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Published online by Cambridge University Press: 20 January 2017
In a landmark decision, on December 21, 2011, the Court of Justice upheld the extension to international aviation activities of the greenhouse gas emissions trading scheme (ETS) of the European Union (Union or EU) against a challenge that it violates several treaties and principles of customary international law. In addition to its broader significance in the context of global versus unilateral approaches to tackling climate change, and its related role in fueling a major international trade dispute, the ruling pronounces on important aspects of international aviation law and clarifies the principles governing conformity of EU internal legislation with international law.
1 Case C-366/10, Air Transp. Ass’n of Am. v. Sec’y of State for Energy & Climate Change (Eur. Ct. Justice Dec. 21, 2011), at http://curia.europa.eu [hereinafter Judgment].
2 The twenty-seven Eu and three European Economic Area member states.
3 Parliament and Council Directive 2008/101/EC Amending Directive 2003/87/EC so as to Include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading Within the Community, 2009 O.J. (L 8) 3, available at http://eur-lex.europa.eu [hereinafter Directive].
4 R on the Application of Air Transp. Ass’n of Am. v. Sec’y of State for Energy and Climate Change, [2010] EWHC 1554 (Admin), at http://www.casetrack.com (by subscription).
5 Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295, as amended, ICAO Doc. 7300/9 (2006), available at http://www.icao.int [hereinafter Chicago Convention]; Kyoto Protocol to the United Nations Framework Conventionon Climate Change, Dec. 11, 1997, 2303 UNTS 148,37Ilm22(1998); Air Transport Agreement, Eu-U.S., Apr. 30, 2007, 2007 O.J. (L134) 4,46 ILM 470 (2007), as amended Mar. 25, 2010, 28 UST 5367, available at http://ec.europa.eu/transport/modes/air/international_aviation/country_index/united_states_en.htm [hereinafter Open Skies Agreement].
6 Noncompliant operators incur various penalties in the responsible member state and risk, in the event of persistent failure to comply, being banned at the Community level from operating to and from Eu airports.
7 In particular, Chicago Convention, supra note 5, Arts.1, 11, 12, 15, 24; Kyoto Protocol, supra note 5, Art. 2(2); Open Skies Agreement, supra note 5, Arts. 7, 11(2)(c), 15(3).
8 In particular, Chicago Convention, Arts. 1, 11, and/or 12; Open Skies Agreement, Art. 7.
9 In particular, Kyoto Protocol, Art. 2(2); Open Skies Agreement, Art. 15(3); Chicago Convention, Arts. 15, 24 (on their own or as read with provisions of the Open Skies Agreement).
10 Austria, Belgium, France, Germany, Iceland, Italy, Netherlands, Norway, Poland, Spain, Sweden, and the United Kingdom (written proceedings); and Denmark, France, Norway, Poland, Spain, Sweden, and the United Kingdom (oral hearing).
11 The International Air Transport Association and the National Airlines Council of Canada had already been admitted as “Claimant Interveners” and a transatlantic coalition of five environmental organizations as “Defendant Interveners” by the referring court.
12 Consolidated Version of the Treaty on the Functioning of the European Union, Art. 216(2), Sept. 5, 2008, 2008 O.J. (C 115) 47 [hereinafter Tfeu].
13 The first sentence of TFEU Article 351 provides: “The rights and obligations arising from agreements concluded before 1 January 1958 [when the EEC came into being]...between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the [EU] Treaties.”
14 See also Judgment, paras. 131–35 (concerning Open Skies Agreement, supra note 5, Art. 7(1)).
15 TFEU, supra note 12, Art. 191(2).
16 On this point the Court cited its judgments in Ahhtröm Osakeyhtiö v. Commission, Joined Cases C-89/85, C-104/85, C-114/85, C-116/85–117/85, C-125/85–129/85, 1994 ECR I-99, paras. 15–18, and Commune de Mesquer v. Total France Sa, Case C-188/07, 2008 ECR I-4501, paras. 60– 62.
17 Case C-346/97, Braathens Sverige AB v. Riksskatteverke, 1999 ECR I-3419.
18 Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection— Climate Change, ICAO Res. A37-19, annex (Sept./Oct. 2010), at http://legacy.icao.int/Assembly37/docs/Docs_Ref.html.
19 The second sentence of Article 15(3) provides: “The Parties shall apply any environmental measures affecting air services under this Agreement in accordance with Articles 2 and 3(4).” Article 2 provides for a fair and equal opportunity for the airlines of both parties to compete. Article 3(4) permits by reference certain exceptions based on standards in Chicago Convention Article 15.
20 The rate is 3–4 percent. International aviation already accounts for 2–3 percent of global emissions. Joshua Meltzer, Regulating CO2 Emissions from Aviation in the EU, Asil Insights, Aug. 31, 2012.
21 Such an action could be brought, for example, before the ICAO Council (under the Chicago Convention, supra note 5, Art. 84), the U.S.-Eu Joint Committee (under the Open Skies Agreement, supra note 5, Art. 18), or WTO/GATT or GATS dispute settlement mechanisms.
22 Attorney General v. Burgoa, Case 812/79, 1980 ECR 2787, para. 9, also states, inter alia, that Article 351 (then Treaty of Rome Article 234) “would not achieve its purpose if it did not imply a duty [of the Union institutions to permit a] Member State... to perform its obligations under [a] prior agreement.”
23 Joined Cases C-402/05 P, 415/05 P, Kadi v. Council, 2008 ECR I-6351.
24 For example, the right to maintain prohibited areas as a precaution against aerial attack.
25 Lauritzen v. Larsen, 345 U.S. 571, 585 (1953). Matters concerning the “internal economy” of the ship will normally be left to flag state control, as a matter of comity (or of law in many non–common law countries), but few, if any, of the cases listed below by the reviewer can be explained as “mere” comity cases.
26 For practice and citations regarding aircraft, see Written Observations of the International Air Transport Association and the National Airlines Council of Canada, paras. 24, 151, 161–62 (Oct. 20, 2010), at http://airline council.ca/en/document-library.html [hereinafter IATA Observations]; Dell, Edmund, Interdependence and the Judges: Civil Aviation and Anti-Trust, 61 Int’l Aff. 355, 366–67, 370–72 (1985)CrossRefGoogle Scholar. Non-U.S. cases regarding ships include SS St Marcos, 77 ILR 413 (Civ. Brussels 1977); State v. Jannopoulos, 77 ILR 559 (Cass. It. 1974); Sellars v. Mar. Safety Inspector, [1999] 2 Nzlr 44 (Ca), 120 Ilr 585.
27 These protests include sixteen in visiting aircraft cases against U.S. application of smoking and gambling laws, IATA Observations, supra note 26, para. 162. in visiting ship cases, see, for example, Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923); twelve protests against section 2 of Senate bill S. 2074 (shipboard environmental standards exceeding those in globally agreed safety conventions), State Department letters dated Sept. 23 & Nov. 1, 1971, reprinted in 1972 U.S.C.C.A.N. 2799, 2804; and twelve against the federal Oil Pollution Act of 1990 and a multiplicity of state laws that departed in varying degrees from globally agreed double-hull tanker standards, Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Lowry, 947 F. Supp. 1484 (W.D. Wa. 1996), aff‘d in part sub nom. Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Cir. 1998), rev’d sub nom. United States v. Locke, 529 U.S. 89 (2000).
28 The instance of practice appears at Iata Observations, supra note 26, para. 151. The case was Sellars, supra note 26. Written Observations of the Claimants, para. 111 (Nov. 15, 2010),at http://www.airlines.org/Pages/Public_Policy_Filings_Court.aspx.
29 1 Oppenheim’s International Law §203, at 623–24 & nn.9, 11 (R. Y. Jennings & Arthur Watts eds., 9th ed. 1992) (citing the Ss St Marcos and Jannopoulos cases, supra note 26, and Incres S.S. Co. v. Int’l Mar. Workers Union, 10 N.Y.2d 218, 176 N.E.2d 719 (1961) (U.S. labor laws applicable to visitingships, later vacated by the Supreme Court). This reviewer drew the relevant European Commission officials’ attention to the cases around the time the Directive was being finalized, in 2008, so the Commission should perhaps have had them in mind and mentioned them during its intervention before the Court.
30 Ahlstróm Osakeyhtió, supra note 16; Commune de Mesquer, supra note 16.
31 Case C-286/90, Anklagemyndigheden v. Poulsen, 1992 ECR I-6019, para. 28. This is odd, as it cites it in another context.
32 Braathens Sverige AB v. Riksskatteverke, supra note 17.
33 Since the Directive was adopted under the co-decision procedure, in pursuance of which the member state– appointed Council and the directly elected European Parliament must endeavor to reach a consensus, the Parlia ment (and its powerful environment committee) effectively wielded a veto, and so has had a good deal of influence over the nature and manner of implementation of the Directive.
34 Conversation with Stefan Moser and Mark Major (Oct. 15, 2008) (note on file with author).
35 Telephone conversation with Jasper Faber of the contractor, Ce Delft (Nov. 5, 2008) (note on file with author).
36 Europa Press Release Memo/12/854, Stopping the Clock of ETS and Aviation Emissions Following Last Week’s International Civil Aviation Organisation (ICAO) Council (Nov. 12, 2012), at http://europa.eu/rapid/press-release_Memo-12-854_en.htm.
37 European Union Emissions Trading Scheme Prohibition Act of 2011, Pub. L. No. 112-200, 126 Stat. 1477 (2012) (to be codified at 49 U.S.C. $$$40101 note), available at http://www.gpo.gov/fdsys/.