A tale of two systems: The EU’s approach to aviation emissions in the ‘Fit for 55’ Package

In July 2021, the European Commission released a proposed amendment to the EU Emissions Trading Scheme (ETS) for aviation, as part of its extensive ‘Fit for 55’ Package. At a multilateral level, international aviation emissions are regulated through the International Civil Aviation Organization (ICAO) under the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). Controversially however, the Commission’s proposed amendment rejects full alignment with the CORSIA. Instead it envisages that the Union continue to apply its own ETS for intra-European aviation, and only implement the CORSIA for other international flights. This goes head-on against a 2019 ICAO Resolution, determining through a so-called ‘exclusivity clause’, that the CORSIA be the ‘only’ global market-based measure for international civil aviation emissions. This article examines the state of play between these two parallel systems, highlighting divergences in compliance requirements for operators and states. It then analyses and evaluates the regulatory mandate of the ICAO and the EU under public international law, focusing on the UN climate change agreements and the Chicago Convention on International Civil Aviation.