The Inclusion of Aviation in the EU ETS: WTO Law Considerations

Abstract

The aviation industry will be included in the EU’s emissions trading system (ETS) from 1 January 2012. Airlines will have to acquire and ‘surrender’ allowances for the carbon emissions produced by their flights. The scheme is comprehensive: it applies to EU and non-EU airlines (subject to a potential exemption), to passenger and cargo flights, and to flights between EU airports and between EU and non-EU airports. An airline that fails to surrender allowances is fined €100 per allowance and must make up the shortfall the following year. The EU’s scheme has already given rise to legal action in connection with the EU’s international civil aviation obligations. But, due to its impacts on trade in goods and services, the scheme also has implications for the EU’s obligations under the WTO law: specifically, under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). In particular, this raises the question of the scope of application of the GATS Annex on Air Transport Services. As this article shows, it is challenging to design a carbon scheme that is both administratively feasible and justifiable under WTO law.