Case C-404/13, ClientEarth

 Claude Monet - Musée d'Orsay 
Court clarifies Member States’ obligations as regards respecting the limit values for nitrogen dioxide 

>> The Air Quality Directive (Directive 2008/50/EC ) establishes limit values for certain pollutants in ambient air. As regards nitrogen dioxide, the limit values must not be exceeded after 1 January 2010. The obligation to comply with the limit values for nitrogen dioxide laid down in Annex XI to Directive 2008/50 by 1 January 2010, the date specified in that annex, results from the second subparagraph of Article 13(1) of the directive. Article 22(1) of Directive 2008/50 provides, however, for the possibility of postponing the deadline initially set where conformity with the limit values cannot be achieved by that deadline, on condition that the Member State concerned establishes an air quality plan for the zone or agglomeration to which the postponement would apply, which meets certain requirements. In particular, the plan must be established in accordance with Article 23 of Directive 2008/50. It must also contain the information listed in Section B of Annex XV relating to the pollutants concerned and demonstrate how conformity with the limit values will be achieved before the new deadline. Under Article 22(4) of Directive 2008/50, those zones, agglomerations and plans must be submitted to the Commission for approval. Article 22(4) of Directive 2008/50 obliges the Member State concerned to notify the Commission of the zones and the agglomerations to which it considers Article 22(1) applies and to submit the air quality plan referred to in the latter provision.

In the UK the limit values for nitrogen dioxide were exceeded in 2010 in 40 of the 43 zones set up for the purposes of the directive. In September 2011, the UK submitted plans to the Commission together with applications for the postponement of the deadline for 24 of the 40 zones for which the UK predicted that the limit values would be met by 1 January 2015. For 16 zones or agglomerations (including Greater London), in respect of which the air quality plans projected compliance with the limit values between 2015 and 2025, the UK did not request a time extension. ClientEarth, an environmental NGO, asked the British courts to require the UK Government to revise the plans to show how the nitrogen dioxide limit values would be respected as soon as possible, and by 1 January 2015 at the latest.

Hearing the case as final court of appeal, the Supreme Court of the United Kingdom asked the Court of Justice whether Article 22 of the Air Quality Directive must be interpreted as meaning that, where conformity with the limit values for nitrogen dioxide laid down in Annex XI to that directive could not be achieved in a given zone or agglomeration of a Member State by 1 January 2010, the date specified in Annex XI, that State was, in order to be able to postpone that deadline for a maximum of five years, obliged to make an application for postponement in accordance with Article 22(1) of Directive 2008/50 and (ii) whether, if that was the case, the State may nevertheless be relieved of that obligation in certain circumstances.

The Court first of all held with regards to the question whether, in order to be able to postpone by a maximum of five years the deadline specified in Annex XI to Directive 2008/50, the Member State concerned was obliged to make an application and to establish for that purpose such a plan, when the conditions referred to in Article 22(1) of the directive were met, it must be held that, while the wording of that provision did not give clear indications in that respect, it followed both from the context of that provision and the aim pursued by the EU legislature that Article 22(1) must be interpreted to that effect. 

However, the Court stressed that while, as regards sulphur dioxide, PM10, lead and carbon monoxide, the first subparagraph of Article 13(1) of Directive 2008/50 provided that Member States were to ‘ensure’ that the limit values were not exceeded, the second subparagraph of Article 13(1) stated that, as regards nitrogen dioxide and benzene, the limit values ‘may not be exceeded’ after the specified deadline, which amounted to an obligation to achieve a certain result. 

The Court stressed that, consequently, Member States must take all the measures necessary to secure compliance with that requirement and could not consider that the power to postpone the deadline, which they were afforded by Article 22(1) of Directive 2008/50, allowed them to defer, as they wished, implementation of those measures.

The Court held that Article 22(1) of Directive 2008/50 must be interpreted as meaning that, in order to be able to postpone by a maximum of five years the deadline specified by the directive for achieving conformity with the limit values for nitrogen dioxide specified in Annex XI thereto, a Member State was required to make an application for postponement when it was objectively apparent, having regard to existing data, and notwithstanding the implementation by that Member State of appropriate pollution abatement measures, that conformity with those values could not be achieved in a given zone or agglomeration by the specified deadline.

The Court held where it is apparent that conformity with the limit values for nitrogen dioxide established in Annex XI to Directive 2008/50 could not be achieved in a given zone or agglomeration of a Member State by 1 January 2010, the date specified in that annex, and that Member State had not applied for postponement of that deadline under Article 22(1) of Directive 2008/50, the fact that an air quality plan which complied with the second subparagraph of Article 23(1) of the directive had been drawn up did not, in itself, permit the view to be taken that that Member State had nevertheless met its obligations under Article 13 of the directive. 

The referring court also asked  whether Articles 4 TEU and 19 TEU and Article 30 of Directive 2008/50 must be interpreted as meaning that, where a Member State had failed to comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and had not applied for a postponement of the deadline as provided for by Article 22 of the directive, it was for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority established the plan required by the directive in accordance with the conditions laid down by the latter.

The Court as a preliminary point that the reason why the interpretation of Article 30 of Directive 2008/50, which related to the system of penalties that must be implemented by the Member States, was relevant to the dispute in the main proceedings, was not sufficiently clear from the file submitted to the Court. 

As regards Article 4 TEU, the Court reiterated that under the principle of sincere cooperation laid down in paragraph 3 of that article, it was for the Member States to ensure judicial protection of an individual’s rights under EU law (see, to that effect, inter alia the judgment in Unibet, C‑432/05, EU:C:2007:163, on which I wrote this post). In addition, Article 19(1) TEU required Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. 

The Court held that he natural or legal persons directly concerned by the limit values being exceeded after 1 January 2010 must be in a position to require the competent authorities, if necessary by bringing an action before the courts having jurisdiction, to establish an air quality plan which complied with the second subparagraph of Article 23(1) of Directive 2008/50, where a Member State had failed to secure compliance with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and had not applied for a postponement of the deadline as provided for by Article 22 of the directive (see, by analogy, judgment in Janecek, EU:C:2008:447, para. 39).

The Court held that, as regards the content of the plan, it followed from the second subparagraph of Article 23(1) of Directive 2008/50 that, while Member States had a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values were exceeded was as short as possible.