MANDATAIRE:
Association ONG « Noé 21 »
quai Charles Page 19, 1205 Genève
MANDATEES
Déborah LASSALLE, Assistante en droit européen à l’Université de Genève
Ioana RADUCU, Assistante en droit européen à l’Institut d’Etudes
européennes
Following a thorough analysis of the definition of the principle of supplementarity, we concluded that the concrete application of this principle at the EU level (by the Commission) is not that of the Marrakech Accords.
The current application of this principle by the Commission leads to an unrealistic fulfillment of the Member States’ commitments under Kyoto.
Therefore we should demonstrate that the interpretation of this principle is not concordant with the spirit of Marrakech Accords and what possible judicial remedy we might have.
Indeed Disposition 12. 3 paragraph b) of Marrakech Accords stipulates:
Affirming that
the use of the mechanisms shall be supplemental to domestic action and that
domestic action shall thus constitute a significant effort made by each Party
included in Annex I to meet its quantified emission limitation and reduction
commitments under article 3, paragraph 1.[1]
And the Accords of Bonn, Box B, state:
Annex I Parties
shall meet their emission commitments primarily through domestic action since 1990.
We can argue in front of the judge that ‘significant effort’ and ‘primarily action’ means more than 50% of the domestic effort.
At the Community level:
The EC adopted the Directive 2003/87. The Commission proposed to modify this directive notably by quantifying the supplementarity principle. This proposal is presented in the Communication 2003/403, page 8:
The proposal therefore provides for a review to automatically take place once the number of CERs and ERUs converted for use in the Community scheme reaches 6% of the total quantity of allowances allocated by the Member States. In this case, the Commission may consider whether a maximum level of for example 8% of the total quantity of allowances should be introduced for the remainder of the period, to ensure supplementarity under the Kyoto Protocol in respect of the Community scheme and to preserve the overall objective of the Community scheme to achieve emission reductions within the EU.
Finally, Member States didn’t accept this Commission’s proposal and they adopted a linking directive 2004/101 which doesn’t give a quantitative/percentage rate of the principle. However the linking directive added criterion 12 in Annex III of the Directive.
Nevertheless, the Commission set up a calculation’ system to implement the supplementarity principle (COM(2006)725). According to the Commission, supplementarity means that the amount of CDM/JI credits should be less than 50% of the effort, defining the effort for each Member State as the biggest difference between the EU burden sharing's target of the State and its 1990 emissions or its 2004 emissions or its 2010 projected emissions.
Our quantitative analysis showed that :this Commission’s interpretation doesn’t obey the Marrakech’ definition of the supplementarity’s principle
Therefore we should ask the Court to interpret this principle in EU law according to international obligations.
Possible
Judicial Remedy
We think that the Commission’s decision to reject the NAP may be attacked under the preliminary reference procedure established by Community law.
Before explaining the procedure, keep in mind that the Directive is implemented in each Member State by a National transposition Act, which is the basis of the adoption of NAP.
Briefly explained, the preliminary reference is not a direct action before the ECJ (European Union Court of Justice) but an indirect procedure, a cooperation between judges: the ordinary domestic judge from each Member State might ask a question to the ECJ on the correct interpretation of the EU law or on the validity of the EU institutions’ acts. ECJ will answer and then the national judge will apply this answer to the domestic case.
Before attacking the directive and the Commission’s decision of rejecting the NAP you should check whether you may bring a case at national level, precisely whether it is possible to attack the NAP under domestic law.
For that, 2 questions must be answered:
-Does your NGO have the procedural capacity to act under domestic law?
-What kind of act (legislative, administrative: ex. Regulation, Order of Ministry etc) is implementing the NAP in your State? Are you still able to attack the NAP under national law (delay to sue)?
If the last answer is positive and you can still attack the national act implementing the NAP within the required time, you should bring the case in front of national judge. During this national procedure you will convince the national judge to ask a preliminary question arguing the Commission’s decision is not valid because it didn’t analyze the NAP with respect to the supplementary principle included in Annex III, criterion 12 of the Directive. In the same time, you should convince the domestic judge to ask a preliminary reference on the interpretation of the supplementarity principle.
At this moment you will demonstrate how the interpretation of this principle by the Commission is not concordant with the spirit of Marrakech Convention. If there is no definition of the principle, we should at least attempt to obtain the ECJ’s definition at the Community level, which the Commission should observe in evaluating the NAP.