Hostname: page-component-78c5997874-t5tsf Total loading time: 0 Render date: 2024-11-10T21:01:38.992Z Has data issue: false hasContentIssue false
  • English
  • Français

BETWEEN SPLENDID ISOLATION AND TENTATIVE IMPERIALISM: THE EU'S EXTENSION OF ITS EMISSION TRADING SCHEME TO INTERNATIONAL AVIATION AND THE ECJ'S JUDGMENT IN THE ATA CASE

Published online by Cambridge University Press:  26 October 2012

Andrea Gattini
Andrea Gattini*
Affiliation:
Professor of International Law, University of Padova, [email protected].
Get access Rights & Permissions [Opens in a new window]

Extract

For the last 15 years the European Union (EU) has been particularly active, both internally and internationally, in the fight against global warming, and it is determined to continue to play a global leadership role in this strategic issue. Among the various market-based measures decided upon, the Emission Trading Scheme (ETS) for energy-intensive industrial sectors has been rightly described as the ‘flagship of the EU climate policy’.1 Even before proceeding to a general overhauling of Directive 2003/87 in the framework of the 2009 Climate and Energy package, the EU had decided to modify the Directive by including aviation activities in the ETS. Directive 2008/1012 provides that all flights from whichever aircraft operator taking off from or landing in the EU territory will be subjected to the ETS from 1 January 2012. For the year 2012 97 per cent of all emissions allowances will be freely assigned, from 2013 the amount will decrease to 95 per cent, whereas 15 per cent of all allowances will be auctioned. In reality the percentage of free allowances is much lower, about 60 per cent, because it takes as parameter the historical aviation emissions of the years 2004–06, when the air traffic was 40 per cent lower than it is now. The idea underlying the Directive is that aircraft operators will either purchase the necessary allowances in the market or will try to reduce their emissions by using bio-fuels (or else reducing the number of flights), with the second option becoming more economically attractive over time.

Type
Current Developments: European Union Law
Information
International & Comparative Law Quarterly , Volume 61 , Issue 4 , October 2012 , pp. 977 - 991
Copyright
Copyright © British Institute of International and Comparative Law 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Kulovesi, K, Morgera, E and Munoz, M, ‘Environmental Integration and Multi-Faceted International Dimensions of EU Law: Unpacking the EU's 2009 Climate and Energy Package’ (2011) 61 CMLRev 845Google Scholar. On the EU ETS see in general Freestone, D and Streck, C (eds), Legal Aspects of Carbon Trading (OUP 2009)CrossRefGoogle Scholar; See also Ellerman, A, Convery, F and de Perthuis, C (eds), Pricing Carbon: The European Union Emissions Trading Scheme (CUP 2010)Google Scholar.

2 Directive 2008/101 of 19 November 2008 amending Directive 2003/87 so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, OJ 2009, L 8/3.

3 For a critical assessment of the judgment, see Havel, B and Mulligan, J, ‘The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme’ (2012) 37 Air and Space Law 1Google Scholar.

4 It will be recalled that the separate requirement of the ‘spirit and structure’ of the international treaty in order to produce direct effects had been introduced by the Court in the Bresciani case of 1976, but that the subsequent jurisprudence seemed to have dropped it or made it redundant. It was resuscitated in the even vaguer notion of ‘nature and broad logic’ in the IATA case of 2006. In that case the 1999 Montreal Convention on the Unification of Certain Rules for International Carriage by Air was considered as a basis for reviewing an EC Regulation, but the ECJ eventually found no breach. See Case C-344/04, The Queen on the Application of International Air Transport Association, European Low Fares Airlines Association v Department for Transport [2006] ECR I-403, para 39.

5 Case C-308/06, The Queen on the Application of International Association of Independent Tankers Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECR I-4057, para 64. For an overall sympathetic assessment see the case note by P Eeckhout (2009) 46 CMLRev 2041, for whom ‘whilst the nature of the analysis can be applauded, its actual performance is much less persuasive’.

6 See Case C-162/96, Racke v Hauptzollamt Mainz [1998] ECR I-3655, para 47.

7 I borrow this remark from Simma, B., ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20 EJILCrossRefGoogle Scholar 294 in footnote.

8 ATA Judgment, para 110, referring to Racke, para 52.

9 Case C-286/90, Poulsen and Diva Navigation [1992] ECR I-6019.

10 See Intertanko Opinion of Advocate General Kokott, 20 November 2007, para 50.

11 ATA Opinion of Advocate General Kokott, 6 October 2011, para 136.

12 See ATA Opinion of AG Kokott, 6 October 2011, para 132. For the opposite view see Grief, N, Public International Law in the Airspace of the High Seas (Nijhoff 1994) 78Google Scholar. The probative value of the Advocate General's two main arguments is far from being decisive. With regard to the first, while it is true that art 92 UNCLOS does not mention aircraft alongside ships, contrary to some other articles, it must be recalled that the specific purpose of that article is to regulate the status of ships. In regard to the second, while it is true that art 4 of the 1963 Tokyo Convention on offences and certain other acts committed on board aircraft enables States other than the State of registration to exercise criminal jurisdiction in certain circumstances, it can be easily maintained that this is a treaty exception to the general rule of the jurisdiction of the State of registration embodied in art 3, para 1 of the same Convention.

13 ATA Judgment, para 106.

14 ibid para 125.

15 Havel and Mulligan (n 3) speak of ‘semantic manipulation’, at 18.

16 ATA Judgment, para 129.

17 Case C-89/85 Ahlström Osakeyhtiö and Others v Commission (Wood Pulp) [1988] ECR 5193, para 15.

18 Case C-188/07 Commune de Mesquer v Total France and Total International Ltd [2008] ECR I-4501, para 61.

19 ATA Judgment, para 107.

20 Case C-405/92, Mondiet [1993] ECR I-6133, para 12.

21 See Bodansky, D, ‘Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS IIII and Beyond’, (1991) 18 Ecology Law Quarterly 760Google Scholar; Klein, N, Maritime Security and the Law of the Sea (OUP 2011) 69CrossRefGoogle Scholar. For the contrary view of a residual, in principle unfettered right of the port state see E Molenaar, ‘Port State Jurisdictions: Towards Mandatory and Comprehensive Use’ in D Freestone, R Barnes and D Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 198, even if the same author concedes that Section 15(1) of Annex I to Marpol puts more constraints on the port State's right to prescribe.

22 Regulation EC 1726/2003 amending Reg 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers, OJ 2003, L 249/1.

23 ATA AG Opinion, para 153.

24 For an exemplary presentation of this theory see Berman, P, ‘Globalization of Jurisdiction’ (2002) 151 UPaLRev 311Google Scholar. The new approach has been endorsed by both the Global Administrative Law and International Public Authority scholars, see a recent overview by Ellis, J, ‘Extraterritorial Exercise of Jurisdiction for Environmental Protection: Addressing Fairness Concerns’ (2012) 25 LJIL 397CrossRefGoogle Scholar. For a well-balanced, sensible approach on the whole issue, binding old and new scholarship's strands and comparing US and European jurisprudence see Buxbaum, H, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’ (2009) 57 AmJCompL 631Google Scholar.

25 See Krisch, N, ‘The Pluralism of Global Administrative Law’ (2006) 17 EJIL 247CrossRefGoogle Scholar, who reaches the not too original conclusion that the issues at stake are ‘often of a political rather than legal nature’ and that ‘stability is thus created … through processes of negotiation and compromise as well as challenge and concession between the different constituencies involved’ (at 279).

26 ATA AG Opinion, para 154.

27 The attempt to frame ‘common interests’ as legal obligations in international law, under the heading of erga omnes obligations and even jus cogens was made almost 25 years ago by Brunnée, J, ‘‘Common Interest’’—Echoes from an Empty Shell? Some Thoughts on Common Interest and International Environmental Law’ (1989) 49 ZaöRV 800Google Scholar.

28 ATA Judgment, paras 128–129.

29 For an unabashed pleading of unilateralism in environmental issues see Bodansky, D, ‘What's So Bad about Unilateral Action to Protect the Environment?’ (2000) 11 EJIL 339CrossRefGoogle Scholar, for whom ‘a less pejorative term for unilateralism is leadership’ (at 340). For a far more balanced approach see L Boisson de Chazournes, ‘Unilateralism and Environmental Protection: Issues of Perception and Reality of Issues’ ibid, 315.

30 See B Simma and A Müller, ‘Exercise and Limits of Jurisdiction’ in J Crawford and M Koskenniemi (eds), Cambridge Companion to International Law (CUP 2012) 141.

31 ibid 143.

32 ATA AG Opinion, para 199.

33 Paradoxically, the issue is on one side very similar, but on the other side quite the reversal from that which had been decided upon by the Court some weeks earlier in the Systeme Helmholz case (C-79/10 [2011] ECR I-0000, nyr). In that case the Court had to interpret Directive 2003/96 of October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003, L 283/51), whose art 14(1)(b) lays down a general tax exemption for energy products supplied for use as fuel for the purpose of air navigation other than in private pleasure-flying. The Court openly acknowledged that ‘the imposition of duty on the aviation fuel used by European airlines for intra-Community or international flights significantly reduces the competitiveness of those companies in relation to the air transport companies of third countries’ (para 26). The Court's outspokenness was however facilitated by the same Recital 23 to Directive 2003/96, which expressly recognizes that the aim of granting that exemption for commercial aviation in general is not only to comply with ‘existing international obligations’ but also to maintain the ‘competitive position of Community companies’.

34 ATA Judgment, para 77, as compared to lengthy observations in the AG Opinion, paras 175–184.

35 See Dempsey, P, ‘Flights of Fancy and Flights of Fury: Arbitration and Adjudication of Commercial and Political Disputes in International Aviation’ (2004) 32 GaJIntl&CompL 277Google Scholar.

36 OJ 1999, L 115.

37 OJ 2002, L85/40.

38 The quotation is from the Haegeman case, see ECJ, C-181/73, Haegeman v Belgium [1974] ECR 449, para 5. On the point see Mendez, M, ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’ (2010) 21 EJIL 83CrossRefGoogle Scholar. For an overview of recent ECJ's jurisprudence on direct effects of international treaties concerning environmental issues see Marsden, S, ‘Invoking Direct Application and Effect of International Treaties by the European Court of Justice: Implications for International Environmental Law in the European Union’ (2011) 60 ICLQ 737CrossRefGoogle Scholar.

39 On the issue see K Lenaerts and T Corthaut, ‘Towards an Internally Consistent Doctrine on Invoking Norms of EU Law’ in S Prechal and B van Roermund (eds), The Coherence of EU Law (OUP 2008) 495–7.

40 ATA AG Opinion, para 104.

41 ATA Judgment, para 93.

42 In C-104/81, Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, para 18, the Court had expressly stated that the fact that the courts of a contracting Party do not recognize a direct effect to some provisions of a treaty, while the courts of another contracting Party do, does not in itself mean a lack of reciprocity in the implementation of the treaty. When dealing with the GATT/WTO rules, the Court's jurisprudence seems much less firm; compare Joined Cases C-21-24/72 International Fruit Company NV v Produktschap voor Groenten en Fruit [1972] ECR-1220, in which the Court did not mention reciprocity as a precondition for recognizing direct effect to art XI GATT, which was denied on other grounds, with Portugal v Council (C-149/96 [1999] ECR I-8425, para 45) in which, probably under the influence of the preamble of the Council's Decision 94/800 implementing the WTO Agreements, the Court denied direct effect also on this basis, by noting the risk of a ‘disuniform application’. The ECJ tried to distinguish the Kupferberg precedent, by noting that agreements, such as that which it had been called to interpret in that former case, are based on ‘certain asymmetry of obligations, or create special relations of integration with the Community’ (ibid, para 43).

43 C-346/97, Braathens [1999] ECR I-3419, para 23.

44 ATA Judgment, para 142.

45 Havel and Mulligan (n 3) speak of ‘semantic dodge’, at 30.

46 See in particular the reports published by the carbon emission ‘watchdog’ non-profit organization Sandbag, ‘Cap or trap? How the EU ETS risks locking-in carbon emissions’ <www.sandbag.org.uk/site_media/pdfs/reports/caportrap.pdf > (Sept 2010). As it will be recalled, during the first experimental trading period running from 2005 to 2007, 95 per cent of allowances were allocated free of charge. In the current second trading period 2008–12, emissions in the ETS sectors have been capped at around 6.5 per cent below their levels in 2005, but the economic recession in some EU countries is such that the overall emissions could continue to grow with no further need for abatement for almost the entire third period from 2013 to 2020, in which the EU emissions should decrease by 1.74 per cent per year. For a critical assessment see also Winter, G, ‘The Climate is No Commodity: Taking Stock of the Emission Trading System’ (2010) 22 JEL 1Google Scholar.

47 ATA AG Opinion, para 105.

48 For a critical assessment see Adam, M, ‘ICAO Assembly's Resolution on Climate Change: A ‘‘Historic’’ Agreement?’ (2011) 37 Air and Space Law 23CrossRefGoogle Scholar.

49 See ICAO Council, 94th Session, C-WP/13790 17 October 2011.

50 See EU ETS Prohibition Act of 2011, H.R. 2594, 112th Congress 2011, cited in Havel and Mulligan (n 3) at 7, fn 17.

51 See Mendes de Léon, P, ‘The Enforcement of EU ETS: the EU's Convulsive Efforts to Export its Environmental Values’ (2012) 37 Air and Space Law 365–84CrossRefGoogle Scholar.

52 See art 61 of the ILC 2011 Draft Articles on the Responsibility of International Organizations, which requires the proof that the member state circumvents its obligation ‘by causing the Organization to commit an act that, if committed by the State, would have constituted a breach of that obligation’. The Advocate General was perhaps aware of this risk, which she tried to preventively counteract, by analysing the compatibility of the Directive with the ICAO Convention ‘as a matter of good faith’, AG Opinion, para 66. On this aspect see Havel and Mulligan (n 3) 16.

53 C-812/79, Burgoa [1980] ECR 2787, para 10.

54 See art 25a of the Directive, which signals the EU's readiness to amend the Directive as soon as a third country adopts measures for reducing the climate change impact of international aviation.

55 Under art 294 TFEU all legislative measures in the environmental field are to be taken by the ordinary legislative procedure, ie with the full participation of the EP, which was already the main thriving force in rendering Directive 2008/101 as strict as possible with regard to extra-European aircraft operators; see Havel and Mulligan (n 3) 6.

56 Case C-459/03, Commission of the European Communities v Ireland [2006] ECR I-4635, paras 151–152.

57 Succinct, but none the less telling information available online at <http://ec.europa.eu/clima/policies/transport/vehicles/heavy/index_en.htm > .