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Free allocation of allowances under the EU emissions trading scheme: legal issues

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  • Angus Johnston

Abstract

This article provides a legal analysis of some of the key issues that arise in examining the system for allocating emissions allowances under the EU's emissions trading scheme directive (EU ETS). There is a strong series of arguments in support of the view that the free allocation of allowances under the various national allocation plans (NAPs) involves an element of State aid, which has neither been formally notified to, nor cleared by, the Commission under the EC Treaty. Even if it is found properly to have been notified, there are serious doubts as to whether the extent of aid granted satisfies the proportionality principle. As a result, the operation of the EU ETS may be subject to some legal uncertainty with regard to possible legal challenges to the current allocation of allowances. Going forward, proposals to amend the operation of the EU ETS must take into account similar State aid considerations (particularly proportionality) and the experience gained from the working of the EU ETS in phase I. The structural outline of a possible legislative package has been suggested, which could achieve the safeguarding of commercial and legal certainty under the current allocation regime, while at the same time providing a basis for amendment of the allocation mechanism under the EU ETS for phase II and beyond.

Suggested Citation

  • Angus Johnston, 2006. "Free allocation of allowances under the EU emissions trading scheme: legal issues," Climate Policy, Taylor & Francis Journals, vol. 6(1), pages 115-136, January.
    • Handle: RePEc:taf:tcpoxx:v:6:y:2006:i:1:p:115-136
    DOI: 10.1080/14693062.2006.9685591
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    References listed on IDEAS

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    1. Ismer, R. & Neuhoff, K., 2004. "Border Tax Adjustments: A feasible way to address nonparticipation in Emission Trading," Cambridge Working Papers in Economics 0409, Faculty of Economics, University of Cambridge.
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    2. Stoschek, Barbara, 2007. "The political economy of environmental regulations and industry compensation," University of Göttingen Working Papers in Economics 65, University of Goettingen, Department of Economics.
    3. Don Fullerton & Andrew Leicester & Stephen Smith, 2008. "Environmental Taxes," NBER Working Papers 14197, National Bureau of Economic Research, Inc.
    4. Misato Sato & Karsten Neuhoff & Verena Graichen & Katja Schumacher & Felix Matthes, 2013. "Sectors under scrutiny � Evaluation of indicators to assess the risk of carbon leakage in the UK and Germany," GRI Working Papers 113, Grantham Research Institute on Climate Change and the Environment.
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    8. Fouquet, Doerte & Johansson, Thomas B., 2008. "European renewable energy policy at crossroads--Focus on electricity support mechanisms," Energy Policy, Elsevier, vol. 36(11), pages 4079-4092, November.

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