Implementation cannot wait: civil society calls on the European Commission to tackle national energy and climate shortcomings
As of October 2024, virtually all national energy and climate plans (NECPs) submitted by Member States are insufficient to achieve the EU’s climate and energy targets. A coalition of NGOs has shown a spotlight on these failures by filing formal complaints to the European Commission against France, Germany, Ireland, Italy and Sweden.In light of the transnational, systemic implications of these deficiencies, the European Commission has been called upon to ensure that any implementation gap in the updated NECPs is narrowed by taking actions, including by starting infringement proceedings against Member States, where necessary.
The coalition tackling the insufficient implementation of national climate plans
EU law requires Member States to adopt and implement National Energy and Climate Plans (NECPs), a strategic planning document delineating how they will contribute to the implementation of EU-wide climate and energy objectives. Member States were required to submit updated NECPs to the Commission in June 2024. These updated NECPs are critical to the success of the EU’s energy and climate policies, as they outline how Member States intend to implement the 2030 targets set out in the European Climate Law, the ‘Fit for 55’ package and the RePowerEU Plan. However, as of October 2024, many Member States have yet to submit their updated NECPs. Moreover, according to the European Climate Neutrality Observatory, all the NECPs submitted so far are largely insufficient to achieve the targets and contributions set out in EU law, showing a significant gap between the EU’s long-term climate and energy targets and the policies set to achieve them.
As such, on 6 November 2024, a European coalition of NGOs (including A Sud and WWF Italy, Environmental Justice Network Ireland, Germanwatch, Notre Affaire à Tous, SEAL and SSNC) filed formal complaints with the European Commission, alleging that France, Germany, Ireland, Italy and Sweden’s NECPs are in breach of EU law. In particular, the NGOs have made clear that: 1) the measures outlined in these five NECPs are insufficient to achieve the climate and energy targets and national contributions required under EU law; 2) the NECPs show a widespread lack of transparency with respect to the phase out of fossil fuels subsidies; and that 3) these Member States did not fulfil their duty to adequately involve the public in the decision-making process leading to the preparation and adoption of the plans.
The complainants highlight that Member States’s failure to adopt and implement adequate NECPs will have tangible consequences for collective climate action, in Europe and beyond. The Commission itself recalled that “failed or weak implementation of environmental rules can have multiple damaging effects for the planet, for the population and for the economy”. Inadequate NECPs will also undermine the EU’s capacity to do ‘its part’ to keep the 1.5°C long-term temperature limit within reach. Failure to limit global temperature rise will have further significant impacts on human rights and fundamental freedoms, as already established by several European courts, including in the Netherlands, Germany and Belgium. Along these lines, the European Court of Human Rights established that a State’s failure to properly assess and implement climate mitigation measures in line with best available evidence is a human rights violation under the European Convention on Human Rights. Overall, the complaints stress that NECP-related shortcomings risk jeopardising the achievement of the 2030 climate and energy targets, while further undermining the feasibility of the long-term legislative framework currently being discussed at the EU level (such as the proposal for a EU-wide 2040 climate target, expected to be released in the first 100 days of the new Commission).
The unique position of the European Commission to enforce EU climate law
The Commission’s ability to launch infringement proceedings is a crucial tool in upholding legal compliance across the EU, also in the context of climate action. Under the Governance Regulation, the Commission is empowered to monitor, assess and, if necessary, take action against Member States that fail to meet their NECP obligations. Articles 31 and 32 of the Governance Regulation underscore the Commission’s responsibility to intervene where Member States fall short, emphasizing the need for the Commission to “exercise its powers at Union level” to bridge any “delivery gap” and ensure that EU climate and energy targets are met. This mandate aligns with recent findings from the European Scientific Advisory Board on Climate Change, which has stressed the role of the Commission not only to ensure that NECPs comply with legal requirements, but also to take enforcement action if needed.
A 2024 study evaluating the implementation of the Governance Regulation revealed significant challenges that may render infringement proceedings unavoidable. Although Member States are required to “take into account” the Commission’s recommendations, they are not legally obliged to follow them. The study found that, in 2020, over half (53%) of the Commission’s recommendations for NECPs were only partially addressed by Member States, and 13% were ignored altogether. This trend suggests that the non-binding nature of the Commission’s recommendations on draft and final updated NECPs is insufficient to ensure full compliance, contributing to an uneven implementation of the EU’s climate agenda at the national level.
The core question is whether the Commission will use its discretionary powers to take legal action against Member States that are breaching EU law with respect to the targets contained in their NECPs and/or public participation requirements. Pursuant to its Communication ‘Better results through better law-making’, when the Commission makes a decision to initiate an infringement procedure under Article 258 TFEU, it has adopted the strategic approach of being “bigger and more ambitious on big things, and smaller and more modest on small things”. This translates into taking into account, among other things: i) whether there may be a systemic impact beyond one Member State; ii) whether the attainment of important EU policy objectives is prejudiced; and iii) whether there is an added value which can be achieved at the EU level rather than the national level.
In this context, the shortcomings and delays in the implementation of Member States’ climate policies set out in the NECPs have a clearly systemic impact beyond one Member State, given the transnational nature of climate change and the risk of undermining the EU’s collective efforts to achieve climate neutrality and keep the long-term temperature goal of the Paris Agreement within reach. Moreover, the structural issues highlighted by the complaints already emerged during the previous round of NECPs, as submitted in 2019, and they have not improved in a significant way since then. In its overall assessment of EU Member States’ draft NECPs, the Commission flagged a wide range of gaps and inconsistencies, notably highlighting the need to raise ambition, urgently phase out fossil fuel subsidies, and significantly improve public participation across all EU Member States. Furthermore, legal action to challenge NECPs’ shortcomings at the national level may be challenging, as the justiciability of NECPs and the access to an effective remedy largely depends on the national legal framework. As such, leaving enforcement solely to domestic legal avenues risks jeopardising the uniform application of EU law, which the Commission itself recognises as essential for the success of the Union.
As of October 2024, the Commission has already shown willingness to exercise its enforcement powers in the context of the adoption of the updated NECPs, putting on notice 13 Member States that did not submit their final updated NECPs by the required deadline of 30 June 2024. Beyond submission delays, the Commission could do the same to tackle non-compliance with other legal requirements under the Governance Regulation and relevant EU legislation.
The EU’s reputation as a global leader in combating climate change hinges on ensuring – at the very least – the effective implementation of its climate targets, especially when mitigation shortcomings and insufficient public involvement are clearly identified by civil society. As a result of this coordinated initiative, the Commission has now been handed the opportunity to embrace its role as the ‘Guardian of the Treaties’ and scrutinise the failures highlighted in the five national complaints. Faced with the existential threat posed by climate inaction, the complainants call on the Commission to ensure that any implementation gap in the updated NECPs is narrowed by taking action, including by starting infringement proceedings against EU Member States, where needed.
About the authors:
Gaia Lisi is a Junior Legal Associate at the Climate Litigation Network (CLN). Her work focuses on advancing government accountability for inadequate climate action at national and EU levels. Before joining CLN, she was a Law and Policy Advisor at ClientEarth and PAN Europe, advocating for access to justice at the national level and supporting litigation before the EU courts, and previously trained as a legal officer at the European Commission. She holds a Magister Juris degree from the University of Oxford, where she specialised in environmental law, an MPhil in Environmental Policy from the University of Cambridge, and graduated summa cum laude in European Law at Maastricht University.
Filippo P. Fantozzi is a Legal Associate at the Climate Litigation Network (CLN). Building on the landmark case brought by the Urgenda Foundation against the Dutch Government, he works with CLN to support organisations bringing cases targeting governments’ insufficient climate action. Working in the climate litigation field since 2017, he has previously supported national and international climate accountability initiatives with Notre Affaire à Tous (France) and A Sud (Italy). He has completed an LLM in Climate and Energy Law at Pace University - Haub School of Law, and a Dual Degree in Italian and French Law at Università degli Studi di Firenze / Paris 1 Panthéon-Sorbonne.