re-
duction targets.81 The legal doctrine underlines a significant dependence on
the possibility of achieving esd objectives from measures taken in the Mem-
ber States and policies pursued by national governments. However, it was also
pointed to a new trend towards top-down regulation of emission reduction
from the eu level, resulting both from the eu ets and esd.82
The adoption of the 3x20 targets by 2020 by the European Council was the
core of the first climate and energy package. The regulations on energy effi-
ciency also contributed to achieving two of the assumed targets: the green-
house gas emission reductions in the non-ets sectors and improvements in
energy efficiency. However, the measures adopted in 2009 did not address en-
ergy efficiency. For this reason Directive 2012/27/eu cannot be considered part
of the climate and energy package in its strict sense.83 Nevertheless, it was one
of the acts which complemented the first package and can be considered an el-
ement of the package in its broad sense. The Commission prepared the Energy
Efficiency Plan in 201184 and, subsequently, Directive 2012/27/eu. This Direc-
tive transformed into legal rules the main ideas and mechanisms for achieving
the objectives laid down in the Energy Efficiency Plan and repeated the older
rules on the efficiency of the final energy consumption and energy services
(previously set out in Directive 2006/32/ec) and those concerning the promo-
tion of cogeneration (previously set out in Directive 2004/8/ec).85 In addition,
Directive 2012/27/eu amended Directives 2009/125/ec and 2010/30/eu on
ecodesign and eco-labelling. In contrast to its predecessors which were based

79 Decision No. 406/2009/ec, supra note 54, Article 3(1) and Annex ii.
80 Peeters, M. Stallworthy & J. De Cendra De Larragán (eds.), supra note 77 at p. 4.
81 Id. at p. 331.
82 Id. at p. 352.
83 H. Verder, Energy Efficiency, in: E. Woerdman, M. Roggenkamp & M. Holwerda (eds.),
­Essential eu Climate Law, 2015, p. 159.
84 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0109:FIN:EN:PDF; Ac-
cessed on 9.09.2016.
85 Stangl, supra note 2 at p. 35.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 61

on the present Article 192 tfeu, Directive 2012/27/eu was adopted pursuant to
Article 194(2) tfeu as a measure of eu energy policy.
These regulations were complemented with those on the limitation of the
emissions of fluorinated greenhouse gases (F-gases) laid down in Directive
2006/40/ec relating to emissions from air-conditioning systems in motor ve-
hicles86 and Regulation (eu) No. 517/2014 on certain fluorinated greenhouse
gases.87 Directive 2006/40/ec was adopted pursuant to the present Article 115
tfeu as a measure for the approximation of regulations affecting the func-
tioning of the internal market. However, its preamble contained clear refer-
ences to the Framework Convention, the Kyoto Protocol and Council Decision
2002/358 concerning the approval of the Kyoto Protocol and the joint fulfil-
ment of commitments thereunder.88 In turn, Regulation (eu) No. 517/2014 was
adopted pursuant to Article 192(1) tfeu. In accordance with its Article 1, the
objective of Regulation (eu) No. 517/2014 was to protect the environment by
reducing emissions of fluorinated greenhouse gases.
The legal measures expected to make it easier for the eu as a whole and
the individual Member States to achieve the reduction targets for the non-ets
sectors also included measures to govern the quality of motor fuels and emis-
sions from passenger cars and light-duty vehicles. They included Directive
2009/30/ec on the specification of petrol, diesel and gas-oil and Regulation
(ec) No. 443/2009 setting emission standards for new passenger cars. Direc-
tive 2009/30/ec had a double legal basis. It was adopted pursuant to Article 115
tfeu (as a measure for the approximation of regulations affecting the func-
tioning of the internal market) and pursuant to Article 192(1) tfeu. In turn,
given the fact that Regulation (ec) No. 443/2009 did not directly affect the
establishment and functioning of the internal market, but only set emission
standards for new passenger cars, it was adopted pursuant to one legal basis,
i.e. the present Article 192(1) tfeu as a measure of environmental protection.
At the time of the first climate and energy package, the eu climate protec-
tion policy was expanded to include the regulations on the compatibility of
State aid.89 The aim of the eu law on State aid is to protect competition and,

86 Directive 2006/40/ec of the European Parliament and of the Council relating to emis-
sions from air-conditioning systems in motor vehicles and amending Council Directive
70/156/eec, oj 2006 L 161/12 (Directive 2006/40).
87 Regulation (eu) No. 517/2014 of the European Parliament and of the Council on certain
fluorinated greenhouse gases and repealing Regulation (ec) No. 842/2006, oj 2014 L
150/195 (Regulation 517/2014).
88 Directive 2006/40/ec, supra note 80, recitals 2–6.
89 For State aid, see L. Hancher & F. Salerno, State aid in the tfeu, in: Ch. Jones (ed.), eu
Energy Law, Vol. ii, eu Competition Law and Energy Markets, 2016, pp. 651–726.

journal for european environmental & planning law 15 (2018) 42-68

62 Stoczkiewicz

in principle, it prohibits the granting of State aid to undertakings. However,

exceptionally this law allows such aid in the cases laid down in tfeu for the
implementation of justified objectives.90 These objectives now include those
related to climate protection. E. Kutenicova & A.T. Seinen claim that the 2008
Guidelines on State Aid for Environmental Protection were adopted as part of
the first climate and energy package.91 Indeed, the 2008 Guidelines stated that
the European Council made a firm independent commitment for the eu to
achieve at least a 20% reduction in greenhouse gas emissions by 2020 and to
increase energy efficiency by 20%, as well as to attain a 20% share of renewable
energies in overall energy consumption by 2020 and a 10% share of biofuels
in overall fuel consumption in transport. Moreover, it was said that the 2008
Guidelines were one of the instruments enabling the implementation of cli-
mate protection related targets.92 The 2008 Guidelines set out a framework for
the compatibility of State aid, i.a. for the following objectives related to climate
protection: energy saving, renewable energy sources, cogeneration and district
heating, as well as the aid related to tradable permit schemes. Interestingly, al-
though the 2008 Guidelines were a measure to implement eu competition pol-
icy (in respect of State aid), they were characterised by far-reaching functional
relationships with environmental protection policy (including climate protec-
tion) through the implementation of the environment-related polluter pays
principle.93 In 2014, the 2008 Guidelines were replaced by Guidelines on State
aid for environmental protection and energy 2014–2020.94 The 2014 Guidelines
not only repeated the targets of the first climate and energy package (3x20),
but also referred to climate targets in the timeframe until 2030.95
In conclusion, it can be said that the climate policy of the European Union
at the time of the first climate and energy package was characterised by a
combination of the objectives of climate protection with the objectives of the
economic transition to a low-emission economy and the objectives of energy

90 For the relationship between State aid and environmental protection, see M. Stoczkiewicz,
Environmental Aspects of State Aid for Energy Investment Projects, in: B. Vanheusden &
L. Squintani (eds.), eu Environmental and Planning Law Aspects of Large-Scale Projects
(European Environmental Law Forum), 2016, pp. 11–24.
91 E. Kutenicova & A.T. Seinen, Environmental Aid, in: W. Mederer, N. Pesaresi & M. Van Hoff
(eds.), eu Competition Law, Volume iv, State Aid, 2008, p. 851.
92 2008 Guidelines, supra note 60, paras. 3 and 4.
93 M. Stoczkiewicz, The Polluter Pays Principle and State Aid for Environmental Protection,
jeepl 2009 (6.2), pp. 171–196.
94 Communication from the Commission—Guidelines on State aid for environmental pro-
tection and energy 2014–2020, oj 2014 C 200/1 (2014 Guidelines).
95 Id. at recitals 3 and 4.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 63

security. Such a combination of objectives required a new, integrated approach

to the creation of climate protection law, covering not only energy, but all sec-
tors of the economy.
Thus, climate policy became one of the most important eu policies, signifi-
cantly affecting the economic policies of both the eu and its Member States.
The first climate and energy package which had emerged from the objectives
of environmental protection also included provisions which significantly
changed eu energy and competition law.

5 The Paris Agreement and the outlook of European Climate Policy

In October 2014, i.e. more than a year before the Paris Agreement was conclud-
ed, the European Council agreed its 2030 Climate and Energy Framework.96
The European Council found that substantial progress had been made towards
the attainment of the eu targets for greenhouse gas emission reduction, re-
newable energy and energy efficiency and that they needed to be fully met
by 2020. At the same time, the European Council agreed new targets to be
achieved by 2030 and called for all the countries to present ambitious targets
and policies well in advance of the Conference of the Parties (cop 21) in Paris.
The eu climate policy targets in the timeframe until 2030 were adopted in the
aftermath of the negotiation process which led to the Paris Agreement. The
European Council approved a binding eu target of limiting by 2003 the do-
mestic greenhouse gas emissions by at least 40% relative to their level in 1990.
This target was to be achieved collectively by the eu in the most cost-effective
manner possible, with the emission reductions to be attained by 2030 by the
sectors covered by the eu emission allowance trading scheme and those un-
covered by this scheme amounting to 43% and 30%, respectively, relative to
2005. It was agreed that all the Member States would take part in these efforts,
taking care to ensure a balance between considerations of fairness and solidar-
ity. The European Council also established an eu target of achieving in 2030
at least a 27% share of energy from renewable sources in the eu energy con-
sumption. This target was to be binding at eu level. Moreover, the European
Council established an indicative target of improving energy efficiency in 2003
by at least 27% relative to the forecasts of energy consumption in the future,
based on the present criteria. The 2030 Climate and Energy Framework in-
cluded quite detailed provisions on the eu ets and reductions in the ­non-ets

96 http://data.consilium.europa.eu/doc/document/ST-169-2014-INIT/pl/pdf, accessed on
28.12.2016.

journal for european environmental & planning law 15 (2018) 42-68

64 Stoczkiewicz

­sectors. ­Moreover, it is important to note the targets related to the commit-

ment to “achieving a fully functioning and connected internal energy market”,
including the achievement of a minimum target of 10% of existing electricity
interconnections by 2020 and 15% of such connections by 2030. A complete-
ly new element of eu climate and energy policy was the agreement reached
by the European Council on the establishment of a reliable and transparent
governance system which was expected to help the eu meet its energy policy
goals.97 In its 2030 Climate and Energy Framework, the European Council also
recalled its goal of building an “Energy Union” to ensure affordable, secure and
sustainable energy. The European Council Conclusions of October 2014 pro-
vided the basis for legislative proposals of the Commission which would con-
stitute a new architecture of eu climate and energy policy after the entry into
force of the Paris Agreement. The eu target of reducing the domestic green-
house gas emissions by at least 40% by 2030 compared with 1990 was declared
as the intended nationally determined contribution (indc) for the future cli-
mate agreement and there is no doubt that it contributed to its success.
On 12 December 2015, 195 countries and the European Union concluded
the Paris Agreement.98 The Agreement was the result of negotiations carried
out for more than ten years under the Framework Convention. These negotia-
tions led to the meeting of the Parties to the Framework Convention in Co-
penhagen in 2009. The Copenhagen meeting is generally considered to have
been a failure of global climate policy, since no binding climate agreement was
reached.99 Still, the Copenhagen meeting resulted in the Copenhagen Accord
of 18 December 2009, a political agreement which was also signed by the high-
est greenhouse gas emitters.100
In contrast to the Copenhagen Accord, the Paris Agreement is a treaty within
the meaning of the 1969 Vienna Convention of the Law of Treaties.101 Indeed,
it is an international agreement concluded in accordance with the rules of the

97 See S. Turner, Embedding Principles of Good Governance into the 2030 Climate & Energy
Framework. Governance to Deliver a Clean & Secure Energy System, https://www.foeeu
rope.org/sites/default/files/renewable_energy/2015/turner_2015-six_principles_of_good
_governance.pdf; accessed on 28.12.2016.
98 The Paris Agreement under the United Nations Framework Convention on Climate Change,
Paris 22 April 2016, in force 4 November 2016. http://unfccc.int/resource/docs/2015/cop21/
eng/l09r01.pdf (Paris Agreement); accessed on 19.09.2016.
99 D. Bodansky, The Copenhagen Climate Change Conference—A Postmortem, ajil 2010
(104), pp. 230–240.
100 http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf, accessed on 16.10.2016.
101 The Vienna Convention on the Law of Treaties, Vienna 23 May 1969, in force 27 January
1980 (The Vienna Convention).

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 65

Vienna Convention, it has a relevant form, defines the manner of its ratifica-
tion, the obligations of the Parties and the rules that determine its entry into
force.102 “Treaty” means an international agreement concluded between States
in written form and governed by international law, irrespective of its particular
designation.103 In the literature on this subject, doubts have been voiced as to
whether the Paris Agreement was legally binding or whether only its selected
parts were binding, or whether it was only a political commitment.104 It should
be emphasised that in a general opinion of the Parties to the Agreement it is
a treaty within the meaning of international law.105 As M.M. Kenig-Witkowska
pointed out, it is the form of the act and the content of the norm that decide
whether an instrument or norm is legally binding in nature.106 The Paris Agree-
ment was adopted in the form of an Annex to a cop21 decision and its basis
was the Framework Convention. In accordance with Article 26 of the Vienna
Convention, which provides that “Every treaty in force is binding upon the par-
ties to it and must be performed by them in good faith” (pacta sunt servanda),
the Paris Agreement is legally binding. Still, it is important to add that – as
R. Bodle, L. Donat & M. Duwe claim – not all the provisions of the Agreement
establish binding obligations or rights.107 According to D. Bodansky & S. Day
O’Connor, not all legal instruments necessarily create legal obligations a viola-
tion of which causes a breach of law.108 The Paris Agreement contains a num-
ber of provisions which have a differentiated legal status (from provisions of
the “shall” type, through “should”, to “may”, as well as declarative statements
of the “recognize” or “acknowledge” type). The very text of the Agreement is
complemented with nationally determined contributions (ndc) to reductions,
which are not part of the substantive provisions of the Agreement, but are
linked to the matter of the Agreement with Treaty-based procedural commit-
ments. In the assessment of M.M. Kenig-Witkowska, the effectiveness of these

102 Paris Agreement, supra note 92, Articles 20–29.

103 The Vienna Convention, supra note 95, Article 2(1)(a).
104 S. Obetrhür& R. Bodle, Legal Form and Nature of the Paris Outcome, Climate Law, Climate
Law 2016 (6) pp. 40–57; R. Falk, Voluntary International Law and Paris Agreement, 16.01.2016,
https://richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the
-paris-agreement/; accessed on 25.09.2016.
105 D. Bodansky, The Paris Climate Change Agreement: A New Hope?, ajil, 2016 (110(2)),
p. 300.
106 M.M. Kenig-Witkowska, Porozumienie Paryskie – nowy mechanizm ochrony klimatu, Pol-
ski Przegląd Dyplomatyczny, 2017 (1), p. 121.
107 R. Bodle, L. Donat & M. Duwe, The Paris Agreement: Analysis, Assessment and Outlook,
2016, p. 17.
108 Bodansky & Day O’Connor, supra note 35 at p. 144.

journal for european environmental & planning law 15 (2018) 42-68

66 Stoczkiewicz

unilateral acts of countries, which are allowed by international law, depends

on their compliance with the principles of domestic law.109
The Paris Agreement has been designed by expounding on its objective laid
down in its Article 2(1), which has been broken into three elements: (a) hold-
ing the increase in the global average temperature to below 2°C above pre-
industrial levels and pursuing efforts to limit the temperature increase to 1.5°C
above pre-industrial levels; (b) increasing the ability of society to adapt to the
adverse impacts of climate change; and (c) making finance flows consistent
with a pathway towards low greenhouse gas emissions.110 This objective is sup-
ported by the general commitment of all the Parties, as expressed in Article 3,
to undertake “ambitious efforts” to implement it, which are defined in detail in
the specific provisions of the Agreement.111
The Paris Agreement entered into force on 4 November 2016.112 On 1 June
2017, President Donald Trump announced his intention to formally withdraw
the United States from the Paris Agreement. Neither the declaration of this in-
tent nor the formal withdrawal of the United States from the Paris Agreement
have an effect on the validity of this treaty for the other Parties.113 The Deci-
sion of the European Council to approve the ratification of the Paris Agree-
ment on behalf of the European Union was adopted pursuant to Article 192(1),
in conjunction with Article 218(6)(a) tfeu. Recital 12 of the preamble to this
Decision indicated that the Paris Agreement was consistent with the eu objec-
tives in the area of environmental protection laid down in Article 191 tfeu,
i.e. preserving, protecting and improving the quality of the environment, pro-
tecting human health, prudent and rational utilisation of natural resources,
promoting measures at international level to deal with regional or worldwide
environmental problems, and in particular combating climate change.
It would be difficult to overestimate the significance of the Paris Agreement
for the climate policy of the European Union. There is no doubt that the entry
into force of this Agreement strengthened the conviction of the eu institu-
tions about the correctness of the efforts to transform the economy towards
low emissions. It should be recalled that for a number of years this policy had

109 M.M. Kenig-Witkowska, supra note 100 at p. 122.

110 Paris Agreement, supra note 92, Article 2(1).
111 Thus R. Bodle, L. Donat & M. Duwe, supra note 101 at p. 8.
112 http://unfccc.int/paris_agreement/items/9986.php, accessed on 21.10.2016.
113 K. Hill, Can President Trump Legally Pull out of the Paris Agreement on Climate Change.
ClientEarth Briefing, p. 3. https://www.documents.clientearth.org/wp-content/uploads/
library/2016-11-11-clientearth-briefing-can-trump-cancel-the-paris-agreement-ce-en.pdf,
accessed on 11.08.2017.

journal for european environmental & planning law 15 (2018) 42-68

The Climate Policy of the European Union 67

been pursued unilaterally. Therefore, it should be expected that not only this
direction of action will be maintained, but also that eu climate policy will be
strengthened. The Paris Agreement, which was ratified not only by the eu but
also by all the Member States, confers to the eu institutions a strong mandate
to enforce the implementation of the objectives to be attained in the time-
frame until 2030. The significance of this Agreement for the future eu climate
policy results, in particular, from the legally binding procedural provisions
which oblige the Parties to adopt and review every five years increasingly am-
bitious emission reduction plans. Certain researchers foresee that a combina-
tion of legal, political, procedural and economic effects of the Paris agreement
will force those Member States which are skeptical about climate policy to
implement its targets in the timeframes until 2030 and 2050.114 It should be
expected that there will be determined efforts to implement the targets agreed
by the European Council in October 2014 in the timeframe until 2030 and that
increasingly ambitious targets will be set out in the future. This results from
the existence of a gap in ambitions between the Paris Agreement and the cur-
rent eu climate policy. Whereas all the detailed targets and legal measures ad-
opted to implement climate policy are based on the main goal of holding the
temperature growth below 2°C, the Paris Agreement introduced an additional
objective of “pursuing efforts to limit the temperature increase to 1.5°C above
pre-industrial levels”.
Intensive research is now underway on the implications of the Paris Agree-
ment for the particular legal measures to implement eu climate policy and
its results are not fully known yet. The package of proposals for legal acts re-
forming the energy market, called “Clean Energy for All Europeans”,115 which
the European Commission published on 30 November 2016, adapted to some
extent the eu emission reduction policy to the Paris Agreement. An analysis of
these proposals requires separate studies.

6 Conclusions

The climate policy of the European Union is, indeed, part of environmental
protection policy. This results from the fact that a climate equilibrium is an
important element of the natural environment. This policy grew out from the

114 S. Andresen et al. The Paris Agreement: Consequences for the eu and Carbon Markets?,
Politics and Governance, 2016 (4(3)), p. 192.
115 https://ec.europa.eu/energy/en/news/commission-proposes-new-rules-consumer-cen
tred-clean-energy-transition; accessed on 29.12.2016.

journal for european environmental & planning law 15 (2018) 42-68

68 Stoczkiewicz

body of international environmental law with its most important element

which was the Framework Convention. The legal measures to implement eu
climate policy were most often adopted pursuant to the Treaty basis for the
implementation of environmental protection policy. The aim of these mea-
sures was to protect the climate as an element of the natural environment.
Acts of secondary law in this scope seldom directly referred to principles of
environmental protection, since these principles had been laid down in teu
and tfeu. There was a noticeable tendency to also use the legal basis for the
implementation of energy, internal market and competition policies for cli-
mate protection purposes. In consequence, eu climate policy includes more
and more fields of law; in particular, in addition to environmental protection
law, also energy law and competition law. To date, eu climate policy developed
towards: (i) increasingly stringent standards requiring greater greenhouse
gas emission reductions; and (ii) the growing complexity and the use of an
increasing number of instruments characteristic of the different fields of law.
On the basis of the development of eu climate policy to date from the Frame-
work Convention up to the entry into force of the Paris Agreement, it can be
expected that eu climate policy will not only be abandoned, but that it will be
consistently strengthened and developed.

journal for european environmental & planning law 15 (2018) 42-68