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The Kyoto Protocol in the EU pp 137–239Cite as

EC Compliance with the International Climate Regime

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Abstract

In this chapter, the requirements and obligations of Annex I parties under the international climate regime are considered, with a particular focus on the compliance with those obligations by the European Community as well as by the EU15 and EU10. The status of compliance with the obligations under the Kyoto Protocol by the EC and the Member States and the consequences of non-compliance at both international and European law level are assessed. Furthermore, this chapter focuses on the EC legislation adopted to comply with the international obligations of the international climate regime and on the remedies procedure designed by the EC Treaty.

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Notes

  1. 1.

    ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’ (Article 26).

  2. 2.

    For a comprehensive analysis of dispute settlement and enforcement provisions in international environmental law, see Bothe (1996), Beyerlin et al. (2006) and Treves et al. (2009).

  3. 3.

    This model is not adopted in the same way by all MEAs though. However, the following MEAs include the most comprehensive version of the model: the Vienna Ozone Convention (Article 11), the Convention on Biological Diversity (Article 27), the UNFCCC (Article 14), the LRTAP Convention (4 protocols), the Rotterdam PIC Convention (Article 20) and the Stockholm POPs Convention (Article 18).

  4. 4.

    ‘The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’ (Article 33).

  5. 5.

    Bothe (1996), p. 31.

  6. 6.

    Treves (2009), p. 502.

  7. 7.

    Ibid., p. 517.

  8. 8.

    Annex V(c) of the Montreal Protocol on Substances That Deplete the Ozone Layer, Protocol to the Vienna Convention for the Protection of the Ozone Layer.

  9. 9.

    This element is also provided for in the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo 1991), Article 14b.

  10. 10.

    See, for instance, Article 18 of the Kyoto Protocol and Article 8 of the Montreal Protocol.

  11. 11.

    ‘The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session, approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance. Any procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol’.

  12. 12.

    Fitzmaurice (2009), p. 463.

  13. 13.

    See Chap. 5, n. 4, pp. 92–103.

  14. 14.

    ‘The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session, approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance. Any procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol’ (Article 14 of the Kyoto Protocol).

  15. 15.

    On compliance, SBI27, held in Bali from 3 to 14 December 2007, simply agreed to continue discussing the issue of amending the Kyoto Protocol at SBI28. See also Lefeber (2001).

  16. 16.

    Holtwisch (2006), pp. 109 et seq. and Fitzmaurice (2009).

  17. 17.

    Sands (1996) and Temple Lang (1986).

  18. 18.

    On this topic, see also Lefeber (2001) and Jacquemont (2005), p. 360.

  19. 19.

    Both branches are composed of ten members representing the five official UN regions (Africa, Asia, Latin America and the Caribbean, Central and Eastern Europe, and Western Europe and Others), the small island developing states, as well as the groups of Annex I and non-Annex I parties. The facilitative branch decides by a three-quarters majority, while decisions by the enforcement branch require a double majority of both Annex I and non-Annex I parties. The work of the Committee which meets in plenary is supported by the Bureau.

  20. 20.

    Article 3(14) of the Kyoto Protocol and Decision 27/CMP.1, section IV, para. 5.

  21. 21.

    Decision 27/CMP.1, section XIV.

  22. 22.

    Decision 27/CMP.1, section IV, para. 6.

  23. 23.

    Ibid., 27/CMP.1, section V, para. 4.

  24. 24.

    Decision 27/CMP.1, section V, para. 5.

  25. 25.

    Ibid., section XV, paras. 1–3.

  26. 26.

    The suspension to participate in a flexible mechanism depends on which of the specific eligibility requirements are not met, and, consequently, there may well arise a situation where a party is allowed to participate in one but not all flexible mechanisms. Obviously, the suspension to participate in international emissions trading may affect JI and CDM, namely the exchange of ERUs and/or CERs.

  27. 27.

    Decision 27/CMP.1, section XV, para. 4. For the expedited procedures for the enforcement branch see Decision 27/CMP.1, section X.

  28. 28.

    Decision 27/CMP.1, section XV, para. 5.

  29. 29.

    Ibid., 27/CMP.1, section XI, para. 1, p. 101.

  30. 30.

    Similar strong mechanisms have been designed under the Montreal Protocol on Substances That Deplete the Ozone Layer (1987) and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989).

  31. 31.

    FCCC/SBSTA/2004/8, 3 September 2004.

  32. 32.

    Ibid.

  33. 33.

    The annual report due on 15 April 2010 will include the information on national inventories for the first year of the commitment period. See Decision 14/CMP.1, para. 1, and Decision 15/CMP.1, Annex, part I.

  34. 34.

    Article 7(1) of the Kyoto Protocol.

  35. 35.

    FCCC/SBSTA/2006/9, 18 August 2006.

  36. 36.

    See COP Decisions 9/CP.2, 3/CP.5 and 18/CP.8 and the updated UNFCCC reporting guidelines on annual inventories following incorporation of the provisions of Decision 14/CP.11, document FCCC/SBSTA/2006/9, available at: http://unfccc.int/resource/docs/2006/sbsta/eng/09.pdf.

  37. 37.

    Decisions 6/CP.5 and 19/CP.8, respectively.

  38. 38.

    The three phases are: the initial check, ensuring that the inventory is complete and prepared in the correct format; the synthesis and assessment stage, for checking the conformity of the basic inventory information across parties and over time and providing a first ‘preliminary assessment’ of the inventory; the individual review performed by the expert review teams (ERTs), assessing data, methodologies and procedures used in the finalisation of the national inventory.

  39. 39.

    The Status Report 2008 is the latest report available at the time of writing, see http://unfccc.int/national_reports/annex_i_ghg_inventories/inventory_review_reports/items/4401.php.

  40. 40.

    In the Status Report 2007, 38 out of 41 Annex I parties provided complete CRF tables for all years from 1990 to 2005.

  41. 41.

    Two parties (Monaco and Ukraine) were late in submitting their CRF tables by more than 6 weeks and six parties (Hungary, Iceland, Italy, Luxembourg, Monaco and Ukraine) were equally late in submitting their NIR.

  42. 42.

    Review of the implementation of commitments and of other provisions of the Convention. UNFCCC guidelines on reporting and review, FCCC/CP/1999/7, 16 February 2000.

  43. 43.

    Decision 10/CP.13.

  44. 44.

    Status of submissions and review of fourth national communications, Note by the secretariat, FCCC/SBI/2007/Inf.8, 14 September 2007.

  45. 45.

    Decision 13/CMP.1, para. 2.

  46. 46.

    Under the Marrakech Accords, Annex I parties are required to hold a minimum level of ERUs, CERs, AAUs and RMUs in order to prevent the overselling of units.

  47. 47.

    Decision 12/CMP.1 Guidance relating to registry systems under Article 7, para. 4, of the Kyoto Protocol and Decision 13/CMP.1 Modalities for the accounting of assigned amounts under Article 7, para. 4, of the Kyoto Protocol.

  48. 48.

    Article 3(7) of the Kyoto Protocol and Buchman et al. (2001), p. 35.

  49. 49.

    Decision 13/CMP.1 Modalities for the accounting of assigned amounts under Article 7, para. 4, of the Kyoto Protocol, Annex II, A., p. 28.

  50. 50.

    Decision 19/CP.8 on the UNFCCC guidelines for the technical review of greenhouse gas inventories from Parties included in Annex I to the Convention, FCCC/CP/2002/7/Add.2, p. 15; Decision 24/CP.8 on the technical standards for data exchange between registry systems under the Kyoto Protocol, FCCC/CP/2002/7/Add.3, p. 45; Decision 22/CP.8 on the additional sections to be incorporated in the guidelines for the preparation of the information required under Article 7 and in the guidelines for the review of information under Article 8, of the Kyoto Protocol, FCCC/CP/2002/7/Add.3, p. 28.

  51. 51.

    See Chap. 5.

  52. 52.

    According to Decision 13/CMP.1 of the Marrakech Accords, each Annex I party with a commitment inscribed in Annex B to the Protocol is required to facilitate the calculation of its assigned amount pursuant to Article 3(7) and (8) for the first commitment period and demonstrate its capacity to account for its emissions and assigned amount. To this end, each party is required to submit the initial report containing all information required for this purpose, as defined in the Annex to Decision 13/CMP.1, by 1 January 2007 or 1 year after the entry into force of the Kyoto Protocol for that party.

  53. 53.

    FCCC/KP/CMP/2005/L.2.

  54. 54.

    Marrakech Accords, Decision 2/CMP.1, para. 5, Principles, nature and scope of the mechanisms pursuant to Articles 6, 12 and 17 of the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.1.

  55. 55.

    Point 25 of Commission Decision of 15 May 2007.

  56. 56.

    Council Decision 93/389/EEC of 24 June 1993 for a monitoring mechanism of Community CO2 and other greenhouse gas emissions, OJ L 167, 9 July 1993, pp. 31–33.

  57. 57.

    Council Decision 99/296/EC amending Council Decision 93/389/EEC for a monitoring mechanism of Community CO2 and other greenhouse gas emissions, OJ L 117, 5 May 1999, pp. 35–38.

  58. 58.

    Decision 280/2004/EC of the European Parliament and of the Council of 11 February 2004 concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol, OJ L 49, 19 February 2004, pp. 1–8.

  59. 59.

    Commission Decision 2005/166/EC of 10 February 2005 laying down rules implementing Decision 280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol, OJ L 55, 1 March 2005, pp. 57–91.

  60. 60.

    Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision 280/2004/EC of the European Parliament and of the Council.

  61. 61.

    Commission Regulation (EC) No 916/2007 of 31 July 2007 amending Regulation (EC) No 2216/2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision 280/2004/EC of the European Parliament and of the Council, OJ L 200, 1 August 2007, pp. 5–39.

  62. 62.

    Recital 4 of Commission Regulation 2216/2004.

  63. 63.

    Commission Regulation (EC) No 994/2008 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council, OJ L 271, 11 October 2008, pp. 3–40.

  64. 64.

    Communication from the Commission to the Council and the European Parliament on EU policies and measures to reduce greenhouse gas emissions: Towards a European Climate Change Programme (ECCP), COM(2000)88, Brussels, 8 March 2000.

  65. 65.

    ‘Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3, in particular with a view to promoting sustainable development’ (Article 6 TEC).

  66. 66.

    European Climate Change Programme, Long Report, June 2001, available at: http://ec.europa.eu/environment/climat/pdf/eccp_longreport_0106.pdf.

  67. 67.

    See Chap. 1, n. 2.

  68. 68.

    White Paper on European transport policy for 2010: Time to decide, COM(2001)370, Brussels, 12 September 2001.

  69. 69.

    Second ECCP Progress Report—Can we meet our Kyoto targets?, April 2003, available at: http://ec.europa.eu/environment/climat/pdf/second_eccp_report.pdf.

  70. 70.

    Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, OJ L 283, 27 October 2001, pp. 33–40.

  71. 71.

    Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions on alternative fuels for road transportation and on a set of measures to promote the use of biofuels, COM(2001)547, Brussels, 7 November 2001.

  72. 72.

    Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport, OJ L 123, 17 May 2003, pp. 42–46.

  73. 73.

    Communication from the Commission on a Community strategy to promote combined heat and power (CHP) and to dismantle barriers to its development, COM(1997)514, Brussels, 15 October 1997.

  74. 74.

    European Commission Proposal for a Directive of the European Parliament and of the Council on the promotion of cogeneration based on a useful heat demand in the internal energy market, COM(2002)415, Brussels, 22 July 2002.

  75. 75.

    Common Position (EC) No 52/2003 of 8 September 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on the cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC, OJ C 258 E, 28 October 2003, pp. 1–17.

  76. 76.

    Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC, OJ L 52, pp. 50–60.

  77. 77.

    Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, OJ L 176, 15 July 2003, pp. 37–56.

  78. 78.

    Directive 2003/55/EC of the European Parliament and of the Council of 16 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, OJ L 176, 15 July 2003, pp. 57–78.

  79. 79.

    Common Position (EC) No 5/2003 of 3 February 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, OJ C 050 E, 4 March 2003, pp. 15–35.

  80. 80.

    Common Position (EC) No 6/2003 of 3 February 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, OJ C 050 E, 4 March 2003, pp. 36–58.

  81. 81.

    Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, OJ L 1, 4 January 2003, pp. 65–71.

  82. 82.

    Commission Directive 2002/40/EC of 8 May 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household electric ovens, OJ L 128, 15 May 2002, pp. 45–56.

  83. 83.

    Commission Directive 2002/31/EC of 22 March 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household air-conditioners, OJ L 86, 3 April 2002, pp. 26–41.

  84. 84.

    Regulation (EC) No 2422/2001 of the European Parliament and of the Council of 6 November 2001 on a Community energy efficiency labelling programme for office equipment, OJ L 332, 15 December 2001, pp. 1–6.

  85. 85.

    Proposal of the European Commission for a Directive of the European Parliament and of the Council on establishing a framework for the setting of eco-design requirements for energy-using products and amending Council Directive 92/42/EEC, COM(2003)453, Brussels, 3 November 2003.

  86. 86.

    Proposal of the European Commission for a Regulation of the European Parliament and of the Council on certain fluorinated gases, COM(2003)492, Brussels, 11 August 2003.

  87. 87.

    Communication from the Commission: Progress towards achieving the Kyoto objectives (required under Decision 280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol), COM(2007)757, Brussels, 27 November 2007, p. 13.

  88. 88.

    Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Winning the battle against climate change, COM(2005)35, Brussels, 9 February 2005.

  89. 89.

    Communication from the European Commission: 20 20 by 2020, Europe’s climate change opportunity, COM(2008)30, Brussels, 23 January 2008.

  90. 90.

    Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 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 L 140, 5 June 2009, 16–62.

  91. 91.

    Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, OJ L 140, 5 June 2009, 63–87.

  92. 92.

    Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 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 L 140, 5 June 2009, pp. 88–113.

  93. 93.

    Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament 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 L 140, 5 June 2009, pp. 114–135.

  94. 94.

    Decision 406/2009/EC of the European Parliament and of the Council of 23 April 2009 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 L 140, 5 June 2009, pp. 136–148.

  95. 95.

    Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community’s integrated approach to reduce CO2 emissions from light-duty vehicles, OJ L 140, 5 June 2009, pp. 1–15.

  96. 96.

    Article 4(2)(a) of the UNFCCC. According to the UNFCCC, policies and measures have to be adopted in different sectors: energy, transport, industry, agriculture, forestry and waste management. To this end, the list of policy and economic instruments is extensive: fiscal instruments, voluntary agreements, regulations, information, education and public awareness, and research.

  97. 97.

    Activities suggested by Article 2(1)(a) of the Kyoto Protocol include energy efficiency, greenhouse gas sinks, sustainable agriculture, renewable energy, carbon sequestration, no subsidies or market imperfections, reforms in relevant sectors, transport policies, and waste management.

  98. 98.

    Article 3(3) and (4) of the UNFCCC and Article 2(1) and (3) of the Kyoto Protocol.

  99. 99.

    Proposal for a Directive on alternative fuels for road transportation and on a set of measures to promote the use of biofuels, European Commission, COM(2001)547, Brussels, 7 November 2001.

  100. 100.

    Proposal of the European Commission for a Directive to promote cogeneration of heat and power, European Commission, COM(2002)415, Brussels, 22 July 2002.

  101. 101.

    Communication from the Commission to the Council and the European Parliament: Taxation of passengers cars in the EU, European Commission, COM(2002)431, Brussels, 6 September 2002.

  102. 102.

    Proposal for a Directive amending the Directive establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol’s project mechanisms, COM(2003)403, Brussels, 23 July 2003.

  103. 103.

    Capacity building in countries with economies in transition, see UNFCCC document FCCC/CP/1999/6/Add.1.

  104. 104.

    Capacity building in countries with economies in transition—Compilation and synthesis of information on capacity-building needs and priorities of Parties included in Annex I to the Convention but not included in Annex II, see UNFCCC document FCCC/SB/2000/INF.2, 19 May 2000.

  105. 105.

    Decision 3/CP.7, Capacity building in countries with economies in transition, see FCCC/CP/2001/13/Add.1.

  106. 106.

    Levina (2002), p. 13.

  107. 107.

    Capacity-building projects implemented in the new EU Member States include: the Energy Standards and Labelling Programme aimed at fostering the developments of energy standards in 2000 and 2001, established by the United Nations Department of Economic and Social Affairs (DESA) and intended for Poland as well as Asia, the Middle East and Central America; the ad hoc Interdepartmental Working Group on Climate established by the FAO, a project focusing on the role of LULUCF activities in curbing global warming; the UNITAR (United Nations Institute for Training and Research) Programme of Training for the Application of International Environmental Law, which involves the training of CG11 government officials in order to respond to the UNFCCC guidelines on inventory systems; the Environmental Energy Agency’s assistance in drawing up GHG national inventories by offering training activities or software tools; the Intergovernmental Panel on Climate Change (IPCC), which provides workshops and seminars on the IPCC approach and methodology in order to offer capacity assistance; the Global Environmental Facility (GEF) of UNDP, which provides assistance either as regards capacity building issues such as national inventories and national communications, or in the project activity sector, e.g., energy efficiency and renewable energy; the National CDM/JI Strategy Studies Programme of the World Bank, a project involving activities in the Czech Republic and Slovakia aimed at training local experts in estimating, promoting and establishing initiatives to reduce greenhouse gas emissions, such as JI projects; the PCFplus of the World Bank, which concerns the promotion of training and research and the development of activities and projects to combat global warming (Latvia, Poland, Romania, etc.); the Annex I Expert Group of the OECD/IEA, a group composed of government officials from Annex I countries which supports the CEEC mainly through the organisation of workshops and the exchange of information in several fields of the climate regime, such as monitoring and compliance as well as the development of policies and measures and ET and JI projects; the US initiative, implemented through the Environmental Protection Agency (EPA), which aims to support and enhance greenhouse gas markets in Poland, Slovakia and the Czech Republic; several projects sponsored by the European Commission.

  108. 108.

    See supra n. 106, pp. 6–14.

  109. 109.

    The list presents the documentation submitted as of 30 September 2009.

  110. 110.

    European Commission, Communication on the fourth national communication from the European Community under the UNFCCC, COM(2006)40, Brussels, 8 February 2006.

  111. 111.

    European Environment Agency, Annual European Community Greenhouse Gas Inventory 1990–2007 and Inventory Report 2009, Technical Report No 4/2009, 29 May 2009.

  112. 112.

    Communication from the Commission: Progress towards achieving the Kyoto objectives (required under Article 5 of Decision 280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring community greenhouse gas emissions and for implementing the Kyoto Protocol), COM(2008)651, Brussels, 16 October 2008, available at: http://ec.europa.eu/environment/climat/gge_progress.htm.

  113. 113.

    Available at: http://ec.europa.eu/environment/climat/gge.htm.

  114. 114.

    European Environment Agency, The European Community’s initial report under the Kyoto Protocol: Report to facilitate the calculation of the assigned amount of the European Community pursuant to Article 3, paras. 7 and 8 of the Kyoto Protocol, Technical Report No 10/2006, 2 February 2007.

  115. 115.

    Communication from the Commission on the fourth national communication from the European Community under the UNFCCC, COM(2006)40, Brussels, 8 February 2006.

  116. 116.

    Malta and Cyprus are not listed in Annex I to the UNFCCC.

  117. 117.

    The data refer to the day on which the secretariat received the document, and are updated to 15 October 2002 on the UNFCCC website.

  118. 118.

    Decision 15/CMP.1 Guidelines for the preparation of the information required under Article 7 of the Kyoto Protocol, in particular para. 30.

  119. 119.

    EEA (2006), p. 21.

  120. 120.

    The emissions compiled in the EC GHG inventory are the sum of the GHG emissions reported in the respective 27 national inventories, except for the IPCC reference approach regarding CO2 from fossil fuels. Data on GHG emissions in the EC are revised and updated every year.

  121. 121.

    Some examples are the Czech Hydro-Meteorological Institute (CHMI) in the Czech Republic, the Institute for Environmental Management (KGI) in Hungary, the National Statistical Institute (NSI) in Bulgaria and the Research and Engineering Institute for Environment (ICIM) in Romania, while in Poland several different entities contribute to the data collection.

  122. 122.

    See supra n. 120.

  123. 123.

    Ellis et al. (2001), p. 6.

  124. 124.

    Levina (2002), p. 8.

  125. 125.

    EEA (2009).

  126. 126.

    Communication from the European Commission: Progress towards achieving the Kyoto objectives (required under Article 5 of Decision 280/2004/EC of the European Parliament and of the Council concerning a mechanism for monitoring community greenhouse gas emissions and for implementing the Kyoto Protocol), COM(2008)651, Brussels, 16 October 2008, available at: http://ec.europa.eu/environment/climat/gge_progress.htm.

  127. 127.

    Decision 13/CMP.1, para. 2.

  128. 128.

    Annex to Decision 13/CMP.1 Modalities for the accounting of assigned amounts under Article 7, para. 4, of the Kyoto Protocol, paras. 5–8.

  129. 129.

    In accordance with EC law, the greenhouse gas inventory information presented in Annex I and Annex II of the initial report also includes information about Cyprus and Malta since the GHG inventory information requested in Decision 13/CMP.1 under the Kyoto Protocol refers to the greenhouse gas inventory information under the Convention.

  130. 130.

    Report of the review of the initial report of Greece, UNFCCC FCCC/IRR/2007/GRC, 28 December 2007.

  131. 131.

    Report of the review of the initial report of the Netherlands, UNFCCC FCCC/IRR/2007/NLD, 2 November 2007.

  132. 132.

    Indeed, to circumnavigate this problem some private entities opened an account in a registry which was already connected to the ITL, e.g., that of Switzerland.

  133. 133.

    See supra Sect. 6.6.1.

  134. 134.

    Temple Lang (1986), p. 170.

  135. 135.

    According to Article 22(2) of the Kyoto Protocol, the EC ‘shall not exercise its right to vote if any of its Member States exercises its right, and vice versa’.

  136. 136.

    Lacasta et al. (2001).

  137. 137.

    Jacquemont (2005), p. 374.

  138. 138.

    Ibid., p. 375.

  139. 139.

    Report from the Commission: Assigned Amount Report of the European Union, COM(2006)799, Brussels, 15 December 2006.

  140. 140.

    Commission Decision of 14 December 2006 determining the respective emission levels allocated to the Community and each of its Member States under the Kyoto Protocol pursuant to Council Decision 2002/358/EC, OJ L 358, 16 December 2006, pp. 87–89.

  141. 141.

    For the details of the calculation of the assigned amounts for the EC and its Member States see preamble, point 2, Commission Decision of 14 December 2006.

  142. 142.

    See supra Sect. 6.7.1.

  143. 143.

    EEA (2009).

  144. 144.

    At the time of writing, cases before the Compliance Committee concern Greece and Canada regarding which an expert review team submitted a question of implementation dated 28 December 2007 and 14 April 2008, respectively.

  145. 145.

    FCCC/IRR/2007/GRC, UNFCCC, 28 December 2007.

  146. 146.

    Note by the UNFCCC secretariat on the report of the review of the initial report of Greece, CC-2007-1-1/Greece/EB, 8 January 2008.

  147. 147.

    Enforcement branch of the Compliance Committee, Preliminary finding, CC-2007-1-6/Greece/EB, 6 March 2008.

  148. 148.

    Report of the International Law Commission, Fifty-Third Session, Doc. A/56/10 (2001), p. 58.

  149. 149.

    Pineschi (2009), p. 484.

  150. 150.

    Ibid., p. 497.

  151. 151.

    Article 1 of the UNFCCC. This definition is similar to that of a regional economic integration organisation provided by the UN Law of the Sea Convention and Article 1(6) of the Ozone Layer Convention.

  152. 152.

    UNFCCC (2000), pp. 57–59.

  153. 153.

    Case C-316/91 [1994] ECR I-625, para. 69.

  154. 154.

    Macleod et al. (1996), p. 159.

  155. 155.

    Customs classification of certain computer equipment WT/DS62/R, WT/D67/R and WT/D68/R and AB-1998-2: Report of the Appellate Body, 5 June 1998.

  156. 156.

    Björklund (2001), p. 377.

  157. 157.

    Case 1/78 Draft Convention on the International Atomic Energy Agency [1978] ECR 2151, para. 35.

  158. 158.

    Ibid., para. 35.

  159. 159.

    Temple Lang (1986), p. 174.

  160. 160.

    Jacquemont (2005), p. 371.

  161. 161.

    Advocate General Jacobs, ECJ, case C-316/91 European Parliament v. Council [1994] ECR I-625, para. 69.

  162. 162.

    ‘The agreements or conventions concluded or provisionally applied by the Community or in accordance with Article 24 or Article 38 of the EU Treaty, with one or more third States, with an international organisation or with a national of a third State, shall, under the conditions laid down in the original Treaties and in this Act, be binding on the new Member States’ (Article 6, Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the treaties on which the European Union is founded).

  163. 163.

    ‘The new Member States undertake to accede, under the conditions laid down in this Act, to the agreements or conventions concluded or provisionally applied by the present Member States and the Community, acting jointly, and to the agreements concluded by those States which are related to those agreements or conventions’ (Article 6(2), Act of Accession).

  164. 164.

    Jacquemont (2005), p. 369.

  165. 165.

    Commission Decision of 14 December 2006 determining the respective emission levels allocated to the Community and each of its Member States under the Kyoto Protocol pursuant to Council Decision 2002/358/EC (2006/944/EC), OJ L 358, 16 December 2006, pp. 87–89.

  166. 166.

    ‘For the purpose of the joint fulfillment of the commitments under Article 3(1) of the Kyoto Protocol in accordance with the provisions of Article 4 thereof, pursuant to Decision 2002/358/EC and applying to the Member States listed in Annex II to that Decision’.

  167. 167.

    Case 104/84, paras. 11–13.

  168. 168.

    Macleod et al. (1996), pp. 126–127.

  169. 169.

    Ibid., p. 127.

  170. 170.

    Ibid., p. 128.

  171. 171.

    Commission Decision of 14 December 2006 2006/944/EC determining the respective emission levels allocated to the Community and each of its Member States under the Kyoto Protocol pursuant to Council Decision 2002/358/EC, OJ L 358, 16 December 2006, p. 87.

  172. 172.

    ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty’ (Article 10 EC Treaty).

  173. 173.

    Michaelowa and Betz (2000).

  174. 174.

    ‘Decisions taken pursuant to para. 1 or 2 shall be in accordance with the requirements of the Treaty, in particular Articles 87 and 88 thereof’ (Article 11.3 of the EATD), and Annex III of the EATD requires that ‘the plan shall not discriminate between companies or sectors in such a way as to unduly favour certain undertakings or activities in accordance with the requirements of the Treaty, in particular Articles 87 and 88 thereof’ (point 5). In this respect, many new Member States’ governments have, on several occasions, explicitly declared that under the EU ETS, EUAs would be allocated to the national installations only in relation to their needs, thus excluding any extra allocation, and this decision is in conformity with EC law.

  175. 175.

    This option is subject to some limitations introduced by Decision 19/CP.7, Annex, F Carry-over, 15 and 16, FCCC/CP/2001/13/Add.2 of 21 January 2002.

  176. 176.

    See Chap. 7.

  177. 177.

    UNFCCC (2000).

  178. 178.

    Report from the Commission, Assigned Amount Report of the European Union, COM(2006)799, Brussels, 15 December 2006.

  179. 179.

    Article 6(2) of Council Decision 2002/358/EC, and the same holds true for the new Member States since Decision 2002/358/EC is part of the acquis communautaire.

  180. 180.

    On 22 November 2007, the European Commission confirmed that the EU ETS would not be linked to the international market of credits created by the Kyoto Protocol’s flexible mechanisms. In other words, the EU cannot yet link the CITL to the international transaction log (ITL) since this connection is and will be subject to testing for a few months (ready by April 2009). The failure to establish this link mainly affects the EU installations falling within the scope of Directive 2003/87/EC which cannot use credits from JI and CDM for compliance with the EU ETS obligations.

  181. 181.

    Macleod et al. (1996), p. 142.

  182. 182.

    Jans and Vedder (2008), p. 163.

  183. 183.

    Case C-422/92 Commission v. Germany [1995] ECR I-1097.

  184. 184.

    Jans and Vedder (2008), p. 159.

  185. 185.

    More than one-third of proceedings under Article 226 EC in 2004 and 2005 concerned cases of environmental protection, see European Commission (2004), p. 6.

  186. 186.

    At the time of writing, 3 of the 5 judgements following an Article 228 procedure concern the protection of the environment in the EC.

  187. 187.

    Wennerås (2007), pp. 291–292.

  188. 188.

    Ibid., pp. 293–294.

  189. 189.

    See European Commission (2006), p. 64.

  190. 190.

    Declaration of competence—Annex III, CD 2002/358/EC, ‘The European Community declares that its quantified emission reduction commitment under the Protocol will be fulfilled through action by the Community and its Member States within the respective competence of each and that it has already adopted legal instruments, binding on its Member States, covering matters governed by the Protocol’.

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    Leonardo Massai

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    Leonardo Massai

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Massai, L. (2011). EC Compliance with the International Climate Regime. In: The Kyoto Protocol in the EU. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-571-1_6

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