1. Datum 03.02.2009 faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Shared Responsibilities? Shared Competences?

2. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde “Who do I call if I want to call Europe?”

3. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Lisbon Treaty Article 3(5) EU In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

4. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Lisbon Treaty Article 191 FT (ex Article 174 TEC): 1. Union policy on the environment shall contribute to pursuit of the following objectives:  preserving, protecting and improving the quality of the environment,  protecting human health,  prudent and rational utilisation of natural resources,  promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

5. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Thank you Danmark? Jens-Peter Bonde (former MEP):  “This little supplement is a Danish initiative. It is a useful political signal. One could claim that the provision itself does not change anything, since climate change will clearly be one of the global environmental problems of the future. It can also be foreseen that this supplementary objective may be used, for example, to introduce common EU taxes on, for example, CO2 emissions and thus let in provision for EU taxes through the back door.”

6. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Europa.eu Does the Treaty of Lisbon preserve what the EU has achieved for the environment? What about climate change?  Climate change is among the biggest environmental, social and economic challenges currently facing mankind. With the Treaty of Lisbon, combating climate change on an international level becomes a specific objective of EU environmental policy. The Treaty of Lisbon adds the support of international action for fighting climate change to the list of objectives defining environmental policy at EU level. In so doing, the Treaty clearly recognises that the EU has a leading role to play on the world stage in this area.

7. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Energy and Lisbon Article 194 1.In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: a) ensure the functioning of the energy market; b) ensure security of energy supply in the Union; c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and d) promote the interconnection of energy networks.

8. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Integration Article 11 (ex Article 6 TEC)  Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.

9. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Lisbon, continued >Mr Dehaene MEP: "The Lisbon Treaty will for the first time give the EU legislative power in the field of energy and climate change […]. Here lies a unique opportunity for the European Commission to develop a strong and coherent legislative programme […] that addresses these issues which are so important to European citizens and which need a cross- border solution. It is an exceptional chance to show Europeans what Europe can achieve for them."

10. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde However >The environment is one of the spheres of competence shared between the Union and the Member States. >Article 2(2) FT: “When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.” >Article 4(2) FT: “environment” + “energy” are shared competences >And not exclusive Article 2(1) FT: “1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

11. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Lisbon continued Article 191 FT (ex Article 174 TEC): 4.Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

12. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Mixed Agreements 1.Complex negotating and coordination procedures (Article 218 FT, ex Article 300 TEC) 2.Voting procedures  Art. 22(2) Kyoto protocol: “Regional economic integration organizations, in matters within their competence, shall exercise their right to vote with a number of votes equal to the number of their member States that are Parties to this Protocol. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.” 3.Division of power clauses

13. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Division of Powers The European Community declares that, in accordance with the Treaty establishing the European Community, and in particular Article 175(1) thereof, it is competent to enter into international agreements, and to implement the obligations resulting therefrom, which contribute to the pursuit of the following objectives:  preserving, protecting and improving the quality of the environment;  protecting human health;  prudent and rational utilisation of natural resources;  promoting measures at international level to deal with regional or world wide environmental problems. The European Community declares that its quantified emission reduction commitment under the Protocol will be fulfilled through action by the Community and its Member States within the respective competence of each and that it has already adopted legal instruments, binding on its Member States, covering matters governed by the Protocol.

14. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Some concrete problem areas >The external trade aspects? Common Commercial Policy is an exclusive competence; possible relevance of the Rotterdam Convention case? >Financial burdens for the MS and the International Rubber Agreement (Opinion 1/78) >Implications of Article 193 (ex Article 176 TEC): “The protective measures adopted […] shall not prevent any Member State from maintaining or introducing more stringent protective measures.”

15. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Subsidiarity Reversed? Article 5(3) EU Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

16. faculteit rechtsgeleerdheidbestuursrecht & bestuurskunde Why not? With respect to worldwide environmental problems and under the principle of reversed subsidiarity the Member States shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the European Union. Or: if the EU can do it alone, they should do it alone