ClientEarth: a landmark in the CJEU’s environmental law jurisprudence

 

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