The European Climate Energy Union and its Climate Action are struggling to reach its Paris Agreement targets and public demands. Its governance mechanism is in non-compliance with international law and national ministries are largely unresponsive to the input of the public and other stakeholders. This position paper addresses the procedural rights in the EU’s climate governance architecture and sets out concrete recommendations on how to transform the Governance Regulation in respect of the Aarhus Convention obligations.
The Governance Regulation’s currently ongoing evaluation (as required by its Article 45) should conclude that a partial revision is required to address procedural issues. A revision was already demanded by the European Commission and the European Committee of the Regions, and hinted at by the Commission in its decision VII/8f progress report on the ongoing non-compliance case of the EU with the Aarhus Convention. The European Scientific Advisory Board on Climate Change also underlined many gaps in the implementation of environmental democracy aspects of the Governance Regulation.
Legal grounds calling for review
The need for a review of the environmental democracy elements of the Governance Regulation is supported by the following legal grounds:
- A case is currently pending before the Aarhus Convention Compliance Committee, in which the EU is charged for non-compliance of the Governance Regulation with the Aarhus Convention (decision VII/8f)
- The obligations stemming from the Aarhus Convention three pillars, Article 12 of the Paris Agreement, and Article 9 of the EU Climate Law.
Impact of a Revised Governance Regulation
A legislative revision of the Governance Regulation would likely not be endorsed by the deadline for revision of the current NECPs (June 2024), LTSs (January 2025) and submission of the next NECPs progress reports (March 2025). A revised Governance Regulation with improved environmental democracy aspects would however be beneficial for the following processes:
- The submission of NECPs progress reports in March 2027.
- The preparation of the draft NECPs for the period 2030-2040, to be submitted by Member States by 1 January 2028.
- The preparation of the LTSs for the period 2030-2060, to be submitted by Member States by 1 January 2029.
Planning with respect for public opinion
The benefits of public participation are manifold but are most often grouped into three categories. Firstly, public participation improves the quality of the decisions taken. Secondly, it fulfills a fundamental democratic right. Thirdly, it fosters public trust and buy-in. Overall, public participation can lead to innovative solutions coming from the ground up rather than top down. Looking for solutions to their own environmental challenges also empowers citizens and local communities and thus reconnects them with policy-making. Public participation in the National Energy and Climate Plans (NECPs) and national Long Term Strategies (LTSs) is particularly important because these plans are tools which must survive changes in governments over time.
The benefits of increased transparency and improved access to judicial remedies are equally well documented. Transparency is a necessary enabling condition for any public discourse. Access to justice is an essential part of the rule of law, accountability, and a safety net for other rights.
Arguably, the current standards of the Governance Regulation are already weakly applied by many national ministries drafting the plans and strategies. On the public participation side, countries which did carry out consultation exercises before submitting their draft updated NECPs did so with varying quality and without complying with their consultation obligations, while other countries simply did not carry out any public participation whatsoever. While implementation of existing EU laws is crucial, the improvement of the EU laws themselves is equally important. Well formulated, consistent, and clear EU laws raise the bar for minimum standards and aid in their proper application nationally. The Governance Regulation by its nature is directly applicable which puts additional emphasis on the need for it to be of high quality.
There are numerous climate and energy relevant planning obligations under European law which are arguably independent of the NECPs. However, they all have to be in line with the NECPs and LTSs of the Governance Regulation. Procedural climate governance is found in several pieces of international, EU and domestic law but most of its paths either lead to or through the Governance Regulation.
The public’s ability to influence the plans and strategies
When looking at the original NECPs and the submitted draft NECP updates, it becomes clear that public participation in the consultation processes has been rare. In the draft NECP updates several countries recorded less than 50 responses as part of the public consultation process, and some even less than 20. That may be an indicator that these technical plans are not presented in a way that is easily understandable to non technicians and that an effort in this sense should therefore be made so as to better integrate citizens in these decisions. A need for improvement was also underlined by the European Commission in its country specific recommendations on draft revised NECPs issued in December 2023 and February 2024: 22 out of the 24 countries assessed received specific recommendations to improve public participation processes.
Timing: Draft vs draft of the draft
There is considerable ambiguity in the Regulation’s text as well as significant differences in approach by ministries regarding at what stage a text should be open to public input. The Aarhus Convention prescribes an opportunity to participate when all options are still open.
The Governance Regulation Articles 9 and 14 demand the submission of a draft to the European Commission at a certain point in time. Article 9(4) demands that in the process of the public consultation (art 10) a draft must be made available publicly. However, if that later draft was to be the same draft which was submitted to the Commission, then at that stage the public consultation would come too late (as it currently is in several member states) for all options to still be open. There must, therefore, be different iterations of drafts available publicly at some point to fulfill both the public participation and the submission to the Commission obligations. Clarification in this area is needed.
Structured ongoing public dialogue
Under Article 11 of the Governance Regulation, Member States are required to set up Multilevel Energy and Climate Dialogues (MCED). These structures aim to gather local authorities, civil society organisations, business community, investors and the general public to discuss the different scenarios envisaged for climate and energy policies. Here again, the implementation of the Governance Regulation has proven to be problematic. In most countries, MCED have not been adequately set up. Provisions on MCED should be improved in order to ensure that these dialogues actually take place, and are effective at avoiding barriers in implementation. Article 11 of the Governance Regulation should be made more precise and the reporting requirements on the dialogues should be improved. Accordingly, the suggestion in Article 11 itself that the MCED are utilised as a vehicle for conducting public participation in the NECPs and LTSs should be formalised.
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