This article was originally an essay submitted as part as an assessment at Trinity College Dublin. Its content has been analysed and archived in a anti-plagiarism software.
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The aviation industry certainly experienced a phenomenal growth in the late 20th century. The emergence of low-cost airlines combined with a lower cost of fuel and aircraft allowed more people to fly more frequently, and a lot of tourism-dependent countries benefited from this new influx of foreign travellers. Contrary to popular belief, aviation accounts for only 14% of the emissions from the transportation sector. This entire economic sector accounted for only 14% of global greenhouse gas emissions in 2010.[1] However, it is undisputed that the aviation sector is likely to continue to grow. Environmental considerations are becoming more and more important in our society, and the issue of environmental protection has become one of the predominant challenges for all stakeholders in the world of aviation. There is no shortage of ways to tackle this problem: taxation, carbon credits, mandatory use of alternative fuels, research subsidies… But their implementation remains the main problem. Recently, the development of an instrument at the international level has been strongly criticised by some commentators, who argue that the most effective way to fight pollution from the civil aviation sector is to introduce a tax at the global level. But, is it really?
This essay provides a legal analysis of the two main theses defended in the industry.
The first part of this writing will present the two main market-based measures (hereinafter ‘MBM’ or ‘MBMs’) applicable to the civil aviation industry. These two instruments are often criticised by non-governmental organisations advocating for being too laxist and failing to provide a working and effective solution to tackle global warming. In place, they argue that a tax would be much more efficient for this sector. We will see to which extent it is possible to implement such a tax in the second part. Lastly, the third part will expose the main problem of taxation, while also presenting industry-compatible alternatives that could also effectively meet the requirements to keep emissions at the lowest acceptable level for the whole sector. I will conclude that while being certainly not perfect for not being enforceable at a global scale, market-based measures are probably a better solution on the medium haul than taxation. Secondly, taxes are often legally not compatible with the status of civil aviation and are therefore hardly conceivable as a rational solution.
Outline →
Market-Based Measures: Industry-Tailored Measures
The Convention on International Civil Aviation of 1944 (hereinafter: Chicago Convention) is regulating international civil aviation. Strictly speaking, there is no mention of environmental protection in any of its articles. Nevertheless, this absence is comprehensible, in that no author could have foreseen the dimension that civil aviation would take on today.
Yet, because of its international scope and under the influence of external events, the International Civil Aviation Organization (hereinafter: ICAO) has become increasingly conscious of the importance of environmental issues. There is no article addressing air pollution or greenhouse gas emissions in the 1944 initial version of the Chicago Convention. As proposed by scholars Benjamyn Scott and Andrea Trimarchi, an extensive reading of Article 44 which defines the powers and duties of the ICAO may allow the inclusion of an environmental protection mission.[2] Indeed, Articles 44(a) and 44(i) respectively provide that the ICAO shall:
“[..]develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as:
(a) Insure the safe and orderly growth of international civil aviation throughout the world;
(i) Promote generally the development of all aspects of international civil aeronautics.”
The 1997 Kyoto Protocol on the reduction of greenhouse gases (GHG) emissions also gave a special place to ICAO. Although aviation is excluded from the scope of the Protocol, Article 2.2 encourages ratifying states to ‘pursue limitation or reduction of emissions of greenhouse gases […] from aviation […], working through ICAO […]’. Following the Kyoto Protocol, ICAO has been reporting on its progress in reducing emissions across the industry to the Subsidiary Body for Scientific and Technological Advice of the UNFCCC (United Nations Framework Convention on Climate Change), as it did recently for the COP 27.[3]
In 2013, after lengthy negotiations, the ICAO succeeded in having its members adopt its carbon policy. This policy sets the objective of keeping emissions at 2020 levels and offsetting all emissions that exceed these levels in order to make them carbon neutral.[4]
To deliver this ambitious goal, ICAO needed to have a tool to set up specific rules, which can be applied at a market level. With regard to the reduction of emissions, ICAO is developing its action around four pillars which can be summarised as follows:
- the first concerns green aircraft technologies and technical improvements for engines, aerodynamics and ultimately the renewal of the fleet.
- The second pillar relates to operational measures that can be more or less easily implemented: improvement of air traffic flow management, terminal area design and management or the introduction of ‘performance-based navigation’ (PBN).
- The third pillar concerns the progressive implementation of sustainable alternative fuels (SAFs) in order to reduce the carbon footprint of aviation. This development has received a lot of attention in the recent months, because of the encouraging experiments carried out by some industry’s major stakeholders such as aircraft manufacturers on the use of SAFs.[5]
- In spite of these considerable technological breakthroughs , ICAO still believes that these three pillars will not be sufficient to contain the sector’s emissions to 2020 levels.[6] Therefore, ICAO is relying on the very last pillar, which is market-based measures (MBMs).
MBMs include all financial measures aimed at guiding stakeholders’ practices to reduce their emissions.[7] According to ICAO, this is the most cost-effective way to achieve the goal of carbon neutrality for international civil aviation from 2020. In October 2016, ICAO adopted an MBM named ‘Carbon Offsetting Reduction Scheme for International Aviation’ (CORSIA), which is a global carbon offset scheme. The special feature of carbon offset schemes like CORSIA is their permissiveness. They do not restrict any growth or overshooting of initial targets, provided that these emissions are offset and balanced in other industries, contrary to a ‘cap and trade’ system. Under the latter, the total emissions are subject to an unsurpassable cap. As Uwe M. Erling recalls it, this system type is incompatible with the projected growth of the sector in the next years.[8]
ICAO has chosen to adopt a very unique stance in the field of environmental measures.
CORSIA being an offsetting scheme, operators therefore can grow freely as long as they compensate their own emissions elsewhere.[9] CORSIA sets a ‘baseline’, which will function as a limit above which all emissions must be offset, known as the ‘offsetting requirement’. Its complete implementation is planned through three steps, two of which being on a voluntary basis.
According to ICAO, it is a very effective tool and particularly well suited to the civil aviation industry since it is not imposing a limit on the industry’s growth. ICAO has chosen to adopt a very unique stance in the field of environmental measures. This position is stated in Resolution A40-19, adopted during the 40th session of the Assembly, summarising the environmental policies and practices of ICAO.[10] It recalls that the CORSIA mechanism must be surrounded by safeguards so that the MBM ‘ensure the sustainable development of the international aviation sector’. The measure must also not place an ‘inappropriate economic burden on international aviation’. The concern about costs is also reflected in a presentation made during a 2015 ICAO seminar on ‘International aviation and environment’ taking place in Warsaw, Poland. The MBM, which at the time was still under elaboration, was seen as a measure that must be ‘cost effective’ in order to meet climate challenges, ‘at the lowest possible cost’.[11] This approach deserves to be singled out as an exception in the landscape of sectoral environmental measures. Usually, the standard is to design and impose restrictive, quantitative, or financial measures across an entire industry. Then, after a period of assessment on the effectiveness of the implemented measures, the regulator or legislator proposes an adjustment in a second version of the rules.[12]
ICAO’s unique approach can be explained by two elements. First, the industry is factually growing strongly, and projections show that it will continue to do so, despite an almost total shutdown by 2020.
Second, the margins of the aviation sector are very low, and a small increase in operating cost, say 1%, would not be inconsequential for an industry with margins as low as civil aviation’s.[13]
It is recognised that the development of the CORSIA system has been highly triggered by the rise of the European Union’s own MBM named EU Emissions Trading System (EU ETS). The European Union has the largest greenhouse gas emissions trading scheme worldwide.[14] The implementation of this EU-MBM, although anticipated, was tedious and commentators agree that its usefulness has yet to be proven, almost 20 years after its entry into force. Surprisingly, the articulation between ICAO’s CORSIA and the EU ETS is still unclear.
Initially intended to cover the manufacturing industry, the EU ETS has included aviation since January 1, 2012. Unlike the ‘traditional’ manufacturing industry, the civil aviation sector is more difficult to cover because of the different extra-national elements that are involved in a single flight. Thus, from the point of view of the application of European law, it is easy to cover a flight from Warsaw to Dublin operated by an Irish company. On the other hand, a flight from Brussels to Taipei, operated by a Korean company, is more complicated to apprehend due to the numerous foreign elements. In theory only, because the European Union has decided to extend the scope of the ETS to the entire flight, thus covering emissions generated over international waters and even over the territory of other states. In addition to being contested because of its calculation method, which ultimately discriminates against international flights, many states protested against this extra step, which conflicted with their sovereignty.[15] In response to the growing international protest, the European Union decided to temporarily ‘stop the clock’ by suspending the application of the ETS to flights to and from airports in non-European Economic Area countries.[16] Although the EU justified this exceptional suspension by the progress of the development of an international MBM (which later became CORSIA) within ICAO, it is clear that discontent was growing, including within the EU member states. In 2016, following Resolution A39-3 implementing CORSIA, the European Union decided to extend the ‘stop the clock’ from 2017 until 2024, while awaiting the advancement of CORSIA’s implementation.[17]
The interaction between the ETS and CORSIA is generating a lot of uncertainty among professionals.[18] All EU member states have volunteered to participate in the pilot phase of CORSIA, which began on 1 January 2021. In theory, therefore, the two systems overlap. CORSIA is applicable to all international flights, meaning from one country to another, including flights between two EU member states. These flights are therefore in principle subject to both systems. This situation is paradoxical since ICAO aims to prevent flights from being subject to multiple MBMs.[19] A trialogue between the Council of Europe, the Commission and the European Parliament is currently underway to find a temporary solution. It is very likely that the result of these reflections will lead to an update of the European system to bring it into line with CORSIA.[20]
The Taxation Fashion
The development of MBMs is highly controversial among a large majority of non-governmental organisations and civil society. In their view, such instruments can easily be misused and become an easy prey for political recuperation.
An alternative to these MBMs that is often proposed as a measure to fight against global warming is taxation. For the past year, special attention has been paid to the use of private jets, and calls for a ‘private jet tax’ are growing all over the world.[21]
The main criticism of MBMs such as the EU ETS or CORSIA is their complexity of implementation and operation. As regards the former, it should be noted that the European Union has been trying to include aviation in the scope of its ETS since 2003.[22] As soon as it finally came applicable for civil aviation, it was criticised for being unfair, both to companies and to the useful effect on the environment. More importantly, the way these mechanisms work is highly contested. Some lobbies for the clean transport sector argue, for example, that the whole CORSIA system is flawed.[23] The schemes to buy carbon credits for airlines are said to be contentious and do not provide the necessary guarantees that they will actually reduce emissions. A study commissioned by the European Commission estimates that the ‘obligations placed on aeroplane operators under CORSIA are likely to be met largely through the purchase and cancellation of carbon offset credits because they offer a lower-cost option compared to the use of CORSIA eligible fuels’.[24] Therefore, airlines have no reason to use the more expensive sustainable aviation fuels, and thus to reduce their emissions, since this solution does not make economic sense. In a nutshell, the permissiveness of these MBM schemes is both their strong point and their main design weakness.
This has been well summarised by a commentator:[25]
‘In a cap-and-trade system, someone must decide how to allocate carbon emission allowances. […] Awarding emissions rights based on evaluation of particular industries and practice is likely to be highly politicised.’
In addition to its disputed effectiveness, some authors see CORSIA as lacking credibility from a legal point of view, which, in their opinion, would make it a useless instrument.[26] CORSIA is a special legal instrument, enshrined in Annex 16 of the Chicago Convention. The aforementioned European Commission study described it as a ‘a mix between the Resolution, the SARPs [Standards and Recommended Practices] and technical provisions, which will not have a (strong) binding effect’.[27] Indeed, to be enforceable, SARPs need to be transposed in national law or in EU law for Member States of the EU; otherwise it remains a soft-law document. Since Annexes do not have the status of a Treaty and their enforceability is subject to debate, CORSIA’s reach seems to be further weakened, in addition to the flaws pertaining to its functioning previously pointed out.
After the initial phases of CORSIA (pilot phase and phase I), i.e. in 2027, Contracting States will still be able to object to the application of CORSIA under Article 38 of the Chicago Convention, by notifying a difference. Abeyratne therefore concludes that the outcome of CORSIA depends solely on the goodwill of the states.[28] ICAO, as foreseen in the SARPs legal regime, can conduct audits to ensure good compliance by Contracting States, but has no means of enforcement in case of violation.[29] Most of the dispute resolution takes place between states, through Air Services Agreement (ASAs). Alternately, the United States and the European Union also have a way of putting pressure on states that do not respect the SARPs that they consider essential, through their airline blacklist. But from a practical point of view, it seems very unlikely that airlines from a Contracting State not participating in CORSIA would be entirely banned from taking off or even flying over the airspace for this reason.
Therefore, many are advocating for an environmental tax based on the carbon emitted by airlines. According to Abeyrtane, an environmental tax is defined as follows:
‘The main task of an environmental tax is to influence the damage caused by pollution to the environment by causing change in relative costs.’[30]
It is often argued that one of the most effective taxes when it comes to taxing environmental damage is the Pigouvian tax.[31] As Abeyrtane simply explains, it works like a cab meter: the client (the airline) pays according to the distance travelled (the amount of carbon emissions):
‘The Pigouvian tax bases its levy on the marginal social cost at emission levels which are socially efficient. For instance, emission levels of an industry would become socially efficient at the point where the industry concerned breaks even between the marginal benefit accrued to the industry from the activity which causes environmental damage, and the marginal cost to society.’[32]
Pigouvian taxes are hence very different from taxes based on the consumption of a good or a service which would be, in this case, only based on the consumption of fuel. The difference lies in the method of calculation on which the tax base is based, since this type of tax, unlike the Pigouvian tax, is an indirect tax on the environment.
Unlike MBMs such as CORSIA or the EU ETS, taxes are stricter tools, which (in principle) leave no room for manoeuvre to taxable entities. The rigidity that is often attached to this tax system is in fact its main advantage according to its supporters. They believe that the market or exchange system, in which different actors can buy, sell, and even keep and save their credits, necessarily leads to manipulation by businesses.[33] Conversely, a carbon tax leaves no room for variables or adjustments. Even better, if the tax is levied directly on the ticket sold by the airline, this would allow for greater visibility when it comes to the projects that a tax should finance, according to climate expert Jean-Marc Jancovici.[34]
Still, ICAO’s position on a carbon tax is clear, and due to the complexities of instituting a global tax, it is almost impossible for such a measure to emerge within the Organization. In 2015, a non-governmental organisation held a side event at the COP21. During a question and answer session about the implementation of MBMs in the civil aviation industry, ICAO took the opportunity to detail its position on the idea of one or more environmental taxes. In 2015, during the ‘final stage’ of the preparation of what would become CORSIA, Jane Hupe, the Chief of the Environmental Unit of ICAO, clarified that the idea of a tax was not completely excluded. The reasons that motivated the ICAO not to pursue the tax option are multiple.
The first reason for this renunciation may be purely legal, which nips in the bud even the possibility of such a tax to be implemented at the global scale. First, the Chicago Convention of 1944 was not intended to deal with tax matters. The only article that mentions taxation is Article 24(a), which provides that ‘fuel and lubricating oils on board an aircraft of a Contracting State on arrival in the territory of another Contracting State and retained on board on leaving the territory of that State shall be exempt from customs duty, inspection fees or similar national or local duties and charges’. The provisions of this article are reiterated in an ICAO Council Resolution of 2000, extending these provisions to other areas and in which ICAO provides its definition of a tax.[35] Thus, any mandatory sum, levied on aircraft operators in connection with the consumption of fuel and not used to finance ‘airports or air navigation facilities and services’ is a fuel tax. However, in principle, this tax exemption does not have to be applied by all contracting states. The exemption is based on the principle of reciprocity, thus, a Contracting State that practises this exemption would not be obliged to practise it for an aircraft operator established in another Contracting State that does not participate in the exemption.
For Member States of the European Union, this tax exemption has been transposed into EU law through Directive 2003/96/EC. Article 14(1)(b) of the Directive prohibits Member States from taxing ‘energy products supplied for use as fuel for the purpose of air navigation other than in private pleasure-flying’.[36] Although they retain the possibility of lifting this exemption for international, European and domestic flights under Article 14(2) of the Directive, no Member State had made use of this possibility by 2020.[37]
Finally, the ICAO’s anti-fuel tax position is not universally shared, at least in Europe. Several countries such as Germany, Norway or Sweden have included reservations on their statement to the ICAO’S policies on taxation in the field of International air transport, stating that they wish to keep the possibility of taxing fuel if deemed necessary in the future. Ultimately, even if it were possible to introduce a tax at the global level, it is hard to conceive how such a tax could be properly designed, considering the diverse fiscal policies of the 193 Contracting States of ICAO.
Stimulating Innovation
The implementation of a universal tax within ICAO seems utopian, for both political and legal reasons. Facing what some consider as the impotence of the different civil aviation regulators, some states have taken the lead by introducing various taxes that the final consumers finally have to bear. A move that is not without consequences for the whole industry as it is increasing the risk for a considerable drop of passengers for airlines, and visitors for touristic countries.
Calls for the development of a stronger, more incisive tax arsenal are becoming more and more numerous in Europe. The ‘flight shaming’ movement, which first emerged in Sweden in 2018, calls for widespread ‘eco-taxes’.[38] Very recently, the Netherlands has significantly increased the ‘Netherlands Dutch State Tax’ which is levied on all travellers departing from Dutch airports. Soon, passengers will have to pay a €28 tax instead of the former €8. The travel news website ‘One Mile at a Time’ calculated that a traveller will have to pay over €60 in taxes for flight from Amsterdam to Frankfurt.[39] From an international law point of view, this type of brutal increase (more than 250%), is entirely contrary to ICAO’s Guidelines & Policies, which advocate for a ‘gradual’ increase, in order ‘To avoid undue disruption to users’.[40]
The Dutch government decision to drastically increase this tax, clearly in contradiction with ICAO recommendations, has triggered a strong reaction from IATA, the industry’s economic representative association. Conrad Clifford, the IATA SVP & Deputy Director General said that Netherlands was ‘[…] a country where the regulation is completely out of control’, in response to the fact that this measure will be applicable as of January 2023, and this without any prior consultation. [41]After pointing out the economic implications of this measure, he recalls that the tax will not be used to finance environmental measures (such as research and development on clean technologies for aviation), but will be an additional revenue that will go directly into the pocket of the government.
The Netherlands has increased its ‘Netherlands Dutch State Tax’ by 250%, making passengers departing from all Dutch airports pay €28 instead of €8.
This suggests that consideration should be given to the possibility of allocating revenues from a tax (which would be characterised as environmental) to an expenditure object, which could be used, for example, to subsidise research and development projects such as Sustainable Aviation Fuels. From a political point of view, this practice could potentially justify sharp increases that are borne by consumers. From an industry point of view, this idea seems to be supported by IATA, which considers that it could be beneficial for the aviation sector.
But the legal possibilities to implement it are limited, at least in some EU Member States. In Belgium and France, for example, the rule of non-allocation of revenues (principe d’universalité budgétaire) is a general principle of public expenditure. According to this principle, neither the tax administration nor the legislator can set aside the revenues of a tax for a particular purpose. As a result, all revenues are pooled into a common pot, then all expenditures must be drawn from it.
In the current state of the industry, taxation definitely does not seem to be a viable solution. The civil aviation industry is trying to recover from the consequences of Covid, and saddling the sector with numerous taxes that will effectively hit the most modest passengers seems unfair, especially in light of the efforts undertaken by the entire sector: ICAO, IATA, airlines, aircraft manufacturers and aviation fuel suppliers. Manufacturers and fuel companies are investing heavily in highly complex technical processes to reduce emissions, and it seems that research is a better solution than taxation. Even from a technical point of view, the implementation of a global tax seems impossible. Unrelated attempts have been underway for years to try to tax multinational enterprises with higher margins (mainly Google, Apple, Facebook, Amazon and Microsoft) at the OECD level, with mitigated success. A fairer solution, which would encourage the industry to continue its research and improvement efforts while not burdening the consumer with these costly investments, would be state aid. The European Union already has a legislative framework allowing member states to implement state aid for environmental purposes. The new Guidelines on State aid for Climate, Environmental protection and Energy (CEEAG) allows to directly subsidise certain companies, or even to grant them tax reductions. The guidelines provide a safe and stable framework for Member States to work within, and it has proven to be quite efficient for subsidising environmental projects for two decades. Consequently, it is imaginable to grant a tax rebate to airlines using a certain percentage of SAF to operate their planes. This approach could be studied in the next few years, because it does not weigh heavily on government budgets, and it would encourage the sector to use this fuel, and, ultimately, research.
Conclusion
Environmental concerns are now embedded globally in all sectors of activity. But transport, a pillar of the globalised economy, is specifically singled out for its role in global warming.
The European Union, through its Emission Trading System, has tried to extend it extensively to civil aviation. After an unsuccessful attempt, ICAO came up with a better suited scheme for civil aviation, CORSIA, which is probably friendlier to the industry, considering the low margins in the sector. Nonetheless, some people find these measures to be too lenient, and even accommodating to polluters.
The solution, they say, would be the introduction of a carbon tax, which would set a price for each ton of carbon released into the atmosphere. Although questionable from an economic point of view, from a legal point of view, it is more than difficult to imagine how such a tax could be implemented. ICAO, the most legitimate body both because of its unique diplomatic role and its technical capacity, has no legal basis to justify the design of a carbon tax on fuel. As Abeyratne recalls, fiscal competence is a ‘zealously guarded’ domain of states and too many discrepancies between their economies and their objectives exist to seriously think that taxing airlines globally is a sound idea. Other para-fiscal solutions could be exploited in the coming years, notably state aid at the European level.
Maintaining the innovation dynamics of the aeronautics sector seems crucial to achieve a sustainable civil aviation industry. The considerable efforts made over the last ten years have led to the emergence of more fuel-efficient engines and cleaner alternative fuels. In this respect, it appears that the CORSIA system is a fair compromise between a fiscal pressure that would suffocate research (due to the decrease in the number of passengers), and a laissez-faire attitude that would not encourage innovation. The fragility that many criticise it for is a direct result of the powers of ICAO, which hardly have the means to make anything really mandatory for its 193 Member States.
Bibliography
Cover picture by Aer Lingus: www.mediacentre.aerlingus.com/imagelibrary/details/119916
Schiphol Airport illustration picture by ejbartennl from Pixabay: https://pixabay.com/photos/airplane-airport-runway-plane-5670631/
Legislation
Convention on International Civil Aviation – Chicago Convention 1944
Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity [2003] OJ L 283/51
ICAO, ICAO’s Policies on Charges for Airports and Air Navigation Services (Eighth Edition) 2009 [Document 9082]
ICAO, ICAO’S Policies on taxation in the field of International air transport (Third edition) [Document 8632]
ICAO, Resolution A40-19 [A40-19]
Books
European Commission and Directorate-General for Climate Action, Assessment of ICAO’s Global Market-Based Measure (CORSIA) Pursuant to Article 28b and for Studying Cost Pass-through Pursuant to Article 3d of the EU ETS Directive (Publications Office of the European Union 2022)
European Commission and Directorate-General for Mobility and Transport, Taxes in the Field of Aviation and Their Impact: Final Report (Publications Office 2019)
Scott BI and Trimarchi A, Fundamentals of International Aviation Law and Policy (Routledge 2020)
Articles
Abeyratne R, ‘Aircraft Engine Emissions – Carbon Offsetting or Carbon Tax?’ (2020) 49 Environmental Policy and Law 210
Erling UM, ‘International Aviation Emissions under International Civil Aviation Organization’s Global Market Based Measure: Ready for Offsetting’ (2017) 42 Air and Space Law 1
Granat A and Kozak M, ‘The Implementation of the European Green Deal – Tensions between a Market-Based Approach and State Aid for Renewables’ (2021) 23 Yearbook of Antitrust and Regulatory Studies 69
Grewe V and others, ‘Feasibility of Climate-Optimized Air Traffic Routing for Trans-Atlantic Flights’ (2017) 12 Environmental Research Letters 034003
Steppler U and Klingmuller A, ‘EU Emissions Trading Scheme and Aviation: Quo Vadis’ (2009) 34 Air and Space Law 253
Waggoner M, ‘Why and How to Tax Carbon’ (2008) 20 Colorado Journal of International Environmental Law and Policy 1
Websites
Bailey J, ‘IATA: The Netherlands’ Aviation Regulation Is Completely Out Of Control’ (Simple Flying, 6 December 2022) <https://simpleflying.com/iata-netherlands-aviation-regulation-out-of-control/> accessed 10 December 2022
Engel S, ‘“Flight-Shaming” Taxes: Climate Policy or Opportunism?’ (Forbes) <https://www.forbes.com/sites/samuelengel1/2019/10/29/flight-shaming-taxes-climate-policy-or-opportunism/> accessed 11 December 2022
European Commission, ‘Stopping the Clock of ETS and Aviation Emissions Following Last Week’s International Civil Aviation Organisation (ICAO) Council’ (European Commission Press Corner, 12 November 2012) <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_12_854> accessed 9 December 2022
European Commission, ‘Reducing Emissions from Aviation’ (European Commission) <https://climate.ec.europa.eu/eu-action/transport-emissions/reducing-emissions-aviation_en> accessed 9 December 2022
‘First A319neo Flight with 100% Sustainable Aviation Fuel | Airbus’ (Airbus, 2 November 2021) <https://www.airbus.com/en/newsroom/press-releases/2021-10-first-a319neo-flight-with-100-sustainable-aviation-fuel> accessed 8 December 2022
McKibben B, ‘Why We Need a Carbon Tax, And Why It Won’t Be Enough’ (Yale Environment 360, 12 September 2016) <https://e360.yale.edu/features/why_we_need_a_carbon_tax_and_why_it_won_be_enough> accessed 10 December 2022
REDD-Monitor, ‘Why Not Put a Carbon Tax on Aviation Rather than Relying on REDD Offsets?’ (REDD-Monitor, 12 April 2016) <https://redd-monitor.org/2016/04/12/why-not-put-a-carbon-tax-on-aviation-rather-than-relying-on-redd-offsets-because-a-tax-lacks-environmental-integrity-says-icaos-jane-hupe/> accessed 10 December 2022
Reuters, ‘French Government Favours Raising Taxes on Private Jets, Environment Minister Says’ Reuters (8 October 2022) <https://www.reuters.com/world/europe/french-government-favours-raising-taxes-private-jets-minister-2022-10-08/> accessed 12 December 2022
Schlappig B, September 9 2022 and 43, ‘Netherlands Hugely Increasing Airline Ticket Taxes’ (One Mile at a Time, 9 September 2022) <https://onemileatatime.com/news/netherlands-increasing-airline-ticket-taxes/> accessed 11 December 2022
Transport & Environment, ‘Why ICAO and Corsia Cannot Deliver on Climate’ <https://www.transportenvironment.org/wp-content/uploads/2021/07/2019_09_Corsia_assessement_final.pdf> accessed 8 December 2022
Studies and Reports
Environment, Air Transport Bureau of ICAO, ‘An Introduction to Market-Based Measures (MBMs)’ (International Aviation and Environment Seminar, Warsaw, Poland, 18 March 2015) <https://www.icao.int/Meetings/EnvironmentalWorkshops/Documents/2015-Warsaw/6_1_An-introduction-to-market-based-measures-MBMs.pdf> accessed 9 December 2022
ICAO, ‘Report of the Executive Committee on Agenda Item 17 (Section on Climate Change)’ (ICAO 2013) A38-WP/430
‘Submission by the International Civil Aviation Organization (ICAO) to the Fifty-Seven Session of the UNFCCC Subsidiary Body for Scientific and Technological Advice (SBSTA 57)’ (2022) <https://www.icao.int/environmental-protection/Documents/SBSTA57_ICAO%20Submission_Final.pdf> accessed 8 December 2022
Endnotes
[1] Benjamyn I Scott and Andrea Trimarchi, Fundamentals of International Aviation Law and Policy (Routledge 2020) s 11.1.
[2] ibid 261.
[3] ‘Submission by the International Civil Aviation Organization (ICAO) to the Fifty-Seven Session of the UNFCCC Subsidiary Body for Scientific and Technological Advice (SBSTA 57)’ (2022) <https://www.icao.int/environmental-protection/Documents/SBSTA57_ICAO%20Submission_Final.pdf> accessed 8 December 2022.
[4] ICAO, ‘Report of the Executive Committee on Agenda Item 17 (Section on Climate Change)’ (ICAO 2013) A38-WP/430.
[5] ‘First A319neo Flight with 100% Sustainable Aviation Fuel | Airbus’ (Airbus, 2 November 2021) <https://www.airbus.com/en/newsroom/press-releases/2021-10-first-a319neo-flight-with-100-sustainable-aviation-fuel> accessed 8 December 2022.
[6] Uwe M Erling, ‘International Aviation Emissions under International Civil Aviation Organization’s Global Market Based Measure: Ready for Offsetting’ (2017) 42 Air and Space Law 1, s 3.
[7] ibid.
[8] ibid 5.
[9] ibid 4.
[10] ICAO, Resolution A40-19 [A40-19].
[11] Environment, Air Transport Bureau of ICAO, ‘An Introduction to Market-Based Measures (MBMs)’ (International Aviation and Environment Seminar, Warsaw, Poland, 18 March 2015) fig 17 <https://www.icao.int/Meetings/EnvironmentalWorkshops/Documents/2015-Warsaw/6_1_An-introduction-to-market-based-measures-MBMs.pdf> accessed 9 December 2022.
[12] Aleksandra Granat and Malgorzata Kozak, ‘The Implementation of the European Green Deal – Tensions between a Market-Based Approach and State Aid for Renewables’ (2021) 23 Yearbook of Antitrust and Regulatory Studies 69.
[13] Volker Grewe and others, ‘Feasibility of Climate-Optimized Air Traffic Routing for Trans-Atlantic Flights’ (2017) 12 Environmental Research Letters 034003, para 3.2.
[14] Erling (n 6) para 5.
[15] Erling (n 6) note 59.
[16] European Commission, ‘Stopping the Clock of ETS and Aviation Emissions Following Last Week’s International Civil Aviation Organisation (ICAO) Council’ (European Commission Press Corner, 12 November 2012) <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_12_854> accessed 9 December 2022.
[17] European Commission, ‘Reducing Emissions from Aviation’ <https://climate.ec.europa.eu/eu-action/transport-emissions/reducing-emissions-aviation_en> accessed 9 December 2022.
[18] Scott and Trimarchi (n 1) 270.
[19] Erling (n 6) s 5.
[20] On the 7th of December 2022, the Council of the European Union and the European Parliament agreed on how the EU ETS and CORSIA should apply in the EU up to 2025, date of the 42nd Assembly of ICAO. This provisional agreement allows CORSIA to be applicable for all flights from and to third countries participating to CORSIA. Otherwise, EU ETS will apply for intra-European flights. In 2025, the European Commission is expected to assess whether CORSIA had been efficient in reducing emissions. Depending on the result, the Commission will either propose to extend these rules (called “clean cut”) or to extend the EU ETS to all flights departing from the European Economic Area. Since this announcement was very recent at the time of writing of this text, and considering the lack of literature on the subject, this development will not be discussed here.
[21] Reuters, ‘French Government Favours Raising Taxes on Private Jets, Environment Minister Says’ Reuters (8 October 2022) <https://www.reuters.com/world/europe/french-government-favours-raising-taxes-private-jets-minister-2022-10-08/> accessed 12 December 2022.
[22] Ulrich Steppler and Angela Klingmuller, ‘EU Emissions Trading Scheme and Aviation: Quo Vadis’ (2009) 34 Air and Space Law 253, s 2.
[23] Transport & Environment, ‘Why ICAO and Corsia Cannot Deliver on Climate’ s 4.2 <https://www.transportenvironment.org/wp-content/uploads/2021/07/2019_09_Corsia_assessement_final.pdf> accessed 8 December 2022.
[24] European Commission and Directorate-General for Climate Action, Assessment of ICAO’s Global Market-Based Measure (CORSIA) Pursuant to Article 28b and for Studying Cost Pass-through Pursuant to Article 3d of the EU ETS Directive (Publications Office of the European Union 2022) 18.
[25] Michael Waggoner, ‘Why and How to Tax Carbon’ (2008) 20 Colorado Journal of International Environmental Law and Policy 1, 34.
[26] Ruwantissa Abeyratne, ‘Aircraft Engine Emissions – Carbon Offsetting or Carbon Tax?’ (2020) 49 Environmental Policy and Law 210, 215.
[27] European Commission and Directorate-General for Climate Action (n 24) 18.
[28] Abeyratne (n 26) 215.
[29] European Commission and Directorate-General for Climate Action (n 24) 43; Scott and Trimarchi (n 1) 78.
[30] Abeyratne (n 26) 214.
[31] Abeyratne (n 26) note 16.
[32] ibid 214.
[33] Bill McKibben, ‘Why We Need a Carbon Tax, And Why It Won’t Be Enough’ (Yale Environment 360, 12 September 2016) <https://e360.yale.edu/features/why_we_need_a_carbon_tax_and_why_it_won_be_enough> accessed 10 December 2022.
[34] REDD-Monitor, ‘Why Not Put a Carbon Tax on Aviation Rather than Relying on REDD Offsets?’ (REDD-Monitor, 12 April 2016) <https://redd-monitor.org/2016/04/12/why-not-put-a-carbon-tax-on-aviation-rather-than-relying-on-redd-offsets-because-a-tax-lacks-environmental-integrity-says-icaos-jane-hupe/> accessed 10 December 2022.
[35] ICAO, ICAO’S policies on taxation in the field of International air transport (Third edition) [Document 8632].
[36] Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity [2003] OJ L 283/51
[37] European Commission and Directorate-General for Mobility and Transport, Taxes in the Field of Aviation and Their Impact : Final Report (Publications Office 2019) s 2.4.3.
[38] Samuel Engel, ‘“Flight-Shaming” Taxes: Climate Policy or Opportunism?’ (Forbes) <https://www.forbes.com/sites/samuelengel1/2019/10/29/flight-shaming-taxes-climate-policy-or-opportunism/> accessed 11 December 2022.
[39] Ben Schlappig, 2022 September 9 and 43, ‘Netherlands Hugely Increasing Airline Ticket Taxes’ (One Mile at a Time, 9 September 2022) <https://onemileatatime.com/news/netherlands-increasing-airline-ticket-taxes/> accessed 11 December 2022.
[40] ICAO, ICAO’s Policies on Charges for Airports and Air Navigation Services (Eighth Edition) 2009 [Document 9082].
[41] Joanna Bailey, ‘IATA: The Netherlands’ Aviation Regulation Is Completely Out Of Control’ (Simple Flying, 6 December 2022) <https://simpleflying.com/iata-netherlands-aviation-regulation-out-of-control/> accessed 10 December 2022.