5 Doha Amendment to the Kyoto Protocol
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(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) Article192(1) TFEU; co-decision; QMV
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| Documents originated | 6 November 2013
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| Deposited in Parliament | (a) 13 November 2013
(b) 14 November 2013
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| Department | Energy and Climate Change
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| Basis of consideration | EMs of 4 December 2013
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| Previous Committee Report | None, but see (35394) 14912/13: HC 83-xx (2013-14), chapter 18 (6 November 2013).
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information awaited
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Background
5.1 In order to meet the environmental challenges presented
by global warming, 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. However, in 1997, 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[16] to the Protocol.
The Community of 15[17]
accordingly undertook to reduce its 1990 emission levels by 8%
by the period 2008-12, with reductions being apportioned between
the individual Member States[18]
under the Effort Sharing Decision (406/2009/EC). We and the previous
Committee have from time to time drawn to the attention of the
House reports produced by the Commission on the EU's progress
towards meeting its target, the most recent of these[19]
having shown that emissions in the EU-15 in 2011 were 14.9% below
the base year, meaning that its target for 2008-12 will be over-achieved.
The Report also noted that the EU-28 is on course to meet its
latest target, set out in its 2009 Energy and Climate Change Package
and endorsed by the European Council in March 2012, of a 20% reduction
by 2020.
5.2 In December 2012, the Doha Amendment to the
Protocol was agreed, which extends it into a new commitment period
running from 1 January 2013 to 31 December 2020. 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 commitments jointly,[20]
confirming the 20% reduction commitment (which is set out in Annex
B to the Amendment).
5.3 However, although Parties agreeing to fulfil
commitments jointly are deemed to have met these if the joint
commitment is achieved, failure to achieve that joint commitment
means that each party is responsible for its own emission level.
Consequently, the individual obligations of each party to the
joint fulfilment agreement (which will be notified to the UNFCCC
Secretariat when the Doha Amendment is formally ratified) will
also be set out.
5.4 In order to take these matters forward, the
Commission has now made the following two proposals.
The current proposals
(a) Draft Council Decision
5.5 This is intended to provide the basis for
the implementation and ratification of the Doha Amendment by the
EU and its Member States, and sets out the fundamental terms of
the joint fulfilment agreement. It confirms that the EU and its
Member States will fulfil their commitments under the Doha Amendment
jointly, including with Iceland, and clarifies responsibilities
for submitting reports to facilitate the calculation of assigned
amounts[21] by the Commission
and the Member States. 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,
and requires them to inform the Commission by 15 September 2014
of the probable date of completion of the relevant procedures.
5.6 The proposal is accompanied by three Annexes,[22]
of which the most important is Annex I. This outlines the notification
of the terms of the agreement to fulfil jointly the commitments
of the European Union, its Member States and Iceland under Article
3 of the Kyoto Protocol, and continues in many respects the approach
adopted for the first commitment period from 2008-12 regarding
the application of the Protocol at Member State level, the base
year for the EU, and the exclusion of international aviation.
5.7 However, the Commission points out that the
EU's approach to achieving the necessary reduction will be different
from that in the first commitment period, when the individual
commitments identified for each Member State embraced the full
extent of their economy wide emissions, covering both those sectors
included within the Emissions Trading System (ETS) and those outside
(which are subject to the Effort Sharing Decision). Since 1 January
2013, the ETS no longer operates through targets and national
allocation plans for individual Member States, being implemented
instead through a single Union-wide "cap", with a harmonised
auctioning system. As a consequence, it is no longer possible
to assign accurately shares of the ETS to individual Member States,
and a common emission level will therefore have to be set. Also,
although emission levels in sectors subject to the Kyoto Protocol
but 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 (set out in Table 1 of Annex I).[23]
5.8 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 adjust its commitment by increasing its ambition
during a commitment period, this currently requires an amendment
to Annex B to the Protocol (which has to be agreed by consensus
and ratified by three-fourths of the Parties); in future, there
would be a simplified procedure under which an increase in ambition
will be adopted, unless more than three-fourths 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 (though as the EU's average emissions for
that period are above the estimated average for 2013-20, this
clause in unlikely in practice to apply to it).
(B) DRAFT REGULATION
5.9 This would enable 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. A key feature of this has been a comprehensive
system of emissions accounting to ensure transparency and compliance,
under which each party with a commitment is required to calculate
an assigned amount representing the tonnage it is allowed to emit
(in carbon dioxide equivalent). This is then issued as assigned
account units (AAUs) in the national registry (which will also
hold, and account for, transactions in units resulting from use
of the Protocol's flexibility mechanism).
5.10 The Protocol's second commitment period
will continue, and to some extent enhance, those arrangements,
and the draft Regulation will address a number of issues in the
transitional period between the two (including the carryover of
surplus units). In addition, it seeks to clarify the interaction
between the Kyoto rules and relevant EU legislation, and to align
them in a number of areas, notably the management of transaction
of Kyoto units in and between national registries.
The Government's view
5.11 These two documents are the subject of separate
Explanatory Memoranda of 4 December 2013 from the Secretary of
State for Energy and Climate Change (Mr Edward Davey).
5.12 He says that, as these are proposals for
the joint fulfilment and ratification of the EU and its Member
States' commitments under the Doha Amendment, it is appropriate
that they should be dealt with at the EU level. Consequently,
he does not envisage any subsidiarity concerns at this stage,
although officials will monitor any such implications as negotiations
on how ratification will be implemented progress.
5.13 The Minister also notes that 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.
However, he goes on to point out that both documents are also
based on Article 192(1) TFEU concerning matters relating to the
environment, which is an area of shared competence, and that,
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.[24]
However, areas of Member State competence also remain, particularly
with regard to the non-traded sectors which fall outside the Emissions
Trading System, and, 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.
5.14 The Minister says that, as negotiations
on the proposed Decision continue, these matters will be subject
to on-going consideration, particularly with regard to the exercise
of previously unexercised shared competence.
Officials are also carefully analysing 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).
Conclusion
5.15 These two documents clearly relate to an
important area of international activity from both an environmental
and political perspective, and, for that reason alone, we are
drawing them to the attention of the House. However, it is also
evident that the Government's consideration of them is at an early
stage, and that clarification will be needed not only in a number
of practical and policy areas (such as the relationship between
the EU Emissions Trading System and the Effort Sharing Decision),
but also as regards the respective exercise of competence by the
EU and Member States, and the use of delegated acts. We are therefore
holding both documents under scrutiny, pending further information
from the Government on these various points.
16 Carbon dioxide, methane, nitrous oxide, sulphur
hexafluoride, hydrofluorocarbons and perfluorocarbons. Back
17
Of the new Member States, all but Cyprus and Malta have individual
reduction targets under the Protocol, equivalent to 8% (except
for Hungary and Poland, where the target is 6%). Back
18
This arrangement requires the UK to achieve a reduction of 12.5%. Back
19
See (35394) 14912/13: HC 83-xx (2013-14), chapter 18 (6 November
2013). Back
20
Along with Iceland. Back
21
The Kyoto Protocol requires commitments by its Parties to be translated
into an assigned amount, which reflects the authorised quantity
of emissions, expressed in tonnes of carbon dioxide equivalent,
during a commitment period. Back
22
Annex II contains the Declaration by the Union made in accordance
with Article 24(3) of the Protocol; and Annex III sets out the
terms of the Doha Amendment. Back
23
The figure for the UK will be 2.743 billion tonnes. Back
24
For example, in the establishment of the Emissions Trading System. Back
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