The Application of the EU ETS System to the Aviation Sector: From Legal Disputes to International Retaliations?

Abstract

In December 2011 the European Court of Justice has affirmed the legitimacy of Directive 2008/101/EC which include the air transport in the Emissions Trading Scheme (ETS) system. The ruling of the Court raised strong reactions especially by non-EU air carriers affected by the extension of the European trading system to the part of the flight taking place outside the European airspace, including the high seas. The opposition of the non-EU air carriers is expressed in a common statement of 21 February 2012 in Moscow, containing the overview of possible actions to be taken as a consequence of the Court's decision. The proposed actions include the opening of a proceeding for dispute settlement according to Article 84 of the Chicago Convention, the adoption by the non-EU countries of national provisions intended to hinder the application of the EU Directive to their air carriers, the reconsideration of the implementation of the existing agreements and the suspension of the negotiations on the others. The article analyses the legal viability of these actions and it argues that none of those can be easily put into practice. By contrast, it is suggested that a mutual acceptable solution must be sought in the framework of the International Civil Aviation Organization (ICAO).