Answer to public consultation: application of the ‘do no significant harm’ principle under the 2028-2034 MFF

ClientEarth welcomes the European Commission's public consultation on the Concept Paper on the "Do no significant Harm" (DNSH) guidance for the Multiannual Financial Framework 2028-2034 (MFF). This concept paper sets out the approach envisaged by the Commission for developing the DNSH guidance that will apply to the next EU budget.

ClientEarth supports the proposed simplified approach based on a single list of DNSH criteria that apply horizontally across the entire EU budget. Binding, uniform, clear criteria, with strictly defined exemptions, can make the DNSH principle easy to apply and effective. However, the proposed operationalisation by the European Commission falls short of ensuring an adequate level of environmental protection in accordance with the integration principle of article 11 TFEU: 

• First, many policy areas or activities, that may potentially be harmful, will be deemed in line with the DNSH principle. Such approach needs to be handled with utmost caution to avoid erosion of the principle. 
• Second, for those activities where the principle should normally apply, the overly broad exemption not to apply it where not "feasible or appropriate" is too vague and open-ended.
• Finally, the many carve-outs for those activities where the principle applies weaken the DNSH principle further and create legal uncertainty, which in turn increases the administrative burden. In this respect, ClientEarth has provided targeted feedback for specific activities: the production and transportation of fossil fuels, the generation of electricity, heat or cold from fossil fuels, investments in fishing vessels and fishing gear, deep-sea mining, artificial barriers in rivers, investments in irrigation and the manufacturing or placing of identified substances of very high concern on the market.