Airlines that fail to fully comply with the European Union's emissions trading scheme when it expands to include aviation in 2012 could be banned from taking off and landing in Europe, according to a draft European Commission regulation document obtained by Flight International.
The document says that national enforcement measures taken by EU member states "may not be sufficiently effective to ensure compliance by an aircraft operator with its obligations" under the ETS.
In these circumstances "an operating ban applied across the EU may be the only means to ensure effective compliance".
The draft regulation goes on to say that the impact of an operating ban on an aircraft operator "may be severe", therefore the imposition of such a ban should be restricted "to situations where measures and means under national law have failed to ensure compliance".
If the operating ban is adopted it will be enforced on any aircraft operator which either fails to monitor and report its total emissions, fails to surrender a sufficient number of allowances to cover those emissions, or fails to pay an excess emissions penalty for not surrendering sufficient allowances for a given calendar year under the rules set out in the EU ETS.
German Member of European Parliament Holger Krahmer predicts that there will be "lots of problems with states not willing to join" the ETS, and criticises the EC for "installing a law with the integration of third states without consulting them".
Jacques Lafitte, a partner at Brussels-based consultancy Avisa, says: "This is all very high stakes and there are various reasons why the EU may come to regret its threat."
Under the proposed regulation, any aircraft operator threatened with a ban would be given 10 working days to submit documents in its defence to the EC. "The aircraft operator shall also be permitted to present its position orally before a decision is reached, if it so requests," says the document.
A decision on whether to impose a ban would be taken within one month of the conclusion of consultations with the aircraft operator in question, and the results would be made public.
"The publication of the identity of those aircraft operators subject to an operating ban is necessary in order to inform those involved with the regulation of aircraft operators and the implementation of such bans, to encourage greater levels of compliance by aircraft operators so as to enhance the functioning of the EU's emissions trading scheme," says the document.
A source familiar with the draft legislation says there is no fixed timeline for when the regulation could be adopted, but it "would not be earlier than spring 2011".