ECJ: CO2 lawsuit by Air Berlin insolvency administrator before defeat

ECJ: CO2 lawsuit by Air Berlin insolvency administrator before defeat

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The insolvency administrator of the formerly second largest airline in Germany, Air Berlin, is conducting proceedings before the European Court of Justice in connection with allocated or non-allocated carbon dioxide certificates. The opinion of the CJEU Advocate General turns out to be detrimental to the bankruptcy estate.

Long before the bankruptcy, Air Berlin was allocated emission certificates for the period from 2013 to 2020, and free of charge. Shortly after the bankruptcy and the cessation of flight operations, the German authorities canceled this allocation. Since the certificates can also be traded, Lucas Flöther, in his role as trustee, took them to court. The case ended up before the European Court of Justice.

The lawyer argues, among other things, that there is no basis for authorization. Furthermore, Air Berlin had already sold its emissions certificates before August 2017 - i.e. before filing for insolvency - and also trusted that more would be allocated for 2018. Put simply, this means that you want the certificates that are no longer needed due to a lack of flight operations and want to monetize them for the benefit of the masses.

The European Court of Justice set the value of the disputed carbon dioxide certificates at around 77 million euros. The procedure is actually being conducted before the Berlin Administrative Court and is an internal German matter. The Senate of Judges put numerous questions to the European Court of Justice for preliminary rulings, because some things are of Europe-wide importance.

The Advocate General issued a statement that does not at all follow the arguments of the Air Berlin insolvency administrator. Since the European Court of Justice often adopts the statement of the Advocate General, Flöther is now threatened with a legal defeat. The European highest judges are not bound by the recommendation, but can decide freely. This has happened repeatedly in recent years, for example in relation to the controversial German car toll for foreigners.

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