As the dispute regarding status of aviation in the European Emission Trading Scheme becomes more and more pressing it may be useful to refer to certain points of considerations contained in the Judgment of the Court (Grand Chamber) of 21 December 2011 in Case C-366/10.

Elaborations of the Court on the inclusion of aviation activities in the scheme for greenhouse gas emission allowance trading pursuant to the Directive 2003/87/EC (in the wording amended by Directive 2008/101/EC) in the context of the Kyoto Protocol and the principles of customary international law may shed light on the perspectives for future potential further actions as regards spreading the EU ETS rules throughout the world (for instance into the maritime sector according to the recent initiative).


There are reasonable grounds to believe that the legal regime for the responsibility of insiders, emphasising the objective elements of the factual circumstances, elaborated on the basis of the MAD Directive, will also be applied on the grounds of the Auctioning Regulation and the future REMIT Regulation.

 


It seems unbelievable, that in the construction of the European Emission Trading Scheme occurred such a glaring and  - potentially burdened with severe consequences – error in law.

 

Let’s analyze possible future legal scenarios, that are evoked with the judgment of the Court of First Instance of 23 September 2009 in Case T‑183/07 the Republic of Poland against the European Commission.

 


Very interesting are considerations made by Court of the First Instance in the judgment of the of 10 April 2008 in Case T‑233/04, Kingdom of the Netherlands, supported by Federal Republic of Germany versus Commission of the European Communities, concerning the state aid issues in the emission trading scheme for nitrogen oxides.


The following judgment of the Court of the First Instance is important, because it prejudges the legality and admissibility of ex–post adjustments in national allocation plans for emission allowances. It relates to Germany, but bearing in mind that precedent, a draft of a new Polish greenhouse gas emission trading statute (version of 23.06.20008 published on the site of Polish Ministry of the Nature Conservation) also provides for such adjustments. In this case the European Commission was opposite ex-post adjustments (as incompatible with the integrity of the scheme), but it failed in the court proceedings. In the aftermath of this case, in the third trading period 2013 – 2020 it is provided expressis verbis that no ex post adjustments are admissible.


How does operate the principle of equal treatment in relation to the EU ETS?

 

Judgment of the Court (Grand Chamber) of 16 December 2008 in Case C‑127/07 contributes to explaining this matter. It also concerns, as a preliminary ruling, the validity of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).