Anna Dannreuther, Trainee, Research Department of the CJEU

Background

Yesterday, the Court of Justice of the European Union (CJEU) issued its decision on a case referred by the UK Supreme Court. This case involved the UK’s failure to request an extension to meet nitrogen oxide limits as outlined in EU law. The environmental NGO, ClientEarth, brought the case forward in the UK, arguing that the UK was violating Article 13 of Directive 2008/50/EC (the ‘Air Quality Directive’). This directive set a deadline of January 1, 2010, for complying with nitrogen oxide limits.

The UK Supreme Court easily determined that the UK was not meeting its nitrogen oxide limit obligations. The Secretary of State acknowledged that nitrogen oxide limits were exceeded in several zones designated by the Directive. As the breach was evident and the Secretary of State’s admission wasn’t a valid reason to deny the declaration, the case was sent to the CJEU to address intricate points regarding the interpretation of Articles 13, 22, and 23 of the Directive.

The UK Supreme Court posed four questions to the CJEU. These questions focused on the Member States’ obligation under the Directive to request a deadline extension for limit values, any exceptions to this, whether creating an air quality plan constituted compliance with the Directive, and the appropriate remedies for breaches.

These questions arose because, in 2011, the Secretary of State requested a deadline extension from the Commission for 24 out of 40 zones exceeding nitrogen oxide limits. This was allowed under Article 22 of the Air Quality Directive. The air quality plans presented to the Commission demonstrated how these zones would achieve compliance by January 1, 2015. However, no extension request was made for the remaining 16 zones, which projected compliance between 2015 and 2025, based on their air quality plans.

The central question for the CJEU was whether the UK was obligated, under Directive 2008/50/CE, to request a deadline extension for areas not meeting nitrogen dioxide limits by January 1, 2010. This was unclear in Article 22 of the Directive, which merely stated that Member States ‘may postpone’ the deadline if compliance wasn’t achievable by January 1, 2010. The Court also sought to determine whether adhering to Article 23, by creating air quality plans, was sufficient to be considered compliant with Article 13 of the Directive.

Judgment

The ClientEarth judgment is significant as it sets a strong precedent for the Court’s stance on violations of air quality obligations. The Court’s ruling was firm, and it emphasized the Member States’ responsibility to comply with the Directive.

The CJEU outlined the general framework of the compliance stipulations within the Directive, namely that Member States struggling to meet limit values could apply for a deadline extension of up to five years. The CJEU asserted that requesting an extension was a natural consequence derived from the provision’s context and the EU legislature’s objective, even though the Article’s wording didn’t explicitly mandate it [para 27]. This is because such an obligation compels Member States to proactively address potential non-compliance with the limit values by the stipulated deadline and to prepare an air quality plan detailing measures to rectify the pollution by a later date.

This obligation, the Court stated, was also inherent in the language of Article 13 of the Directive. This article states that nitrogen oxide limit values ‘may not be exceeded’ following the set deadline [para 30]. Therefore, Member States must take all necessary steps to ensure compliance, including requesting a deadline postponement if needed. Regarding exceptions to this, the CJEU reminded the UK Supreme Court that Article 22 provides no exemptions to the obligation arising from Article 22(1) [para 34].

In addressing the Supreme Court’s question about the adequacy of air quality plans for compliance, the CJEU argued that this interpretation could undermine the efficacy of Articles 13 and 22 of the Directive. This is because it would permit a Member State to disregard the Article 13 deadline under less strict conditions than those outlined in Article 22 [para 44].

Concerning remedies, the CJEU referenced Member States’ overarching obligations under Article 4 TEU to guarantee legal protection for individuals’ EU law rights and Article 19(1) TEU to provide sufficient remedies to ensure effective legal protection within EU law’s scope [para 52]. It also suggested that the Directive has direct effect [para 54] and that it wouldn’t align with the binding nature of Article 288 TFEU to generally preclude individuals from invoking the obligation stipulated in that Directive [para 55]. This is particularly relevant for a Directive aimed at regulating and minimizing air pollution and, consequently, protecting public health (see the prior Janecek judgment, paragraph 37).

Comments

The CJEU takes a resolute stance in this judgment to emphasize the gravity of breaching the Directive to Member States. ClientEarth welcomed the ruling – their website points to air pollution as the cause of 29,000 deaths annually in the UK, making it the most significant health threat after smoking. Notably, the Court not only addresses a legislative gap by interpreting a requirement to request a deadline extension into the Directive but also underscores the absolute nature of this obligation throughout the judgment.

For instance, in paragraph 30, the Court affirms that despite the varying language used for obligations related to exceeding value limits for different chemicals, the wording concerning nitrogen dioxide (‘may not be exceeded’) holds the same weight as that for carbon monoxide (Member States must ‘ensure’ that limit values aren’t exceeded). Therefore, it creates a firm obligation to achieve a specific outcome.

As there’s no explicit obligation to seek a postponement, the UK’s query about the sufficiency of their air quality plans for complying with their general obligation under the Directive appears reasonable. However, the Court took a firm stance against this, stating that circumventing Article 22 (the postponement article) and adhering only to Article 23 (the air quality plans article) would mean Member States are complying under less stringent conditions than those outlined in both Articles 22 and 23. On the surface, this seems plausible, and the Court appears to be reiterating the implicit obligation to apply for a postponement to prevent Member States from sidestepping postponement requirements. While consistent with their previous response, this highlights a flaw in the Directive – Article 22 seems to impose a maximum 5-year deadline for complying with value limits, while Article 23 allows exceeding this deadline if plans outlining appropriate measures to minimize the non-compliance period are established. Consequently, the timeframes Member States must adhere to and the consequences for non-compliance remain unclear.

Regardless of the drafting issues in this Directive that may have allowed the UK government to circumvent the legislators’ intent, the judgment is a compelling illustration of purposive interpretation and leveraging all possible arguments to censure a Member State’s clear violation of laws designed to protect public health.

Barnard & Peers: chapter 22