Ping pong: CJEU air pollution ruling – back to the Supreme Court

R (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs , CJEU, 19 November 2014 – read C404-13 

In May 2013, the UK Supreme Court (here) was sufficiently concerned about the UK’s lack of compliance  with EU legislation, Directive 2008/50 (nitrogen dioxide etc in air)  to refer various issues to the CJEU in Luxembourg.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because 40 “zones and agglomerations”  had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and, given the admission, the first instance judge and the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings. And those lower courts disagreed with ClientEarth’s interpretation of the Directive, which, as we shall see, has now for the first time been upheld by the CJEU.

The Supreme Court went rather further; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning of the Directive to the CJEU.

The questions concerned two provisions in the Directive, Article 22 (concerning the postponement of deadlines) and Article 23 which provided for the provision of air quality plans.

Breaches

ClientEarth had argued that Article 22 is a mandatory procedure which applied to any member state which remained in breach of the relevant limit value at 1 January 2010; the member state must apply for a postponement in accordance with its provisions. You could not just put in an air quality plan under Article 23; when in breach, you had to meet the additional obligations under Article 22 on applying for a postponement, not least that your plan showed how you would conform with Article 13 in due course.

Defra disagreed;  the Article 22 route is not mandatory, as indicated by the use of the words “may postpone” in article 22(1). An air quality plan demonstrating compliance by 1 January 2015 is only required if a member state is applying under Article 22 for postponement of the deadline. Further, postponement can only properly be sought if the state is able to demonstrate how conformity will be achieved by the new deadline. The UK had not sought a postponement under Article 22 and was thus not subject to the obligations which that Article imposed when such a postponement was sought.

The Luxembourg Court was in little doubt as to how Articles 22 and 23 fitted together. Though “there were not clear indications” in the wording of Article 22 [a polite way of saying it was badly drafted], the context and the aim of the Directive pointed at it being mandatory that a non-compliant member state should submit an air quality plan [27], seeking a specific postponement under Article 22, and giving details of how compliance might be achieved by the proposed deadline: [29]. Member states could not just defer, as they wished, implementation of the obligations under the Directive: [31].  So you could not duck Article 22 by just bunging in a non-compliant plan under Article 23.

Hence, the CJEU’s conclusion 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…, a Member State is required to make an application for postponement when it is 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 cannot be achieved in a given zone or agglomeration by the specified deadline.

The Court added that there was no exception to the obligation flowing from Article 22(1). And, in answer to the third question posed by the Supreme Court, submission of a plan under Article 23 (the UK’s attempted route out) did not enable the UK to say that it had thereby met its obligations under Article 13.

Enforcement

The fourth question raised delicate issues of enforcement, as between the EU and the Commission on the one hand, and UK Courts on the other. The Supreme Court had asked, in the event that the UK was in breach under Article 13, what (if any) remedies must a national court provide as a matter of EU law given

(i) the requirement in Article 30 of the Directive for penalties to be laid down which were effective, proportionate and dissuasive

(ii) the obligations of sincere cooperation in Article 4(3) of the Treaty of European Union, and

(iii) the obligations in Article 19 TEU on member states to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

The CJEU was very non-committal in its response. It could not see how Article 30 was of relevance. It repeated student textbook stuff about individuals being able to rely upon the directive against the state and the courts’ duty to disapply contrary national rules: [54].

The furthest it went was in [56], in stating that 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 complies with the Directive.

Upshot, and the answer to the question posed, at [58]: it was for the national court, should a case be brought before it, to take

any necessary measure, such as an order in the appropriate terms

so that the member state establish a plan required by, and in accordance with the conditions of, the directive

It is thus for the Supreme Court, not greatly assisted by the answer to question 4, to come up with such an order.

Conclusion

The CJEU has given an emphatic thumbs-down to Defra’s interpretation of the Directive. It has also contradicted the position of the lower domestic courts who said it was not for the courts to enforce breaches of the Directive, but for the Commission to do so. At least therefore, the duty within the Treaty on member states to ensure proper enforcement via their own courts has been recognised in this specific context.

But it is now all to play for.  Will the Supreme Court order something with more “teeth” than the existing declaration of breach? If so, what?

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