Climate Change Litigation - Liability of EU Member States under EU law

Abstract

This piece investigates whether liability of Member States resulting from EU law can be used as a tool for the enforcement of EU climate change law vis-à-vis the Member States. Thereby, we deploy a broad notion of EU Member State liability that covers all types of financial sanctions that follow from non-compliance with legal obligations under EU climate change law.

Following the introduction section B. provides a sketch of greenhouse gas reduction obligations of EU Member States under EU law. It sets out the “primary obligations” of EU Member States that may be subject to the “secondary obligations” of liability mechanisms that will subsequently be identified and analyzed. Section C. analyzes EU Member State liability within the non-Emission Trading System (ETS)-sector as a liability mechanism that operates through purchase obligations for emission allowances between EU Member States. Section D. assesses the infringement procedure according to Article 258-260 TFEU with particular regard to the financial sanction mechanism. Section E. discusses the relevance of the judicial doctrine of non-contractual state liability in case of violations of EU law by Member States that was first established by the European Court of Justice in the Francovich case of 1990. We will end with a conclusion (section F.).

Keywords: Climate Change Litigation, EU Law, Francovich