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As part of negotiations to find a global system for reducing the environmental impact of aircraft, the EU agreed in 2013 to suspend its directive requiring flights between Europe and destinations or places of origin outside the EU to report their emissions and surrender allowances for some of them. The one part of the directive that survived is that all flights starting and ending at EU airports are still subject to the requirements to report and surrender, regardless of whether the airline running such flights is from an EU country or not.
The Indian airline Jet Airways has refused to submit data on its intra-EU flights since the start of aviation emissions trading in 2012. The British environment agency ordered it to submit the data and surrender emissions permits as required, but Jet refused, saying the UN aviation body’s (ICAO) 2013 resolution seeking to reach a global agreement contradicted the EU’s directive requiring emissions permits on intra-EU flights. It also said the Indian government had forbidden India’s airlines from participating in the ETS.
An independent adjudicator, David Hart, examined the case and rejected Jet Airways’ arguments. He said ICAO’s resolution A38-18, which seeks a global market-based mechanism to tackle emissions from aircraft, does not override the EU ETS directive. And he said the Indian government was not allowed to forbid the country’s airlines to by-pass another state’s rules, adding that ‘they are plainly political views’ and ‘erroneous’. In a key statement, Hart said: ‘The intent within ICAO to come up with a global market-based mechanism is not inconsistent with a group of ICAO members deciding that they will resolve upon a sectorial MBM whilst ICAO members as a whole decide upon the terms of a global solution.’
T&E’s aviation officer Andrew Murphy said: ‘In terms of the amount of emissions from non-EU airlines operating intra-EU flights, the impact of this judgement will be small, and it is only from one EU member state, albeit a big one on aviation. But it sends out a statement that could be significant. It’s clear that some airlines remain keen to undermine the EU’s role in leading ambitious climate policy for aviation, and they are trying to use all sorts of legal arguments. It is therefore encouraging to find yet another legal ruling saying the EU is fully entitled to charge airlines for permission to emit gases in EU when operating from EU airports.’
In 2011 the European Court of Justice ruled aviation’s inclusion in the ETS to be legal, by dismissing an action by four US airlines that claimed emissions trading in aviation was in breach of international agreements. Earlier ICAO resolutions had also said action to tackle aviation’s environmental impact could only happen ‘at regional level’, and the EU is a region in this sense.