Gullivair Limited v Environment Agency
[2023] UKFTT 936 (GRC)
ABX AIR, Inc v Environment Agency
13 October 2023
[2023] UKFTT 847 (GRC)
First-tier Tribunal
An airline didn't pay its carbon credits on time. They tried to say it was unfair, but the judge said they were just disorganized and didn't follow the rules. The judge made sure the rules could be followed without breaking human rights law.
Key Facts
- •ABX Air, Inc. appealed a £382,900 penalty under the UK Emissions Trading Scheme (UK ETS) for failure to surrender sufficient allowances.
- •The penalty is one of the first issued under the UK ETS.
- •ABX Air argued the penalty violated Article 1 of the First Protocol to the European Convention on Human Rights (A1P1) by not allowing for mitigating circumstances.
- •ABX Air failed to meet the surrender deadline due to its late application for an Emissions Monitoring Plan (EMP) and misunderstanding of the Letter of Authority (LoA) procedure.
- •The Environment Agency had taken steps to communicate the requirements of the UK ETS through newsletters and guidance documents.
Legal Principles
Article 1 of the First Protocol to the European Convention on Human Rights (A1P1): Right to peaceful enjoyment of possessions.
European Convention on Human Rights
Section 3(1) of the Human Rights Act 1998: Duty to interpret legislation compatibly with Convention rights.
Human Rights Act 1998
Proportionality: A fair balance must be struck between the general interest and individual rights.
Krayeva v Ukraine [2022] ECHR 41; Gyrlyan v. Russia [2018] ECHR 816
Appellate tribunals can only review whether a decision-maker acted unreasonably or erred in law.
R. (Begum) v Special Immigration Appeals Commission [2021] UKSC 7
Force Majeure: A defence in EU law, but not explicitly in the UK ETS.
Billerud Karlsborg AB v Naturvardsverket [2013] EUECJ C-203/12; Eurofit SA v BIRB [2013] EUECJ C-99/12
Outcomes
The appeal was dismissed.
ABX Air's failure to surrender allowances was due to its own inaction and misunderstanding, not circumstances justifying a breach of A1P1. The court interpreted the UK ETS regulations to allow for a review of the penalty's imposition based on Human Rights Act principles, but not for a force majeure defence.