Duty Free? The Rationale of the ECJ in C-366/10, on the Inclusion of Air Transport into the Emissions Trading Scheme

8 Pages Posted: 12 Oct 2013

Date Written: October 11, 2013


Even in those instances where the international community has succeeded in making more or less binding commitments in international climate change law, holding States to their international obligations is another matter.

In enforcing its commitment under the United Nations Framework Convention on Climate Change (UNFCCC), and its Kyoto Protocol, the EU has for some time established an emissions trading scheme ('ETS'). From the start of this year, the ETS has been expanded to bring under its wing (pun intended), the subject of aviation. US airlines (supported by US Congress) filed judicial review proceedings in the High Court of England and Wales.

These proceedings were then referred to the Court of Justice of the EU to decide on the validity of the new Directive in relation to international law and customary principles. While the Court ruled that the initiative was valid, the EU has very recently deferred the application of the regulation to non-EU airlines, after significant political pressure was mounted from China, India and particularly, the US. The decision to 'stop the clock' was made after discussions with the International Civil Aviation Organisation (ICAO) Council led to the conclusion that a global agreement to combat aviation emissions may be more appropriate.

This case note will provide a brief discussion of the case’s background, followed by a summary of the judgment. The implications of the ECJ's decision will then be considered in relation to international environmental law principles and the more recent confirmation by the Council to halt the application of the regulation.

Keywords: ETS, EU, Climate change, Emissions trading, international law

JEL Classification: K32, K33

Suggested Citation

Sosnowski, Jordan and van Calster, Geert, Duty Free? The Rationale of the ECJ in C-366/10, on the Inclusion of Air Transport into the Emissions Trading Scheme (October 11, 2013). Available at SSRN: https://ssrn.com/abstract=2338989 or http://dx.doi.org/10.2139/ssrn.2338989

Jordan Sosnowski

Oxford Centre for Animal Ethics ( email )

91 Iffley Road
Oxford OX4 1EG
United Kingdom

Geert Van Calster (Contact Author)

K.U. Leuven ( email )

Tiensestraat 41
Bus 3424
B-3000 Leuven, 3000

HOME PAGE: http://www.gavc.be

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