A-G Kokott opines – complaint on EU ETS is unfounded

A-G Kokott opines – complaint on EU ETS is unfounded


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The Advocate-General at the Court of Justice of the European Union Juliane Kokott presented on 6 October her verdict on the complaint of three American airlines against the EU legislation which includes aviation in CO2 emission trading [case C-366/10 – The Air Transport Association of America and Others].

The EU Emissions Trading Scheme legislation was subjected to extensive legal advice prior to its adoption in the Council by unanimity and the European Parliament with a 90% majority back in 2008.

The EU is facing serious criticism and heavy attacks from third countries over the legislation, with India and the US leading the group of countries opposing the EU regulations, alleging its anti-competition nature.

The three airlines are facing a legal defeat as their complaint at the CJEU was rendered unfounded by the Advocate-General and she went further than just recommending to reject the complaint formally.

The Advocate-General provided further explanation for her recommendations: "Take-off and landing are essential and particularly characteristic elements of every flight; therefore, as a place of departure or destination, an airport within the territory of the European Union provides an adequate territorial link for the whole of the flight in question to be included in the EU Emissions Trading Scheme.”

Kokott added that no impermissible unilateral action was taken by the EU and that all the points of the legislation were well within the framework of the International Civil Aviation Organisation (ICAO) since, according to the Kyoto Protocol, the legislation related to limitation and reduction of greenhouse gases no longer presents the exclusive competence of the ICAO. “Under the EU Emissions Trading Scheme (ETS), airlines are not charged any fees, dues or other charges within the meaning of the relevant international law agreements,” the Advocate-General explained.  She added that the EU’s ETS is a market-based measure, aimed at environmental and climate protection. The practice of the CJEU is to follow the recommendation of the Advocate General in more than 90% of cases.

The Rapporteur of the European Parliament for this dossier, the German EPP deputy Peter Liese, welcomed the recommendation: "The statement of the Advocate-General is a clear indication that European legislation is compatible with all the respective Treaties. It shows that the vocal opposition from airlines and third countries is legally unfounded and mainly politically-motivated.” Liese warned that the EU is not an easy target, and that this case serves as a test to European unity under high external pressure.

“This is why in the current case there is more at stake than just the EU climate policy. We need to be united and defend our own legislation. This will have positive effects also on other controversial discussions with third countries", Liese said.

The Commission calculated that on average the burden for airlines and passengers would not increase much, about €2 per ticket for a transatlantic flight, compared to the British ticket tax, which includes a price increase per ticket of up to £170, and the US international ticket tax of $16.30 per passenger.

The Climate Action Commissioner Connie Hedegaard also expressed satisfaction with the statement of the Advocate-General. ''I am glad to see that the Advocate-General's opinion concludes that EU Directive is fully compatible with international law. The EU reaffirms its wish to engage constructively with third countries during the implementation of this legislation,'' Hedegaard said.

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