Law students from the European Union are reporting for JURIST on law-related events in and affecting the European Union and its member states. Jacky-Long Mouthuy is a law student at Maastricht University. He files this dispatch from Maastricht, Netherlands.
As wildfires plague Cyprus, Greece, Italy, Slovenia, Spain and many other countries across the globe witness the effects of climate change, it’s apparent that the EU’s environmental policy is in trouble. Last Wednesday Poland challenged the legality of two major EU legal acts that are part of the “Fit for 55” package currently before the Court of Justice of the European Union (CJEU). Fit for 55, the flagship of the EU environmental policy, is a bundle of legal acts aiming at reducing the EU’s greenhouse gas (GHG) emissions by at least 55% by 2030. The target represents a milestone towards the objective of creating a carbon-neutral EU by 2050.
The two challenged acts are the revised EU Emission Trading System Directive (EU ETS) and the Carbon Adjusting Border Mechanism Regulation (CBAM). The former empowers Member States to give allowances to industrial sectors to emit a certain amount of GHG, thus imposing an emission cap on installations. If an industrial installation fails to emit less than the imposed cap, it can purchase allowances to another installations. The increase of environmental obligations upon companies prompted several of them to relocate their installations outside of the EU. CBAM aims at remedying this effect. Importers have to purchase CBAM certificates, which mirror ETS prices, corresponding to the GHG emissions to produce the imported good.
Concerning the EU ETS Directive, Poland claims that the wrong procedure as well as the wrong legal basis have been used to adopt it. As for the CBAM, Poland claims that the Regulation infringes several fundamental principles of EU law. These actions for annulment pile up on the CJEU’s desk, which is already dealing with four Polish complaints against other environmental laws. Those submissions relate to the EU ban on registration of combustion vehicles as of 2035, the reduction of the maximum amount of GHG emission, the reduction in the number of free allowances available under the ETS and the recent CJEU ruling declaring Poland’s forest management incompatible with EU rules. The repeated challenges of EU regulations tackling climate change by Poland is explained by the fact that its industry and energy security heavily rely on fossil fuels.
In 2019, when the EU adopted the 2050 target to become carbon neutral, Poland was the only Member State opposed to the plan. This might have predicted the future challenges that Poland would present to EU environmental efforts. But beside the Polish government, EU environmental policy is facing another challenge: time.
It is less than a year before the next EU elections in June 2024 and it is yet uncertain who will preside over the Commission and the Council, the co-legislators with the EU Parliament, which will also be renewed itself. This race against time both regarding climate urgency and the upcoming elections was felt in the last weeks before the August break. Just before that break, the Council approved the adoption of several environmental legal acts, namely the regulations on ensuring a level playing field for sustainable air transport (ReFuelEU aviation) and on the use of renewable and low-carbon fuels in maritime transport (FuelEU maritime), the Energy Efficiency Directive and the Regulation on the deployment of alternative fuels infrastructure. Many other files remain to be discussed, such as the Energy Taxation Directive whose revision is still pending since 2021. That will most likely be a matter for the next legislature which will prove to be crucial in the pursuit of the 2030 and 2050 targets.
