The growing legislative mess in the area of the EU ETS legislation has the potential to evoke the feeling of disappointment. The recent instances of the above can be the political tensions on account of the so-called back-loading as well as the European Commission’s Proposal for a Decision of the European Parliament and of the Council “derogating temporarily from Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community“ (2012/328 (COD)) regarding the status of aviation.
The text of the said legislative instrument is rather short – the three main Articles see in box below.
Article 1
By way of derogation from Article 16 of Directive 2003/87/EC, Member States shall take no action against aircraft operators in respect of requirements set out in Article 12(2a) and Article 14(3) of Directive 2003/87/EC arising before 1 January 2014, where such aircraft operators have not been issued free allocations in 2012 in respect of activity to or from aerodromes in countries outside the European Union that are not members of EFTA, dependencies and territories of EEA Member States or countries having signed a Treaty of Accession with the Union or, if they have been issued such allowances, have returned a corresponding number of allowances to Member States for cancellation.
Article 2
The Member States shall cancel all 2012 allowances in respect of flights to or from aerodromes referred to in Article 1 that have either not been issued or, if issued, have been returned to them.
Article 3
Allowances cancelled pursuant to Article 2 shall not be taken into account for the purposes of calculating entitlements to use international credits within the framework of Directive 2003/87/EC.
It can generally be understood that the global political situation on this issue was particularly complicated with growing pressure on system halting (the problem highlighted, among others, in the Judgment of the Court (Grand Chamber) of 21 December 2011 in Case C-366/10).
However, the manner in which the matter was put in the legislative text rises many doubts.
The first issue is the phrase: “Member States shall take no action” in Article 1 of the draft Decision – it appears to mean that everybody knows that the law has been infringed but it is a common agreement that the law in that regard shouldn’t be enforced. In my opinion it is not an appropriate approach from the fundamental values perspective. As a rule, the law should be observed and enforced, and provisions that have not been considered by the competent authorities justified, should be repealed and not only covered by “no-action” agreement.
Secondly the Recital 2 in the preamble to the draft Decision explains that while an action should not be taken against aircraft operators in respect of requirements resulting from Directive 2003/87/EC arising before 1 January 2014 for reporting verified emissions and for the corresponding surrender of allowances from incoming and outgoing flights to and from aerodromes outside the EU (for precise scope see Article 1 beside), “aircraft operators who wish to continue to comply with those requirements should be able to do so”.
So, the law is formulated in the way the only the entities which voluntarily choose to do so, are obliged to observe the prescriptions? The situation is somewhat astonishing. Apart from that it appears that persons which from the beginning declined to abide by law are rewarded in comparison to the rest which incurred expenses to ensure compliance.
The same applies to monitoring, reporting and verification issues as Q&A document of 20 November 2012 indicates that proper monitoring, reporting and verification of greenhouse gas emissions from such flights “is welcomed, but compliance sanctions will not be taken in case of the non-reporting of such emissions”.
Finally, the situation in which the aircraft operators are first issued emission allowances and subsequently required to return them (as is provided for in Article 1 of the draft Decision) evokes an impression that the whole thing was not appropriately prepared and thought through from the beginning. The prestige of the Union law apparently has been jeopardised in this case.
I don’t opt in this place for any of the divergent stances to the aviation dispute. I only mean, whichever option was considered appropriate, should be properly reflected in law and in due time.