Air Transport Association of America and Others v Secretary of State for Energy and Climate Change.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2011:637
• Docket Number: C-366/10
• Date: 06 October 2011
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 6 October 2011 (1)

Case C‑366/10

Air Transport Association of America and Others

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom))

(Environment – Greenhouse gases – Emission allowances – EU scheme for greenhouse gas emission allowance trading (‘EU emissions trading scheme’) – Inclusion of aviation activities – International aviation – Public international law – Compatibility of secondary European Union legislation with international agreements and customary international law – Directives 2003/87/EC and 2008/101/EC)

Table of contents

I – Introduction

II – Legal framework

A – International law

1. The Chicago Convention

2. The Kyoto Protocol

3. The Open Skies Agreement between the European Union and the USA

B – EU law

C – National law

III – The main proceedings

IV – Reference for a preliminary ruling and procedure before the Court of Justice

V – Assessment

A – Reliance upon international agreements and principles of customary international law as a benchmark against which the validity of Directive 2008/101 can be reviewed (Question 1)

1. International agreements (Question 1(e) to (g))

a) The Chicago Convention (Question 1(e))

i) The Chicago Convention is not binding under Article 351 TFEU

ii) The Chicago Convention is not binding by virtue of functional succession

iii) Interim conclusion

b) The Kyoto Protocol and the Open Skies Agreement (Question 1(f) and (g))

i) Preliminary observation

ii) The Kyoto Protocol (Question 1(g))

– Nature and broad logic of the Kyoto Protocol

– Article 2(2) of the Kyoto Protocol

iii) The Open Skies Agreement (Question 1(f))

– Nature and broad logic of the Open Skies Agreement

– The unconditional and sufficiently precise nature, as regards their content, of the relevant provisions of the Open Skies Agreement

iv) Interim conclusion

2. Customary international law (Question 1(a) to (d))

a) As to whether the principles of customary international law at issue exist and are binding on the European Union

i) The sovereignty of States over their airspace (Question 1(a))

ii) Invalidity of claims of sovereignty over the high seas (Question 1(b))

iii) Freedom to fly over the high seas (Question 1(c))

iv) Allegedly exclusive jurisdiction over aircraft overflying the high seas (Question 1(d))

b) As to whether the principles of customary international law at issue are suitable as a benchmark against which to review validity in proceedings brought by natural or legal persons

3. Interim conclusion

B – Compatibility of Directive 2008/101 with the international agreements and principles of customary international law invoked (Questions 2 to 4)

1. Compatibility with certain principles of customary international law (Question 2)

a) On the absence of any extraterritorial effect of the EU emissions trading scheme

b) On the existence of an adequate territorial link

c) On the absence of any adverse effect on the sovereignty of third countries

d) Interim conclusion

2. Compatibility with certain international agreements (Questions 3 and 4)

a) Legality of the inclusion in the EU emissions trading scheme of parts of flights outside EU airspace (Question 3)

i) Compatibility with Articles 1, 11 and 12 of the Chicago Convention (Question 3(a))

ii) Compatibility with Article 7 of the Open Skies Agreement (Question 3(b))

b) As to whether it is lawful for the European Union to act alone outside the framework of the ICAO (Question 4(a))

i) Compatibility with Article 2(2) of the Kyoto Protocol

ii) Compatibility with Article 15(3) of the Open Skies Agreement

– No ICAO environmental standards to the contrary

– No breach of the principle of non-discrimination in the Open Skies Agreement

– No prohibition against acting alone outside the framework of the ICAO

c) No breach of the prohibition of charges for the arrival or departure of aircraft (Question 4(b))

d) No breach of the prohibition of taxes and charges on fuel (Question 4(c))

i) The prohibition of excise duties on fuel

ii) The prohibition of customs duties on fuel

iii) Interim conclusion

C – Summary

VI – Conclusion

I – Introduction

1. The scheme for greenhouse gas emission allowance trading adopted by the European Union in 2003 is a cornerstone of European policy on climate change. (2) It is intended, on the one hand, to bring about the achievement of important environmental targets set by the European institutions whilst, on the other, serving to fulfil obligations entered into by the European Union and its Member States since the 1990s within the framework of the United Nations, particularly under the Kyoto Protocol.

2. Directive 2008/101/EC (3) provides that, as from 1 January 2012, aviation is to be included in this EU emissions trading scheme.

3. This is being opposed by several airlines and airline associations whose headquarters are in the United States of America (USA) or Canada. They are challenging in the High Court of Justice of England and Wales the measures taken by the United Kingdom to implement Directive 2008/101. They submit that by including international aviation – and transatlantic aviation in particular – in its emissions trading scheme, the European Union is in breach of a number of principles of customary international law and of various international agreements.

4. The Court of Justice is now being asked to give a preliminary ruling on the validity of Directive 2008/101. Its judgment will be of fundamental importance not only to the future shaping of European climate change policy but also generally to the relationship between European Union (‘EU’) law and international law. In particular it will be necessary to consider whether and to what extent individuals are entitled to rely in court on certain international agreements and principles of customary international law in order to defeat an act of the European Union.

II – Legal framework

A – International law

5. Reference is made in the request for a preliminary ruling, on the one hand, to certain principles of customary international law and, on the other, to various international agreements, especially the Chicago Convention, the Kyoto Protocol and the Open Skies Agreement between the European Union and the United States of America.

1. The Chicago Convention

6. The European Union is not a Party to the Convention on International Civil Aviation, opened for signature in Chicago on 7 December 1944 (4) (‘the Chicago Convention’), although all 27 Member States of the European Union are Parties to it. Chapter I (‘General principles and application of the Convention’) contains a provision on sovereignty over airspace in Article 1:

‘The contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory.’

7. In Chapter II of the Chicago Convention (‘Flight over territory of contracting States’) Article 11 provides as follows under the heading ‘Applicability of air regulations’:

‘Subject to the provisions of this Convention, the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with by such aircraft upon entering or departing from or while within the territory of that State.’

8. In addition, Article 12 of the Chicago Convention states in relation to ‘[r]ules of the air’:

‘Each contracting State undertakes to adopt measures to [e]nsure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State undertakes to [e]nsure the prosecution of all persons violating the regulations applicable.’

9. Article 15 of the Chicago Convention concerns ‘[a]irport and similar charges’:

‘Every airport in a contracting State which is open to public use by its national aircraft shall likewise ... be open under uniform conditions to the aircraft of all the other contracting States. …

Any charges that may be imposed or permitted to be imposed by a contracting State for the use of such airports and air navigation facilities by the aircraft of any other contracting State shall not be higher,

(a) As to aircraft not engaged in scheduled international air services, than those that would be paid by its national aircraft of the same class engaged in similar operations, and

(b) As to aircraft engaged in scheduled international air services, than those that would be paid by its national aircraft engaged in similar international air services.

All such charges shall be published and communicated to the International Civil Aviation Organisation … No fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon.’

10. Chapter IV of the Chicago Convention (‘Measures to facilitate air navigation’) contains Article 24 on ‘[c]ustoms duty’, an excerpt from which reads as follows:

(a) Aircraft on a flight to, from, or across the territory of another contracting State shall be admitted temporarily free of duty, subject to the customs regulations of the...