Christoph Schwarte, Executive Director, Legal Response International

In his review of the EU climate policy, in the most recent edition of Climate Law, Christoph Schwarte, the executive director of OCP partner organisation LRI, draws attention to the EU’s missing notification under Article 4 of the Paris Agreement.

The European Union (EU) has long sought to play a leadership role in the international climate change negotiations. On 17 December 2020 it updated its joint nationally determined contribution (NDC) on mitigation under the Paris Agreement from at least 40 per cent to at least 55 per cent by 2030 compared to 1990 levels.^[1]

To date, the EU and its member states are the only parties to the Paris Agreement that have a joint NDC. Article 4 paragraph 16 of the Paris Agreement specifically provides that parties that have reached agreement on a joint NDC “shall notify the secretariat of the terms of that agreement, including the emission level allocated to each Party with the relevant time period, when they communicate their nationally determined contributions”. As a result, the member states of the EU (or any other economic integration organisation) would be jointly with the EU and severally liable for their individual emission levels (Article 16 para.18).

The EU Decision, approving the Paris Agreement explicitly recognized the need to notify the secretariat of the emission levels allocated to the EU and its member states.[2] The agreements, setting out the individual commitments of member states for the first (2008-2012) and second (2013-2020) commitment periods of the Kyoto Protocol were notified to the secretariat in line with Article 4.2 of the Protocol.^[3]

There is a comprehensive legal framework in place to agree, monitor and pursue the individual mitigation targets of EU member states.^[4] To reflect the new 55 per cent target the European Commission has already tabled proposals for amending the relevant legislation (e.g. on the EU Emission Trading Scheme and the Effort-Sharing Regulation). So far, however, the EU and its member states have not been able notified the UNFCCC secretariat of the terms of an agreement on their joint NDC, including member states’ emission levels.

So while this notification is missing, are the EU and its member states non-compliant with Article 4.16 of under the Paris Agreement? Yes! Article 4.16 is among the few prescriptive provisions in the Paris Agreement that contains a clear procedural obligation of conduct. But is this also a case for the committee established under Article 15 of the Paris Agreement to facilitate implementation and promote compliance? No, unless the EU “self-refer” the issue to the Committee.^[5]

The Committee can consider a party’s compliance on its own initiative in a limited number of cases only: if the party has failed to either communicate or maintain an NDC under Article 4; to submit a mandatory report or communication under the transparency framework of Article 13; to participate in the Facilitative, Multilateral Consideration of Progress; or to communicate mandatory information on finance under Article 9.5.^[6] The requirement to notify the secretariat of the terms of a joint NDC is not mentioned at all in the Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance adopted in Katowice.

So does any of this actually matter to meet the goals of the Paris Agreement? Probably, at least a bit: Article 4.16 ensures a degree of transparency and accountability. Unlike the Kyoto Protocol (Annex B), the Paris Agreement does not list parties’ mitigation targets. Where an agreement to act jointly fails or is prematurely terminated, the prior notification of individual emission levels would provide a degree of clarity (maybe also for future carbon markets) on parties’ responsibilities.

The Paris Agreement is largely built around procedural reporting obligations. To succeed parties will need to take all of the Agreement’s provisions seriously. Non-compliance could weaken its overall structure and the ability to function effectively. Other parties may also decide to develop and submit a joint NDC and the current situation risks setting a precedent for the Agreement’s future implementation and result in different interpretations of parties’ obligations.

So even if the European Union submits the missing notification before long, a formal decision by the COP serving as the meeting of parties to the Agreement (CMA) should therefore, address the issue of the missing notification under Article 4. To clarify the procedural expectations and their relevance in the future implementation of the treaty, such a decision could, for example, invite all parties that act jointly under Article 4.2 to notify the secretariat as soon as they have reached an agreement or, pending the conclusion of such an agreement, provide additional information on the likely outcome of their internal discussion or on the specific problems encountered concluding their deliberations.

For a comprehensive legal analysis of the current EU climate policy see Christoph Schwarte, EU Climate Policy under the Paris Agreement, Climate Law 11 (2021), pp.157-175, 

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[1] Germany and the European Commission, on behalf of the EU and its member states, Update of the
NDC of the European Union and its Member States, Berlin, 17 December 2020 available via www4.unfccc.int/sites/ndcstaging/Pages/Home.aspx.

[2] Council of the EU, Decision on the Conclusion, on Behalf of the European Union, of the Paris Agreement Adopted under the United Nations Framework Convention on Climate Change, 
(EU) 2016/1841, 5 October 2016.

[3] UNFCCC Secretariat, Note on the Agreement between the European Community and its Member States under Article 4 of the Kyoto Protocol, document FCCC/CP/2002/2, of 12 June 2002, which summarises the process and disseminates the agreement amongst parties. General Secretariat Council of the EU, attachment to Note Verbale, Brussels, 21 December 2017, available at unfccc.int/sites/default/files/resource/EU_2.pdf.

[4] Commission proposal for amendments supra note 8.

[5] Paris Agreement, decision 20/CMA.1, Annex, Modalities and procedures for the effective operation of the committee referred to in Article 15, paragraph 2, of the Paris Agreement, para.20.

[6] Paris Agreement, decision 20/CMA.1, Annex sub-paragraph 22 (a) i-iv).