Editorial of December 2022

By Nataly Machado (Master in European Union Law from the School of Law of the University of Minho)

What if mechanisms of solidarity had more effectiveness beyond the borders of the European Union? At least for the climate crisis?

On 24 November last, the European Union (“EU”) energy ministers reached an initial agreement, albeit with some differences[1], on the content of the proposed Council regulation on enhanced solidarity for further temporary emergency measures aimed at curbing high energy prices through better coordination of joint gas purchases on world markets, with the objective of the Member States not competing with each other. Furthermore, they decided on gas exchanges across borders, with “measures enabling Member States to request solidarity from other Member States in cases where they are unable to secure the quantities of gas essential to ensure the operability of their electricity system[2], and reliable price reference standards, which will provide stability and predictability for Liquified Natural Gas “LNG” transaction prices, with the new index until 31 March 2023. Also, the EU energy ministers agreed on the content of a Council regulation laying down a temporary framework to accelerate the permit-granting process and the deployment of renewable energy projects[3].

The abovementioned shows that solidarity in the context of the EU should have a more pragmatic and concrete approach – and explained by the cooperation between Member States –, since it imposes legal obligations, such as being loyal in mutual relations and undertaking all necessary efforts to achieve common goals. In other words, the possibility of justification for an imposition of solidarity linked to legal duties remains clear, since it is a question of a sharing of common tasks/responsibilities[4].

In this context, solidarity, as a legal principle that cuts across the foundations and purposes of environmental protection and of the European project itself, cannot be understood as a generous act or an altruistic virtue, on which a Member State expects to receive something in return after an act of solidarity, but rather an act (through collective action) that expects the same future response in return for the costs and risks assumed among the Member States that chose to belong to a community based on democratic principles when they joined the European project.

Furthermore, the term solidarity, already in the preamble of the Treaty on European Union (“TEU”), confirms that the Treaty’s signatories declare that the EU will be established in accordance with the signatories’ desire to “deepen the solidarity between their people while respecting their history, culture and traditions”. In order words, cooperation between European nations becomes the manifestation of the fundamental principle of solidarity, which underpins and guides all actions between Member States, Union and citizens (in every direction) in return for the costs or risks taken by choosing to be part of the Union.

This means that solidarity is at the core of European integration and that, right in the preamble of the TEU, there is the confirmation that the Treaty’s signatories, because they belong to the Union on a full-time basis, must take solidarity into account permanently in order to respond to the most diverse challenges. To rephrase it, the principle of solidarity is reflected as a guiding principle for all other principles of Union law, as the foundation of a pact of co-responsibility that strengthens the interdependencies between the Member States and their citizens, and as an objective through a network of cooperation, with common and differentiated responsibilities, necessary to achieve the objectives of the EU, specifically in relation to environmental protection that, in turn, permeates all Union policies.

And in a reality whose natural resources are put to the test of their existence, with human practices which expose the environment to situations of risk, the principle of solidarity, as a value and objective of the EU, assumes a leading legal and constitutional role in a Union based on the rule of law and, at the same time, intensifies the idea of sharing responsibilities for the protection of fundamental rights between the supranational, the state and the citizens. This explains how the principle of solidarity, through solidarity mechanisms in (of) the EU, grounds and aims at crisis management, be it immigration, the COVID-19 pandemic, energy, environmental, climate.

In the context of the climate crisis, internally, the EU has as one of its great intentions to enable ambitious projects – and here we quote the European Green Deal – that aim to allow an economic growth decoupled from the unbridled use of natural resources and an equitable society and the welfare of its citizens through a fair transition, in order “leave no one behind”. There are several pillars that stand out in the European Green Deal and one of the solidarity mechanisms that we mention here, which manifests itself through the principle of common but differentiated responsibilities, refers to the EU Emissions Trading System (“EU ETS”), “the world’s first major carbon market and remains the biggest one[5] the so-called “EUbubble”, which stipulates “to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner[6], respecting the economic contexts and energy options of the Member State differ greatly from one State to another.

This is one of the marks aimed at ensuring the EU as a global leader on the challenges of climate change and environmental degradation, through a “green deal diplomacy”, by trying to promote and demand solutions externally by internal examples. An environmental diplomacy led by the Union[7] that “persuades and supports third countries to take on their share of promoting more sustainable development, with special attention to the G20 economies which are responsible for 80% of global greenhouse gases (“GHG”) emissions and a closer dialogue with its immediate neighbours, since the ecological transition at European level can only work if the EU’s immediate vicinities also takes effective action[8].

There is therefore no contradiction between resolute regional action and a determined international commitment: it is through its regional action that the EU can build the conditions for an international consensus through a knock-on effect; it is within the regional institutional framework that the EU must implement in practice what it proposes, only then to have the international community play its part in promoting more sustainable development.

And given the recent sequence of crises paired with the EU’s long-term goals for a green and digital future, several attempts have been made internally, through the legal basis underpinning solidarity in the European context, to activate the solidarity mechanism in the event of a real gas supply shortage and to better coordinate joint gas purchases in order to limit the volatility of gas and electricity prices and establish reliable reference indices for gas prices[9].

Therefore, let us go back to the external level. In the scope of COP27, which escaped total failure, the EU pleaded a new commitment for a greater reduction of greenhouse gases from 55% to 57% by 2030[10]. However, even being a central theme in the fight against global warming, there was no advance in what concerns the reduction of emissions by the other countries, namely the richest and most polluting ones[11], with criticism even in relation to the timid increase of goal by the EU[12].

The creation of a loss and damage fund to compensate vulnerable and poorer countries, which are the most affected by the climate crisis, Alliance of small island states (“Aosis”) and others[13], for losses and damage was an advance, but not a substantial one, since the details of this plan are still open and its operation and funding will have to be worked out by a «transition committee» by COP28, which intends to define who will be the donor countries, who will receive the money, what are the criteria to define which are the vulnerable countries[14]. It is, therefore, the creation of a solidarity mechanism that is being requested by countries most vulnerable to climate change, namely the Global South, and that has put this mechanism as a precondition for a final agreement at COP27. The reality is that these vulnerable countries are distrustful towards developed countries, since these have not even managed to fulfil what was agreed in 2009 at the Copenhagen Summit on the commitment of developed countries to mobilise US$ 100 billion of adaptation funding from developed nations to low-income countries by 2020[15]. Moreover, a mechanism or fund that compensates for the losses and damages caused by natural disasters in developing countries is not enough. The debate must be kept active with a greater commitment to reduce greenhouse gases, especially from developed countries.

Nevertheless, there is a small but noticeable difference now: there seems to be more political will than before on the part of some countries. However little. Here we cite the need to reaffirm the leading role of the EU so that, as the third largest emitter of greenhouse gases after China and the USA[16], it can use the legal basis on which the European Green Deal is founded, namely the principle of solidarity, to apply solidarity mechanisms to developing countries that are vulnerable to climate change.

If the EU is seeking to establish itself as a world leader in the fight against climate change, it should begin to do so by example. It is not enough to lead by demand. It is necessary for a bloc such as the EU to exercise its leadership in a change of mentality in environmental diplomacy with the effective application of solidarity mechanisms outside the EU’s internal borders, not to mention the mechanism for financing damage and losses in vulnerable countries, which has not seen a solution for 30 years[17]. Not only that, but it must start to implement, in a transparent manner, beyond its borders, clear plans, clear policies, sustainable finance and technical capability, in order to mitigate and adapt the effects of climate change for those who are bearing the heaviest burden and are unable to do so[18].

It is at domestic level that coherence and success in the practical realisation of the Union’s strategic plans should be shown as good examples for achieving climate neutrality, protecting and restoring natural ecosystems, using resources sustainably and improving human health[19]. If the principle of solidarity, which underpins and gives purpose to the European project itself, including environmental protection in the EU, and serves as a foundation for facing constant crises through the joint action of the MEPs and the most varied solidarity mechanisms, why not apply the same premises in a crisis that does not recognise borders? If the EU does not lead the way in mitigating climate change, honestly, who will?

[1] For further development, see “(…) the European Commission outlined proposals to introduce a “dynamic price ceiling” for gas imported in the EU, leaving the details of how this should be done for later.” (…)  «the EU Commission proposal to cap the gas price at €275 per megawatt-hour. The plan had been criticised by experts and politicians alike, who pointed out the ceiling was put at such a high level it was unlikely ever to apply.» at  https://euobserver.com/green-economy/156467  https://www.euractiv.com/section/energy/news/brussels-kicks-gas-price-cap-proposal-down-the-road-amid-growing-frustration-in-eu-capitals/ 

[2] For further development, see https://www.consilium.europa.eu/pt/press/press-releases/2022/11/24/further-measures-to-tackle-the-energy-crisis-council-agrees-on-joint-purchases-of-gas-and-a-solidarity-mechanism/

[3] For further development, see https://www.consilium.europa.eu/en/press/press-releases/2022/11/24/eu-to-speed-up-permitting-process-for-renewable-energy-projects/

[4] In that sense, Rita Lages underlines that: (…) la solidaridad se encuentra em las fundaciones de la integración europea, debiendo realizarse mediante una «solidaridad de hecho», i.e., através de esquemas racionales y eficazes de cooperación  e que (…) la Unión se sosteniene mientras todos y cada uno de sus miembros puedan de ella beneficiarse equitativamente; y por ende, todos y cada uno responden ante ella en conjunto, repartiendo las cargas de la integración (responsabilidad in solidum). Cfr. Rita Lages de Oliveira, “Un estudio preliminar sobre la solidaridad como valor y objetivo de la Unión Europea”, América Latina y el Caribe-Unión Europea: el valor de la integración regional y del diálogo entre regiones (Santiago de Chile: ECSA Chile, 2015), 51-52, https://www.academia.edu/31944993/Un_estudio_preliminar_sobre_la_solidaridad_como_valor_y_objetivo_de_la_Uni%C3%B3n_Europea

[5] For further development, see https://climate.ec.europa.eu/eu-action/eu-emissions-trading-system-eu-ets_en  https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32009L0029

[6] For further development, see https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32009L0029

[7] For further development, see https://www.consilium.europa.eu/en/policies/climate-change/climate-external-policy/

[8] Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions The European Green Deal, 11.12.2019, COM/2019/640 final. Information available at  https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1588580774040&uri=CELEX%3A52019DC0640

[9]For further development, see https://www.consilium.europa.eu/pt/press/press-releases/2022/11/24/further-measures-to-tackle-the-energy-crisis-council-agrees-on-joint-purchases-of-gas-and-a-solidarity-mechanism/

[10] For further development, see https://www.liberation.fr/environnement/climat/a-la-cop-27-lue-rehausse-legerement-ses-objectifs-climatiques-20221115_ULNIU3OPNZBQNHWQJ4REJREC5M/

[11] For further development, see https://www.swissinfo.ch/por/ue-diz-%C3%A0-cop27-que-aumentar%C3%A1-ambi%C3%A7%C3%A3o-clim%C3%A1tica/48059842

[12] For further development, see https://www.publico.pt/2022/11/15/azul/noticia/ue-aumenta-55-57-meta-reducao-emissoes-ate-2030-sao-migalhas-zero-2027797  https://www.bloomberg.com/news/articles/2022-11-21/how-cop27-ended-with-success-on-climate-justice-and-failure-on-emissions?leadSource=uverify%20wall

[13] For further development, see  https://www.theguardian.com/world/2022/nov/21/pacific-leaders-celebrate-cop27-victory-on-loss-and-damage-fund-after-decades-of-advocacy

[14] For further development, see https://www.dn.pt/internacional/cop27-potencial-acordo-faz-ressurgir-esperanca-mas-faltam-certezas-15368475.htm

[15] For further development, see https://news.un.org/pt/story/2022/11/1804672  https://www.publico.pt/2022/11/06/azul/noticia/luta-fugir-circulo-vicioso-divida-clima-2026413

[16] For further development, see https://www.lse.ac.uk/granthaminstitute/news/why-cop27-will-be-remembered-as-the-loss-and-damage-cop-and-what-to-expect-next/

[17]For further development, see https://www.euronews.com/my-europe/2022/11/21/cop27-eu-left-disappointed-by-lack-of-ambition-in-final-deal-calling-it-a-small-step-forwa  https://www.theguardian.com/world/2022/nov/21/pacific-leaders-celebrate-cop27-victory-on-loss-and-damage-fund-after-decades-of-advocacy

[18] For further development, see https://sdgs.un.org/goals/goal13

[19] “(…)from the example of Europe the rest of the world will not want to be left behind.” Cfr. Carlos Abreu Amorim, “European Climate Law – the point of non-return of environmental protection”, UNIO EU Law Journal (July, 2021), in https://officialblogofunio.com/2021/07/06/editorial-of-july-2021/

Photo by Alena Koval on Pexels.com.

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