To serve and protect its citizens from climate change, the EU and its Member States need to act decisively and quickly. This raises the question if EU law currently offers the legal space required for such effective action, for example by creating a true Climate and Energy Union. Where the current constitutional and legal framework of the EU do not offer sufficient space and capacity to act, the question arises if this framework can be modified, and if so, how. This study therefore explores the legal space for the creation of an EU Climate and Energy Union. To that end, it zooms in on three legally different, but related questions. First, what is the current legal space for the EU to regulate energy and environmental policy? Second, where more space is required, can such legal space be created, and would that require Treaty change, either formally or informally? On these points, the study pays particular attention to the core issue of funding and the role that the emerging principle of solidarity might play. The third question analysed is if an individual right to accessible and sustainable energy for EU citizens can be found or construed in current EU law, including through the expanding doctrine of positive obligations in climate cases. This third and last question on an individual right to accessible and sustainable energy is different in nature but important: any individual right of citizens to sustainable energy will significantly impact the legal space for Member States and the EU to regulate energy and climate change. What is more, any enforceable individual rights for citizens concerning the environment and clean energy will create a legal need for the EU and the Member States to act, especially where such rights lead to positive obligations. Briefly put, the more far-reaching the environmental and energy rights of EU citizens become, the more collective action at the EU level will be required to ensure these rights become a reality. A parallel can be drawn here with negative and positive integration in the EU internal market. The expansive interpretation of the four freedoms in the Treaties by the CJEU (negative integration), created an impulse for effective regulation at the EU level (positive integration). This study, commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the AFCO Committee, considers the legal space for an EU Climate and Energy Union. It assesses the major limits at the EU and national level, as well as the question if (informal) Treaty change is possible and necessary to create the space needed. It also assesses if an individual right to clean energy exists, or can and should be legally construed. It pays special attention to the challenge of funding and the role that the emerging principle of solidarity might play.
