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.