All in all, therefore, the EU emissions trading scheme cannot be regarded as a prohibited excise duty on fuel for the purposes of Article 11(2)(c) of the Open Skies Agreement or Article 24(a) of the Chicago Convention.
Thus concluded Dr. Juliane Kokott (right), an Advocate General at the European Court of Justice, in an opinion issued Thursday.
Kokott's opinion detailed why, in her view, the European Union lawfully may require non-EU airline companies that fly in and out of Europe to buy carbon-offset permits. The requirement's the centerpiece of the EU Emissions Trading Scheme, launched in 2005 as a cap-and-trade mechanism for reducing carbon emissions that contribute to climate change.
U.S. carriers and the U.S. government were among those who have opposed such a determination, "which is not binding, but often influences the final outcome of a case before the court," as stated in this Washington Post article. Among the legal sources invoked were the international agreements cited above, available here and here.
The case, Air Transport Association of America and Others (C-366/10), remains under ECJ advisement.