Climate Change and European Emissions Trading
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Climate Change and European Emissions Trading

Lessons for Theory and Practice

Edited by Michael Faure and Marjan Peeters

This timely book focuses on the EU-wide greenhouse gas emissions trading scheme for major sources. It combines legal and economic approaches and reviews the major revision of this scheme. A distinguished range of authors assess the experiences thus far and also consider future development from both theoretical and practical perspectives. They also discuss many design options, including auctioning, credit and trade, the inclusion of aviation emissions, and linking possibilities. Moreover, attention is paid to the role of legal principles, the role of case law, and to aspects of democratic accountability within an emissions trading scheme. Ways to avoid carbon leakage and the role of national climate policies are also discussed. This book makes clear that the economic efficiency and effectiveness of an emissions trading scheme depend to a large extent on the specific legislative choices, and hence the legislative design of such a scheme deserves meticulous attention.
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Chapter 4: The ‘Emissions Trading Scheme’ Case-Law: Some New Paths for a Better European Environmental Protection

Nicolas Van Aken


4. The ‘Emissions Trading Scheme’ caselaw: some new paths for a better European environmental protection?1 Nicolas Van Aken2 under the direction of Michel Pâques 1. INTRODUCTION To assist its Member States in complying with their respective targets, the European Union has established the Emissions Trading Scheme (ETS) within the Community.3 The scheme, which started to operate from 1 January 2005, ‘is a system under which thousands of CO2-emitting installations in Europe receive a limited amount of allowances in function of their needs’.4 That ETS directive introduced new concepts and mechanisms in European environmental law.5 Concerning the gases covered, the practical application is limited. In fact, the ETS Directive covers only the CO2 emissions. The Directive covers only specific sectors, determined in Annex 1 (representing about 11 500 companies). The emissions taken into account by the Directive represent 40% of all EU-27 greenhouse gases. 6 The creation of tradable EU allowances is the core of the ETS Directive. After each year, the company covered by the ETS Directive has to return an exact number of EU allowances in order to ‘justify’ This article represents the position as at 10 May 2008. The author would like to thank professor Michel Pâques, Professor at the University of Liège and judge at the Belgian Council of State, for his support and his constructive comments. 3 Directive 2003/87/EC of the European Parliament and of the Council of the 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within...

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