European Court of Justice: The directive including aviation activities in the EU’s emissions trading scheme is valid

Michael Wukoschitz's picture

In today's judgement in Case C-366/10, the Court of the European Union held that the directive including aviation activities in the EU’s emissions trading scheme is valid and application of the emissions trading scheme to aviation infringes neither the principles of customary international law at issue nor the Open Skies Agreement.

A number of American and Canadian airlines and airline associations contested the measures transposing Directive 2008/101 in the United Kingdom. They contend that, in adopting the directive, the EU infringed a number of principles of customary international law and various international agreements. According to them, the directive infringes, first, the Chicago Convention the Kyoto Protocol and the Open Skies Agreement in particular because it imposes a form of tax on fuel consumption, and second, certain principles of customary international law in that it seeks to apply the allowance trading scheme beyond the European Union’s territorial jurisdiction.

The ECJ holds that only certain provisions of the Open Skies Agreement and three principles of customary international law (namely the sovereignty of States over their airspace, the illegitimacy of claims to sovereignty over the high seas and freedom to fly over the high seas) may be relied upon for the purposes of examination of the directive’s validity. The EU is not bound by the Chicago Convention because it is not a party to that convention and also has not hitherto assumed all the powers falling within the field of the convention. As regards the Kyoto Protocol, the parties to the protocol may comply with their obligations in the manner and at the speed upon which they agree and that, in particular, the obligation to pursue limitation or reduction of emissions of certain greenhouse gases from aviation fuels, working through the International Civil Aviation Organisation (ICAO), is not unconditional and sufficiently precise to be capable of being relied upon.

The Court concludes by stating that the uniform application of the scheme to all flights which depart from or arrive at a European airport is consistent with the provisions of the Open Skies Agreement designed to prohibit discriminatory treatment between American and European operators.

Source: ECJ press release 139/11 of Dec. 21, 2011

Full text of judgement available here>>.

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