Shared Accountability of the European Union and its Member States within the Climate Change Regime

This paper addresses the distribution of accountability between the European Union (EU) and its Member States under the current and future climate regime. Belonging to a field of shared competence between the EU and its Member States, the climate regime is, and will continue to be composed of ‘mixed agreements’, not distinguishing between the obligation of the EU and its Member States. Therefore, the question will arise how to determine the accountable entity in case of non-compliance. Under the current regime, a joint and proportional accountability rule applies to the ‘European bubble’ common emission reduction target. This rule seems perfectly suited to the nature of the EU, and should therefore be maintained in the next climate agreement. For the other commitments, third Parties, the Secretariat and the Kyoto Protocol Compliance Committee enjoy a margin of discretion to evaluate whether it is pragmatic to address non-compliance with regard only to the Member State concerned or to involve the EU in the process. This approach favours return to compliance. An ad hoc intra-European mechanism then should allow the designation of the actual accountable entity. Besides, to avoid holding a component of the ‘European whole’ accountable, while the actual accountable entity is another one, some intra-European actions for recovery are available to the EU, its Member States and even private persons situated within their territories.