Case C-366/10, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change, with annotation by B. Mayer

Abstract

From 1 January 2012, directive 2008/101 extends the EU Greenhouse Gas Emission Trading Scheme to aviation activities. In this judgment, the Court rejects the claim of American air carriers that the directive should not be applied because it is contrary to international norms.

Although critical of the reasoning in both the Opinion and the judgment, this comment generally supports their final conclusion on the conformity of Directive 2008/101 with international law. The first section deals with the determination of the rules of international law that, in the present case, can be relied on to challenge the Directive. In particular, it discusses the rejection of the Chicago Convention from the international norms relevant to the present case. The second section focuses on the three substantial challenges to Directive 2008/101: the “jurisdiction,” “capacity” and “free trade” grounds. The third section explores alternative ways to justify Directive 2008/101 as an exception to international norms.

Keywords: air law, environmental law, emission trading scheme, air carriers, territorial jurisdiction