Renewable energy has been an area of considerable policy activity in the European Union (‘EU’) during the last decade. In 2009, EU Directive 2009/28/EC (the ‘second Renewables Directive’) established an overall ‘binding’ target for the EU of sourcing 20% of its energy from renewable sources by 2020, based on individual member state targets. However, one issue that looms large over the EU’s climate change crusade is the mechanism for enforcement of its own targets.
The second Renewables Directive amends and eventually repeals two previous Directives relating to renewable energy. The first of these is EU Directive 2001/77/EC (the ‘first Renewables Directive’) on the promotion of electricity from renewable sources, which set out an ‘indicative target’ for the EU of 21% renewable electricity consumption by 2010. The second is EU Directive 2003/30/EC on the promotion of the use of biofuels or other renewable fuels for transport, which set out an indicative target of 5.75% for the transport sector in 2010.
A 2009 progress report by the Commission suggests that the EU will fall short of its 2010 renewable energy targets as set out in the first Renewables Directive and the Biofuels Directives. The Commission projects that the EU will achieve 19% instead of the target of 21% of total electricity consumption, and 4% instead of the 5.75% target for the transport sector.
This failure may in part be due to the absence of binding targets in either directive. As Angus Johnston points out, there is no breach of either Directive where a member state simply fails to achieve its indicative target. Instead, the Commission has been forced to launch infringement proceedings (discussed in further detail below) based on, for example, failure to comply with reporting obligations or to set national targets in compliance with the reference figures in the Directives. Indeed, the Commission stated in its 2009 progress report that it had commenced 61 infringement proceedings against member states for non-compliance with the first Renewables Directive, and 62 proceedings for non-compliance with the Biofuels Directive. However, poor progress and the high number of proceedings led it to comment that ‘the legal framework is not sufficiently strong’.
The criticisms of the first Renewables and Biofuels Directives and the Commission’s recognition of the weakness of the enforcement regime precipitated a number of changes in the formulation of the second Renewables Directive. First, under the second Renewables Directives the targets themselves are binding. Article 3(2) states:
Member States shall introduce measures effectively designed to ensure that the share of energy from renewable sources equals or exceeds that shown in the indicative trajectory set out in Part B of Annex I.
This contrasts with the wording in, for example, the first Renewables Directive, which merely stated that member states ‘shall take appropriate steps to encourage greater consumption of [renewable energy]’ (emphasis added).
Furthermore, member states are subject to a range of other obligations under the second Renewables Directive. Member states were obliged to submit a national renewable energy action plan setting out national targets for renewable energy in transport, electricity and heating by 30 June 2010 (Article 4(1)), and must submit a progress report at the end of 2011 and every two years thereafter (Article 22). Where a member state falls below its indicative trajectory, it must submit an amended national action plan setting out ‘adequate a proportionate measures to rejoin’ the indicative trajectory (Article 4(4)). There is also a raft of other obligations on member states that go well beyond the subject matter covered by the two previous Directives. These include obligations relating to:
• reporting to the Commission on joint projects between member states and projects with ‘third countries’;
• the responsibilities of the national administrative bodies, and the relevant authorisation, certification and licensing procedures;
• technical specifications relating to renewable energy equipment;
• building codes designed to increase the share of renewable energy in the building sector and reduce overall energy consumption;
• ensuring that new or renovated public buildings fulfil ‘an exemplary role’ in the context of the Directive;
• the efficiency of biomass conversion technologies, heat pumps and solar thermal energy equipment;
• the provision of information and guidance to the relevant actors as regards, for example, support measures for renewable energy and certification schemes;
• systems for guaranteeing the origin of energy from renewable sources;
• the improvement of grid infrastructure to accommodate more electricity production from renewable sources;
• biofuels and bioliquids – including sustainability criteria and verification thereof, and the calculation of the greenhouse gas impact of biofuels and bioliquids; and
• the use of energy from renewable sources in transport.
Thus, there is in theory plenty for the Commission to hang its hat on with regard to enforcement. However, while the Commission is required to commence infringement proceedings against member states that do not meet their 2020 renewable energy obligation, the lack of binding interim targets may be seen as a significant weakness of the Directive. According to Emese Kottasz at the European Commission Directorate-General for Energy and Transport, interim enforcement by the Commission would require the commencement of infringement proceedings on the grounds of: (i) failure to produce a credible national action plan; (ii) failure to implement all aspects of the Directive; (iii) significant deviation from plan or trajectory; or (iv) valid complaints from any EU citizens regarding incorrect implementation or enforcement by member states.
Unfortunately, infringement proceedings are procedurally cumbersome. The first avenue for enforcement is infringement proceedings instigated by the Commission under Article 258 of the Treaty on the Functioning of the European Union (‘TFEU’). Stage one of this process involves the Commission giving a ‘reasoned opinion’ after allowing the member state to submit its observations. The second avenue for enforcement is infringement proceedings commenced by other member states under Article 259. Proceedings under the second avenue can as a general rule only be commenced after the member state has brought the matter to the attention of the Commission, and the Commission has delivered a ‘reasoned opinion’ on the basis of submissions from both parties.
If the member state does not comply with the Commission’s opinion in either case, the matter may then be brought before the European Court of Justice (the ‘Court’). Article 260 empowers the Court to require the recalcitrant member state to take such measures as are necessary to comply with its judgment. If the member state fails to comply with the first judgment of the Court under Article 260, subsequent action would then need to be taken under the Article requesting that the Court impose a penalty payment on the member state for failure to comply with the first judgment of the Court. Once again, the Commission must give the member state the opportunity to submit its ‘observations’.
It is readily apparent that such infringement proceedings, involving multiple steps and multiple actors, could potentially take years to produce results.
The difficulties associated with herding EU member states towards the EU’s renewable energy targets cannot be overstated. Enforcement of these targets will conceivably require a combination of ‘soft’ measures (e.g. pressure on member states through publicity) and infringement proceedings with associated penalties and, as Angus Johnston points out, will likely involve a number of actors at both the EU and national levels. As 2020 approaches, the success or otherwise of enforcement of the second Renewables Directive may have significant repercussions for EU energy and climate change policy.
Stuart Hohnen, LLB University of Melbourne, MPhil, University of Cambridge