EU Policies and Approaches
Edited by Jan Wouters, Axel Marx, Dylan Geraets and Bregt Natens
Chapter 10: Extraterritorial regulation of natural resources: a functional approach
The European Union (EU) is currently profiling itself as an environmental frontrunner by actively pursuing the protection and adoption of environmental norms throughout all policy areas. This pursuit of environmental objectives also has an external dimension in that the EU uses trade measures to ‘unilaterally’ condition market access for products from third countries on compliance with EU environmental standards. However understandable and perhaps commendable these actions are, by actively trying to export EU norm values through – at least partly – the ‘extraterritorial’ application of EU law, they may be in tension with international principles of jurisdiction that are geared towards delimiting international spheres of competence, and more generally with the right of foreign nations to freely make their own decisions regarding the balance to be struck between economic and environmental imperatives. The most prominent and well-known example of EU externalization of its own environmental regulation is the much-discussed Directive 2008/101/EC (Aviation Directive). To remind the reader, this Directive included in the EU’s Emissions Trading System (EU ETS) emissions from airline companies, including foreign companies, flying to and from EU destinations. Such regulatory extension was a source of great controversy, as the scheme covered the entire commercial route of aircraft departing from or arriving in the EU, including the flight stretches outside European airspace. In response to a preliminary question posed by a British court, however, the Court of Justice of the EU (CJEU) found that the measure was not extraterritorial in nature.
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