Court of Appeal Judgment Template (original) (raw)

i) The general principles of EU law do not oblige the EU to extend equal treatment to all third countries in relation to the conduct of external relations.

ii) The conduct of the EU's external relations included decisions on suspending the application of ETS in relation to some or all third countries as part of a process of seeking a global or worldwide framework for greenhouse gas reductions.

iii) The EU was entitled to decide that it would not extend the exemption to all third countries and was entitled to exclude one or more countries from that derogation.

iv) The EU's actions in this case were in the field of external affairs. Article 21 of the TEU included general provisions in relation to the EU's external actions, and Article 21(2) provides for the EU to pursue common policies and actions in all fields of international relations in order to help develop international measures to improve the quality of the environment in the sustainable management of global natural resources in order to ensure sustainable development.

v) The EU wished to do all it could to promote the agreement of a global framework on the reduction of emissions in the field of aviation. It brought forward the decision because it considered that disapplying the ETS to most third countries would promote that aim.

vi) The principle of equal treatment does not apply to actions of that nature in the field of external affairs.

vii) Moreover, the case law does not require an automatic link between action at the EU level and any necessary resulting discrimination between third parties before it can be said that the principle of equal treatment does not apply.

Was the judge right to say that the principle of equal treatment was inapplicable?

Was the judge right to hold that the principle of equal treatment would not anyway have been breached in this case?

i) Question 1: Does the Decision infringe the general EU principle of equal treatment insofar as it establishes a moratorium on the requirements to surrender emissions allowances imposed by the Directive (as amended) in respect of flights between EEA states and almost all non-EEA states, but does not extend that moratorium to flights between EEA states and Switzerland?

ii) Question 2: If so, what remedy must be provided to a claimant in the position of Swiss, which has surrendered emissions allowances in respect of flights that took place during 2012 between EEA states and Switzerland, to restore that claimant to the position it would have been in, but for the exclusion from the moratorium of flights between EEA states and Switzerland? In particular:-

a) Must the register be rectified to reflect the lesser number of allowances that such a claimant would have been required to surrender if flights to or from Switzerland had been included in the moratorium?

b) If so, what (if any) action must the national competent authority and/or the national court take to procure that the additional allowances surrendered are returned to such a claimant?

c) Does such a claimant have a right to claim damages under Article 340 of the TFEU against the European Parliament and the Council for any loss that it has suffered by reason of having surrendered additional allowances as a result of the Decision?

d) Must the claimant be granted some other form of relief, and if so what relief?