Case C‑272/15

Swiss International Air Lines AG

v

The Secretary of State for Energy and Climate Change

and

Environment Agency

(Request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division))

(Reference for a preliminary ruling — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — Obligation to surrender emission allowances in respect of flights between EU Member States and most third countries — Decision No 377/2013/EU — Article 1 — Temporary derogation — Exclusion of flights to and from airports situated in Switzerland — Difference of treatment of third countries — General principle of equal treatment — Inapplicable)

Summary — Judgment of the Court (Fourth Chamber), 21 December 2016

Environment — Atmospheric pollution — Directive 2003/87 — Scheme for greenhouse gas emission allowance trading — Obligation to surrender emission allowances in respect of flights between EU Member States and most third countries — Temporary derogation — Difference of treatment of third countries — Lawfulness — Principle of equal treatment — Not applicable

(European Parliament and Council Directive 2003/87, as amended by Directive 2008/101, Arts 12(2)a and 16; European Parliament and Council Decision 377/2013, Art. 1)

Examination in the light of the principle of equal treatment of Decision No 377/2013 derogating temporarily from Directive 2003/87 establishing a scheme for greenhouse gas emission allowance trading within the Community has disclosed nothing to affect the validity of that decision in so far as the temporary derogation provided for in Article 1 of that decision from the requirements laid down in Article 12(2a) and Article 16 of Directive 2003/87, as amended by Directive 2008/101 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61, as amended by Directive 2008/101, with respect to the surrender of greenhouse gas emission allowances in respect of flights operated in 2012 between Member States of the European Union and most third countries, does not apply to, inter alia, flights to and from airports situated in Switzerland.

Decision No 377/2013 is a measure adopted within the competences of the European Union in the area of external relations. External relations are conducted by means of a wide range of measures which are not confined to measures adopted with respect to all third countries, and may therefore also concern one or several third countries.

The institutions and agencies of the Union have available to them, in the conduct of external relations, a broad discretion in policy decisions. Since the conduct of external relations necessarily implies policy choices, the Union must be in a position to choose its policies and to apply, according to the objectives that it pursues, a distinction between third countries, without being obliged to grant equal treatment to all third countries. The effect of the exercise of external policy prerogatives by the institutions and agencies of the Union may therefore be that the treatment of one third country differs from that of other third countries.

EU law imposes no express obligation on the Union to the effect that all third countries must be treated equally. Public international law containing no general principle of equal treatment of third countries, an application of the principle of equal treatment of third countries would unilaterally restrict the Union’s freedom of action internationally. Accordingly, it cannot be held that the Union could have accepted such a requirement unless the equal treatment of third countries was expressly laid down in the treaties.

There is in the FEU Treaty no general principle obliging the Union, in its external relations, to accord in all respects equal treatment to different third countries and traders do not in any event have the right to rely on the existence of such a principle. Consequently, the difference in treatment of third countries in the context of the Union’s external relations established in Article 1 of Decision No 377/2013 does not fall within the scope of the principle of equal treatment.

(see paras 22-26, 35, 37, operative part)