The EU’s new Climate Law: are delegated acts the way forward or an interference in legislative functions?
22 March, 2020
The European Commission has recently presented a proposal for a Regulation establishing the framework for achieving climate neutrality to the European Parliament and the Council. Also known as European Climate Law (‘the Law’), this long-awaited piece of legislation – if adopted – will become the first example of a legally binding commitment to achieve carbon neutrality.
This draft law is also the first concrete step towards the realisation of the European Green Deal, i.e. the EU’s strategy for sustainable growth and well-being of citizens and the Planet, and as such represents its cornerstone.
Such proposal has, however, raised strong criticism – even before its official presentation, since the draft document was leaked to the press. The main points of concerns regard the lack of consideration for carbon budgets, for principles such as equity and climate justice, as well as the failure to set out – beside long-term objectives – short-term ones. A further element of discussion among stakeholders regards article 9 of the proposed Regulation, notably the exercise of delegation by the Commission in reviewing the Union’s trajectory towards climate neutrality.
The reasons for concern are mainly linked to democratic considerations: as it will be explained below, when the Commission is delegated the power to enact legislation, the European Parliament and the Council’s purview of review is limited, as they cannot discuss any amendments to the act but merely either approve or reject it. Hence, in light of this delegated acts’ characteristic of curbing oversight by the ordinary legislator, the effect would be that of attributing regulatory functions over such a sensitive and critical domain as environmental law to a non-democratically elected Institution.
On the other hand, it is argued that empowering the Commission to act in place of the Parliament and the Council, might actually be a pivotal moment in the EU’s action against climate change.
This contribution seeks to analyse the extent to which the use of delegated acts in the context of such a critical domain as environmental law, is the best option within the EU legal order. This will be done by presenting the opposite perspectives on this issue and critically analyse them considering past experiences.
Delegated powers in the TFEU
Before analysing the draft Climate Law in detail, it is meaningful to concisely outline the features of delegated acts, as set out in the Treaty on the Functioning of the European Union (TFEU).
Article 290 establishes that if the EU legislature delegates the power to adopt acts to the Commission, they must be of a non-legislative nature, as well as of general application and supplement or amend non-essential elements of the legislative delegating act.
Furthermore, these powers must clearly be defined in their scope, content, objectives and duration. Delegation must also be subject to certain conditions, two of which are made explicit: one is that either the Parliament or the Council may revoke the power, the other is that the entry into force of the delegated act is hampered only by an objection by the same Institutions within a specific time period.
So, why is this crucial?
The content of the draft Regulation – criticalities and potential benefits
In article 9, the text of the draft Climate Law attributes ‘the power to adopt delegated acts […] subject to the conditions laid down in this article’ to the Commission. One of the aforementioned conditions concerns duration: it shall be ‘for an indeterminate period of time’, although admitting that revocation is possible ‘at any time by the European Parliament or by the Council’. Such provisions represents a first cause of concern, as the Treaty does not seem to allow for an indefinite period of delegated powers, rather the contrary. This is because of the democratic nature of the legislative decision-making process, hence any exception to the rule must be carefully circumscribed.
With that the second criticism arises; with the exercise of delegated powers, strong democratic oversight vanishes. Indeed, as article 9.6 of the draft Law provides, ‘a delegated act […] shall enter into force only if no objection has been expressed either by the European Parliament or the Council […] or if [… they] have both informed the Commission that they will not object’.
Concretely, this would entail a substantial transfer of law-making powers from the legitimate EU legislator, i.e. the Parliament and the Council, to the EU’s executive, namely the Commission. Therefore, the former would not have any voice over the future amendments to the Law but a mere possibility to either approve or reject them in toto. In this case, the Commission would tighten the MS’s emission reduction targets, to be set every five years from 2023 onwards, in an attempt to achieve the Paris Agreement’s commitments. This might be seen as an inappropriate interference in MS’ prerogatives, and in turn have the opposite effect of decreasing their efforts.
This has happened recently, in other cases of delegated acts. For example, after the adoption by the Commission of sustainability criteria for biofuels, or for the exemptions from hazardous substances in Electric or Electronical equipment, many MEPs and industry groups have protested, due to the lack of possibility to amend the Commission’s proposals.
Be that as it may, such causes for concerns are likely to remain hypothetical given that the proposed Law still needs the green light from the Parliament and the Council to enter into effect.
In stark contrast to these views, many stakeholders believe that the regulations via delegated acts might actually be beneficial for the whole EU strategy for a twofold reason.
First of all, the outcome of the exercise of such powers would be based on solid expertise. Paragraph 4 of the aforementioned article 9 makes clear that ‘[b]efore adopting a delegated act, the Commission shall consult experts designated by each MS in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making’. Matched with this is the provision at article 3.3 of the Law, which clarifies that in exercising its delegated power, the Commission has the duty of considering ‘the best available science and most recent scientific evidence, including the reports of the IPCC’.
Accordingly, democratic considerations concerning a limited role of the EU legislator for the benefit of the EU’s executive might weigh less in the overall discussion about regulation via delegated acts.
Moreover, a legislative action by the European Commission, in place of the conventional EU legislator, would mean getting over the political impasse that has been going on in recent years as far as emission reduction targets are concerned.
Many environmentalists indeed argue that, because of the unwillingness of some MS (most notably the Eastern bloc) to ambitiously cut their national emissions, the EU legislative decision-making process has hitherto failed to deliver on the Paris Agreement’s commitments. Accordingly, entrusting the EU’s executive with such tasks would allow to move forward in the fight against climate change and help achieve the ambitious targets.
In conclusion, the European Climate Law is still a proposal, and needs the EU legislature’s approval to become an effective EU Regulation, with direct effect on all EU MS. Hence, all the concerns and advantages discussed might remain only hypothetical. This notwithstanding, the attempt by the Commission to secure such powers might be viewed as a signal of solid determination towards taking the matter into its own hands and finally trigger concrete action to stop climate change – or, on the contrary, as a blurred endeavour to interfere in the sphere of competence of the EU legislature.