Including international aviation in the EU's Emissions Trading Scheme (ETS) does not infringe upon the principles of customary international law or the open skies agreement between the EU and the US, the Court of Justice of the EU (CJEU) ruled Wednesday.

“The Court of Justice confirms the validity of the directive that includes aviation activities in the emissions trading scheme,” it said in a statement.

The ruling by Europe’s highest court was widely anticipated and follows an opinion from the court's advocate general in October (ATW Daily News, Oct. 7). The EU in 2008 adopted a directive including aviation in its existing ETS, requiring all airlines—including those from non-EU countries—to acquire and surrender emission allowances for their flights from/to European airports from 2012.

Airlines for America (A4A), formerly called the US Air Transport Assn., and two of its members, American Airlines and United Continental Holdings, challenged the legality of the EU legislation, arguing that by including international aviation—and transatlantic aviation in particular—in the EU ETS, the EU had breached several international agreements including the Chicago Convention and the EU-US open skies agreement. They also argued that it contravened customary international law regarding state's sovereignty over their own airspace (ATW Daily News, July 15).

The CJEU dismissed all of A4A’s arguments and argued that “the EU is not bound by the Chicago Convention because it is not a party to that convention and also has not hitherto assumed all the powers falling within the field of the convention.”

It reasoned that the directive is not intended to apply “as such” to aircraft flying over the high seas or over the territory of the member states of the EU or of third states, and concluded that it is “only if the operators of such aircraft choose to operate a commercial air route arriving at or departing from an airport situated in the EU that they are subject to the emissions trading scheme.”

It added that EU legislature may choose to permit a commercial activity, in this instance air transport, to be carried out in its territory “only on condition that operators comply with the criteria that have been established by the EU.” 

Regarding the EU-US open skies agreement, the CJEU ruled that “the uniform application of the scheme to all flights, which depart from or arrive at a European airport, is consistent with the provisions of the open skies agreement designed to prohibit discriminatory treatment between American and European operators.”