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The Global Reach of EU Law

This text explores the impact of EU law on climate change in the aviation industry, including the 2008 Directive, contingent unilateralism, and the carbon offsetting scheme. It also examines the EU's efforts in shipping and biofuels.

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The Global Reach of EU Law

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  1. The Global Reach of EU Law Class Three

  2. Contingent Unilateralism: Climate Change Examples • Aviation (Dir. 2008/101) • Shipping (Reg. 2015/757) • Biofuels (Dir. 2009/28) • Carbon offsets (Comm. Reg. 550/2011; Dir. 2001/101) • Fuel quality (Dir. 2009/30)

  3. Aviation: The Story So Far? • Background • The 2008 Directive • Stop-the-Clock I • The Airspace Proposal • Stop-the-Clock II

  4. Aviation: Background • Kyoto Protocol, Art. 2.2 • Limited progress in ICAO • Rapidly rising EU aviation emissions + 73% 1990-2003 compared to economy wide reduction of 5.5% • Projected growth in aviation emissions 3-4% annually

  5. Aviation: The 2008 Directive • Which aviation emissions did the EU decide to include in its ETS? • In what way(s) may this example be conceived as an example of contingent unilateralism? • What negative reactions did the Aviation Directive provoke internationally?

  6. Contingent Unilateralism Article 25a Third country measures to reduce the climate change impact of aviation 1.  Where a third country adopts measures for reducing the climate change impact of flights departing from that country which land in the Community, the Commission, after consulting with that third country, and with Member States within the Committee referred to in Article 23(1), shall consider options available in order to provide for optimal interaction between the Community scheme and that country’s measures. Where necessary, the Commission may adopt amendments to provide for flights arriving from the third country concerned to be excluded from the aviation activities listed in Annex I

  7. Contingent Unilateralism 2.  The Community and its Member States shall continue to seek an agreement on global measures to reduce greenhouse gas emissions from aviation. In the light of any such agreement, the Commission shall consider whether amendments to this Directive as it applies to aircraft operators are necessary.

  8. Aviation: Stop-the-Clock I Decision 377/2013 • What did stop-the-clock I decide? ‘This derogation is provided by the Union to facilitate an agreement at the 38th session of the ICAO Assembly on a realistic timetable for the development of a global MBM…and on a framework for facilitating the comprehensive application of national and regional MBMs to international aviation, pending the application of a global MBM.’

  9. ICAO’s Response? ICAO Assembly Resolution A38-18 (2013) ICAO Council to make recommendations to 39th ICAO Assembly (2016) on global MBM including mechanisms to implement this by 2020 With a view to reaching a decision at 39th ICAO Assembly in Autumn 2016

  10. Aviation: The EU Regional Airspace Proposal COM(2013) 722 What were the main features of this proposal? • EU airspace coverage only • Until 2020 • If not future amendment, full scope resumes

  11. Coverage within European Regional Airspace for flights to or from 3rd countries (European Commission, 2013)

  12. Aviation: Stop-the-Clock II Regulation 421/2014 • What are the main features of this Regulation? • How does it differ from the Regional Airspace proposal?

  13. Aviation: Stop-the-Clock II Art. 1(8).   The Commission shall regularly, and at least once a year, inform the European Parliament and the Council of the progress of the International Civil Aviation Organization (ICAO) negotiations as well as of its efforts to promote the international acceptance of market-based mechanisms among third countries. Following the 2016 ICAO Assembly, the Commission shall report to the European Parliament and to the Council on actions to implement an international agreement on a global market-based measure from 2020, that will reduce greenhouse gas emissions from aviation in a non-discriminatory manner, including on information, with regard to the use of revenues, submitted by Member States in accordance with Article 17 of Regulation (EU) No 525/2013.In its report, the Commission shall consider, and, if appropriate, include proposals in reaction to those developments on the appropriate scope for coverage of emissions from activity to and from aerodromes located in countries outside the EEA from 1 January 2017 onwards. In its report, the Commission shall also consider solutions to other issues that may arise in the application of paragraphs 1 to 4 of this Article, while preserving the equal treatment of all aircraft operators on the same route.

  14. What happens next? Progress at ICAO? Carbon Offsetting and Reduction Scheme for International Civil Aviation (CORSIA) - Goal? Carbon neutral growth by 2020 - Mechanism? Offsetting scheme - Exclusive? - Phased implementation?

  15. Phased Implementation To accommodate the special circumstances and respective capabilities of States… - Share of international aviation emissions measured in revenue-tonne-kilometers - Phase I 2021; Phase 2 2026 - Excludes LDCs, SIDs and LLDCs - only covers flights between x 2 included states

  16. What should the EU do? Transport Commissioner Bulc “Initially we would have liked a more ambitious climate goal but, given the difficulties of the negotiations, let us make the important first step of carbon-neutral growth happen. If we can reach an agreement, then this will give us a solid basis for a strong ongoing process through the periodic reviews. Whatever we achieve in October need not be the final product.”

  17. What should the EU do? Peter Liese MEP, said there was frustration that it taken over 10 years to reach the point where only carbon-neutral growth was being considered at ICAO when actual emission reductions were needed. He said he was concerned that the proposals did not cover how emissions from routes exempted from the scheme would be covered elsewhere and suggested that those states included would have to do more, for example, through bilateral agreements outside of ICAO.

  18. Same dilemma in shipping:To align or not to align…. IMO Global Data Collection System on GHG Emissions (http://www.imo.org/en/MediaCentre/PressBriefings/Pages/11-data-collection-.aspx) • Data will remain confidential • Proxies for transport work (assumes vessel fully loaded) • Concerns about robustness of verification stage

  19. Assessing the Appropriateness of EU Action in Aviation • Two-way system boundary • CBDR • Effectiveness • What difference, if any, does Paris make?

  20. Did the CJEU get it right? Case C-366/10 Air Transport Association of America Territorial extension regarded as lawful in the circumstances of the case • International Treaties • Customary International Law

  21. International Treaties 52 First, the EU must be bound by those rules… 53 Second, the Court can examine the validity of an act of European Union law in the light of an international treaty only where the nature and the broad logic of the latter do not preclude this… 54 It is also necessary that the provisions of that treaty …relied upon…appear, as regards their content, to be unconditional and sufficiently precise.

  22. Customary International Law 101 Under Article 3(5) TEU, the European Union is to contribute to the strict observance of and development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding on the institutions of the EU.

  23. Customary International Law 128 As for the fact that the operator of an aircraft in such situations is required to surrender allowances calculated in the light of the whole of the international flight…as European Union policy on the environment seeks to ensure a high level of protection..theEUlegislature may in principle choose to permit a commercial activity…to be carried out in the territory of the [EU] only on condition that operators comply with criteria that have been established by the EU and are design to fulfill the environmental protection objectives which it has set itself, in particular where these objectives follow on from an international agreement to which the EU is a signatory…

  24. Customary International Law 129 Furthermore, the fact that, in the context of applying EU environmental legislation, certain matters contributing to the pollution of the air, sea or land territory of the Member States originate in an event which occurs partly outside that territory, is not such as to call into question, in the light of principles of customary international law capable of being relied upon in the main proceedings, the full applicability of EU law in that territory…

  25. How would you have decided the case? Elaborate conditions for legality/validity of EU acts giving rise to territorial extension To be discussed in our final class…

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