March 2011: Newsletter – Aviation

March 2011: Newsletter – Aviation

Flieger A., attorney at law, Flieger Law Office bvba

with the cooperation of Stijn Brusseleers, attorney at law, Flieger Law Office bvba

(Air Law Journal, 2011,2) Flemish decree set aside


By its ruling of 2 March 2011 the Constitutional Court of Belgium set aside the Decree of the Flemish Region of 8 May 2009 amending the Rational Energy Consumption REG Decree of 2 April 2004, as far as its extension to aviation activities is concerned.

Discussing this ruling in full would lead us too far but it can already be stated that in accordance with this ruling, until the end of 2011, the Flemish Administration will be responsible for the proper follow-up and assistance of the various airline operators in the fulfilment of their obligations.


As a result of this decision, much is at stake. In 2009 shortly before its Regional Elections, Flanders proceeded to the unilateral conversion of European Directive 2008/101/EC to the effect of integrating the aviation sector into the European CO2 quota exchange system. No one will have failed to notice that Flanders has, therefore, included the national airport of Zaventem, Brussels National Airport, which falls under the competence of the Federal Government, in the Flemish Regional instrument. The Constitutional Court states that the competence of the Regions regarding air protection includes the competence to reduce the emission of greenhouse gases into the air. This competence is not limited to fixed installations but relates to any emission of greenhouse gases, irrespective of their origin.

Having regard to the impact of greenhouse gases on the environment, in particular on the climate, the Regions may, therefore, take measures to reduce the greenhouse gas emission by aircraft insofar as they do not exceed their territorial competence.

Sections 5, 39 and 134 of the Constitution read in conjunction with sections 2 and 19 § 2 of the Special Institutions Reform Act of 8 August 1980, and with sections 2 § 1 and 7 of the Special Brussels Institutions Act of 12 January 1989, have brought about an exclusive territorial division of powers. Such a system implies that the subject of each regulation issued by a regional legislator should be locatable within the region for which the legislator is competent, so that each concrete relation or situation is regulated only by one single legislator.

It ensues from section 20bis of the Rational Energy Consumption REG Decree of 2 April 2004, as added to section 4 of the Decree of 8 May 2009, that the Flemish Region exercises administrative control over aircraft operators falling under the administrative competence of Belgium and of which the mayor part of the CO2 emissions emitted in the reference year are allocated to the Flemish Region. This control extends to all flights of the aircraft operators concerned departing from or landing at an airport situated in the territory of a Member State of the European Union, including flights not departing from or landing at an airport situated in the territory of the Flemish Region.

Although the contested criterion of section 20bis of the Rational Energy Consumption REG Decree resembles closely to the subsidiary criterion used for reasons of reducing administrative burdens for aircraft operators by directive 2003/87/EC to allocate the control of the emission of non-EU aircraft operators to one Member State or another, it is not appropriate to locate aviation greenhouse gas emissions, for which Belgium is competent by virtue of the aforesaid directive, within the territorial competence of the Flemish Region. The Court then sets aside the provisions of the Decree of 8 May 2009 “amending the Rational Energy Consumption REG Decree of 2 April 2004, as far as its extension to aviation activities is concerned”.

However, in order to avoid any legal uncertainty that may result from such setting aside, and to enable Belgium to further implement the aforesaid directives, the Court has stated that the effects of the provisions that have been set aside will be maintained until the entry into force of a regulation laid down in a cooperation agreement between the Federal State and the Regions implementing Directive 2008/101 of the European Parliament and the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community and until 31 December 2011 at the latest.

Hopefully, there will be a Federal Government by then.


The consequences are, however, important, in particular in the financial field the Flemish Community cannot claim income from the public sale of quotas allocated to airline companies of Zaventem airport.

In the institutional field: The Flemish Region can therefore not do everything alone in a matter (namely climate) for which consultation between the Regions and the Federal State are of utmost importance.

In the environmental field: Directive 2008/101/EC the Flemish Government wished to convert on the basis of the Decree is of utmost importance. Actually, the Directive is a first instrument to impose the greenhouse gas reduction objectives on the aviation sector.

Therefore, there is much at stake: after all, after 1 January 2012, airline companies will be allocated CO2 quotas. If they want to fly more they will have to compensate their CO2 emissions by buying additional quotas on the market and vice versa.

This will not be cost-neutral for the authorities. After all, the income from the purchase of these quotas will be remitted to the authorities, which must spend at least 50% of the amount on measures to improve the climate.

As far as Belgium is concerned, this means more than 10 million euros per annum. In addition, this 2010 system will be extended to the whole industrial sector. An amount of 500 million euros is involved here. The ruling of the Constitutional Court setting aside the Flemish Decree in full is therefore of utmost importance.

For further information and comments, please contact Arthur Flieger at, Website:, telephone: 03/238.77.66 – fax: 03/216.18.44

Copyright A. Flieger

This is not a legal opinion.