Does civil society have a voice in EU climate negotiation preparation?

Writer: Tuula Honkonen, Senior Lecturer in international law at the University of Eastern Finland. This article was first published on November 7, 2024, on 2035Legitimacy blog.

The European Union is strongly committed to transparent and participatory governance. However, preparation of its position for international climate negotiations is not transparent or open to civil society participation.

Behind the Scenes: The EU’s internal coordination in climate negotiations

The EU is a major player in international climate negotiations. Although the Union consists of 27 sovereign Member States, it speaks with one voice at the climate negotiation meetings. The UN climate agreements are “mixed agreements” in EU legal jargon, meaning that the legal competence to participate in them is shared between the EU and the Member States. Consequently, strong coordination and adherence to the agreed positions are needed in the negotiations.

The EU‘s common negotiation position is the result of a lengthy and complicated process where various institutions and actors play a role. The contours of the EU internal position formulation and coordination are not common knowledge, which is one of the reasons why civil society participation in them is not firmly established. Confidentiality and the strategic nature of international negotiations, the limited openness of EU decision- and policymaking and lacking resources of civil society actors also explain this situation. 

The EU is  committed to transparent and participatory governance…

Transparency, openness and public participation are all enshrined in the founding treaties of the EU. They are indeed core values of good governance, to which the EU is committed. The supporting legal framework includes Regulation 1049/2001 on access to documents. In addition, the EU is a party to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Yet, transparency and openness of EU decision-making are often questioned. According to critics, the preparation of EU legislation is not transparent and the public has only limited practical possibilities for participation in EU policymaking. 

… but EU climate negotiation preparation lacks transparency and civil society input

The EU preparatory process for the UN climate negotiations is spread out over several institutional layers that partly work in parallel. The Council of the EU plays a leading role in the formulation of the EU position for international climate negotiations. In practice, the position is largely drafted by the preparatory bodies and expert groups of the Council which mainly consist of representatives of the Member States. The Environment Ministers’ meeting in the Council then discusses and approves the final products of the process: the Council Conclusions document, a negotiation mandate and the accompanying negotiating directives.

As regards the other decision-making bodies of the EU, the Commission holds the EU negotiation mandate and negotiates in accordance with the mandate, directives and further guidance given by the Council prior to and during the negotiations. In practice, the Commission and Council work in close cooperation. The European Parliament puts forward a resolution to the Council, detailing its stances on and wishes for the key issues in the EU negotiation position, but without having any formal influence on the deliberations within the Council.

Opportunities for civil society organizations to participate in the preparatory process, and the extent to which the EU position is available for public scrutiny before the UN climate negotiation sessions are limited. The relevant meetings of the Council and preparatory bodies are not open to the public. The same concerns the Member States’ positions and arguments presented in the preparatory meetings and any background material for the meetings. Moreover, composition of the bodies or nearly any details of their meetings are not public information. The Council Conclusions document, which outlines the EU position in the negotiations in a relatively general and non-legally binding way, is public, but the EU negotiation mandate and the negotiating directives are kept confidential.

The EU does not have any official mechanism through which civil society could provide its views or otherwise participate in the preparation of the Union position to climate negotiations. What civil society actors can do is to make occasional expert presentations upon invitation or engage in informal communication with Member States and Commission officials – but not with the Council. Overall, the modest civil society participation in this context is largely based on ad hoc and bottom-up arrangements.

Necessary confidentiality or excessive secrecy?

The limited transparency and openness for civil society actors of the EU preparatory process for international climate negotiations must be weighed against other relevant elements of the set-up. These include the applicable legal requirements as well as the need to protect the confidentiality of and the EU’s interests in international negotiations. Trade-offs are necessary in this context. The question to be asked is, then, whether the EU preparation for the UN climate negotiations is a special case that justifies keeping the relevant preparatory process largely beyond public scrutiny? The setting is different from the preparation of the EU’s domestic legislation where a certain culture of secrecy is more difficult to justify. 

Compared to most countries, the EU is relatively open with its position ahead of the UN climate negotiations, thanks to some interaction with civil society during the preparatory process and the publicly available Council Conclusions document. This conclusion has to be drawn, even though the civil society participation is based on ad hoc arrangements, is practically carried out by the biggest umbrella organization of climate-focused non-governmental organizations (CAN Europe) and is mainly limited to interaction with those EU institutions that do not possess major powers to influence the Union’s position (the Commission and European Parliament). In addition, it is worth noting that the Member States form another route for civil society actors to try to get information on and influence the EU position in the negotiations.

Inadequate transparency and openness in the preparation may have a detrimental effect on the public legitimacy of the EU position in the climate negotiations. However, while the domestic audience would benefit from greater transparency, it would likely weaken the EU’s international negotiation position. This is a prime example of a situation where it is very challenging to determine where “necessary confidentiality” becomes “excessive secrecy”.