The Paris Agreement, EU Climate Law and the Energy Union

The European Union has gradually developed a comprehensive body of legislation aimed at protecting the environment, consolidating its competences in this field in successive stages. Within this framework, climate change has been given a high priority and is one of the most prominent areas of the EU’s external and internal policy. In a fruitful interplay, the EU has driven the evolution of the international regime and tried to influence international negotiations. In turn, the international regime has urged the Union to establish common objectives and means to tackle climate change in order to implement its international commitments. EU legislation and the international climate regime have been in constant interaction, and have evolved together. Their interactions played a major role in the shaping of the EU climate policy facing conflicting challenges of ambition, acceptability and effectiveness.


Introduction
The European Union has gradually developed a comprehensive body of legislation aimed at protecting the environment, consolidating its competences in this field in successive stages. Within this framework, climate change has been given a high priority and is one of the most prominent areas of the EU's external and internal policy.

1° A bottom-up approach
Under the Paris Agreement, the Parties themselves establish their contribution's level of ambition, at a national level, keeping in mind the collective objective of holding global warming well below under 2°C, and pursuing efforts to limit the temperature increase to 1.5°C. 1 National contributions should ultimately follow synchronised time frames based on 5year cycles. The collective effort is therefore the result of the aggregation of "nationally determined" contributions. At the global level, there has been no burden-sharing of the implementation of this collective objective, as it had been the case pursuant to the Kyoto Protocol. 2 However, Regional Economic Integration Organisations (REIO) and their member States have the possibility to act jointly and send a common "nationally determined" contribution. In that case, they shall notify the secretariat of the terms of their agreement, which shall in turn inform the Parties and signatories to the Convention of the terms of that agreement (Article 4 (16)).
As contributions are nationally determined, the question arises as to whether the Agreement retains its raison d'être. The answer is yes, for two reasons. The first raison d'être of the treaty is to create momentum by encouraging States first to commit, and then to gradually increase their level of commitment. The second raison d'être is to guarantee the transparency of actions and policies.
2° Raising the level of ambition Each national determined contribution must constitute a progress from the previous contribution. 3 However, the Parties are free under the Paris Agreement to determine this progression, which may lie in the form and/or substance of their contributions. Alongside the obligation to submit a contribution at its highest possible ambition, which must be more ambitious than the previous one, Parties may "at any time" amend their contribution "with a view to enhancing its level of ambition". 4 In order both to assess the adequacy of the efforts aggregated altogether as against the desired global trajectory according to the Paris Agreement, and to increase the pressure on States, Article 14 lays down the principle of a global review, referred to as a "global stocktake", that will take place every five years.

3° Ensuring transparency and building confidence
The provisions ensuring transparency and control are particularly important in a flexible system based on contributions nationally determined by States. These provisions reintroduce more or less top-down aspects into an approach that is mostly bottom-up, and they are given a major role to play: establishing trust between States (thereby leading them to increase their commitment) and enabling the monitoring of the Parties' efforts, in order to confront them with the target emissions trajectory. Negotiators were well aware of this and special care was dedicated to this matter on which a great part of the robustness of the Paris Agreement depended. 5 The transparency framework 6 and compliance mechanism 7 have been further detailed in the rulebook of the Paris Agreement, adopted in Katowice at the COP 24. 8

Implications for the European Union
Regarding the challenge of implementing the Paris Agreement, which extends largely beyond mitigation to adaptation and finance, "the EU may be under particular scrutiny because it has long been a 'leader' in international climate politics, including through the pursuit of ambitious domestic policies". 9 However, the EU faces growing difficulties in completing its internal decision-making. In the wider EU of 28 countries, effective decisions on climate and energy issues are much harder to adopt.
1° The ratification step and the first EU "nationally determined contribution" Among only a few other parties to the UNFCCC, the EU had communicated its "intended nationally determined contributions", as requested, "by the first quarter of 2015 by those Parties ready to do so". 10 Following the view of the European Council expressed in October 2014 11 , the EU Environment Council meeting communicated in March 2015 its objective of reducing greenhouse gas emissions by at least 40 percent below 1990 levels by 2030 as the EU's official contribution to the ongoing climate talks under the UNFCCC in order to prepare for the Paris Agreement negotiations. 12 The EU's target was presented as unconditional, regardless of the outcome of the COP 21 Ratifications of the Paris Agreement took place at a steady pace, raising fear that the Paris Agreement "may enter into force before the EU and its member states would be able to become parties, which would limit their role in follow-up decision-making". 13 However, after having signed the Paris Agreement during a formal ceremony in New York on 22 April 2016, the EU approved it on 5 October 2016, just before the COP 22 14 . According to its Article 20 (2), as a REIO, the EU "shall be bound by all the obligations under this Agreement". Because they are together Parties to the Agreement, the EU and its Member States shall decide on their respective responsibilities for the performance of their obligations under this Agreement. Article 20 (3) asks REIOs to clarify the allocation of competences between the organisation and its Member States. In fact, the EU's declaration offers little indication from this point of view. 15 2° The raising of the level of ambition of the first national contributions Since 2015, in this tense context, the EU endeavours to prepare the implementation of the Paris Agreement from 2020 onwards. To limit conflicts, the Commission has progressed cautiously in the development of instruments implementing its international commitment.
Thus, it postponed the adoption of a detailed regulation for the accounting of land use, landuse changes, and forestry (LULUCF). This very important legislation for Member States with a strong agricultural sector was finally adopted in 2018. 16 Similarly, the Commission had some trouble achieving the adoption of its "Roadmap for Moving to a Competitive Low Carbon Economy in 2050" put forward in 2011 17 but rejected by the Council because of Poland's opposition. On 28 November 2018, the Commission presented its strategic longterm vision, calling for a "both climate neutral and prosperous" Europe by 2050. 18 The Commission hopes that the EU will be able to submit its strategy to the UNFCCC by early 2020, as requested under the Paris Agreement Article 4 (19).

3° Implementation and compliance mechanisms
From an implementation and compliance point of view, an interesting feature is the coexistence of an international regime -a mixed agreement to which both the EU and its Member States are parties -and a regional regime within the framework of the European Union. In both regimes, one of the key challenges remains to ensure the effective application of the law, which requires the setting-up of compliance control mechanisms. However, under the Paris Agreement, states' obligations are mainly procedural and the compliance mechanism adopted during COP24 takes a managerial approach. 19 The monitoring of its implementation by Member States with ultimate supervision of the ECJwill be all the more complementary and necessary.
Furthermore, the implementation of the Paris Agreement still raises interesting questions regarding the sharing of competences and responsibilities between the EU and its Member States, as illustrated by the Dutch climate litigation case "Urgenda". 20 The Dutch court did "not assess the legality of the EU overall greenhouse gas reduction target of 20%", nor did it assess "the legality of the Effort Sharing Decision target for the Netherlands, which is set at a 16% greenhouse gas emission reduction compared to 2005 levels. However, since the Dutch court ruled that the EU overall target is insufficient, this implies a negative assessment on the lawfulness of the core aim of EU climate law". 21

3) The EU as a global actor for climate?
The EU now has a long-standing practice and a growing role on the international environmental scene, as well illustrated in the field of climate change. Yet, as the only regional organisation member of the UNFCCC, the Kyoto Protocol and the Paris Agreement, the EU can be seen as a sui generis international climate actor 22 . More than that, since the early 1990s, the EU has had high aspirations to leadership and has been widely viewed as a global leader among academics 23 . The EU has tried to "make a virtue of its relative lack of 'hard power' by relying heavily on 'soft power'" 24 or "normative power". 25 But its influence within and outside the Paris regime has varied, which raises the question: is it well-equipped to conduct its ambitious climate external policy ?

A shifting influence on the international climate regime
For many years, the EU pursued the strategy of "leading by example" in international climate negotiations. During and after the Copenhagen Conference, given a new international context, its perceived leadership dropped significantly, the EU recalibrated its leadership role to win it back -at least partially, being "more realistic and skilful in strategically combining its resource-based leadership with its instrumental leadership". 26 As noted by Oberthür, "it invested in building a broad coalition of ambitious parties across the North-South divide and built bridges with and between other actors: it became a 'leadiator' (i.e., a leader and mediator)". 27 Due to its new "leadiator" role, the EU was quite successful in influencing the negotiations in Paris and shaping their outcome. However, "at the time of the Paris conference, the EU was a middle power in international climate politics in an international constellation characterized by a trend toward multi-polarity, but with two heavyweights: the US and China". 28 Pushing for a relatively ambitious outcome regarding mitigation, it has been taking more defensive stances on climate finance and ambition. 29 In a more "fragmented leadership landscape" 30 , the weakening of EU's influence has been confirmed by the next COPs, the EU having disappointed many of its partners "as it did not deliver as a constructive negotiator and bridge builder". 31 At the COP24 in Katowice, Poland, the international context was morose in particular due to the announced withdrawal of the US from the Paris Agreement and potentially of Brazil too. There was much expectation from the EU for instance on the raising of ambition or on finance but, because of its internal disunity, it was unable to be anything more than a bystander. 32

The EU external climate policy outside the international climate regime
Beyond the UNFCCC, the EU has increasingly sought to use its political and economic influence and advance climate change objectives through its bilateral and interregional external relations. 33 In particular, the EU, as the world's largest provider of development assistance, has, at least in quantitative terms, the potential to support climate action. 34 Climate funding from the EU and its Member States amounted to 20.4 billion in 2017. 35 In the near future, it could invest in intensifying partnerships with key countries and other actors supporting the model of the Paris Agreement. 36 Some stand for the rise of minilateralism 37 , of multiple bilateralism, involving the EU, China, India and other key emitters considering that it "holds the potential to develop into a networked form of co-leadership" 38 , or even of trilateralism between the EU, China and African countries, to pursue "joint approaches" to "speed up the implementation of the Paris Agreement wherever possible, including the implementation of Nationally Determined Contributions". 39

Is the EU well-equipped to pursue an ambitious external climate policy?
The climate change field illustrates the fact that the EU has a "range of political resources and diplomatic capabilities that is unique among any other actor in international affairs". 40 A specific feature in climate change negotiations is that the EU uses since 2004 a system of "lead negotiators" 41 and "issue leaders" 42 acting under the formal authority of the Presidency. 43 This allows negotiations on behalf of the EU to take place over a longer period than the six-monthly rotating European Presidency. This also allows the Presidency to share the burden of the negotiation task, since climate change negotiations are often too complex to be appropriately handled by a single Presidency.
But the Union (more precisely the Commission and the Commission jointly with Member States) remains torn between its aspiration to an international leadership, and the hurdles to become a global actor. Because of its internal contradictions, the EU is not always able to perform, beyond its Member States, as a powerful negotiator, even if the EU and its Member States are bound by the principle of loyal cooperation 44 . From this point of view, the EU policy "has purposefully given rise to (too) high expectations, without having either the resources or the political will among national governments to actually be able to deliver on these expectations". 45

4) The EU's internal climate policy
In order to understand the EU's internal climate policy, its foundations as well as its main objectives must be examined.

Foundations: climate instruments and the nature of regulation
1°-Overview of the "climate" instruments of the EU The first instruments date back to the adoption of the United Nations Framework Convention. Indeed, one of the first acts adopted on this issue was decision 93/389/EEC of the Council of 24 June 1993, for a monitoring mechanism of Community CO2 and other greenhouse gas emissions 46 , which clearly related 47 to the commitment of the European Community at the international level. On the same day, the 5 th EC Environmental action programme acknowledged the fight against climate change as a key issue of European policy and set out the actions necessary to reach the objective of stabilising GHG emissions at the 1990 level laid down in the Framework Convention. 48 The adoption of the first European Climate Change Program (ECCP) 49 in 1999 is traditionally seen as marking the beginning of the Community's internal policy on climate, although here as well the objective was to create a framework for the adoption of measures necessary to meet the Kyoto requirements. Following the discussions led pursuant to the ECCP, the European Parliament and Council adopted directive 2003/87/EC, establishing the Scheme for Greenhouse Gas Emissions Allowance Trading (ETS) 50 , which was clearly the first step in a long and rich list of instruments adopted since then.
These pieces of legislation fit into two main categories. The first one includes instruments incorporating international agreements within EU law, mainly those approving the conclusion of the United Nations Framework Convention on Climate change, of its Kyoto Protocol, and later of the Paris Agreement 51 , as well as those implementing these international undertakings. 52 It is worth remembering that, when the EU enters into an agreement, its provisions form an integral part of the legal order of the European Union as from its entry into force, even if the internal effects may ultimately be limited. 53 The second category includes instruments that have shaped European policy, designed to pursue objectives assumed at the international level or for the purpose of building a European climate policy, or both in an intertwined manner. The adoption of the energy-climate package in 2009, which comprises three directives and one decision 54 , was certainly a key moment. A large part of these instruments was recently revised. 55 Furthermore, these various pieces of legislation are 46 93/389/EEC: Council Decision of 24 June 1993 for a monitoring mechanism of Community CO2 and other greenhouse gas emissions, OJ L 167, 9.7.1993, p. 31-33. 47 "Whereas all Member States and the Community are signatories to the United Nations framework convention on climate change, which, when ratified, will commit the developed countries (…) to take measures to limit anthropogenic emissions of CO2 (…) with the aim of returning individually or jointly to the 1990 levels these anthropogenic emissions by the end of the present decade: whereas, in this perspective, it is desirable to ensure consistency with the monitoring mechanism to be established under the Convention". supplemented by a range of implementing acts. 56 These two categories are completed by a third one, which includes all instruments that, without systematically laying down specific obligations, have incorporated the fight against climate change as a general objective, for instance (but not limited to) in the sector of trans-European transport networks 57 , civil protection 58 , protection of the marine environment 59 or energy efficiency 60 .
The complexity of the regulatory framework is obvious. For example, many sectoral Union acts in the energy and climate field set planning and reporting requirements at the national level, but those requirements have been introduced at different times and in different fields, leading to overlaps and cost-inefficiency. That's why Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action seeks to contribute to greater regulatory certainty by amending twelve legislative acts and by integrating their planning, reporting and monitoring obligations into the integrated national energy and climate plans. 61

2°-The new governance approach
In terms of form, EU instruments on climate change do not, at first glance, seem very unusual: they include directives, a number of regulations, and decisions addressed to Member States and their economic sectors that lay down obligations in order to achieve a harmonised objective.
However, among those, some feature a more original content, such as the lead directive on the EU ETS. Indeed, the fight against climate change has enabled EU law to test the market as a regulation tool. The chosen option is referred to as "cap and trade". An overall emission "cap" is established for a given period 62 together with a number of corresponding emissions rights (or allowances). 63 These allowances are allocated (gratuitously at first, then through an auction process) to polluting facilities targeted by the directive 64 , that can then "trade" them according to their needs. This market-based approach should, in theory, have led to an 63 Each allowance gives the holder the right to emit one tonne of carbon dioxide (CO2), the main greenhouse gas, or the equivalent amount of two more powerful greenhouse gases, nitrous oxide (N2O) and perfluorocarbons (PFCs). 64 Annex I of the ETS directive sets out five types of activities that produce significant amount of CO2 : (1) energy activities (3 types of facilities are subject to the system: combustion installations with a rated thermal input exceeding 20 MW (except hazardous or municipal waste installations)); mineral oil refineries and coke ovens), (2) production and processing of ferrous metals, (3) the mineral industry, (4) the production of pulp from timber or other fibrous and (5) the production of paper and board for plants with a production capacity exceeding 20 tonnes per day. automatic reduction of emissions, without the intervention of public authorities. In reality, reliance on the market has required, in many places, the intervention of public authorities, at the national or EU level, specifically in order to allow the market to function. 65 The intervention of public authorities, or the "management" of the market, has in fact clearly increased 66 , as the functioning of the market turned out to be defective 67 Another original feature is the Governance of the Energy Union and Climate Action. Because Member states enjoy considerable autonomy to determine their own energy mix, EU chose a specific governance approach : a flexible one. In its conclusions of 23 and 24 October 2014, the European Council agreed on the 2030 climate and energy policy framework for the European Union explained that "a reliable and transparent governance mechanism with sufficient flexibility for Member States should be developed to help ensure that the Union meets its energy policy goals, while fully respecting Member States' freedom to determine their energy mix" 68 . To this end, Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action provides that each Member State shall establish an "integrated national energy and climate plan". 69 From 2021 on, member states will be required to submit biennial progress reports on the implementation of their national plans. The reports would allow the Commission to identify any gap in delivery and take measures to fill those gaps. But, in the same time, this regulation provides that each Member State could take into account any relevant circumstances such as economic conditions and potential, including GDP per capita, potential for cost-effective renewable energy deployment geographical or environmental and natural constraints, including those of non-interconnected areas and regions. 70 Besides, if the Commission shall assess the plans and their implementation, there are no binding national targets formulated to achieve the European targets and so the reference framework for the Commission to evaluate the ambition of each Member State remains unclear. Furthermore, if the Commission can issue recommendations to Member States, these recommendations won't be binding. Member States should only take due account of them and explain in subsequent progress reports how they have done so. Thus, the effectiveness of this governance depends almost entirely on the goodwill of the member states, although the transparency provided by the national plans and the monitoring and reporting process could open the door for 'naming and shaming' type processes. Having reviewed the new regulation, some would consider the new energy governance regulation as a "harder" form of soft governance 71

Objectives : ambition of its objectives and acceptability of its mechanisms
The EU climate policy seeks to combine two requirements that must necessarily go hand in hand: ambition of its objectives (and of its results) and acceptability of its mechanisms. Such a balance between ambition (1°) and acceptability (2°) is complex and necessarily raises the question of the effectiveness of EU policy (3°).

1°-Ambition of its objectives
Although the EU's leadership in international negotiations has clearly fluctuated, the Union has always presented an exemplary level of ambition, both in terms of timing and of scope. 72 The current objective seeks a reduction by at least 40% 73 before 2030, compared to 1990s levels. 74 To achieve the 40% minimum target, ETS sectors would have to cut emissions by 43% (relative to 2005), and non-ETS sectors by 30% (relative to 2005). There is also targets for reduction in energy efficiency. 75 In November 2018, the Commission published a communication on its vision for a Long Term Strategy (LTS) on low emissions with a higher ambition : a carbon-neutral society by 2050.
Furthermore, for each of these targets, the EU has put in place a corresponding set of measures seeking to ensure the achievement of said level. The pursuit of an exemplary policy explains for example the expansion of the scope of the ETS directive in order to include 76 , from 1 January 2012, all flights arriving at or departing from an aerodrome situated in the territory of a Member State. 77 It also explains why the EU decided to impose obligations on non-ETS sectors, thus reaching beyond facilities covered by the ETS directive, to reduce greenhouse gas emissions by around 10% in total EU emissions before 2020 78 and by 30% before 2030, compared with 2005 levels 79 . Finally, it should be noted that until very recently, land use, land use change and forestry (LULUCF) were excluded from the EU climate and energy package, but a regulation on the inclusion of this sector was adopted on 14 May 2018 80 .
The pursuit of exemplariness does not stem solely from the EU's desire to be a global player on this issue. Climate change is also a serious concern for Europe and Europeans. 81 In fact, "(…) EU's climate change policy (..) offers a chance for European citizens to find out what Europe can do, and to show the wider world what Europe can offer. An ambitious common climate change policy clearly increases the EU's legitimacy domestically". 82

2°-Acceptability of its mechanisms
However, the specificity of the EU's internal policy lies in the fact that ambition had to be combined, every step of the way, with the pursuit of acceptability of the EU's policy by Member States. Indeed, as between Member States, economic contexts vary, positions on climate change differ and energy options can be quite diverse. Furthermore, discrepancies have increased with the enlargements that have taken place throughout the construction of the EU's climate policy. These differences have led to difficulties in agreeing on the European position to uphold in international negotiations and to opposition when adopting internal measures. For example, the Governance regulation was the result of a political struggle between member states such as the UK and Eastern European countries in favour of more flexibility for member states to achieve the energy and climate goals, and other member states that arguing for binding national-level targets for 2030 such as Germany, France, Italy and the Scandinavian countries.
The pursuit of acceptability also explained the negotiation of differentiation legal mechanisms. Visible in the context of the ETS directive 83 , these differentiations appear even more clearly in the instruments adopted for non-ETS sectors. The very title of the first one (the 2009 Effort Sharing Decision 84 ) testifies to this. In the decision, the emission reduction targets that must be reached by each Member State vary significantly from one State to the other, counterbalanced, however, by a number of flexibility features. 85 In the new regulation, "the methodology to set the national reduction targets for the non-ETS sectors, with all the elements applied in aforementioned Decision No 406/2009/EC of the European Parliament and of the Council, should be continued until 2030 with efforts distributed on the basis of relative Gross Domestic Product (GDP) per capita". 86 This methodology is also applied in other matters, for example for the promotion of renewable energies. 87

3°-The issue of the effectiveness of EU policy
The indicators are rather positive with regard to the achievement of the emission reduction goals for 2020: 88 compared to 1990, the decrease of EU emissions is about 22%. Thus, the EU has already surpassed its target of a reduction by 20 % that was set for 2020.
The EU's target for 2030, a reduction of GHG emissions by at least 40% compared with 1990 levels, means that this downward trend should be maintained and even reinforced. "However, EU emissions have been increasing since 2014 (on average 1 percent/year), reversing the long-term trend". 89 The EU itself "recognizes that it is not on track to meet its 2030 target with current policies and has adopted a large package of measures aimed at accelerating the reduction of GHG emissions in different areas". 90 Only if the measures adopted by the EU in 2018 are fully implemented could a reduction of the Union's emissions by around 45% occur between now and 2030. It should also be mentioned that the EU set its 2030 objectives based on a 2°C temperature rise limit, which is not fully in line with the Paris agreement. A claim has in fact been brought to the Court of First Instance precisely on the basis that the targets authorise emissions in quantities that significantly exceed the objective set by the Paris Agreement of a maximum increase in global average temperature well below 2 °C, keeping in 83 For example, pursuant to the third phase and as part of the gradual move away from the free allocation of allowances towards the auctioning of such allowances, an allocation as between Member States is carried out based on their share of emissions and their economic position: 88% of the allowances to be auctioned will be distributed among Member States on the basis of their share of verified emissions from EU ETS installations in 2005. 10% will be distributed only to the least wealthy Member States as an additional source of revenue to help them invest in reducing the carbon intensity of their economies and adapting to climate change. The remaining 2% will be distributed as a 'Kyoto bonus' to Member States which by 2005 had reduced their greenhouse gas emissions by at least 20% relative to the levels in their Kyoto Protocol base year. 84 Aforementioned Decision n° 406/2009/EC. 85 The first mechanism is internal, specific to each Member State: if, in a given year during the 2013-2020 period, it produces more emissions than the authorised figure, a State may carry forward from the following year up to 5% of its annual emissions allowance (article 3-3). This first mechanism is supplemented by a mechanism relating to interstate trade which allows a Member State to "transfer up to 5% of its annual emission allocation for a given year to other Member States (…)" (article 3-4), provided that it meets the requirements of the decision. 86 Recital 2, aforementioned Regulation (EU) 2018/842. 87 The 2009/28/EC Renewable Energy Directive similarly sets out specific objectives for each Member State with the overall aim of making renewable energy sources account for 20% of EU energy by 2020. National reduction objectives set out in Annex I of the directive go from 10% for Malta to 49% for Sweden or 23  mind a more ambitious target of 1.5 °C. 91 The applicants request the Court to annul some recents climate acts 92 and to order the defendants -the Council and the Parliament -to adopt measures leading to a reduction in greenhouse gas emissions by 2030 by 50-60 % of 1990 levels, or even more.

Conclusion
The pressure on the EU intensified in 2018 at COP 24 after the publication of the IPCC report on the consequences of an increase higher than 1.5°C. However, it is difficult to see how real progress can be made as long as the EU climate and energy policy is mainly reliant on a 'bottom-up' approach, dependent on the actions and policies of individual member states, over which the Commission has little control. "Governance of the Energy Union will, from 2020 on, be based on the 'building blocks' of national climate, renewable and energy efficiency programmes (…) in the hope that they can be used to construct a Lego-like Energy Union out of separate elements" 93 . Similarly, in the European strategic vision for a climate neutral economy, little explanation is given 94 about what are the actions planned by the Commission to adopt its mid-century long-term strategy in accordance with the Paris Agreement 95 nor what is envisaged by the Commission on energy, industry and research & innovation policies in the framework of the long-term strategy ?