Anna Dannreuther, Trainee, Research Department
of the CJEU
Background
The CJEU gave its judgment yesterday on a preliminary
reference from the UK Supreme Court concerning the UK’s failure to apply for an
extension of time for compliance with limit values for nitrogen oxide. The case
was brought in the UK by ClientEarth, an environmental NGO seeking a
declaration to the effect that the UK was in breach of Article 13 of Directive
2008/50/EC (the ‘Air Quality Directive’), which laid down a limit of 1 January
2010 for compliance with nitrogen oxide limit values therein.
The UK Supreme Court had little difficulty in
finding the UK to be in breach of its nitrogen oxide limit value obligations,
the Secretary of State having accepted that the limit values for nitrogen oxide
had been exceeded in a number of zones or agglomerations set up for the
purposes of the Directive. The breach having been ‘clearly established’, and
the Secretary of State’s concession failing to constitute a sufficient reason
to decline to grant the declaration, the case was referred to the CJEU for more
complex issues of interpretation of Articles 13, 22 and 23 of the Directive.
The UKSC asked the CJEU four questions
concerning the obligation on Member States under the Directive to apply for
postponement of the limit value deadline, exceptions thereto, whether
establishing an air quality plan was sufficient to comply with obligations
under the Directive, and the appropriate remedies in the case of breach.
The context of the questions was that in 2011
the Secretary of State had applied to the Commission for an extension of the
deadline for compliance in respect of 24 of the 40 zones where nitrogen oxide
limits had been exceeded. This was permissible under Article 22 of the Air
Quality Directive. In the air quality plans submitted to the Commission, it
showed how the limit values would be met by 1 January 2015 at the latest. For
the remaining 16 zones, for which the air quality plans projected compliance
with the limit values between 2015 and 2025, no request for time extension was
made.
The main question for the CJEU then was
whether, under Directive 2008/50/CE, the UK was under an obligation to seek
postponement of the deadline for compliance with limit values in respect of
zones or agglomerations which did not comply with the limit values for nitrogen
dioxide by the deadline of January 1 2010. This was unclear from Article 22 of
the Directive, which merely stated that Member States ‘may postpone’ the
deadline for compliance if compliance cannot be achieved by 1 January 2010. It
also sought to know whether compliance with Article 23, by producing air
quality plans, was sufficient to comply with Article 13 of the Directive.
Judgment
The ClientEarth
judgment is a landmark, marking a firm line being taken by the Court in terms
of breach of air quality obligations. The Court took no prisoners in its
judgment, and took every opportunity to reinstate the Member State’s compliance
obligations under the Directive.
Describing the general framework of the
compliance provisions of the Directive, namely that if Member States are unable
to comply with limit values they may apply to postpone the deadline for
compliance by a maximum of five years, the CJEU firmly asserted that the
obligation to make an application for an extension of time naturally followed
from the context of the provision and the aim pursued by the EU legislature,
even though the exact wording of the Article did not expressly require an
application [para 27]. This is so because such an obligation obliges Member
States to anticipate that conformity with the limit values will not be achieved
by the deadline specified and to formulate an air quality plan giving details
of measures that are capable of remedying the pollution by a later deadline.
The obligation was also to be found in the
wording of Article 13 of the Directive, which provides that nitrogen oxide limit
values ‘may not be exceeded’ after the specified deadline [para 30]. As a
consequence Member States must take all the measures necessary to secure compliance
with that requirement, and applying for postponement of the deadline for
compliance is one of those measures. As for exceptions to this obligation, the
CJEU reminded the UK Supreme Court that Article 22 does not contain any
exception to the obligation flowing from Article 22(1) [para 34].
In response to the Supreme Court’s question of
whether producing an air quality plan was sufficient for compliance, the CJEU
contended that such an interpretation would be liable to impair the
effectiveness of Articles 13 and 22 of the Directive, as it would allow a
Member State to disregard the deadline imposed by Article 13 under less
stringent conditions than those imposed by Article 22 [para 44].
In response to the question on remedies, the
CJEU recalled Member States’ general obligations under Article 4 TEU to ensure
judicial protection of an individual’s rights under EU law and Article 19(1)
TEU to provide remedies sufficient to ensure effective legal protection in the
fields covered by EU law [para 52]. It also suggests that the Directive has
direct effect [para 54] and that it would be incompatible with the binding
nature of Article 288 TFEU to exclude, in principle, the possibility of the
obligation imposed by that Directive being relied on by the persons concerned [para
55]. That consideration applies particularly in respect of a Directive whose
objective is to control and reduce atmospheric pollution and which is designed,
therefore, to protect public health (see the prior Janecek judgment, paragraph 37).
Comments
The CJEU pulls out all the stops in this
judgment to ensure that the seriousness of the consequences of breach of this Directive
is taken into account by Member States. ClientEarth was thrilled with the ruling – its website
cites air pollution as the cause of 29,000 deaths in the UK each year – the
biggest health problem after smoking. It should be noted that, not only does
the Court fill in the legislature’s gap by purposively reading into the Directive
an obligation to apply for a postponement of the compliance deadline, but it
also peppers the judgment with assertions of the absolute nature of this
obligation. For example in paragraph 30, the Court asserts that, despite the
different wording of obligations not to exceed value limits in relation to
different chemicals, the wording relating to nitrogen dioxide (‘may not be
exceeded’) is just as powerful as that relating to carbon monoxide (Member
States are to ‘ensure’ that limit values are not exceeded), and that it too
creates an absolute obligation to achieve a certain result.
As there is no express obligation to seek
postponement, the UK’s question as to whether the fact that they had produced
air quality plans was sufficient to comply with their general obligation under
the Directive seems sensible. The Court came down hard on this however, stating
that to bypass Article 22, the postponement article, and comply only with
Article 23, the air quality plans article, would mean Member States would
comply with less stringent conditions than those imposed by both Article 22 and
Article 23. Read plainly, this seems to be possible, and the Court seems to be
again asserting the implied obligation to apply for postponement in order to
avoid the mischief of allowing Member States to bypass the postponement
requirements. This is consistent with their previous answer, but the response
highlights the Directive’s deficiencies – Article 22 seems to impose a maximum
deadline of 5 years for compliance with value limits, whereas Article 23 allows
for surpassing this deadline so long as plans setting out appropriate measures
keeping the period of exceeding the limits as short as possible are
established. It is unclear which time limits Member States must comply with,
and it is unclear what the ramifications are for failure to comply.
Whatever the drafting problems with this Directive
that gave way to possible wiggle room for the UK government to elude the
obvious intention of the legislators may be, the judgment is a fantastic
example of the force of purposive interpretation and of using every possible
argument to condemn a Member States’ clear breach of laws endangering public
health.
Barnard & Peers: chapter 22
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