In Swiss International Airlines v Secretary of state for energy and climate change and Environment Agency , the airline challenged the validity of UK regulations implementing EU decision 377/2013/EU.
This temporarily excludes flights between the European economic area and other countries but not Switzerland from the emissions trading system.
Rather than challenge the EU decision directly, the airline sought a reference to the Court of Justice of the European Union (CJEU) by challenging the validity of the UK regulations. It argued that the decision breached the principle in EU law of equal treatment by treating Switzerland differently from other countries.
The company’s initial case for judicial review was rejected for two reasons: the principle of equal treatment did not apply to differential treatment by the EU towards third countries; and, even if it did apply, there was no arguable case that it had been breached in this case. The airline appealed and the UK court of appeal considered the “external affairs” exception to the EU principle of equal treatment.
The airline argued that the exception must be construed narrowly and precisely. The court noted that the EU landscape had changed in many ways since the CJEU last had a chance to consider the scope of the external relations exception to the principle of equal treatment.
Although the appeal court said it could see great force in the approach adopted by the judge in the earlier hearing, it was not free from doubt. As a result, the court allowed the appeal, granted permission for the airline to apply for judicial review and referred two key questions to the CJEU.