Shared Accountability of the European Union and its Member States in the Climate Change Regime

Published date01 April 2013
Date01 April 2013
AuthorAnne‐Sophie Tabau
DOIhttp://doi.org/10.1111/reel.12013
Shared Accountability of the European Union and
its Member States in the Climate Change Regime
Anne-Sophie Tabau
This article addresses the distribution of accountabil-
ity between the European Union (EU) and its Member
States under the current and future climate regime.
Belonging to a field of shared competence between the
EU and its Member States, the climate regime is char-
acterized by ‘mixed agreements’, not distinguishing
between the obligations of the EU and its Member
States. This raises the question of how to determine
who is accountable in case of non-compliance. Under
the current regime, there is a joint and proportional
accountability rule regarding the European common
emission reduction target. This rule is well suited to the
nature of the EU, and should therefore be maintained
in the next climate agreement. For other commitments,
third parties, the Secretariat of the Climate Change
Convention and the Kyoto Protocol Compliance Com-
mittee enjoy a margin of discretion to evaluate
whether it is pragmatic to address non-compliance
with regard to only the Member State concerned or to
involve the EU in the process. This approach, favour-
ing a return to compliance, also appears adapted to
the EU. Indeed, an ad hoc intra-European mechanism
allows for the identification of the actor actually
accountable. To avoid holding the EU as a whole
accountable while the entity actually accountable is a
Member State or the EU, some intra-European actions
for recovery are available to the EU, its Member States
and even private persons.
INTRODUCTION
The relationship between the European Union (EU)
and its Member States in the context of the United
Nations Framework Convention on Climate Change
(UNFCCC) and its Kyoto Protocol is complex. Accord-
ing to the Treaty on the Functioning of the European
Union (TFEU), climate change is a matter of shared
competence between the EU and its Member States1
and, as such, it is a field in which the EU, on the
one hand, and each Member State, on the other, is
competent.2Where competence is shared, international
agreements are generally concluded by both the EU and
its Member States. The climate treaties are therefore
‘mixed agreements’ to which both the EU and each
Member State must give their consent. As with the
UNFCCC and the Kyoto Protocol, any future interna-
tional agreement on climate change would probably
have to be such a mixed agreement.
The EU’s participation adds to, but does not substitute,
that of the Member States. It is a complementary mem-
bership, which generates many difficulties, both inter-
nally and externally. These difficulties are inherent in
mixed agreements as they arise from the absence of a
clear determination of competences and from the evo-
lutionary character of competence sharing between the
EU and its Member States. Competence sharing, which
is in essence an internal issue, can therefore have con-
sequences for third parties. This is particularly true
in the case of non-compliance as the allocation of com-
petences may have consequences for which entity is
responsible for a breach of a treaty.
Even though the UNFCCC and the Kyoto Protocol
provide for a classical dispute settlement mechanism
that may be used to establish the responsibility of a
party in the case of non-compliance, it is much more
likely that such a case would be addressed by the Kyoto
Protocol’s compliance mechanism, which establishes
an accountability rather than a responsibility regime.3
It is, however, important to acknowledge that such
a mechanism may be abandoned in the context of a
future climate change agreement and be replaced by a
1The areas in which competences are shared are def‌ined in the
Consolidated Version of the Treaty on the Functioning of the Euro-
pean Union (TFEU), [2008] OJ C115/49, Article 4.
2M.T. Karayight, ‘Why and to What Extent a Common Interpretative
Position for Mixed Agreements?’, 11:4 European Foreign Affairs
Review (2006), 445, at 445.
3This concept of ‘shared accountability’ includes ‘situations where
quasi-judicial or political procedures might replace formal judicial
procedures because they are the preferred process for “policing”
compliance by the actors involved in joint action, and, for international
organizations, because of the near impossibility to f‌ind a judicial
institution to litigate claims against international organizations’. See
A. Nollkaemper and D. Jacobs, ‘Shared Responsibility in International
Law: A Concept Paper’, 33 Michigan Journal of International Law
(2012, forthcoming), found at: <http:www.sharesproject.nl>,at17.
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Review of European Community & International Environmental Law
RECIEL 22 (1) 2013. ISSN 0962-8797
© 2013 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
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