EU Law - Aviation Directive Flashcards
% of greenhouse gas attributable to aviation
3%
Rising rate of greenhouse gas emissions attributable to aviation
3 - 4%
What does CBDR stand for
Common but differentiated responsibility and respective capability
What was the international agreement hat sought to combat climate change?
Kyoto Protocol
What does CBDR mean?
Developed countries should do more because contributing longer and greater economic resources to combat
Article 2(2) Kyoto Protocl
Annex I countries should pursue emission reductions from aviation and marine bunker fuels
What agreement delegated responsibillity to reduce greenhouse gas emissions to IAO and IMO?
Kyoto Protocl
What are Annex 1 countries?
Developed
Non-annex 1 countries
Developing
To what two organisations did the Kyoto Protocol delegate responsibility?
International Aviation Organisation and International Maritime Organisation
What does ICAO stand for?
International Civil Aviation Organisation
What did ICAO project after Kyoto?
2% reduction per year up to 2020 but then aspirational, and biofuel
What is an MBM?
Market-based mechanism
By what percentage had EU aviation emissions increased between 1990 and 2002/
+73%
What measure shows the first step of the EU with regard to aviation emissions?
Directive 2008/101
EU Aviation Directive original
Directive 2008/101
Directive 2008/101
EU Aviation Directive
What did Directive 2008/101 create?
Emissions market for greenhouse gas emissions
How many allowances were given free under Aviation D?
85%
How much of global aviation emissions did the EU A D cove?
1/3
What would happen to persistent non-compliers with EU A D?
Aircraft seize
What shows contract law acting as a governance function to ensure compliance with EU measures?
Aircraft leasing companies wrote in clauses requiring renter to comply with EU A D
Outline EU A D
Lading or taking off from EU; emissions across ENTIRE flight; have regard to country of origin
What was the territorial extension in EU A D?
Covered all emissions emitted across ENTIRE flight
How are allowances calculated under EU A D?
Free allowances based on historic emissions levels - discrimination against developing?
Name at least two threats made against EU once implications of EU A D realised?
Take EU to WTO; refuse to negotiate bilaterally, economic sanctions, EU emissions trading scheme prohibition act 2011 etc.
EU emissions trading scheme prohibition act 2011 general
US ‘blocking statute’
EU emissions trading scheme prohibition act 2011 said what of EU A D?
It was extraterritorial, unilateral and directly infringe on US sovereignty
Section 2 EU emissions trading scheme prohibition act 2011
Secretary of Transport needs to prohibit compliance IF against public interest
Section 3 EU emissions trading scheme prohibition act 2011
Enforces use of authority for international negotiation to achieve a worldwide approach
What party originally proposed a much stricter version of EU emissions trading scheme prohibition act 2011?
Republicans
EU Decision 377/2013
Stop the clock
Stock the clock
EU Decision 377/2013
EU Decision 377/2013 outline
One year stop for intercontinental flights, derogating to facilitate ICAO agreement
What were the EU waiting for ICAO to do?
Develop a global market-based measure
ICAO Assembly Resolution 2013
Agreed to recommend ICAO Assembly in 2016 on global MBM to implement by 2020
Agreed to recommend ICAO Assembly in 2016 on global MBM to implement by 2020
ICAO Assembly Resolution 2013
In what session was the ICAO Assembly Resolution 2013?
38th session of the ICAO
What measure shows the original proposed third stage of EU action?
EU ‘Regional Airspace’ Proposal Com(2013) 722
EU ‘Regional Airspace’ Proposal Com(2013) 722 outline
Include all emissions in EU airspace, and all flights
What approach is found in the EU ‘Regional Airspace’ Proposal Com(2013) 722?
Strictly territorial
What measure shows the ACTUAL third stage of EU action?
Regulation 421/2014
Regulation 421/2014
Only EU internal flights, with view to resist in 2016
What happens if ICAO make no progress at the 39th Assembly, according to Regulation 421/2014?
Stop the Clock ends and revert to full scope
What case challenged the legality of EU A D?
Air Transport Association of America case
In light of what two instruments did the Air Transport Association of America case try to argue EU A D invalid?
Customary international law and international treaties
What three conditions did the CJEU set down before an international agreement can cause EU 2ndary legislation to be invalid?
EU bound by agreement, agreement’s nature and logic doesn’t preclude examining EU law in light of it (e.g. not WTO) and provisions are unconditional and sufficiently precise
What three international treaties were referred to in particular in Air Transport Association of America?
Chicago Convention on Civil Aviation; Kyoto Protocl; Open Skies Agreement
What Convention founded ICAO?
Chicago Convention
Why was the Chicago Convention not binding on EU?
EU not a party and Article 1 allows States to regulate airspace and landing aircraft
Why was the Kyoto Protocol not binding on EU?
NNot sufficiently precise or unconditional
Why was the Open Skies Agreement irrelevant?
Not a tax on aviation fuel because no link between volume of fuel and amount payable, and no discrimination
What Agreement applied in principle in Air Transport?
Open Skies Agreement
What was the main principle of customary international law relied upon in Air Transport?
Freedom of flight over high seas
Article 3(5) TEU
EU bound to observe entirety of international law
What measure shows EU bound to observe entirety of international law, and thus customary international law valid?
Article 3(5) TEU
Why was there no breach of customary international law in Air Transport?
Unlimited jurisdiction within territory when trying to regulate outside behaviour having internal effects (e.g. effects-based jurisdiction).
What case did the CJEU refer to in particular to show no breach of customary international law?
Poulson v Diva
Poulson v Diva general
Fish on high seas
Fish on high seas
Poulson v Diva
Poulson v Diva judgment
Surrender fish if within EU ports, but not controlling them in carrying out fishing in the first place
Three ways EU action can be seen as reasonable
Effects-based, action-forcing and only CONTINGENT unilateralist
Two reasons EU action was unreasonable
Unilateral and didn’t take CBDR seriously
What two sources show EU is only a contingent unilateralist?
Schrems; Directive on Over the Counter Derivatives
Directive on Over the Counter Derivatives on contingent unilateralist
Declare 3rd measures equivalent to EU, effectively applied and enforced
Why allow Com to declare 3rd measures are equivalent in Directive on Over the Counter Derivatives?
Avoids conflict, duplication and encourages negotiation between EU and 3rd
What measure showed the EU starting to take CBDR seriously?
Proposal Com(2013) 722 - proposed 3rd stage
What were the specific provisions in Proposal Com(2013) 722 showing EU starting to take CBDR seriously?
Exempt developing countries unless big aviation emitter (responsible for more than 1% total emissions)
According to Sandbag, how many airlines and operators complied with StC?
89%
What percentage of global aviation emissions did StC control?
11%
What company does Sandbag think may have even profited from EU A D?
Ryanair
What two areas were still excluded after Paris Climate Change Agreement?
Shipping and aviation
What distinction was removed in Paris Climate Change Agreement?
Annex 1/non-Annex 1 distinction
What was adopted in Paris Climate Change Agreement instead of Annex 1 classification?
CDBR ‘in light of different national circumstances’
Main issue with Paris Climate Change Agreement
‘Bottom-up’ approach - nationally determined commitments needed which, when added up, may be inisignificant still
Name a few suggestions of Sandbag for future legislation?
Control EU airspace AT A BARE MINIMUM, reinstate full scope ASAP, phase out free allocation, impose fines on non-compliers and require Member commitment to spent ETS revenue on climate mitigation
Lindenthal
Hard power is counterproductive to directional leadership - EU’s unilateralism led to trade conflict and removal of provision concerning geographical scope of aviation D to international emissions
What two things does Lindenthal believe EU’s unilateralism led to?
Trade conflict and removal of provision concerning geographical scope of aviation D to international emissions
