The European Emissions Trading Scheme Case Law

• Author: Josephine A.W. Van Zeben
• Published date: 01 July 2009
• DOI: http://doi.org/10.1111/j.1467-9388.2009.00634.x
• Date: 01 July 2009

The European Emissions Trading Scheme

Case Lawreel_634119..128

Josephine A.W. van Zeben

Within European climate change and energy policy,

the European Emissions Trading Scheme (EU ETS)

occupies a prominent role. This article considers the

developing case law of the European courts on the EU

ETS. Specific attention is paid to the role of the differ-

ent actors within the EU ETS and the impact that their

applications to the courts may have on the further

development of the EU ETS. Moreover, the continuing

lack of standing of private parties in EU ETS cases is

analysed in light of demands for legal certainty within

a developing economic market.

INTRODUCTION

The negotiations towards a new international agree-

ment on the mitigation and adaptation strategies

needed to combat global climate change appear to have

been reduced to a strategic minefield of Realpolitik,

where no country wants to take the first step. During

the lengthy process preceding the upcoming Copen-

hagen conference, the EU has gone to great lengths to

present itself as the frontrunner in climate and energy

policy, not just taking tentative steps but rather leaping

forward, ahead of its negotiation partners.1On 6 April

2009, the Council adopted the climate action and

renewable energy package, which is designed to achieve

the EU’s overall environmental target of a 20% reduc-

tion in greenhouse gases and a 20% share of renewable

energy in the total European energy consumption by

2020.2These goals will become even more ambitious3

in case of an international agreement placing obliga-

tions on other developed and economically more

advanced developing countries.4Ambitious and coher-

ent as these European documents may appear, the

politically sensitive nature of climate change and the

great costs involved, combined with the recent eco-

nomic downturn, have put a strain on the ‘unified’ posi-

tion of the European Member States.5

The key building block of the European strategy is the

EU’s Emissions Trading Scheme (EU ETS).6The EU

ETS has been created in order to ‘reduce greenhouse

gas emissions substantially in order to fulfil the com-

mitments of the Community and its Member States

under the Kyoto Protocol’7and to do so in the most

‘cost-effective and economically efficient manner’.8The

trading system created under Directive 2003/87/EC

allows stationary CO2-emitting installations to trade the

1The f‌ifteenth session of the Conference of the Parties (COP) of the

United Nations Framework Convention on Climate Change is set to

take place from 7 December to 18 December 2009 in Copenhagen.

The EU’s negotiation positions can be found in the Communication

‘Towards a comprehensive climate change agreement in Copen-

hagen’ COM (2009) 39 f‌inal (28 January 2009), available at 〈http://

eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009DC

0039:EN:NOT〉.

2These targets are in line with the ambitions set out in ‘20 20 by 2020

– Europe’s climate change opportunity’ COM (2008) 30, available at:

〈http://ec.europa.eu/commission_barroso/president/pdf/COM2008_

030_en.pdf〉.

3Environmental interest groups have expressed scepticism as to the

environmental effectiveness of the European goals and have argued

that the environmental package, as it stands, is not ambitious

enough. See, for instance: Greenpeace, EU Climate Package: a

Good Start – But Ambitions still do not Match the Challenge (Green-

peace, 23 January 2008), available at 〈http://www.greenpeace.org/

eu-unit/press-centre/press-releases2/eu-climate-energy-package〉.

4In this case, the EU will raise its 20% reduction target to 30% by

2020. See, for instance, Directive 2009/29/EC of 23 April 2009

amending Directive 2003/87/EC, [2009] OJ L140/63, Preamble 3.

5For non-academic coverage, see P. Luttikhuis, ‘Of ‘t kan, is nog de

vraag – Europa verliest zijn voortrekkersrol op milieugebied’ (NRC-

Next, 18 June 2009); and ‘EU, US criticized for low prof‌ile in

Bonn climate talks’ (EurActiv, 15 June 2009), available at 〈http://

www.euractiv.com/en/climate-change/eu-us-criticised-low-prof‌ile-

bonn-climate-talks/article-183163〉. The diff‌icult relationship between

the low and high Gross Domestic Product per capita countries within

the European Community with regard to climate change had already

been acknowledged in the 2008 Impact Assessment; see Commis-

sion Staff Working Document of 27 February 2008, Annex to the

Impact Assessment, SEC(2008) 85, at 41–46.

6The EU hopes to see the creation of an international carbon market

as one of the elements of a post-2012 climate agreement. The EU

is convinced of the cost-effectiveness of market-based emissions

trading and believes this will create a large number of economic

opportunities for European and international businesses. See Euro-

pean Commission, EU Action against Climate Change: EU Emission

Trading Scheme-An Open Scheme Promoting Global Innovation, The

EU Brochure (September 2005), available at 〈http://ec.europa.eu/

environment/climat/pdf/emission_trading3_en.pdf〉.

7CFI 7 November 2007, Case T-374/04, Germany v. Commission,

[2007] ECR II 4431, at para. 124.

8Directive 2003/87/EC of 13 October 2003 establishing a scheme for

greenhouse gas emission allowance trading within the Community

and amending Council Directive 96/61/EC, [2003] OJ L275/32,

Article 1.

RECIEL 18 (2) 2009. ISSN 0962 8797

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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