Is EU competition law ‘special’? Should it be insulated from other EU policies? Should we Europeans follow the neoliberal teachings of Chicago scholars like Bork who claim that American antitrust policy ‘cannot properly be guided any goal other than consumer welfare’ and that ‘distribution of (…) wealth or the accomplishment of noneconomic goals are the proper subjects of other laws’? These questions are particularly relevant to EU environmental policy, where we have seen an increase in reliance on market based instruments (the emissions trading scheme for instance). The central argument of Suzanne Kingston’s new book ‘Greening EU Competition Law and Policy’ is that EU competition law is not special and that it should take greater account of EU environmental policy and goals.
Past Monday, Commissioner Hedegaard announced that she requested the EU Member States to suspend the application of the Emissions Trading Scheme to the aviation sector pending new impetus that might be given by the ICAO Council to find a multilateral solution to combating climate change in the aviation sector. Hedegaard announced that ‘in order to create a positive atmosphere around these very important negotiations, I have just recommended in a telephone conference with 27 member states that the EU stops the clock when it comes to enforcement of aviation into the Emissions Trading System (ETS) to and from non-European countries until after the ICAO assembly next autumn.’
This is the latest development in the ongoing saga concerning the inclusion of aviation into the European scheme. The international protest has been growing the past year especially since last years ATA-judgment of the CJEU, with many of the EU’s main trading partners having threatened to take retaliatory measures against the EU for applying their scheme to third country carriers. This heterogeneous group, dubbed ‘the coalition of the unwilling’, has vowed to combat the EU ETS within the ICAO until it has been removed. Today, the Republican dominated US House of Representatives passed a bill making it illegal for US air transport undertakings to comply with the EU ETS.
The CJEU handed down an important judgment two weeks ago on EU water policy which concerns a number of interesting definitional issues as well as the more general issue of legal effects of directives prior to their transposition deadline. The case concerned a preliminary reference from a Greek court in legal proceedings between the central Greek government and local authorities on the diversion of the river Acheloos in the north-west of Greece.
Authorities and local environmental groups have been fighting each other for over 20 (!) years concerning this diversion project, with those in favour of the diversion at the losing side (I call upon our Greek readers to share with us any information on what on earth is going on there).
Anyway, in the current legal proceedings the question arose whether the government measures leading to the partial diversion of the Acheloos river for water supply and electricity generation purposes was in conformity with a number of EU directives on water policy. The judgment is way too extensive to deal with in a single blog post, so I would like to discuss two aspects of the judgment:
- The legal effect of directive 2000/60 before the transposition period has expired (the Inter-Environment Wallonie doctrine);
- The definition of ‘imperative reasons of overriding public interest’ in article 6 (4) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora.
Directive 2003/4, which implements the Aarhus Convention, gives citizens and businesses the right to access to environmental information in possession of public authorities without making it necessary for them to state reasons. The definition of public authorities is therefore quite important, as the Directive applies as soon as a body falls under that definition. In case C-204/09 Flachglas Torgau, the undertaking Flachglas Torgau sought information from Federal Ministry for the Environment about the conditions in which the Federal Office for the Environment in Germany had allocated emission allowences between 2005 and 2007. This was refused by the Federal Ministry for the Environment on grounds that it related to the legislative process which had resulted in the adoption of the Zuteilungsgesetz 2007. The Directive allows Member States to exclude bodies or institutions from the definition of public authorities ‘when acting in a judicial or legislative capacity.’ Because the requested information related to documents that were used in the process of adaptation of the Zuteilungsgesetz 2007, the Federal Ministry maintained that that it had acted in a legislative capacity and that therefore the Directive did not apply to it.
The Court agreed. It noted that although the Directive was intended to apply to administrative authorities, the purpose for excluding legislative authorities was ‘to ensure that the process for the adoption of legislation runs smoothly, taking into account the fact that, in the various Member States, the provision of information to citizens is, usually, adequately ensured in the legislative process’. According to the Court, ministries do not fall under the definition of public authority to the extent that they participate in the legislative process.
Delivered on the 21st of December last year, the Court’s ATAA-judgment (Case C-366/10, The Air Transport Association of America) was a nice Christmas present for EU policy makers, environmentalists, and everyone who takes climate change seriously. The judgment did, however, also provoke some very unchristmaslike responses, enraging all of the EU’s major trading partners (see previous post by J C Lawrence).
What was all the fuss about?
The next step in the ongoing saga of applying the EU Emissions Trading Scheme (EU ETS) to the airline industry came this week, as the European Commission partially activated the Single Union Registry for aircraft.
All aircraft operators subject to the EU ETS will be required to open accounts in the registry, through which they will receive permits and report their annual emissions. The first batch of allowances will be credited to each aircraft operator by 28 February 2012, with the first reporting requirement due by March 2013.
A number of third countries continue to resist the extension of the EU ETS to airlines, and it remains to be seen whether they or their airline industries will follow through on threats not to comply with the EU’s new rules. Stay tuned!