On 16 January 2012 Matrix played host to a Bar European Group seminar entitled “NGOs and EU litigation: the inadmissible in pursuit of the unspeakable”. Kate Cook, a contributor to EUtopia law, gave one of the presentations. She dealt with the issue of which acts and omissions can be reviewed under new procedures brought in to implement the Aarhus Convention provisions on access to justice in respect of decisions taken by EU institutions. In her view, the restrictive approach currently taken by the Commission to the issue of which acts may be subject to internal review only exacerbates the difficulties caused by the Court’s restrictive approach to questions of standing more generally. Kate’s PowerPoint slides can be found here.
On the 6 October 2011 AG Kokott rendered her opinion in Case C-366/10 The Air Transport Association of America and Others. The case concerns a challenge brought by airlines based outside the EU to the EU’s attempt to address the issue of CO2 emissions caused by airlines flying into and out of the EU by extending its well known emissions trading scheme to the aviation sector. As such the case is important for the future of EU climate change policy, both in this area and more widely, as negotiations remain fraught with difficulty in achieving multilateral solutions to the range of challenges posed by climate change. The case also raises once again the thorny issue of the relationship between EU law and public international law.
According to a 2010 Report published by the International Centre for Trade and Sustainable Development, aviation has the greatest climate impact of any mode of transport. The report points out that there are two ways to measure this impact: (1) measuring Co2 emissions alone and (2) taking non-CO2 effects into account (‘the multiplier effect’). Adopting the second of these approaches, and recognising the scientific uncertainty in assessing such additional effects, the report notes that current consensus is that the climatic impact of aviation emissions is double (according to the IPCC up to four times) the impact from CO2 alone. This implies that aviation is responsible for 4.9% of the climate change impact attributable to human activities.
The Parties to the 1997 Kyoto Protocol agreed to pursue the issue of reducing/limiting emissions produced by aviation through the International Civil Aviation Organisation (ICAO). However in the absence of any broader multilateral agreement on a legal framework for reducing emissions from the aviation sector thus far, the EU has adopted a regional framework by extending its emissions trading system to the aviation sector.