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Law Second Year > EU Law - Aviation Directive > Flashcards

EU Law - Aviation Directive Flashcards

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1
Q

% of greenhouse gas attributable to aviation

A

3%

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2
Q

Rising rate of greenhouse gas emissions attributable to aviation

A

3 - 4%

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3
Q

What does CBDR stand for

A

Common but differentiated responsibility and respective capability

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4
Q

What was the international agreement hat sought to combat climate change?

A

Kyoto Protocol

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5
Q

What does CBDR mean?

A

Developed countries should do more because contributing longer and greater economic resources to combat

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6
Q

Article 2(2) Kyoto Protocl

A

Annex I countries should pursue emission reductions from aviation and marine bunker fuels

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7
Q

What agreement delegated responsibillity to reduce greenhouse gas emissions to IAO and IMO?

A

Kyoto Protocl

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8
Q

What are Annex 1 countries?

A

Developed

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9
Q

Non-annex 1 countries

A

Developing

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10
Q

To what two organisations did the Kyoto Protocol delegate responsibility?

A

International Aviation Organisation and International Maritime Organisation

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11
Q

What does ICAO stand for?

A

International Civil Aviation Organisation

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12
Q

What did ICAO project after Kyoto?

A

2% reduction per year up to 2020 but then aspirational, and biofuel

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13
Q

What is an MBM?

A

Market-based mechanism

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14
Q

By what percentage had EU aviation emissions increased between 1990 and 2002/

A

+73%

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15
Q

What measure shows the first step of the EU with regard to aviation emissions?

A

Directive 2008/101

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16
Q

EU Aviation Directive original

A

Directive 2008/101

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17
Q

Directive 2008/101

A

EU Aviation Directive

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18
Q

What did Directive 2008/101 create?

A

Emissions market for greenhouse gas emissions

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19
Q

How many allowances were given free under Aviation D?

A

85%

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20
Q

How much of global aviation emissions did the EU A D cove?

A

1/3

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21
Q

What would happen to persistent non-compliers with EU A D?

A

Aircraft seize

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22
Q

What shows contract law acting as a governance function to ensure compliance with EU measures?

A

Aircraft leasing companies wrote in clauses requiring renter to comply with EU A D

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23
Q

Outline EU A D

A

Lading or taking off from EU; emissions across ENTIRE flight; have regard to country of origin

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24
Q

What was the territorial extension in EU A D?

A

Covered all emissions emitted across ENTIRE flight

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25
Q

How are allowances calculated under EU A D?

A

Free allowances based on historic emissions levels - discrimination against developing?

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26
Q

Name at least two threats made against EU once implications of EU A D realised?

A

Take EU to WTO; refuse to negotiate bilaterally, economic sanctions, EU emissions trading scheme prohibition act 2011 etc.

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27
Q

EU emissions trading scheme prohibition act 2011 general

A

US ‘blocking statute’

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28
Q

EU emissions trading scheme prohibition act 2011 said what of EU A D?

A

It was extraterritorial, unilateral and directly infringe on US sovereignty

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29
Q

Section 2 EU emissions trading scheme prohibition act 2011

A

Secretary of Transport needs to prohibit compliance IF against public interest

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30
Q

Section 3 EU emissions trading scheme prohibition act 2011

A

Enforces use of authority for international negotiation to achieve a worldwide approach

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31
Q

What party originally proposed a much stricter version of EU emissions trading scheme prohibition act 2011?

A

Republicans

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32
Q

EU Decision 377/2013

A

Stop the clock

33
Q

Stock the clock

A

EU Decision 377/2013

34
Q

EU Decision 377/2013 outline

A

One year stop for intercontinental flights, derogating to facilitate ICAO agreement

35
Q

What were the EU waiting for ICAO to do?

A

Develop a global market-based measure

36
Q

ICAO Assembly Resolution 2013

A

Agreed to recommend ICAO Assembly in 2016 on global MBM to implement by 2020

37
Q

Agreed to recommend ICAO Assembly in 2016 on global MBM to implement by 2020

A

ICAO Assembly Resolution 2013

38
Q

In what session was the ICAO Assembly Resolution 2013?

A

38th session of the ICAO

39
Q

What measure shows the original proposed third stage of EU action?

A

EU ‘Regional Airspace’ Proposal Com(2013) 722

40
Q

EU ‘Regional Airspace’ Proposal Com(2013) 722 outline

A

Include all emissions in EU airspace, and all flights

41
Q

What approach is found in the EU ‘Regional Airspace’ Proposal Com(2013) 722?

A

Strictly territorial

42
Q

What measure shows the ACTUAL third stage of EU action?

A

Regulation 421/2014

43
Q

Regulation 421/2014

A

Only EU internal flights, with view to resist in 2016

44
Q

What happens if ICAO make no progress at the 39th Assembly, according to Regulation 421/2014?

A

Stop the Clock ends and revert to full scope

45
Q

What case challenged the legality of EU A D?

A

Air Transport Association of America case

46
Q

In light of what two instruments did the Air Transport Association of America case try to argue EU A D invalid?

A

Customary international law and international treaties

47
Q

What three conditions did the CJEU set down before an international agreement can cause EU 2ndary legislation to be invalid?

A

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

48
Q

What three international treaties were referred to in particular in Air Transport Association of America?

A

Chicago Convention on Civil Aviation; Kyoto Protocl; Open Skies Agreement

49
Q

What Convention founded ICAO?

A

Chicago Convention

50
Q

Why was the Chicago Convention not binding on EU?

A

EU not a party and Article 1 allows States to regulate airspace and landing aircraft

51
Q

Why was the Kyoto Protocol not binding on EU?

A

NNot sufficiently precise or unconditional

52
Q

Why was the Open Skies Agreement irrelevant?

A

Not a tax on aviation fuel because no link between volume of fuel and amount payable, and no discrimination

53
Q

What Agreement applied in principle in Air Transport?

A

Open Skies Agreement

54
Q

What was the main principle of customary international law relied upon in Air Transport?

A

Freedom of flight over high seas

55
Q

Article 3(5) TEU

A

EU bound to observe entirety of international law

56
Q

What measure shows EU bound to observe entirety of international law, and thus customary international law valid?

A

Article 3(5) TEU

57
Q

Why was there no breach of customary international law in Air Transport?

A

Unlimited jurisdiction within territory when trying to regulate outside behaviour having internal effects (e.g. effects-based jurisdiction).

58
Q

What case did the CJEU refer to in particular to show no breach of customary international law?

A

Poulson v Diva

59
Q

Poulson v Diva general

A

Fish on high seas

60
Q

Fish on high seas

A

Poulson v Diva

61
Q

Poulson v Diva judgment

A

Surrender fish if within EU ports, but not controlling them in carrying out fishing in the first place

62
Q

Three ways EU action can be seen as reasonable

A

Effects-based, action-forcing and only CONTINGENT unilateralist

63
Q

Two reasons EU action was unreasonable

A

Unilateral and didn’t take CBDR seriously

64
Q

What two sources show EU is only a contingent unilateralist?

A

Schrems; Directive on Over the Counter Derivatives

65
Q

Directive on Over the Counter Derivatives on contingent unilateralist

A

Declare 3rd measures equivalent to EU, effectively applied and enforced

66
Q

Why allow Com to declare 3rd measures are equivalent in Directive on Over the Counter Derivatives?

A

Avoids conflict, duplication and encourages negotiation between EU and 3rd

67
Q

What measure showed the EU starting to take CBDR seriously?

A

Proposal Com(2013) 722 - proposed 3rd stage

68
Q

What were the specific provisions in Proposal Com(2013) 722 showing EU starting to take CBDR seriously?

A

Exempt developing countries unless big aviation emitter (responsible for more than 1% total emissions)

69
Q

According to Sandbag, how many airlines and operators complied with StC?

A

89%

70
Q

What percentage of global aviation emissions did StC control?

A

11%

71
Q

What company does Sandbag think may have even profited from EU A D?

A

Ryanair

72
Q

What two areas were still excluded after Paris Climate Change Agreement?

A

Shipping and aviation

73
Q

What distinction was removed in Paris Climate Change Agreement?

A

Annex 1/non-Annex 1 distinction

74
Q

What was adopted in Paris Climate Change Agreement instead of Annex 1 classification?

A

CDBR ‘in light of different national circumstances’

75
Q

Main issue with Paris Climate Change Agreement

A

‘Bottom-up’ approach - nationally determined commitments needed which, when added up, may be inisignificant still

76
Q

Name a few suggestions of Sandbag for future legislation?

A

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

77
Q

Lindenthal

A

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

78
Q

What two things does Lindenthal believe EU’s unilateralism led to?

A

Trade conflict and removal of provision concerning geographical scope of aviation D to international emissions

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