Study “Toward a Climate and Energy Union: The constitutional basis for a sustainable transformation” published
A team of researchers at Leiden University’s Europa Institute authored an extensive study on the potential for a Climate and Energy Union within the EU constitutional framework. The study was published by the European Parliament in December 2024.
Broad discretion for the EU legislature to act on climate and energy
The study considers the space for a Climate and Energy Union in the EU’s existing constitutional framework. It provides a detailed analysis of the EU’s existing competences in the fields of energy and climate, highlighting some ambiguities that remain as to the interaction between various competences and limits expressly set out in the Treaties. Overall, the report concludes that there is significant leeway left to the EU legislature on the choice of legal basis. The principle of energy solidarity, the EU objectives laid out in the Treaties, and the EU’s international climate obligations, and an emergent notion of European (energy) security all support a broad reading of the EU’s competences in energy and climate.
The report looks at whether Member States may resist EU climate action on grounds of security concerns. Here, an analysis of the Court’s case law on the notion of “security” (in its various iterations), taken together with the extensive EU legislative framework on energy security today, leads to the conclusion that there is at present very little room for the Member States to do so.
However, the report cautions that the perspective of national courts and national law must be considered. It points to the increasing tensions between the CJEU and national courts on how (national) security or other concerns may limit EU integration. Potential limits, then, to EU climate and energy action posed by national law or courts must be taken seriously. Moreover, consideration must be given to how the sort of major and quick reforms needed to address the climate crisis may be achieved with due consideration for democracy and fundamental rights.
Funding the green transition … through creative legal thinking?
The question of financing will clearly be crucial to the green transition. The report looked at how the EU may fund green initiatives. It looks, in particular, a the creative use of Article 122 TFEU for the EU’s major economic recovery instrument during the Covid-19 pandemic. This Article was also the basis for several legislative files under the REPowerEU initiative, to address the energy crisis precipitated by Russia’s full-scale invasion of Ukraine and accelerate the green transition. The report is tentatively optimistic that Article 122 TFEU, intended to allow for EU action in exceptional circumstances, could be used to fund measures addressing the climate crisis.
However, it cautions that the “increasing legal gymnastics … to squeeze politically necessary actions into the EU legal framework” comes at the price of legitimacy and legal certainty.
No individual right to sustainable energy … but a decreasing space for inaction
The final section of the report looks at the EU human rights framework. No individual right to clean and affordable energy exists under EU law. While the report concludes that it is unlikely for such a right to emerge through national or European courts, it does identify a positive trend whereby courts are increasingly forcing States to take sufficient action to meet their climate objectives. This approach forces action, while leaving the precise measures up to the government. In this way, individuals may put increased pressure on governments to meet the binding climate objectives which they have signed up to.
The study, entitled “Toward a Climate and Energy Union: The constitutional basis for a sustainable transformation” is available here. It was commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee. The study, entitled ‘Towards a Climate and Energy Union: The constitutional basis for a sustainable transition’ was a team effort of the Europa Institute, authored by Armin Cuyvers, Vincent Delhomme, Elena Kukovica, Sinéad Mulcahy, Darinka Piqani, and Corlijn Reijgwart.