The delegated power to decide on the trajectory towards 2050
Article 3 of the proposed Climate Law would give a delegated power to the Commission to 'supplement' the Climate Law, thereby “setting out a trajectory at Union level to achieve the climate-neutrality objective set out in Article 2(1) until 2050." Article 3(3) includes the criteria that the Commission must consider when determining the trajectory every five years. But what this decision precisely entails remains unclear and even a definition of the term ‘trajectory’ lacks. The criteria proposed are also general, including vague objectives such as “cost-effectiveness” and a “just and socially fair transition” - and also lack a definition.

The proposal raises the obvious question as to whether such a far-reaching and vaguely defined power can be delegated to the Commission, or whether the decisions on the path to 2050 should be reserved to the formal legislator. The possibility to delegate powers is provided for in Article 290 TFEU which sets out a framework providing for a number of conditions that need to be respected and a mechanism through which the European Parliament and the Council can exercise control over the Commission. With regard to the conditions, the specificity requirement and the essentiality requirement must be noted. With regard to the former, a legislative act conferring an authority to supplement or amend formal legislation should not give a carte blanche, but must expressly define the “objectives, content, scope and duration of the delegation of power". The essentiality requirement prohibits the legislator from allowing the Commission to adapt or supplement the essential elements of legislation.

As already noted above there are uncertainties about what is meant by 'trajectory' and, importantly, what exactly the Commission can decide in this context. To date, the emission reduction targets have been laid down in formal EU legislation (which prescribes targets for Member States until 2030). However, now that the Commission proposes to grant it the power to establish (at least) the post-2030 trajectory, the question arises whether the Commission wants to take over the steering wheel from the European Parliament and the Council.

Article 9 of the proposal sets out how the Commission would exercise the delegated power. The Commission would thus develop draft trajectories in consultation with experts designated by the Member States. Each draft trajectory would be submitted to Parliament and the Council, which then have two months (renewable for another two months) to veto them independently from each other. In this regard, the proposed procedure would be fully in line with what is common in established legislative practice.

The Commission proposal therefore appears to be in line with Article 290 TFEU in terms of procedure - but whether the substantive conditions are met seems more doubtful. As regards the essentiality requirement, the Court has already ruled that the formal legislator should decide on the political issues. In doing so, the Court pays special attention to the legislator's objective, which in this case would be climate neutrality, and possible restrictions on fundamental freedoms.

In the present case, the fundamental question is how concrete the legislator must be in determining the objective of the legislative action and in specifying the content and scope of the delegation, assuming that Parliament and Council indeed wish to leave the definition of the trajectory to the Commission. Is 'climate neutrality by 2050' the objective and are the criteria in Article 3 (3) sufficiently concrete? If so, fleshing out the process may be left to the Commission. If not, the legislator must make a more concrete statement on both the aim of climate neutrality and how we should work towards it. This would therefore be a legal argument for Parliament and Council to require, during the legislative process, that they retain a more active control over the decision on the trajectory.

The assessment of the Member States’ measures
Under the current legislation in force, Member States are already required to submit comprehensive national climate and energy plans to the Commission. The current proposal supplements this with the power of the Commission to assess these plans in the light of the trajectory determined by the Commission (Article 6 (1)). The European Environment Agency would be involved in this evaluation, but the final assessment lies with the Commission itself. When the Commission considers that national measures are inconsistent with the trajectory, it can make public recommendations to the Member States. In line with Article 288 TFEU these would be non-binding, but the Climate Act would oblige Member States to "take due account" of these recommendations. If a Member State does not follow a recommendation (or only partially), it would have to explain why it does not follow the recommendation.

In essence, this mechanism does not differ much from the already known open method of coordination: although no binding material obligations are imposed on Member States, attempts are still made to change their behaviour through public naming and shaming and the imposition of a duty to state reasons (comply or explain). The future will show whether this soft approach leads to sufficiently ambitious climate action on the part of the Member States.     

From a purely legal point of view, the proposed assessment mechanism as proposed by the Commission is difficult to criticize. Fortunately, EU climate legislation lays down hard emission reduction targets at least until 2030. It would seem a missed opportunity if only the proposed soft assessment mechanism would be in place for the period after 2030. That is perhaps the greatest danger of this proposal: that the EU's stringent rule-of-law-based emission reduction approach becomes (too) a soft approach.

Written by Merijn Chamon and Marjan Peeters

The original Dutch version of this blogpost was published in De Hofvijver, the monthly bulletin of the Montesequieu Institute.