A provisional ruling from the advocate general of the European Court of Justice has denied an appeal led by the U.S. Air Transport Association (ATA) against the imposition of the European Union’s emissions trading scheme (ETS) on air carriers from outside Europe. It remains unclear whether the court will issue its final ruling on the case before January 1, the date for full ETS implementation. The court does not have to accept the October 6 provisional ruling of advocate general Juliane Kokott, but because she essentially rejected all the legal arguments made by the ATA and its supporters there appears little basis for overturning it.
Crucially, Kokott ruled that subjecting non-European operators to the ETS’s carbon emissions cap-and-trade requirements does not run contrary to international law. In fact, she concluded that the requirements of the existing Open Skies Agreement between Europe and the U.S. for “fair and equal opportunity” effectively require the European Union (EU) to impose ETS on all carriers using its airspace and airports. Furthermore, the advocate general rejected ATA claims that ETS amounts to an illegitimate form of taxation and said that the EU is within its rights under ICAO agreements to take unilateral action to reduce emissions in the context of its own legally binding requirement to meet the terms of the Kyoto Agreement.
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