In the landmark Urgenda case, the Hague Court of Appeal ruled that the Dutch State needed to do more to combat the ‘immediate threat’ posed by global warming, leading to more than one raised eyebrow. Were the judges now taking the place of the lawmakers? The court did not believe this to be the case, though many politicians vehemently disagreed. While perhaps less visible, a comparable tension can also be seen on the international plain. Here however, it is the lawmakers who are sitting in each other’s seats. Essentially, the question is whether the one actor (the European Union, for example) is permitted to ‘force’ others to do more to prevent climate change. This pressure does not proceed through the courts, but through trade measures.
Take aviation, for example. The EU tried to include aviation in its Emission Trading System (Directive 2008/101). The Air Transport Association of America lodged a complaint against this move with the European Court in Luxembourg (the ATAA case). The original directive stated that international airlines should pay for their CO2 emissions generated throughout the entire duration of flights to and from EU airports. This therefore includes flights outside of the EU, above the open seas and even above their own territory. The scope of the directive was eventually restricted following pressure from the US, China and India. It is interesting to note, however, that the European Court found this measure to be in accordance with international law.
Another example is the European energy directive, which requires that a substantial percentage of energy consumed by the individual member states satisfies strict European sustainability requirements. Such ‘sustainable’ energy is then automatically more appealing on the common market. In this way the EU influences the entire energy market, both inside and outside of the EU.