Brussels, 06/10/2011 (Agence Europe) - The preliminary conclusions of the advocate general at the European Court of Justice on Thursday 6 October ruled that the demand for an annulment by US airlines of EU aviation legislation (including civil aviation) on the EU emissions trading scheme was not legally justified (see other article and EUROPE 10462). This decision was warmly welcomed by supporters of the ETS but certain aviation representatives were disappointed in equal measure. In his conclusions, the advocate general considered that EU legislation does not encroach on the sovereignty of other states as guaranteed by international law or on the freedom on the high seas and that it is also compatible with international agreements applicable in this area. Although these conclusions do not in any way decide in advance what the ruling of the European Court will be in the dispute between the EU and the US airlines - a third country -these contrasting responses were issued immediately.
Supporters of the ETS consider that these conclusions are a good omen for the final decision, given that in 90% of cases the ECJ follows the conclusions of its advocate general. Opponents are counting on the number and punching power of third countries refusing to apply European legislation unilaterally adopted by the EU. These include China, the US, Russia, India, Brazil, Argentina and Japan and they produced a joint declaration last week in New Delhi to this end.
The European Commission was confident about this result, which temporarily bolsters the legal strength underpinning the European directive adopted in 2008, which seeks to ensure a contribution from this sector in the global struggle against climate change from 2012. Nonetheless, its response was both cautious and moderate in equal measure. In a press release, Connie Hedegaard, the European commissioner for climate action, would only say on the day the conclusions were released: “I am happy that in his conclusions, the advocate general concluded that the EU directive is completely compatible with international law. The EU reaffirms its wish to engage in a constructive way with third countries during implementation of this legislation.”
Peter Liese MEP (EPP, Germany), rapporteur for Parliament on this legislation, did not attempt to conceal his delight and describes the conclusions of the advocate general as “a clear indication that European legislation is compatible with all the appropriate treaties” and “prove that the concerted attempt from airlines and third countries is legally baseless and mainly provoked by political motivation.” Taking the view that this case is a classic example for testing the EU's unity, as a number of third countries and representatives of industry believe the EU is an easy target and that it will crumble if enough pressure is applied, he calls for solidarity in defence of EU legislation. Pointing out that, for the EU, the Commission considers the rise in ticket prices could be between €2 and €12 for a trans-Atlantic flight, from the 15% of payable CO2 emission quotas for major airlines, Liese notes that the United States, for example, has introduced an international tax on airline tickets for all passengers amounting to US$16.30.
A transatlantic coalition of environmental NGOs (Center for Biological Diversity, Earthjustice and Environmental Defence Fund, in the United States, and T&E, Aviation Environment Federation and WWF in Europe) has applauded the conclusions reached by the advocate general, seeing this as evidence that the appeal by US companies was “not convincing” but untenable, mistaken and based on a very superficial reading of the ETS directive. The coalition of NGOs welcomes the fact that the advocate general had judged the arguments that they had put forward and those of the EU and member sates as applicable
The International Air Transport Association (IATA), on the other hand, has stated its disappointment at the opinion delivered by the advocate general, although IATA Director General Tony Tyler recalls that many governments are legitimately concerned that the European proposals are in breach of sovereignty and contravene the Chicago Convention, as can be seen by the declaration signed last week by over 20 countries, including India, China, Japan, the United States and Russia, who called on the ICAO to insist upon their rights. India, for example, he said, clearly stated that, if the EU goes ahead with its plans, then it will carry out retaliatory measures. In the declaration, third countries also state they will reduce their CO2 emissions, which could facilitate talks, a European diplomatic source says. The ETS directive stipulates that, if such measures are indeed implemented by third countries, then flights entering the EU would be dispensed from having to buy CO2 quotas. (AN/transl.jl)