European Court’s Preliminary opinion supports legality of EU law that curbs aviation pollution

October 6th, 2011 by WWF

A transatlantic coalition of environmental groups applauded today’s European Court of Justice’s Advocate General’s preliminary opinion, which supports Europe’s right to tackle carbon emissions from airlines that use its airports. The coalition said the preliminary opinion was very encouraging. The Court is expected to hand down its final opinion in early 2012.

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.

Virgin Atlantic takes off from Gatwick airport on 18 November 2010. (click image to expand - ©RLLord)

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.

“This is an encouraging development. We are pleased that the Advocate General found our arguments, and those of the European Union and its member states, persuasive, and we look forward to receiving the Court’s final opinion,” said the coalition.

The coalition’s six participants include three U.S.-based groups (Center for Biological Diversity, Earthjustice, and Environmental Defense Fund) and three European groups (Aviation Environment Federation, Transport & Environment, and WWF-UK). All six groups are intervenor-defendants in the litigation.

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.

 

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