EU의 항공분야 배출권거래제 편입조치의 적법성에 관한 유럽사법법원 판결의 법적 쟁점 및 평가

Upon the request of the U.K Court (High Court of Justice of England and Wales) for a preliminary ruling on the validity of the Directive 2008/101/EC amending Directive 2003/87/EC(Emission Trading System Directive) so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, on 21 December 2011, the European Court of Justice (hereinafter “ECJ”) made a preliminary ruling that the inclusion of aviation in the EU Emission Trading System (hereinafter “ETS”) was valid. The reference for a preliminary ruling concerns first, the circumstances in which principles of customary international law and provisions of international treaties may be relied upon in the context of a reference for a preliminary ruling on the validity of a measure, and secondly, the validity of Directive 2008/101/EC, in the light of related customary international law and international treaties. The ECJ found that three principles of customary international law such as the principle that each State has complete and exclusive sovereignty over its airspace, the principle that no State may validly purport to subject any part of the high seas to its sovereignty, and the principle which guarantees freedom to fly over the high seas and the Air Transport Agreement (Arts. 7, 11(1), 2(c) and Art. 15(3) read in the conjunction with Arts. 2 and 3(4)) were recognized as legal basis for the examination on the validity of Directive 2008/101 in question. Its ruling has brought out many controversies in terms of the inter- national law, inter alia, on the issue of extraterritoriality of the Directive 2008/101 and the exclusion of the Chicago Convention from the legal basis. On the issue of extraterritoriality, the ECJ denied its effect of extraterritoriality saying that it applies to the aircraft of which arrival and landing take place within the EU on the basis of territoriality but as the design of the ETS applying to the aviation covers emissions from the international aviation taken place in the skies of the high seas or third countries where the EU has no jurisdiction, the ruling is very contro- versial and subject to many critics. On the legal basis for the examination on the validity of Directive in question, the ECJ refused to consider the Chicago Convention which is the primary source of the international air law because it does not bind the EU although it binds all the 27 Member States. Given the mandatory nature of the Convention in the civil aviation field and Art. 351 of the Treaty on the Functioning of the European Union mentioning the duty of the EU institutions not to impede the performance of the Member States of the obligations under the pre-existing international treaties, it should be included as a legal basis for its legal examination.