19 Doha Amendment to the Kyoto Protocol
| (a)
(35513)
15878/13
ADDs 1-3
COM(13) 768
(b)
(35518)
15889/13
COM(13) 769
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Draft Council Decision on the conclusion of the Doha Amendment to the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder
Draft Regulation amending Regulation (EU) No. 525/2013 as regards the technical implementation of the Kyoto Protocol to the United Nations Framework Convention on Climate Change
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| Legal base | (a) Articles 192(1) and 218(6) TFEU; consent; unanimity
(b) Article 192(1) TFEU; co-decision; QMV
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| Department | Energy and Climate Change
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| Basis of consideration | Minister's letter of 5 April 2014
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| Previous Committee Report | HC 28-xxv (2013-14), chapter 5 (18 December 2013)
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| Discussion in Council | First-half of May, see paragraph 19.12
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
19.1 Whilst the 1992 United Nations Framework Convention on Climate
Change (UNFCCC) requires industrialised countries to return their
emissions of greenhouse gases by the year 2000 to the levels obtaining
in 1990, the Kyoto Protocol went on to set legally binding emission
targets for industrialised countries to meet by 2012 for the greenhouse
gases listed in Annex A[77]
to the Protocol. The Community of 15 accordingly undertook to
reduce its 1990 emission levels by 8% by the period 2008-12, with
reductions being apportioned between the individual Member States
under the Effort Sharing Decision (406/2009/EC), and the Commission's
latest progress report shows that this target will be over-achieved
(and that the EU-28 is on course to meet its latest target, set
out in its 2009 Energy and Climate Change Package, of a 20% reduction
by 2020).
19.2 In December 2012, the Doha Amendment to the Protocol was
agreed, extending it into a new commitment period running from
1 January 2013 to 31 December 2020, and the EU and each of its
28 Member States have confirmed that they will ratify the Amendment
together, participate in this new commitment period, and take
mitigation commitments under it. They have also made a political
declaration that — as under the first commitment period
— they will fulfil their 20% reduction commitments jointly.
However, although Parties agreeing to fulfil commitments jointly
are deemed to have met these if the joint commitment is achieved,
failure to achieve it means that each party is responsible for
its own emission level. Consequently, the individual obligations
of each party to the joint fulfilment agreement will also be set
out.
19.3 In order to take these matters forward, the Commission put
forward in November 2013 two proposals. Document (a) is a draft
Council Decision, which is intended to provide the basis for the
implementation and ratification of the Doha Amendment, and sets
out the fundamental terms of the joint fulfilment agreement, confirming
that the EU and its Member States will fulfil their commitments
jointly. It also specifies that Member States should take the
necessary steps to complete their domestic ratification processes
no later than 16 February 2015, as far as possible.
19.4 The proposal is accompanied by three Annexes, the most important
being Annex I, which outlines the terms of the joint commitment
agreement, and continues in many respects the approach adopted
for the first commitment period from 2008-12. However, the Commission
points out that the EU's approach to achieving the necessary reduction
will be different as the Emissions Trading System (ETS) is now
implemented through a single Union-wide "cap": as a
result, it is no longer possible to assign shares to individual
Member States, and a common emission level will have to be set.
Also, although emission levels in sectors subject not covered
by the ETS will continue to be set for individual Member States,
they will no longer be presented as percentage reductions, but
as absolute figures expressed in tonnes of carbon dioxide equivalent.
19.5 The Doha Amendment also makes three other changes to the
Kyoto Protocol. First, it adds nitrogen trifluoride to the list
of greenhouse gases in Annex A. Secondly, where a Party wishes
to increase its ambition during a commitment period, this currently
requires an amendment to the Protocol, agreed by consensus and
ratified by three-fourths of the Parties; in future, an increase
in ambition will be adopted, unless more than three-quarters of
the Parties object, and there would no longer be a requirement
for ratification. Thirdly, it introduces a clause under which
a Party's target for the period 2013-20 would not be able to exceed
its average emissions for the years 2008-10.
19.6 Document (b) is a draft Regulation, enabling the EU to give
legal effect to a number of decisions taken at the Doha Conference
relating to the implementation of the substantive mitigation commitment
listed in the Agreement, notably the comprehensive system of emissions
accounting, under which each party with a commitment is required
to calculate an assigned amount representing the tonnage it is
allowed to emit (and which is then issued as assigned account
units (AAUs) in the national registry). The second commitment
period will also continue, and to some extent enhance, those arrangements,
and the draft Regulation seeks to address a number of issues in
the transitional period; to clarify the interaction between the
Kyoto rules and relevant EU legislation; and to align them in
a number of areas.
19.7 As we noted in our Report of 18 December 2013, the Government
does not envisage any subsidiarity concerns at this stage, although
it will monitor the situation as the negotiations progress. However,
it notes out that, although the legal base of Article 218(6) TFEU
cited in the draft Council Decision covers the adoption of agreements
made by the EU with third countries, both documents are also based
on Article 192(1) TFEU concerning matters relating to the environment.
It points out that this is an area of shared competence, and that
whilst, in the particular field of climate change (which falls
under the environment by virtue of 191(1) TFEU), there has been
exercise of competence by the EU,[78]
areas of Member State competence also remain, particularly with
regard to sectors which fall outside the Emissions Trading System.
In addition, as the Member States are individual Parties to the
Kyoto Protocol, concerns about compliance with the UK's own international
obligations must also be taken into account.
19.8 The Government says that, as negotiations on the proposed
Decision continue, it will carefully analyse the proposals to
establish precisely how ratification will be implemented, and,
in addition to any competence issues, will consider alignment
with international law, the breadth of any proposed delegated
acts, and practical aspects (in order to ensure that the proposals
are consistent with the requirements, provisions and mechanisms
already agreed within the existing EU climate and energy package).
19.9 We commented that these two documents clearly related to
an important area of international activity from both an environmental
and political perspective, and that it was also evident that clarification
would be needed not only in a number of practical and policy areas,
but also as regards the respective exercise of competence by the
EU and Member States, and the use of delegated acts. We therefore
said that we would hold both documents under scrutiny, pending
further information from the Government on these various points.
Minister's letter of 5 April 2014
19.10 We have now received from the Secretary of State for Energy
and Climate Change (Mr Edward Davey) a letter of 5 April 2014,
in which he says that agreement has been reached on amendments
to the existing Regulation which will cover technical implementation
of the second Kyoto commitment period, which he says protect the
UK's fiscal sovereignty; ensures that the current partition of
competence between the EU and Member States is preserved; ensures
that the proposal deals only with matters relating to the implementation
of the second commitment period of the Kyoto Protocol, and avoids
setting a precedent for any future legislative developments in
the relevant areas; and avoids any new costs or liabilities for
the UK.
19.11 He also notes that the amendment only includes two delegated
acts, with all the essential elements having been defined in the
face of the legislation, and the scope of such acts clearly ring-fenced
to avoid any transfer of competence and limited in time: and,
that, whilst a new power has been included to make implementing
acts, this is in order to manage situations where Member States
could be disadvantaged by a specific and exceptional situation,
and is thus in line with this principle.
19.12 Finally, the Minister says that a new global, legally binding
climate change agreement will be agreed in December 2015, and
that timely ratification of the second Kyoto commitment period
by the EU and its Member States well in advance is crucial to
the success of the new agreement. The Government will therefore
want to support rapid progress in the ratification process, so
as to avoid the risk that the UK is seen to be causing any delay,
and he therefore has asked us to lift the scrutiny reserve so
as to allow the UK to support the adoption of the amendment by
the Council during the first half of May.
Conclusion
19.13 We acknowledge the political need for the Government
to support the now imminent agreement of the current documents
in early to mid-May.
19.14 However, we asked for clarification on the question of
the division of competences between the EU and the Member States
in relation to both documents back in December 2013. It does not
assist us in considering what is now (given the intervention of
the Easter recess) an urgent request to clear these complex and
sensitive documents from scrutiny that:
i) we are only now receiving further information from the
Government on this issue (copying us into correspondence to the
European Union Committee in the House of Lords on specific questions
raised by them does not suffice); and
ii) the information received amounts to assertion rather
than full and clear explanation.
19.15 We are less concerned about the articulation of the division
of competences in the Council Decision (document (a)) as this
amounts to a reiteration of the position which was acceptable
when the EU and Member States signed up to the joint fulfilment
of commitments under the first commitment period of the Kyoto
Protocol.
19.16 However, we cannot establish, either from the Minister's
letter or from the Regulation itself (document (b)), whether the
division of internal competence of the Member States for emission
targets for the non-traded sector and for the EU for the traded-sector
has been clearly reflected in that document.
19.17 Nevertheless, given the overriding political imperative,
we clear the documents but this is on the understanding that the
Government ensures that this division of internal competences
is clearly understood and ascertainable from the Regulation.
77 Carbon dioxide, methane, nitrous oxide, sulphur
hexafluoride, hydrofluorocarbons and perfluorocarbons. Back
78
For example, in the establishment of the Emissions Trading System. Back
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