A coalition of NGOs from across Europe has filed a synchronised series of complaints to the European Commission, highlighting systemic failures in the final revised National Energy and Climate Plans (NECPs). The NGOs are calling on the Commission to use its powers as ‘Guardian of the Treaties’ to start legal action against five Member States (France, Germany, Ireland, Italy and Sweden) whose NECPs are not in line with EU law. The NGOs rely on evidence showcasing that the plans are breaching EU law relating to binding climate and energy targets, fossil fuel subsidies information and public participation processes in the preparation of the plans.
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The complaints relate to the recently submitted final revised version of NECPs. These are plans where EU Member States are required to describe, in an integrated manner, their climate and energy objectives and targets – as well as the policies and measures to achieve them until 2030, with an outlook to 2040 and the longer term. Member States were required under EU Regulation 2018/1999 (the Governance Regulation) to revise these plans and submit the final version by 30 June 2024.
NECPs have a crucial importance for delivering the climate and energy targets which have been revised as part of the European Green Deal and the ‘Fit for 55’ legislative package. It is through this planning exercise that Member States actually assess what policies and measures (including finance) will need to be adopted to achieve their national contributions to the European targets. The NECP is also the process which translates targets into real life mitigation and social justice consequences, hence the need to ensure that the planned policies and measures in reality allow a just and fair transition and are decided in a participatory way so that their legitimacy is protected.
In their complaints, the NGOs rely on evidence showcasing issues of non-compliance of the final plans with EU law in at least three areas.
- First, there is a mismatch between Member States’ binding climate and energy targets, as set out in various EU laws, and the way they are presented in the NECPs. This means that there are significant gaps with the targets and that Member States are in fact assuming that they do not intend to meet them. These claims are supported by the findings recently made by the European Climate Neutrality Observatory.
- Second, several Member States did not indicate how and by when they intend to phase out fossil fuels subsidies, as required by EU law. These claims are backed by the same report of the European Climate Neutrality Observatory.
- Third, most Member States have not organised meaningful public participation processes in the preparation of the revised plan, although this is a clear obligation under the EU Governance Regulation and the Aarhus Convention. When the draft NECPs were prepared, a report from civil society organisations already evidenced weak public participation processes. The complaints highlight that those processes were not ameliorated afterwards.
Some of the complaints also highlight issues relating to just transition, energy poverty and consistency between countries’ NECP and Social Climate Plan.
The EU treaties give a special role to the European Commission in ensuring that EU law is complied with and correctly applied across the Union (Article 17 of TEU and Article 258 TFEU), and for that reason this institution is called the ‘Guardian of the Treaties’. With these complaints, the NGOs are therefore calling upon the European Commission to take up its role seriously and start legal action against the 5 above-mentioned Member States.
The European Commission may make use of a variety of tools to enforce EU legislation. It can first organise informal bilateral meetings with the Member State concerned before officially starting an infringement procedure, which follows different stages (letter of formal notice, reasoned opinion and referral to the EU Court). The whole process may take several years and could result in that Member State being required to take all necessary measures to comply with EU law.
As an immediate next step following the submission of the complaints, the ball is now in the Commission’s court. It has 12 months to assess the complaint and decide whether to initiate a formal infringement procedure against the country in question. However, the Commission has traditionally been quite shy to start legal action even in case of clear non compliance, mainly for political reasons. Moreover, the enforcement procedure is lengthy and opaque. The consequences are far reaching: The failure to implement environmental legislation costs the Union economy around 55 billion each year in health costs and in direct costs to the environment (as recognised by the Commission itself in its 8th Environment Action Programme).
The Commission has already stated that it is prepared to start legal action against those Member States that have still not submitted their final revised NECP. More than four months after the formal deadline, this is a bare minimum. But it is not enough. The Commission should also be ready to act swiftly against countries which have submitted their final plans if these are not in line with EU law, which is the case for many of them.
As the hearings of Commissioners-designate for climate and energy, Wopke Hoekstra and Dan Jørgensen, are taking place this week in the European Parliament, the legal flaws identified in the final NECPs offer the new Commission a unique opportunity to show that it is taking a much more proactive approach in its role as Guardian of the Treaties. This would be in line with the mission letters received by the two Commissioners-designate, in which von der Leyen explicitly states that “The success of this new Commission will be measured against our ability to meet the targets and objectives we set, notably as part of the European Green Deal”. Following this, Von der Leyen recalls that Hoekstra and Jorgensen are “responsible for the delivery of the policy objectives and targets within [their] portfolio” and that “to achieve this, [they] should make full use of all instruments for implementation and enforcement, including infringement proceedings”.
The new responsible Commissioners have homework to do. If they fail to do so, the EU’s climate and energy objectives will be jeopardised. And in the run-up to the COP, the EU’s credibility on climate action will also be called into question on the international stage.
This campaign is driven by the following national NGOs:
- Notre Affaire à Tous (France)
- Germanwatch (Germany)
- Environmental Justice Network Ireland (EJNI) (Ireland)
- A Sud and WWF Italy (Italy)
- Sweden’s Environmental Association of Law (SEAL) and Swedish Society for Nature Conservation (SSNC) (Sweden)
In most cases, these NGOs are the formal signatories of the complaints but are supported by other NGOs at the national level. CAN Europe played a coordinating role in the campaign and offered support to the national organisations.
