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

• Published date: 01 April 2013
• Date: 01 April 2013
• DOI: http://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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