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European Court’s Preliminary Opinion Supports Legality of EU Law That Curbs Aviation Pollution


Advocate General’s opinion bolsters position of Europe and intervening environmental groups in case on EU aviation emissions trading system (ETS)

A European Court of Justice’s Advocate General’s preliminary opinion supports Europe’s right to tackle carbon emissions from airlines that use its airports. In a thorough and comprehensive opinion, addressing all issues referred to the Court, the Advocate General called the airlines’ challenges “unconvincing”, “untenable”, “erroneous” and based on a “highly superficial reading” of the Aviation Directive.

The opinion thoroughly dismisses the airlines’ argument that the EU Law violates sovereignty, pointing out that it is “by no means unusual for a State or an international organisation also to take into account in the exercise of its sovereignty circumstances that occur or have occurred outside its territorial jurisdiction.”

Commenting on the argument that Europe should wait for a global solution, the opinion states “The EU institutions could not reasonably be required to give the ICAO bodies unlimited time in which to develop a multilateral solution.”

The EU Aviation Directive, the world's only mandatory program to address emissions from aviation, will take effect in January 2012.

The opinion of the Advocate General, an esteemed attorney appointed to the ECJ to provide an independent, unbiased opinion to the Court, will now be considered by the 13 members of the ECJ’s “Grand Chamber” who heard oral arguments on July 5, 2011. The judges begin their deliberations upon receiving the Advocate General's opinion. The opinion does not bind in any way the final decision of the Court.

Airlines have argued that the EU law is discriminatory in some way, but the Advocate General states clearly:
"If the EU legislature had excluded airlines holding the nationality of a third country from the EU emissions trading scheme, those airlines would have obtained an unjustified competitive advantage over their European competitors. Such a course of action would not have been compatible with the principle of fair and equal opportunity laid down in Article 2 of the Open Skies Agreement and which also underpins Directive 2008/101 itself."
Finally, the opinion concludes that the Aviation Directive is not a charge or a tax, noting that it “would be unusual, to put it mildly, to describe as a charge or tax the purchase price paid for an emission allowance, which is based on supply and demand according to free market forces.”

The European Court frequently follows the recommendations of Advocates General.

BACKGROUND

Europe’s Aviation Directive, which includes aviation emissions within the European Emissions Trading System (EU ETS) from 1 January 2012, is a pioneering law that holds airlines accountable for their emissions associated with their commercial flights that land at or take off from EU airports. Aviation is one of the fastest-growing sources of greenhouse gas emissions, rising 3 to 4% per year. Until now, the sector has escaped regulations that would require emissions reductions.

Three U.S. airlines — United/Continental and American — and their trade association, Air Transport Association of America (ATA), challenged the legality of the aviation emissions trading system, as applied to non-EU airlines. (Press Release)