Action pour le climat et mesures commerciales unilatérales : les initiatives les plus récentes de l'union européenne

This article attempts to shed light on the most recent initiatives undertaken by the European Union within the context of its climate change policy, with particular regards to directive 2008/101/CE and directive 2009/29/CE. The former provides for the inclusion into the European emission trading system (ETS) of the aviation sector as from January 1st 2012, not limiting the reach to intra-EU flights but including all flights arriving at or departing from an aerodrome situated in the EU territory ; the latter envisages the extension of the ETS to goods produced by energy-intensive sectors likely to be subject to carbon leakage coming from other developed countries and other major emitters not willing to participate to a post-Kyoto agreement on climate change. Both measures de facto externalise the EU ETS insofar as they extend it to GHG-generating activities taking place outside of the European Union. In this respect, the EU seems to promote a new form of climate-motivated unilateralism. Such approach, however, has been strenuously opposed as a disguised form of environmental protectionism by all major partners of the EU. The US aviation industry, in particular, challenged the validity of the directive 2008/101 in the light of international law before the High Court of Justice of England, which referred to the CJUE a preliminary ruling on the matter. In the light of the emerging clash between different conceptions of admissible actions in the name of climate change between EU and other countries, the article investigates the key features and the basic assumptions at the core of the concept of climate change unilateralism promoted by the EU as well as the main findings of the CJEU with regards to the validity of the directive 2008/101/CE, with the aim to explore the Union?s position on the reach of the obligations arising out of EU climate law. Such analysis reveals that the EU has coherently conceived the externalisation of the ETS as a form of contingent unilateralism aimed at preserving the environmental integrity of the EU ETS and encouraging the advancement of international action on climate change. Indeed, the extension of the EU ETS to foreign activities remains conditioned to the persistence of great asymmetries in the allocation of GHG-reduction commitments between EU and other major emitters, qualifying the Union as a ?norm entrepreneur? within the context of the inertia of the international community. Finally, the EU climate unilateralism is tested against the requirements of WTO law, with particular regards to the environmental exceptions admitted by terms of the GATT and the GATS. The fundamental idea behind such analysis is that the assessment of the EU climate unilateral measures in this respect could permit to establish whether the Union is genuinely aiming at advancing in the fight against global warming or, rather, is using climate change as a pretext for adopting protectionist trade measures. A survey of the relevant WTO rules leads to the conclusion that the EU measures would likely be considered primarily aimed at climate protection and coherently configured with respect to that objective for the purposes of Article XX b) and g) GATT and Article XIV b) GATS. This conclusion not only proves that the international trade regime has per se sufficient elements of ?flexibility? so as to ensure it does not come into conflict with the needs of climate change mitigation but, most importantly, it could prevent the triggering of a trade war by stimulating instead ? in accordance with the vision promoted by the European Union ? the participation of all major emitters to a post-Kyoto agreement on climate change according to their responsibilities and respective capabilities.