Securing EU energy and tackling climate change: what the reform treaty will do to help

While most of the renegotiation of the constitutional treaty to produce the draft reform treaty involved stripping away symbols and some institutional innovations, the new treaty will go further than the rejected constitution on energy and the fight against climate change.

Yet it is unclear to what extent these changes will strengthen the EU’s ability to fight climate change and co-ordinate national energy policy, not least because EU governments will keep national vetoes over their energy mix.

Under the draft version of the reform treaty published by the secretariat of the Council of Ministers, the new text will retain the article on energy policy which was introduced by the constitutional treaty. It now appears as an amendment to Article 175 of the EC treaty and restates the aims to "ensure the functioning of the energy market; ensure security of energy supply; and promote energy efficiency and energy saving and the development of new and renewable forms of energy". The reform treaty draft adds an extra aim "to promote the interconnection of energy networks" as well as stating that energy policy should be carried out in a "spirit of solidarity" among member states.

This reference to solidarity is further reinforced by an amendment to Article 100 in the EC treaty saying that the Council can decide "measures appropriate to the economic situation" especially when serious difficulties emerge in the supply of certain products "notably in the energy sector". This commitment to act in solidarity was a key concession to Poland and the Baltic states which wanted pledges that they would receive help from other countries if their energy supplies were being cut off, as happened when Russia’s Gazprom shut off gas supplies to Ukraine on 1 January 2006 for three days.

But the precise form this solidarity might take is not spelled out in the new treaty. Some member states expressed concern during the negotiations that the commitment to help out other countries should not be too extensive or easily triggered lest some states took EU support for granted and were less cautious in dealing with countries like Russia.

The inclusion in the new treaty of a new article specifically on energy reflects the EU’s greater focus on energy over the last few years. But it would be unwise to assume that this article alone will lead to a great leap forward in energy policy, because the article confirms the limits of EU competence over member states’ decisions on energy. The text of the draft reform treaty states that measures in this field should be taken by the "ordinary legislative procedure", with qualified majority voting and co-decision with the European Parliament. But it adds that such measures "should not affect the right of a member state to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply". It refers to Article 234, paragraph 2, clause c which states that decisions "significantly affecting a member state’s choice between different energy sources and the general structure of its energy supply" are to be taken by unanimity.

The draft reform treaty also specifies that measures relating to taxation should be decided by unanimity.

There will be a revealing test of the extent to which member states retain veto rights over energy policy by the end of this year when the European Commission is to present legislative proposals to implement the targets for greenhouse gas cuts and the share of renewables and biofuels in overall consumption agreed by EU leaders in March. Senior Commission officials involved in drafting the proposals said in March that there were discussions over whether decision had to be taken by unanimity, given the implications for national energy mix. One pointed out, for example, that the proposals for renewables targets would have to take into account countries like France that obtain a large part of their energy from nuclear power.

The draft reform treaty reflects the EU’s focus on tackling climate change with the inclusion of a specific reference to the issue in Article 174 of the EC treaty, which states that one of the aims of environmental policy is "promoting measures at international level to deal with regional worldwide environmental problems". As decisions on environmental policy are taken by qualified majority and with co-decision with the Parliament, the inclusion of a reference to climate change here, rather than in the article on energy policy, may increase the scope for measures to address the issue.

According to Louise van Schaik, a researcher at the Dutch Institute of International Relations at Clingendael, other institutional innovations first proposed in the constitutional treaty and retained in the reform treaty will have a significant impact on the EU’s effectiveness in negotiations on international agreements like the Kyoto Protocol on reducing greenhouse gas emissions and successor agreements. Van Schaik, who made an analysis of the implications of the constitutional treaty in 2005*, says that the new high representative for foreign affairs and security policy could make a contribution to the coherence of EU policy if that person gets involved in international climate change negotiations. She says that under current institutional arrangements the presidency is largely responsible for preparing and representing the EU in treaty talks but this situation can lead to less than optimal representation in international negot-iations, as changes in position have to be co-ordinated with member states, which can result in delays. Van Schaik also says that, at the same time, the need for highly specialised knowledge on technical aspects of climate change (such as carbon sinks or clean development mechanisms) means that environment ministers should retain a responsibility for formulating the EU’s position even if the new high representative has a greater role in leading negotiations.

She also points out that under the new treaty the Parliament will be able to veto international agreements, and is not just consulted, so the Council will have to pay more attention to the assembly’s opinion and will not be so able to ignore it. But she questions whether in practice the Parliament will be tough enough to reject an international agree-ment on climate change.

There are only limited changes in the decision-making processes underpinning the EU’s efforts to create an effective energy policy and a strategy for tackling climate change as national governments want to maintain control over their energy policy, which they see as a key element of national security. But if other, less high-profile, institutional changes are used properly, they could boost significantly the Union’s coherence in international policy arenas like climate change negotiations. Whether they do so will depend on member states’ political will, the strength of the institutional players and the ambitions of key figures like the new high representative.

* Improving the climate: will the new constitution strengthen the EU’s performance in international climate negotiations? Louise van Schaik and Christian Egenhofer, Centre for European Policy Studies, February 2005.

While most of the renegotiation of the constitutional treaty to produce the draft reform treaty involved stripping away symbols and some institutional innovations, the new treaty will go further than the rejected constitution on energy and the fight against climate change.