In November, the Court of Justice of the European Union (“CoJ”) held once again that NGOs and persons directly concerned may bring legal actions before national courts against EU Member States that fail to comply with EU mandatory environmental standards. The CoJ’s decision (CJEU, C-404/13) concerned the UK government’s failure to adopt adequate plans to ensure compliance with ambient air limits for nitrogen dioxide (“NO2”) in sixteen zones, including London. The CoJ instructed the UK Supreme Court to adopt “any necessary measure” on the UK government to establish plans that demonstrate how it will comply with the limits for NO2 within a period that should be as short as possible.
The CoJ’s decision establishes an important precedent for a possible wave of legal challenges to force national authorities to limit NO2 and benzene pollution in large cities across Europe. It is also an important precedent for national litigation in those Member States that fail to comply with EU environmental legislation that requires them to achieve a certain result, even if the Commission has not taken legal action against such national non-compliance.
Thus, the case confirms that environmental NGOs have a powerful litigation route of action as an alternative to the current political context in Brussels where environmental policy does not seem to be among the priorities of the new European Commission.
Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe (“the Directive”) establishes limits on specified air pollutants. It requires Member States to divide their territory into agglomerations and zones in order to manage air quality in their territory. Article 13 of the Directive then provides that Member States “shall ensure” that the levels of sulphur dioxide, PM10, lead and carbon monoxide in ambient air do not exceed specified limits in those agglomerations and zones. Article 13 also states that in those agglomerations and zones the specified limit values of NO2 and benzene “may not be exceeded.”
The Directive, however, provides exemptions for Member States. Article 23 states that where the levels of pollutants in ambient air exceed the limits in a zone or agglomeration, Member States must adopt air quality plans in order to achieve the required limits. More specifically, Article 22 states that if the limit values for NO2 or benzene cannot be achieved, Member States may postpone the applicable deadlines for a maximum period of five years provided that they adopt an air quality plan in accordance with Article 23 that also includes specific information demonstrating how the limits will be achieved before the new deadline. Article 22 also provides that Member States must notify their plan to the Commission, who may require adjustments or the adoption of a new plan.
The case concerned 16 zones of the United Kingdom that did not comply with the limits for NO2 by the established deadline of 2010 and for which the UK government adopted a plan in accordance with Article 23, but did not notify to the Commission a plan showing how it would achieve the limits by 2015 (i.e., five years after 2010) in accordance with Article 22. The NGO ClientEarth requested the UK government to show how it intended to ensure compliance with the limits of NO2 in the 16 zones by 2015 in accordance with Article 22. It should be noted that the Commission had not commented on the fact that the UK had failed to notify any plan in accordance with Article 22 for those 16 zones.
The CoJ’s Decision
- Hard Limits for NO2 and Benzene: The CoJ started its reasoning by making clear that the limits for NO2 and benzene are mandatory values for which Member States have no discretion. The Court distinguished the wording “may not be exceeded” for NO2 and benzene from that of “shall ensure” for the other air pollutants of Article 13 of the Directive. The CoJ held that the wording “may not be exceeded” amounts to an obligation on Member States “to achieve a certain result.”
- Violation Despite Existence of Quality Plans: Thereafter, the CoJ held that, where a zone or agglomeration does not meet the mandatory limit values for NO2 or benzene, the Member State concerned must submit an application for an extension of the deadlines that includes a plan demonstrating how it will achieve conformity with the limit values before the new deadlines. The CoJ also clarified that the “notification” procedure provided in Article 22 should be interpreted as an application procedure to the Commission. Moreover, the CoJ distinguished the plans of Article 22 from those regulated in Article 23 of the Directive. It held that, where a Member State cannot comply with the limit values for NO2 or benzene, in contrast with other regulated air pollutants, it is not sufficient to adopt a plan in accordance with Article 23. Instead, Article 22 requires that the plan demonstrate how the limits values will be achieved and be submitted to the Commission.
- Remedies: Most importantly, contrary to the doubts expressed by the UK courts, the CoJ held that natural or legal persons directly concerned by the limit values for NO2 must be in a position to require the competent authorities, if necessary by bringing a legal action, to establish an air quality plan that demonstrates how the limit values for NO2 will be achieved. The CoJ recalled its long standing case-law by which “individuals are entitled, as against public bodies, to rely on the provisions of a directive which are unconditional and sufficiently precise.” According to the CoJ, national courts should interpret their national laws in a way that are compatible with EU environmental directives, and when such interpretation is not possible, they must disregard national rules that are incompatible with the directives. This supremacy of EU law also means that individuals should be able to take legal action in national courts, which must take “any necessary measure” to ensure compliance with the EU environmental law. In effect, individuals may take legal action even if the Commission did not react to the Member State’s non-compliance.
In the current political context where environmental policy may no longer be among the top priorities in Brussels, the CoJ’s decision is an important reminder that environmental NGOs have an alternative means of action to achieve their objectives. The Court confirms that NGOs and interested parties may sue local authorities in national courts even if, due to political or other reasons, the Commission fails to take legal action against Member States that do not comply with EU environmental law. The decision seems to follow pattern of recent cases in which the EU Courts are reminding us of the potential implications of EU environmental law, and could start a potentially significant wave of environmental litigation across Europe. Ironically, businesses in Europe could face an increase of the effective costs of environmental compliance during the next years.