EN Official Journal of the European Union CE 84/764

(2004/C 84 E/0859)

WRITTEN QUESTION P-0110/04

by Eija-Riitta Korhola (PPE-DE) to the Commission

(19 January 2004)

Subject: Legality of certain EU decisions should the Kyoto Protocol founder

The recitals (especially 4, 22, and 26) of the EU's emissions trading directive (Directive 2003/87/EC) (1) show that the directive has been produced on account of the Kyoto Protocol and is based on the assumption that the Protocol will be implemented. No national limits are imposed on emissions, but Article 9 refers to the criteria for allocation plans set out in Annex III: point 1 of that annex stipulates that each Member State's total quantity of allowances must be consistent with Decision 2002/358/EC (2) and the Kyoto Protocol. In addition, point 5 of Annex III refers to Articles 87 and 88 of the Treaty, relating to competition and aid. It is thus clear that without the Kyoto Protocol the ten new Member States at any rate will not fall under any national limitation.

The Council's burden-sharing decision (Decision 2002/358/EC) does not say that the Community will limit Member States' emissions in accordance with the annex, but that ‘The European Community and its Member States shall fulfil their commitments under Article 3(1) of the [Kyoto] Protocol jointly’ (Article 2, first paragraph) and ‘The quantified emission limitation and reduction commitments agreed by the European Community and its Member States for the purpose of determining the respective emission levels allocated to each of them for the … period, from 2008 to 2012, are set out in Annex II’ (Article 2, second paragraph). If the Kyoto Protocol were to founder, the above two paragraphs would be rendered meaningless. All that would remain in force is the stipulation that ‘The European Community and its Member States shall take the necessary measures to comply with the emission levels set out in Annex II, as determined in accordance with Article 3 of this Decision’ (Article 2, third paragraph).

Article 3 has to do with determining absolute emission levels (in tonnes of carbon dioxide equivalent) for the 15 Member States in accordance with various provisions of the Kyoto Protocol, on which it therefore likewise hinges to a large extent.

Annex III to the burden-sharing decision also refers to implementation of obligations resulting from international agreements and the emission reduction commitment under the Kyoto Protocol. Can that be interpreted to mean that the force of the burden-sharing decision will be limited if the above-mentioned international agreement fails to come into being?

Is the Council's burden-sharing decision binding without the Kyoto Protocol? Can the Commission take a lawful decision to alter the burden to be shared, in tonnes of carbon dioxide equivalent, if the Kyoto Protocol does not enter into force? Can the emissions trading directive be implemented without the burden-sharing decision?

If the burden-sharing decision and the emissions trading directive are implemented in any case in their present form, would the Treaties allow ten Member States to engage in emissions trading if they had no binding emission limitation target?

Answer given by Mrs Wallström on behalf of the Commission

(7 April 2004)

The Community and its Member States firmly support the Kyoto Protocol and they are committed to meeting its objectives. The EU's 6th Environment Action Programme, adopted by the Parliament and the Member States on 22 July 2002 as Decision 1600/2002/EC (3), recognises that the Community is committed to achieving an 8 % reduction in emissions of greenhouse gases by the period 2008 to 2012 compared with 1990 levels, and that in the longer term, global emissions of greenhouse gases will need to be reduced by approximately 70 % compared with 1990 levels (recital 2 of Directive 2003/87/EC) (4).

The United Nations Framework Convention on Climate Change (UNFCCC) was adopted in New York on 9 May 1992. It has been ratified by over 180 countries. The Kyoto Protocol, adopted on 11 December 1997, complements the Framework Convention and sets reduction targets for 39 industrialised countries (the so-called Annex I countries). Its entry into force is dependent on ratification by at least 55 countries accounting for at least 55 % of the world's CO2 emissions in 1990. While the first criterion has already been met — over 120 countries have now ratified the Kyoto Protocol — the second still needs to be accomplished. In this context, only ratification of the Protocol by Russia, which is responsible for 17,4 % of the world's CO2 emissions, or the United States, responsible for 36,1 % of emissions, could swing the balance, as the remaining countries together represent only 2,1 %.

Under the UNFCCC the Community and its Member States are committed to implementing policies to reduce greenhouse gas emissions to meet its objective of stabilising greenhouse gas emissions at a level that would prevent dangerous anthropogenic interference with the climate system (Article 2).

The Community has approved the Kyoto Protocol through Decision 2002/358/EC. As such, the Kyoto protocol will, once it enters into force, become part of Community law. This Decision also contains the Community's and Member States' greenhouse gas emissions reduction targets for 2008-2012. Moreover, it requires the Community and its Member States to comply collectively with the target of an 8 % reduction. Therefore, the Community has adopted legal instruments, binding on the Member States, aimed at reaching its climate change commitments in a cost-effective manner including Directive 2003/87 on the establishment of an emission trading regime. Neither the burden sharing agreement nor the EU's emissions trading scheme are conditional on the Kyoto Protocol's entry into force.

As with any of its legislation, the Community could review Decision 2002/358/EC or Directive 2003/87 on the basis of its internal procedures, and alterations to it would have effect in Community law.

The 10 countries due to join the EU in May 2004 have all ratified the Kyoto Protocol, and the eight of them which are listed in Annex I (industrialised countries) have each been set a target on that basis — depending on the country, the required reduction ranges from 6 % to 8 %. No targets have been set for Malta or Cyprus, which are not listed in Annex I. However, Annex III to Directive 2003/87/EC contains precise and objective criteria for allocating them pollution rights in the market which will start operating on 1 January 2005 (criteria 2 to 11 apply to them). Accordingly, all 25 Member States will operate in the pollution rights market provided for by Directive 2003/87/EC. It should also be noted that the 8 % reduction target set for the European Community only applies to the 15 current Member States. This situation will not alter after enlargement, as the 10 future members will not be included in the Kyoto Protocol's ‘EU bubble’ but will continue to be subject to the targets set for them when they ratified the Protocol.

(1) OJ L 275, 25.10.2003, p. 32.

(2) OJ L 130, 15.5.2002, p. 1.

(3) OJ L 242, 10.9.2002.

(4) Directive 2003/87/EC of the Parliament and of the Council of 13 October 2003 establishing a scheme for green house gas emission allowance trading within the Community and amending Council Directive 96/61/EC.