The legal implications of the EU Commission’s proposal to ratify the second commitment period of the Kyoto Protocol

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Date produced: 12/11/2013

The query relates to the legal implications of the European Union (“EU”) Commission’s proposal to ratify the second commitment period of the Kyoto Protocol (the “Proposal”).  Four specific questions have been asked:  What is the relevance of Proposal in the EU law making process? What are the next steps? What does the ratification by the EU involve? What is the relevance of ratification for EU Member States, etc? Summary:

The Proposal is the first step in achieving ratification of the Doha Amendment at an EU level.  The EU Commission has the power to set the Proposal before the European Parliament and the Council of the EU.  The European Parliament shall consult on the Proposal, and the Council of the EU will then have the power to decide, by a unanimous vote, whether or not to adopt the Proposal.  If the Proposal is adopted, the Council of the EU then has the power to ratify the Doha Amendment on behalf of the EU.

Each MemberState is also required to ratify the Doha Amendment, as each MemberState is also a party to the Kyoto Protocol.  A minimum of 144 parties to the Kyoto Protocol must ratify the Doha Amendment for it to enter into force as international law. The ratification by each MemberState will help to achieve this target.

Ratification by individual Member States does not impose emission reduction targets upon each MemberState individually.  Member States will act collectively to achieve the EU emissions reduction target.  However, if the EU as a whole fails to meet the EU emissions reduction target, the fact that each individual Member State has ratified and is a party to the Doha Amendment will then allow those individual emissions targets be enforced against each Member State.

 Advice:

1.                  Background to the Doha Amendment

1.1               The Doha Amendment to the Kyoto Protocol was agreed at the UN climate conference in Doha, Qatar and adopted in Decision 1/CMP.8 on 8 December 2012 (the “Doha Amendment“).   The Doha Amendment comprises a number of amendments to the Kyoto Protocol; in particular, it establishes a second commitment period with legally-binding emission reduction commitments for the years 2013–2020.

1.2               According to Article 20 paragraph 4, and Article 21 paragraph 7 of the Kyoto Protocol, the Doha Amendment shall enter into force on the 90th day after at least three quarters (3/4) of the original parties to the Kyoto Protocol have provided evidence to the UN Depositary of their intention to provisionally apply the Amendment; this evidence is presented in the form of a ratification of the Doha Amendment by that party.

1.3               There are 192 parties to the Kyoto Protocol.  Therefore the Doha Amendment must be ratified by 144 parties in order to enter into force.

1.4               The EU Commission has tabled a proposal for ratification of the Doha Amendment (the “Proposal”).[1]

2.                  What is the relevance of the Proposal in the EU law making process?

2.1               The EU Commission is the EU’s executive body. It has the power to negotiate international agreements on behalf of the EU as a whole.  It can also propose legislation before the two EU legislative bodies; the European Parliament and Council of the EU.

2.2               By putting the Proposal forward to the Council of the EU, the EU Commission has undertaken the first necessary step to get the Proposal adopted into EU law.

3.                  What are the next steps?

3.1               Process of adopting the Proposal at the EU level[2]

3.1.1              As an international agreement proposed by the EU Commission, the Proposal shall be put before the European Parliament for consultation.

3.1.2              Once the European Parliament has given its consent to the Proposal, it will then be considered by the Council of the EU for adoption.

3.1.3              Once the Council of the EU has adopted the Proposal, the Council of the EU then has the power to ratify the Doha Amendment on behalf of the EU as a whole.

3.2               Process of MemberState adoption of the Doha Amendment

3.2.1              Since both the EU and its MemberStates are individually parties to the Kyoto Protocol, each MemberState will also need to ratify the Doha Amendment on its own behalf in addition to ratification at the EU level.

3.2.2              Therefore, once the EU has ratified the Doha Amendment, each MemberState will need to undertake its own domestic ratification process to enable each MemberState to ratify the Doha Amendment as an individual party.

3.3               Depositing ratification instruments

3.3.1              Once all domestic ratification processes are completed, the EU and its MemberStates will deposit their ratification instruments with the UN Depositary simultaneously in order to ensure that the Doha Amendment enters into force for all Member States at the same time.

3.3.2              Once the UN has received the minimum of 144 ratifications required, the Doha Amendment will enter into international law.  At this point, the EU and each MemberState will then be Parties to this law.

3.4               Timelines

3.5               By tabling its proposal now, the EU Commission is aiming to achieve the deposit of ratification instruments by both the EU and all of its Member States (as discussed at paragraph ‎3.3.1 above) with the UN Depositary by early 2015.

3.6               Once the Doha Amendment enters into force (as discussed at paragraph ‎3.3.2 above), the EU will be legally required to meet the emissions reductions targets set out in Article 1 of the Doha Amendment.

4.                  What does the ratification by the EU involve?

4.1               The Council of the EU has the power to ratify the Proposal.[3]

4.2               The Council of the EU is made up of representative ministers from each EU Member State.  These representatives may vary depending on the topic being voted upon.  The chairman of the Council meeting is the relevant minister from the country currently holding the rotating EU presidency; currently this is Lithuania.

4.3               A decision to ratify the Doha Amendment will be taken by vote of the Council of the EU.  Votes are assigned to countries weighted based on their population size, with 352 votes granted in total. 

4.4               While in general the Council of the EU may enter into international agreements by a qualified majority vote,[4] the decision to ratify the Doha Amendment will be taken on the same basis as that to ratify the Kyoto Protocol, and will require a unanimous vote.  This is required under Article 192(2) TFEU, which states that decisions on “provisions primarily of a fiscal nature” as well as on “measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply” must be adopted by a unanimous Council vote after consultation with the European Parliament.

4.5               Therefore, for the Council of the EU to ratify the Proposal, the vote must be unanimous.

5.                  What is the relevance of ratification for member states

5.1               As the Member States were originally parties to the Kyoto Protocol in their own right, they are therefore required to also ratify the Doha Amendment, and become parties to the Doha Amendment in their own right.

5.2               The procedure for ratification varies from country to country; most countries require a parliamentary vote from their national Parliament, some require a national referendum.

5.3               Relevance of ratification in relation to emissions reduction targets

5.3.1              The targets for emissions reductions set out in the Doha Amendment are applied to Member States on the understanding that they shall be fulfilled jointly across the EU.  This means that the EU as a whole is required to meet an emissions reduction target of 20% against a 1990 base year by the year 2020.

5.3.2              So long as this joint emissions reduction target is met across the EU as a whole, the EU Member States may reduce their emissions more or less than their fellow MemberStates, and each will be considered to be in compliance.  There is therefore no requirement for an individual MemberState to achieve its individual emissions reduction target so long as the EU as a whole is in compliance.

5.3.3              However, if the EU fails to achieve its joint commitment target, individual Member States become responsible for their individual emissions reductions targets as set out in Article 1 of the Doha Amendment.  In such circumstances, each MemberState’s individual emissions reduction target will be binding on it by virtue of that MemberState’s ratification of the Doha Amendment.

6.                  Sources and further information

6.1               Legislation as cited

6.2               Council Decision 2002/358/CE concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder, dated 25 April 2002.

6.3               European Commission. Commission proposes ratification of second phase of Kyoto Protocol, dated 06/11/2013, available from: http://ec.europa.eu/clima/news/articles/news_2013110601_en.htm, accessed 11/10/2013.

6.4               European Commission. Questions & Answers on EU ratification of the second commitment period of the Kyoto Protocol, dated 06/11/2013, available from: http://europa.eu/rapid/press-release_MEMO-13-956_en.htm, accessed 11/10/2013.

6.5               Massai, L. The Kyoto Protocol in the EU: European Community and MemberStates under International and European Law pp 63-65.

 

 


[1] COM/2013/0769 final – 2013/0377 (COD), Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 525/2013 as regards the technical implementation of the Kyoto Protocol to the United Nations Framework Convention on Climate Change. Proposed on 06/11/2013
[2] Article 218 Treaty on the Functioning of the European Union (“TFEU“)
[3] Article 218 TFEU

[4] Article 218(8) TFEU