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Flashcards in EU Law - Aviation Directive Deck (78):
1

% of greenhouse gas attributable to aviation

3%

2

Rising rate of greenhouse gas emissions attributable to aviation

3 - 4%

3

What does CBDR stand for

Common but differentiated responsibility and respective capability

4

What was the international agreement hat sought to combat climate change?

Kyoto Protocol

5

What does CBDR mean?

Developed countries should do more because contributing longer and greater economic resources to combat

6

Article 2(2) Kyoto Protocl

Annex I countries should pursue emission reductions from aviation and marine bunker fuels

7

What agreement delegated responsibillity to reduce greenhouse gas emissions to IAO and IMO?

Kyoto Protocl

8

What are Annex 1 countries?

Developed

9

Non-annex 1 countries

Developing

10

To what two organisations did the Kyoto Protocol delegate responsibility?

International Aviation Organisation and International Maritime Organisation

11

What does ICAO stand for?

International Civil Aviation Organisation

12

What did ICAO project after Kyoto?

2% reduction per year up to 2020 but then aspirational, and biofuel

13

What is an MBM?

Market-based mechanism

14

By what percentage had EU aviation emissions increased between 1990 and 2002/

+73%

15

What measure shows the first step of the EU with regard to aviation emissions?

Directive 2008/101

16

EU Aviation Directive original

Directive 2008/101

17

Directive 2008/101

EU Aviation Directive

18

What did Directive 2008/101 create?

Emissions market for greenhouse gas emissions

19

How many allowances were given free under Aviation D?

85%

20

How much of global aviation emissions did the EU A D cove?

1/3

21

What would happen to persistent non-compliers with EU A D?

Aircraft seize

22

What shows contract law acting as a governance function to ensure compliance with EU measures?

Aircraft leasing companies wrote in clauses requiring renter to comply with EU A D

23

Outline EU A D

Lading or taking off from EU; emissions across ENTIRE flight; have regard to country of origin

24

What was the territorial extension in EU A D?

Covered all emissions emitted across ENTIRE flight

25

How are allowances calculated under EU A D?

Free allowances based on historic emissions levels - discrimination against developing?

26

Name at least two threats made against EU once implications of EU A D realised?

Take EU to WTO; refuse to negotiate bilaterally, economic sanctions, EU emissions trading scheme prohibition act 2011 etc.

27

EU emissions trading scheme prohibition act 2011 general

US 'blocking statute'

28

EU emissions trading scheme prohibition act 2011 said what of EU A D?

It was extraterritorial, unilateral and directly infringe on US sovereignty

29

Section 2 EU emissions trading scheme prohibition act 2011

Secretary of Transport needs to prohibit compliance IF against public interest

30

Section 3 EU emissions trading scheme prohibition act 2011

Enforces use of authority for international negotiation to achieve a worldwide approach

31

What party originally proposed a much stricter version of EU emissions trading scheme prohibition act 2011?

Republicans

32

EU Decision 377/2013

Stop the clock

33

Stock the clock

EU Decision 377/2013

34

EU Decision 377/2013 outline

One year stop for intercontinental flights, derogating to facilitate ICAO agreement

35

What were the EU waiting for ICAO to do?

Develop a global market-based measure

36

ICAO Assembly Resolution 2013

Agreed to recommend ICAO Assembly in 2016 on global MBM to implement by 2020

37

Agreed to recommend ICAO Assembly in 2016 on global MBM to implement by 2020

ICAO Assembly Resolution 2013

38

In what session was the ICAO Assembly Resolution 2013?

38th session of the ICAO

39

What measure shows the original proposed third stage of EU action?

EU 'Regional Airspace' Proposal Com(2013) 722

40

EU 'Regional Airspace' Proposal Com(2013) 722 outline

Include all emissions in EU airspace, and all flights

41

What approach is found in the EU 'Regional Airspace' Proposal Com(2013) 722?

Strictly territorial

42

What measure shows the ACTUAL third stage of EU action?

Regulation 421/2014

43

Regulation 421/2014

Only EU internal flights, with view to resist in 2016

44

What happens if ICAO make no progress at the 39th Assembly, according to Regulation 421/2014?

Stop the Clock ends and revert to full scope

45

What case challenged the legality of EU A D?

Air Transport Association of America case

46

In light of what two instruments did the Air Transport Association of America case try to argue EU A D invalid?

Customary international law and international treaties

47

What three conditions did the CJEU set down before an international agreement can cause EU 2ndary legislation to be invalid?

EU bound by agreement, agreement's nature and logic doesn't preclude examining EU law in light of it (e.g. not WTO) and provisions are unconditional and sufficiently precise

48

What three international treaties were referred to in particular in Air Transport Association of America?

Chicago Convention on Civil Aviation; Kyoto Protocl; Open Skies Agreement

49

What Convention founded ICAO?

Chicago Convention

50

Why was the Chicago Convention not binding on EU?

EU not a party and Article 1 allows States to regulate airspace and landing aircraft

51

Why was the Kyoto Protocol not binding on EU?

NNot sufficiently precise or unconditional

52

Why was the Open Skies Agreement irrelevant?

Not a tax on aviation fuel because no link between volume of fuel and amount payable, and no discrimination

53

What Agreement applied in principle in Air Transport?

Open Skies Agreement

54

What was the main principle of customary international law relied upon in Air Transport?

Freedom of flight over high seas

55

Article 3(5) TEU

EU bound to observe entirety of international law

56

What measure shows EU bound to observe entirety of international law, and thus customary international law valid?

Article 3(5) TEU

57

Why was there no breach of customary international law in Air Transport?

Unlimited jurisdiction within territory when trying to regulate outside behaviour having internal effects (e.g. effects-based jurisdiction).

58

What case did the CJEU refer to in particular to show no breach of customary international law?

Poulson v Diva

59

Poulson v Diva general

Fish on high seas

60

Fish on high seas

Poulson v Diva

61

Poulson v Diva judgment

Surrender fish if within EU ports, but not controlling them in carrying out fishing in the first place

62

Three ways EU action can be seen as reasonable

Effects-based, action-forcing and only CONTINGENT unilateralist

63

Two reasons EU action was unreasonable

Unilateral and didn't take CBDR seriously

64

What two sources show EU is only a contingent unilateralist?

Schrems; Directive on Over the Counter Derivatives

65

Directive on Over the Counter Derivatives on contingent unilateralist

Declare 3rd measures equivalent to EU, effectively applied and enforced

66

Why allow Com to declare 3rd measures are equivalent in Directive on Over the Counter Derivatives?

Avoids conflict, duplication and encourages negotiation between EU and 3rd

67

What measure showed the EU starting to take CBDR seriously?

Proposal Com(2013) 722 - proposed 3rd stage

68

What were the specific provisions in Proposal Com(2013) 722 showing EU starting to take CBDR seriously?

Exempt developing countries unless big aviation emitter (responsible for more than 1% total emissions)

69

According to Sandbag, how many airlines and operators complied with StC?

89%

70

What percentage of global aviation emissions did StC control?

11%

71

What company does Sandbag think may have even profited from EU A D?

Ryanair

72

What two areas were still excluded after Paris Climate Change Agreement?

Shipping and aviation

73

What distinction was removed in Paris Climate Change Agreement?

Annex 1/non-Annex 1 distinction

74

What was adopted in Paris Climate Change Agreement instead of Annex 1 classification?

CDBR 'in light of different national circumstances'

75

Main issue with Paris Climate Change Agreement

'Bottom-up' approach - nationally determined commitments needed which, when added up, may be inisignificant still

76

Name a few suggestions of Sandbag for future legislation?

Control EU airspace AT A BARE MINIMUM, reinstate full scope ASAP, phase out free allocation, impose fines on non-compliers and require Member commitment to spent ETS revenue on climate mitigation

77

Lindenthal

Hard power is counterproductive to directional leadership - EU's unilateralism led to trade conflict and removal of provision concerning geographical scope of aviation D to international emissions

78

What two things does Lindenthal believe EU's unilateralism led to?

Trade conflict and removal of provision concerning geographical scope of aviation D to international emissions

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