LECTURE 2 - COMPETENCE

Competences for EU environmental rulemaking. This slide provides an overview of the main
competences for the EU legislator to adopt environmental rules.
 192 TFEU (environment chapter): main competence for environmental rule making.

 194 TFEU (energy).

 114 TFEU (internal market).

1. ART. 192 TFEU (ENVIRONMENT).

This is the main environmental competence. Based on this competence, an enormous number of
environmental acts has been adopted in the form of regulations, directives, decisions, etc. Mostly
directives have been used, including so-called “framework directives”. The TFEU does not provide a
definition or a possibility for framework directives, but still, in practice, some directives are called
framework directives, indicating that they provide a comprehensive approach for a specific topic. For
instance, we have the Water Framework Directive, which is a comprehensive directive in order to
ensure the quality of water in the EU.
Procedure:
 Ordinary legislative procedure: for art. 192, the ordinary legislative procedure applies.
However, exceptions apply, and these are mentioned on the second paragraph of art. 192.

 Except for cases mentioned in 192(2): in case such an exception applies, the Council needs to
act unanimously after consulting the European Parliament. According to art. 192(2) TFEU, the
exceptions that imply the need for unanimity are:

a) “Provisions primarily of a fiscal nature: need to be adopted by means of unanimity,

which is a barrier for adopting environmental taxes.

b) Measures affecting:

o Town and country planning.

o Quantitative management of water resources or affecting, directly or

indirectly, the availability of those resources.

o Land use, with the exception of waste management.

c) Measures significantly affecting a Member State's choice between different energy

sources and the general structure of its energy supply.” The term “significantly”
implies another threshold. If it only affects, then the ordinary procedure applies.
With unanimity, the ordinary procedure can be made applicable. There is a specific provision in
article 192 (2), introduced by the Lisbon Treaty, which is the passerelle. It means that the Council can
decide, unanimously, to make use of the ordinary legislative procedure to matters referred to in art.
192(2). So, the Council can set aside this unanimity requirement and decide to move, for such
matters, to the ordinary procedure.
This decision has to be made on the proposal from the Commission, that can thus actually trigger,
put the Council to the test, by proposing this. So, the Commission can try to change the procedure by
proposing that for such matters, for a future, the ordinary legislative procedure applies. It has not yet
happened so far.
“The Council, acting unanimously on a proposal from the Commission and after consulting the
European Parliament, the Economic and Social Committee and the Committee of the Regions, may
make the ordinary legislative procedure applicable to the matters referred to in the first
subparagraph.”

1.1. ART. 193 TFEU: AMPLE ROOM FOR ADDITIONAL MEMBER STATE ACTION?
This article defines the possibility for Member States to adopt more stringent environmental
protection measures.
Article 193 (ex Article 176 TEC): “The protective measures adopted pursuant to Article 192 shall not
prevent any Member State from maintaining or introducing more stringent protective measures.
Such measures must be compatible with the Treaties. They shall be notified to the Commission”.
However, this is a topic in environmental EU law that is surrounded with some legal uncertainty. It is
not yet cristalised what the possibilities are under art. 193. Of course, those Member States with a
higher and greener ambition than EU environmental legislation can try making use of it, but whether
it is lawful can ultimately be tested with the Court of Justice of the EU.
There are different views regarding art. 193 TFEU, and hence, case law is needed. Diverging opinions
in literature regarding art. 193 TFEU:
 The prevailing view among authors is that Member States can always adopt more stringent
measures, given the straightforward text of art. 193. Of course, they must be compatible
with the Treaties, but for the rest, there is no hindrance.

 However, also a minority opinion exists: secondary legislation can prevent the use of art. 193
(and national measures may not hinder the functioning of the EU environmental measure)
(Jans and Vedder EU env law, fourth ed). We have such an example in the EU ETS Directive,
that has established the EU emission trading scheme, a core instrument for EU climate law.
That Directive says that MS cannot impose emission limits on the industries, so that is such
an example where a Directive provides a limit. Is that against art. 193? We do not know yet,
this has not been decided by the CJEU. What is important is that art. 193 seemingly provides
a broad possibility for adopting more stringent measures; however, to what extent a
Directive can limit that possibility is still open for further discussion.

2. ART. 114 TFEU (INTERNAL MARKET).

This article aims at harmonisation in order to facilitate the internal market, and luckily enough, it says
that “a high level of protection of the environment shall be taken as a basis” (art. 114(3)).
Examples of environmental legislation based on 114 TFEU (former 95 ECT):
 Directive 2009/125/EC establishing a framework for the setting of eco design requirements
for energy related products.

 Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on
the establishment of a framework to facilitate sustainable investment, and amending
Regulation (EU) 2019/2088 (Taxonomy regulation). It is actually a law that provides criteria
according to which an investment can be called by market actors a sustainable investment.
Otherwise, the investment will not be called a sustainable one. This regulation is based on
internal market, because it harmonises the rules on sustainable investments across the EU.
The Committee of the Regions: that means that, in art. 192, also local representatives, governors
from provinces, majors from cities, etc. have a say in the legislative procedure.
The difference about the possibilities of more stringent measures is a crucial difference. In the case of
192, the Court of Justice says that, even if there is no notification, that does not mean that a national
measure is unlawful.

3. ART. 194 TFEU (ENERGY).

Introduced by the Lisbon Treaty, which introduced this single article that is, at the same time, a Title
for Energy. It provides specific energy goals such as “the functioning of the energy market” and to
“ensure the security of energy supply in the Union”.
Nonetheless, we also find some environmental issues in art. 194. Environmental Scope of art. 194:
 Promotion of Energy efficiency. Crucial in view of the climate change problem. Energy
efficiency would mean that there are requirements on the efficient use of energy by light
bulbs.

 Promotion of Energy saving: also crucial. It would mean not to turn on the light bulbs.

 Development of new and renewable forms of energy.

However, there is no mention of a “high level of protection”, but (only) of “the need to preserve and
improve the environment”. If that is a very different threshold remains to be seen. We do not know if
it is less ambitious than a high level of protection.
Shared competence (like in the environmental field).
The energy measures also need to be adopted according to the ordinary legislative procedure.
However, here there is also an exception: in case of taxation, unanimity, a special legislative
procedure, applies (article 194(3)). Thus, it is also difficult to introduce a tax.
Now we arrive at a difficult issue. Art. 194 contains a competence restriction. Art. 194(2): “Measures
shall not affect MS’ right to determine the conditions for exploiting its sources, its choice between
different energy sources and the general structure of its energy supply”. Compare this to 192(2): that
article allows for measures – with unanimity – significantly affecting choice between different energy
sources and the general structure of its energy supply (but qualified majority if passerelle
opportunity has been used). So 194 refers, actually, to art. 192(2), meaning that, if measures have an
environmental purpose, and if they significantly affect the choice between different energy sources,
then this measure is possible under the TFEU, but the basis has to be Art. 192(2). So, this has to do
with requirements as to establish a certain amount of renewable energy, that significantly affects the
choice.
Art. 194 has a block on measures, but gives way out by referring to Art. 192, that if the
environmental measure, a climate change measure, is needed, and significantly affects the choice, it
is possible with unanimity.
This is not clearly regulated in the TFEU, but Art. 192(1) has not been referred to in 194: hence, can
an environmental measure NOT significantly affecting the choice still be adopted on the basis of
192(1)? Most likely, environmental measures affecting the choice between different energy sources
are still possible on the basis of Art. 192(1), although it is not clearly defined in the treaty. Most likely,
that will be allowed, but case law is needed. If the Court follows the system of the treaties, there is
high hope that such measures are possible.

4. EXTERNAL INTEGRATION OF THE ENVIRONMENT INTO OTHER POLICY

DOMAINS HAS BROADENED THE “ENVIRONMENTAL COMPETENCE”.
External integration of the environment into other policy domains has broadened the
“environmental competence” of the EU.
In EU environmental law, there is this very specific provision, which we call “external integration”. It
is Art. 11, which states that “Environmental protection requirements must be integrated into the
definition and implementation of the Union policies and activities, in particular with a view to
promoting sustainable development.”
This article actually requires considering or including environmental requirements into other
legislative competences that exist, but with a view to promoting sustainable development. It opens
the possibility for the EU legislator to integrate environmental requirements in competences other
than 192, 114 and 194. In order to truly achieve a high level of environmental protection, the idea is
not to have an isolated focus only on the environmental chapter, but to try to integrate
environmental concerns in all other policy domains. That is external integration. However, that
means that if we want to examine EU environmental law, it is not only the legislation adopted on the
basis of those articles, but we have to find, there is a need for the EU legislator, to incorporate
environmental requirements in other legislation too.
Having said this all, we have to examine how to use those competences, which kind of rules to adopt.
We should be aware that there is a continuous discussion on how to use the competences.
The design of adequate and coherent environmental legislation, and compliance with adopted
legislation, are serious points of concern, and are still discussed.
De los tutorials, estudiar los learning goals y las leading questions. Together with the topics of the
student presentations.
THE EUROPEAN CLIMATE LAW: TOWARDS CLIMATE NEUTRALITY IN 2050.
The problem that is the core of all these legislative developments is the fact that we face and have to
fight climate change.
For boreal (relating to the region of the earth just south of the Arctic) autumn 2020 (September,
October and November), European temperatures were
1.9 C above the standard
reference period, 0.4 C higher
than the average temperature in
2006, which was previously the
warmest autumn
(quote from
this website,
emphasis by me
The measures show that, particularly, the northern region, the north pole, heat up much faster than
others, so the increase of temperatures not … equally across the planet, but varies among the
regions. We do have now the European climate law and a president of the commission that has
stated as an aim that Europe should become the first climate neutral continent by 2050. The EU
claims to be a leader, we are not saying that it is, but it claims leadership. Specific setup of 27 ms
transferring power is very unique, and there is such a strong climate law in the EU. The EU is
repsonsanle for less than 10% of the GHGs emmissions, so if it success, it is extremely important that
in other regions ambitious measures will be taken. It is hard to identify which is the right
commitment for the EU, but we can do see that the European legislator has succeeded in self-
imposing a target. The legak outcome is 55% by 2030, and climate neutrality by 2050.
It was in March 2020 when the proposal came out, and it was approved in June 2021, what illustrates
the dinamyc cgaracter of EU climate law.
We have codified, but now we have to modify society, the hard part is to move from codification to
modification. That are the issues we have to address right now.
It is surprising that the climate law claims to be the first climate law, because there have been many
documents.
The commission is very important, but it is not very powerful. Before the law is proposed, it is
interesting to see how the institutions already read on the objective of climate neutrality. This is not
binding law, but from an institutional point of view, this endorsement previous to the adoption is
extremely important, because then the commission knows that it can move ahead with the proposal.
The EU made the choice to put the date of 2050, cpomplying with the paris agreement.
The union shall aim to avhieve negative emmissions after habing achieved climate neutrality (absorb
more emmissions than emitted, by technical means, for example). There are investments that are
being already done. The problem seems to be that, although it sounds fantastic, it takes energy to let
these machines function, and some people say let’s do nuclear energy, but then you have also a
problem. Perhaps we cannot solve with small inocremental steps, but we have to think big, with new
technologies, etc. the EU has chosen the wide climate neutraliuty, and not national climate
neutrality.
There are a few provisions and indications in the EU climate law, but further specifications are
needed.

All sectors of the economy have to contribute. The limit is a push from the European parliament, that
wanted to prevent that too much reliance would be put in the sinks removals. We have all kind of
different trees, and they have different performances in absorbing carbon dioxide, and thus it is not
easy to calculate. We have to be aware how important grasslands are, because there is great
biodiversity, so from a nature conservation perspective, the fact that now ythere is such a pusjh for
planting trees, what is great for pursuing climate neutrality, can have negative impacts on
biodiversity, what illustrates the difficulty of the decisions that have to be adopted. The media has
payed many attention to this thing, but there is a two-side.

What has happened during the legislative procedure? The commission wanted to have a hige power,
thorugh adopting delegated acts and make a trajectory that way, to say how much emmissions have
to decrease in the EU over time. It can be discussed whether this prerogative would be beneficial
from an institutional perspective. Now there is less formal power from the commission. Now it
elaborates a report, which does not have legal force. However, there are documents that still can
have a very strong prevential role (on national education, for example). It can be that the report
plays an indirect role on education, it is unpredictable, but not impossible.
The scientific advices are not legally binding, but can have a prevential role.
We don’t have yet a target for 2040, that is a prerogative for the EU legislator, the Commission can
do a report, but it is up to the legislator. The target for 2030 is more stringent in the final text than in
the proposal, because more priority to emmissions reduction, and thus less possibility to compensate
for the emmissions. The parliament said, during the legislative process, that too much reliance on
removals is not good (uncertainty how to calculate, etc.), so there is a limit to removals, and more
priority is given to emission reductions, there is less opportunity to use sinks, and thus the
parliament is shaping how the objective should be pursued.
LULUCF: for land use change. In this regulation, this calculation is regulated. We do have a legal
framework for that, but the truth is that the professor is concerned: it is such a complicated
regulation, it is very technical.
The first mean, a procedural obligation from the commission to take into account… Whether this
proposal is in alignment with the climate objectives. So, climate change has become central stage in
all policy development in the EU, what is impressive. It remains to be seen how it will work,
depending on how ambitiously the commission will apply this, but the good thing is that there are
transparency mechanisms, because the commission has to publish these assessments, and then the
civil society can render counts. It builds upon the integration principle, but is more concrete and only
for climate change. EXAM QUESTION: can you explain to what extent the procedural provision of the
EU climate law ressembles to art. 11, or in which sense they are different?
The second mean is the governance approach. Assessments of the commissions on the progress, and
recommendations to individual states in light of the collective progress. If the measures are
inconsistent with the climate neutrslity objective, the commission may issue, publicly available, a
recommendation. It is not obliged, but it can do so, and if it does, the member state shall notify,
within 6 months, how it took account for the recommendation (obligatory dialogue), obligation from
the member states to reply, otherwise the infringement procedure can be applied, if the member
state does not reply. We would have to see if the court would be willing to judge on that.
We should not be surprised if some litigation happened, particularly when states are pulled short,
because it is complicated the system where states transfer power to the EU.
isn't that also a little bit covered via the effort sharing regulation? The member states have to submit
plans (overlaps)

The spirit of solidarity is also codified in eu climate law. This is a very vague notion, but with climate
change something specific is happening, because vague terms are being used as stepping stones to
lay down judgements by some courts.

Interim conclusion:
It has codified the target for 2030. We have a clear target codified, and it that sense, this regulation is
very strong. The principle of solidarity may be stronger, in her opinion, than cost-effectiveness.
What are the solutions? How to move to the target in 2030?