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The ECJs Judgment in Air Transport Association of America and the International Legal Context of the EUs Climate Change Policy
Abstract
The present article discusses the international legal context of the EU's emissions trading scheme in the light of the judgment of the Court of Justice of the EU in Air Transport Association of America. After ascertaining the effect in the EU legal order of the relevant international norms invoked in that case, the focus of the present article lies on the discussion of the substantive issues that arise when reviewing the scope of Directive 2008/101 in light of the applicable norms. The article assesses the legality under customary international law of the jurisdictional assertions of the EU as upheld by the Court of Justice, reviews the EU measures in light of the law of the World Trade Organization, and compares those measures with similar EU environmental measures in the field of fisheries regulation and maritime transport.
... The objectives of these rules may differ substantially, however. Some rulese.g. in competition lawprimarily regulate internal affairs, while recognizing that the issue has facets that warrant external applicability (De Baere & Ryngaert, 2013). Other measures are aimed more explicitly at altering the conduct of foreign parties in a valued direction. ...
... External applicability is also conducive to the 'hardwiring' of the rules in the global regime (Moe, 1989), as jurisdictions that attempt to repeal their rules remain faced with the external reach of foreign regimes. As mentioned earlier, this means that states are likely to utilize territorial extension, as complete extraterritoriality is highly controversial both politically and under international law (De Baere & Ryngaert, 2013;Scott, 2014). The design of these territorial triggers is then important in determining the limits and non-divisibility of the net (Bradford, 2012), and thus 23 contributes substantially to the degree to which the global minimum standard is comprehensive. ...
Recent years have seen significant efforts to reduce corruption in the oil, gas and mineral industries. Under the Obama administration, rules were adopted obliging stock-exchange-listed extraction companies to disclose payments to domestic and foreign governments, an initiative which soon spread to the European Union and Canada. Under Trump, however, policy preferences changed, and the disclosure requirements were withdrawn. This article investigates how diffusion of United States (US) disclosure rules has mitigated the effects of the withdrawal process through insights on norm diffusion, market power and rules applicable beyond states’ territorial borders. It is argued that when (1) rules with broad external applicability (2) diffuse to multiple influential jurisdictions and (3) address large multinationals in (4) an internationally interdependent sector, global standards of regulation may emerge. As these conditions are largely (although not entirely) fulfilled, it is likely that most large US multinationals will remain at least partially subject to payment disclosure obligations.
... From a legal perspective, international law places certain limitations on the EU's capacity to regulate GHG emissions from international shipping. Most of the identified studies on this legal issue support that, in principle, the ETS coverage of emissions that occur beyond EU territorial waters is compatible with international law (Christodoulou and Cullinane, 2024;Kotzampasakis, 2023;Yliheljo, 2019;De Baere and Ryngaert, 2013;Ringbom, 2011;Kremlis, 2010). States are allowed a broad jurisdiction to enact climate measures in the form of conditions for entry into their ports (territory), provided that these conditions respect certain limitations by international law, including the obligations of non-discrimination against foreign ships, good faith, and non-abuse of rights. ...
... In that judgment, the Court referred to Woodpulp 95 and Commune de Mesquer 96 to support the argument that European Union law may deal with acts that occur partly outside the EU, referring in its reasoning to the so-called 'effects' doctrine. 97 While the Court based its decision on the territorial principle (the fact that the flights originated or landed in an EU Member State), it also considered that such activity taking place outside the EU has a substantial effect within the EU. In these cases, the Court is grappling with questions about how State-centric doctrines like territory and jurisdiction apply to the context of a regional organization. ...
In his Fourth Report on the Identification of Customary International Law (2016), Special Rapporteur Sir Michael Wood confirmed that ‘[i]n certain cases, the practice of international organizations also contributes to the expression, or creation, of rules of customary international law’. That the practice of international organizations can be relevant when identifying customary international law is relatively uncontroversial. The issue that is more debated is the extent to which the practice of international organizations as such may contribute to the development of customary international law. Using examples from the European Union's treaty practice and from the Court of Justice of the European Union, this article argues that international organizations may contribute to such practice, not only by representing the collective will of States, but as autonomous actors in their own right.
The European Union (EU) has extended its climate policy to greenhouse gas emissions from international maritime voyages that start or end at European ports. This chapter explores certain international law dimensions of the upcoming EU climate policy expansion to international shipping, with a focus on international climate law, the law of the sea, and customary international law of state jurisdiction. Although there are sufficient jurisdictional grounds for implementing climate regulations in the form of conditions for entering European ports, the EU’s climate policy for international shipping is not fully aligned with certain applicable legal limitations. Such limitations arise, among others, from the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC), which in this context, requires the EU to more carefully consider the potential economic impacts of its extended carbon pricing regulation on vulnerable countries. Suggestions are formulated to increase alignment with the CBDR-RC principle, while complying with other applicable legal limitations, such as the obligation of non-discrimination against foreign ships.
As a medium for communication between the EU and the USA, law has the ability to provide unique insights into the state of contemporary transatlantic relations. A Transatlantic Community of Law offers legal perspectives on the emerging institutional characteristics of transatlantic relations and contemporary rule-making in both trade and security. Making use of rule of law analysis which has hitherto not been conducted in transatlantic relations scholarship, it draws together EU law, governance and rule-making scholarship and offers new ways of thinking about the use of law and contemporary transatlantic institutions.
The paper starts from EU legal treatment of foreign subsidies and the anticipated conclusion of filling existent gaps in this area. In Sect. 2, breaches in EU competition law are scrutinized, particularly in the light of the EU merger control regime and articles 101 and 102 of the TFEU. In Sect. 3, the effects of foreign subsidies in the EU internal market are studied from the point of view of state aid rules. Finally, in Sects. 4 and 5 the new EU FDI-screening Regulation, the White Paper on levelling the playing field as regards foreign subsidies and the proposal of a new EU Regulation to address distortions caused by foreign subsidies in the Single Market are examined.
Territory is central to the doctrine of international jurisdiction. However, the use of territory as the jurisdictional linchpin is a political choice, the result of a confluence of historically specific political, material, epistemic, and above all mapping practices. The political contingency of territory begs the question whether alternative, non-territorial jurisdictional concepts could be contemplated. In this contribution, community, temporality, and justice are explored. The territorial imbrications of these jurisdictional alternatives are acknowledged, but it is highlighted how territory can in fact be re-conceptualized in the service of ‘its others’. Opting for the ‘others’ and for a novel conceptualization of territory remains a political choice. However, the political character of jurisdiction is not something to lament, but rather to celebrate, as it creates opportunities for a variety of political actors to have an impact on the actual application and construction of the un(der)determined notions of jurisdiction and territory, and ultimately on the modes of exercise of public authority. The salience of these theoretical ideas is exemplified by applying them to the case of transnational human rights litigation against corporations, a manifestation of socio-legal globalization that encapsulates the key role played by jurisdiction in negotiating claims of authority.
A União Europeia recorre amiúde, no plano de problemas transnacionais do foro ambiental, a mecanismos unilaterais que estendem o seu poder regulatório para lá do espaço comunitário, numa manifestação do seu poder regulatório global. Pese embora a bondade aparente do objectivo final de protecção ambiental e dos recursos comuns, como os ictiológicos, nem sempre as soluções encontradas se assemelham pacíficas, justas, eficazes e eficientes, suscitando a dúvida em torno da benignidade da extraterritorialidade e de um activismo ambiental europeu. Dessarte, abordar-se-ão os exemplos mais significativos de actuação extraterritorial verde da União Europeia e as suas principais lições, para depois avançar para a problemática específica da insustentabilidade das pescas, em particular da pesca INN, que encontra respostas em ferramentas comerciais, de certificação de captura e de rastreabilidade, numa teia unilateral complexa que suscita dúvidas quanto ao seu mérito e alcance global.
The chapter analyses the role of the principle of territoriality in the application of European Union (EU) data protection law. The aim is to assess to what extent the territorial element is relevant in determining the scope of application of data protection obligations and consequently whether the new EU regulation is consistent with general principles of international law governing the exercise of prescriptive jurisdiction. By drawing a comparison between the territorial scope of Directive 95/46 and the new GDPR, the chapter claims that territorial connections constitute the main trigger for the EU jurisdictional claim. Finally, taking into account the novelties introduced by the GDPR, it evaluates the international legitimacy of EU data protection rules, especially in the light of the principle of proportionality as a tool to balance competing jurisdictional interests.
When courts are faced with questions regarding the territorial scope of internal legislation, they are required to engage with controversial issues pertaining to the permissible boundaries of regulatory reach, which go beyond traditional conceptions of state sovereignty and non-intervention on which the functioning of courts is normally based. This Article examines the role of the Court of Justice of the European Union (‘CJEU’) in reviewing the legality and interpretation of the extraterritorial reach of EU environmental law, including animal welfare. It assesses the extent to which judicial review by the CJEU serves as a transnational mechanism for addressing legitimacy concerns raised by the unilateral exercise of EU regulatory power beyond EU borders.
Case Note on Case C-260/11 Edwards: notion of prohibitively expensive costs, impact of EU law on national cost rules, role of the CJEU in securing the enforcement of the Aarhus Convention in the EU Member States.
The loosely phrased, and undefined, 'exclusive flag state jurisdiction' principle of the United Nations Law of the Sea Convention Article 92, has arguably proved to be a red herring for states and academia, in its being raised as a limiting factor to extra-territorial prescription by non-flag states. This has extended to port state jurisdiction discussions, and was raised by analogy for aircraft, before the European Court of Justice, in relation to the limits of jurisdiction over high seas overflight. This paper argues for a limited scope to the term 'jurisdiction' in Article 92. It concludes that far from being a limiting factor, the principle of flag state exclusivity is solely concerned with the enforcement jurisdiction of states on the high seas. The increasing use of port state prescriptive jurisdiction, particularly those practices with extra-territorial effect, provides further evidence that this is the correct interpretation.
The EU strives to be a leading rule-making organisation with global reach in both economic and non-economic fields. But how should we understand the science behind this? This book focuses upon unpacking the uncertainty, the form and directions of the global reach of EU law, as a distinctive form of post-national rule-making. The work examines two central themes: the conceptual development of the global reach and effects of EU law; and the methodology of EU rule-making processes. It considers what specific impact and effects the EU’s rules are having, and its approach to global reach. The book studies the EU’s Area of Freedom, Security and Justice (AFSJ) as a case of a non-economic field offering examples of ways and means in which the global reach of EU law can manifest itself in an evolving and sensitive field. Using this casestudy, the book develops a sharper focus upon the ‘internal’ and ‘external’ elements of EU law which make up our understanding of the global reach of EU law and develops further why global reach is important as a scientific phenomenon.
Written as the basis for the conceptual framework of an interdisciplinary research project on the external effects of EU law, this working paper provides an overview of several important literature lines on the external affairs of the EU. In addition to describing these literature lines, the paper will apply the insights from the various perspectives to two case studies: the EU’s external efforts to combat illegal logging and the EU’s recent approach to the ongoing integration process of Bosnia and Herzegovina. The paper aims to move beyond the distinctions between scholarly disciplines by incorporating insights from the legal, political science, public administration and international relations disciplines to describe how the EU can impact legal orders across the globe through its various powers. First, the debate in international relations on the identity and power sources of the EU will be presented. Important contributions on the role of the EU as a normative power and the EU as a market power will be summarized in this section. Moreover, the section will also elaborate on the EU’s recent activities in security and defense, with special attention being devoted to the EU’s civil and peace-keeping missions under the Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP). The question to what extent the EU could be considered a military power in addition to its economic weight and normative power will be considered in particular.
After this relatively broad debate on the role of Europe in the world, an approach focused on concepts describing the specific mechanisms of rule transfer available to EU policy makers will be presented. It will firstly be argued that the EU’s internal regulation can achieve external effects through its market power. The pressure the EU can apply to third state market operators and – indirectly – third state governments to comply with the EU standard to retain market access has been coined the Brussels Effect. EU policy makers may also decide to move one step further by designing internal legislation in such a way that external market parties fall under the scope of EU measures through the extraterritorial application or territorial extension of the EU’s norms. Should the EU choose to incorporate extraterritorial application in a measure, no territorial connection to the EU is needed at all for it to the application and enforcement of this measure. An example is jurisdiction based on the principle of nationality. More common, however, are norms which do require some form of territorial connection with the EU, even if this connection may at times be tenuous. The effects-based doctrine of competition law, which requires that the effects of anti-competitive behavior occur at least partially on the EU market, is a clear example of such a ‘territorial extension’ of a European norm to undertakings and conduct which could potentially be located outside the EU.
Subsequently, the contributions from the political sciences and public administration on the EU’s conditionality policies and several social mechanisms of policy diffusion will be discussed. Under conditionality policies the EU aims to introduce a carrot and stick approach to rule transfer and European integration, based on the grant of rewards in return for reforms by a third state. After the arguably successful implementation of conditionality in the accession policy of the 90’s, the technique has also become an important element in for instance the EU’s more recent approach towards its Mediterranean neighborhood. Furthermore, EU diplomacy may contribute to the rule transfer through what is known in the policy diffusion literature as negotiation and socialization strategies. Through negotiation, EU officials actively attempt to influence the rational decision-making process of other actors, while socialization pertains more to the normative example the EU may pose for other actors or the naming and shaming tactics the EU may employ. Moreover, when employing what has been dubbed spurred emulation, the EU may influence rule-making in other states or international organizations through technical and/or financial assistance. This process is distinct from conditionality strategies, however, as instead of a reward-sanction based structure it focuses on support and assistance for other actors. Finally, an interlude will be presented on a concept developed in comparative law: the legal transplant. The strength of this legal transplant literature is that it inter alia describes the roles of domestic rule-makers, internal motivations for rule transfer and the role of norm entrepreneurs in the diffusion of rules between legal orders. It thereby provides the important nuance that, in addition to the EU’s own efforts in external affairs, the domestic legal and political processes of a recipient state remains of vital importance to the eventual transfer of a rule.
In the analysis of the illegal logging and Bosnia and Herzegovina case studies, it will be seen that the EU applies a multitude of mechanisms in both areas. For illegal logging, the EU utilizes a combination of negotiation strategies through agreements, territorially extended measures and a strong focus on the Brussels effect of its market power. In Bosnia and Herzegovina, the conditionality strategy of the Stabilization and Association Process takes center stage and is complemented by attempts to induce spurred emulation through technical assistance. Both cases rely on the values and market power underpinning the EU, illustrating how both the Market Power Europe and Normative Power Europe perspectives are relevant. The EU’s comprehensive approach to Bosnia and Herzegovina furthermore includes both a civilian and a peace-keeping mission to promote and ensure stability, illustrating the EU’s fledgling involvement in security affairs. After these applications of the presented concepts, the concluding section of the paper will include several recommendations to consider for the subsequent development of the project.
This chapter carries out a fourfold analysis. First, we conduct a theoretical conceptualisation of the international activities of the European Parliament that fall under the politico-legal phenomenon of 'parliamentary diplomacy,' because the bulk of transatlantic interparliamentary collaboration substantively falls under this category. Second, we inquire about the legal and institutional framework for the European Parliament's cooperation with the United States Congress, as the EU’s key strategic partner. Not only do we examine the way transatlantic interparliamentary relations were formalised, we also analyse the prerogatives and outreach of the Transatlantic Legislators' Dialogue as the main format for transatlantic parliamentarism. Third, we inquire whether forums for the European Parliament’s collaboration with national parliaments, such as the Interparliamentary Conference for CFSP and CSDP and, much less so, COSAC as the Conference of European Affairs Committees can add any value in shaping EU parliamentary input in Euro-American relations. Fourth, we analyse the incentives and disincentives for the ‘diplomatic’ activities of the European Parliament in general and towards the United States in particular. It is submitted in this chapter that the political practice of transatlantic parliamentarism contributes to an informal, incremental shaping of the European Parliament’s legal competences in foreign affairs. This argument views MEPs' external action as part of the EU’s living constitution, whereby the meaning, content and exercise of foreign affairs powers evolve over time closer or farther away from their written fundament.
Sovereignty is arguably neither popular nor conventional nor does it transpose itself into discourses of rule-making beyond the Nation State. For some, to speak of sovereignty in the context of global governance leads to bewildering identification of a ‘global sovereign’. The multi-directional nature of the global reach and effects of EU law has been shown in this account to comprise boundaries and competences extensions to various degrees. It is argued to constitute manifestations of sovereignty, with spatial, action and transboundary dimensions to it that require ‘unpacking’. This paper argues that postnational rule-making practices conducted by the EU may usefully be captured by sovereignty, as an over-arching framework beyond an analysis for power, influence and interactions between legal orders. Much scholarship on sovereignty and the EU has been developed prior to more recent invocations in the EU treaties to evolve as a postnational democracy. Participation by the EU in the global legal order is a multi-faceted construct but is argued here to be rooted in an understanding of the EU as an actor, i.e. what it is and what it does. Legal scholarship appears to place a high premium on the ability of the EU to participate externally as an actor, seamlessly, coherently and with consistency. Accordingly, as has been argued here, the enabling character of sovereignty at the postnational level appears insufficiently studied. The physical and metaphysical space of EU rules is argued here to require more nuancing, method and study as to its components. There are as many methodological as substantive challenges to such a thesis, which this text has sought to address as part of a research agenda. Legal texts providing for active participation in the global legal order can be most imperfect even in integrated spheres of action. What is more pressing to consider is the merger of sovereignty, territoriality and jurisdiction in a global world as an emerging matter for EU law.
The European Court of Justice and the International Court of Justice are both courts born of war, established by interstate treaties and having their seats in European cities. The relationship between Luxembourg and Strasbourg has been well explored, and has developed over the years. The major issue today seems to be one of the coherence of human rights protection in Europe—an issue addressed with knowledge, depth, and insight by Kruger and Polakiewicz in the October Human Rights Law Journal .