The Court of Justice of the European Union in Luxembourg
Thu 30 June 2011 – In a briefing to the media ahead of next Tuesday’s (July 5) hearing by the European Court of Justice (ECJ) in Luxembourg over the inclusion of US airlines into the EU Emissions Trading Scheme, environmental groups from the US and Europe have repeated their support for the scheme on both legal and climate change grounds. Annie Petsonk of the New York-based Environmental Defense Fund (EDF) said the case had great significance, not just because of aviation’s growing contribution to global warming but also how countries and industry responded to the issue mattered greatly. EDF attorney Pamela Campos, who will be intervening on behalf of the EU, said legal arguments would centre on the issue of sovereignty. Submissions will be heard over one day by 13 judges including the President of the ECJ, highlighting the importance of the case.
Petsonk criticised US airlines in bringing the case and said if they were serious about reducing their carbon footprint, as claimed in ‘green’ advertisements, then they had nothing to fear from the EU’s ETS directive.
“We think the scheme is fair, flexible and is going to cut pollution levels. The intended emission cuts are modest – just 3% in the first year, followed by 5% in the period 2013-2020 – but equal to taking 30 million cars off the road every year,” she said.
Tim Johnson of the UK-based Aviation Environment Federation believed the scheme was “affordable for consumers, environmentally effective and, above all, fair to industry.”
Europe had been accused of not waiting for a global mechanism to develop, he added. “Environmental NGOs like ourselves have been involved in negotiations on international aviation emissions since 1998 and we haven’t got any closer to seeing a global measure,” he said. “While it’s an aspiration for ourselves and the EU, the political reality is that it’s not likely to happen in the short term.
“Indeed, the inclusion of aviation into the EU ETS has focused minds and is actually bringing together sides because it is encouraging states to think about their emissions profiles, what measures they consider are appropriate to their industry and what level of emissions reductions they can achieve.”
Both industry and the International Civil Aviation Organisation (ICAO) had identified emissions trading as one of the most cost-effective ways of reducing greenhouse gas emissions in the aviation sector, he argued.
Johnson said it was telling that despite all current “noise” in the media over the US case and the reported pronouncements from countries outside the EU, no government had so far taken formal steps to raise the EU ETS issue either under bilateral air agreements or ICAO’s rules and procedures.
EDF’s Campos said the one-day hearing would take place before 13 judges, an unusual event, in the Grand Chamber of the ECJ, which highlighted the importance of the case. An independent Advocate General is expected to provide a preliminary opinion in the autumn. The final decision of the ECJ would then be referred back to the High Court in London, where the case was first brought against the UK government, for review and final adjudication. The defendant in the ECJ case is the UK’s Secretary of State for Energy and Climate Change, since the US airlines involved – American, Continental and United (the latter two have since merged) – are administered by the UK under the Aviation EU ETS.
The main question from the ECJ to be answered by the parties, said Campos, was whether the EU directive should apply to those parts of flights that take place outside the European Union.
“This is at the heart of the case,” she said. “Is it a system that requires compliance upon entry or exit from the EU or does it reach outside its boundaries and requires action that is extraterritorial in some way?
“The airlines argue the directive violates sovereignty under both customary international law and also breaches the Chicago Convention, the international treaty on civil aviation.
“Our perspective is that there is no action or enforcement that takes place outside of the EU, merely the reporting of emissions and fuel usage that occur outside the EU, and is therefore not an application of law outside the EU.”
Campos also questions whether the airlines, as a matter of procedure, have the power to invoke issues of international law. Asked whether either side had the right of appeal if the case went against them, she said that as the ECJ is the highest court in the EU, it would be hard to take the case further.
Environmental Defense Fund
Aviation Environment Federation
The Court of Justice of the European Union
The Court of Justice of the European Union – Case C-366/10
European Court of Justice – Civitas Fact Sheet
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