Following the European Court of Justice hearing in July of this year, Advocate General Kokott has delivered her Opinion in which she rejects a challenge brought by United, Continental and American airlines, and their trade association the Air Transport Association of America (ATA), to the lawfulness of including international aviation in the EU emissions trading scheme. She agrees with the six Member States including the UK, the three European institutions, and an international coalition of environmental organisations, that the Directive which extends the scheme to international aviation does not breach public international law.
Advocate General Kokott rejects the claim that the Directive contravened the Chicago Convention, the Kyoto Protocol and the ‘Open Skies Agreement’ between the EU and the US. Similarly, Kokott’s Opinion rejects the claim that the Directive contravened customary international law principles, including the principle of the sovereignty of States over their own air space, as she considered that if flights are bound to or depart from an airport within the territory of the European Union there is an adequate territorial link for the EU to exercise jurisdiction and to include the whole of the flight in question in the EU emissions trading scheme.
A final judgment of the Court will follow at a later date.
The coalition of environmental groups were represented by Jon Turner QC and Laura Elizabeth John.