Breathing Life into the Carbon Market: Legal Frameworks of Emissions Trading in Europe

Directive 2003/87/EC establishes a scheme for “greenhouse gas emission allowance trading within the Community in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.” Given its adoption as a directive, the achievement of this mandate largely depends on the domestic implementation by Member States, and in particular on the creation of a functional carbon market enabling the price mechanism to signal investment decisions throughout Europe. Unlike many other commodities, however, emission allowances are a legal construct, and the legal frameworks reifying them are of crucial importance. Domestic regulation of taxation, financial services, insolvency, and accounting issues, to name but a few, all hold the potential to compromise the development of a liquid market. Based on an extensive survey of the implementing legislation adopted in Finland, Germany, Sweden, and the United Kingdom, this article identifies some of the main challenges faced by the Member States in the evolving carbon market, highlighting aspects whose treatment differs and may lead to conflicts or inconsistencies.