Clientearth: A Landmark Inward The Cjeu’S Environmental Police Jurisprudence

 

Anna Dannreuther, Trainee, Research Department of the CJEU

Background

The CJEU gave its judgment yesterday on a preliminary reference from the UK of Britain as well as Northern Republic of Ireland Supreme Court concerning the UK’s failure to apply for an extension of fourth dimension for compliance amongst bound values for nitrogen oxide. The illustration was brought inwards the UK of Britain as well as Northern Republic of Ireland past times ClientEarth, an environmental NGO seeking a proclamation to the effect that the UK of Britain as well as Northern Republic of Ireland was inwards breach of Article thirteen of Directive 2008/50/EC (the ‘Air Quality Directive’), which lay downward a bound of 1 Jan 2010 for compliance amongst nitrogen oxide bound values therein.

The UK of Britain as well as Northern Republic of Ireland Supreme Court had piffling difficulty inwards finding the UK of Britain as well as Northern Republic of Ireland to last inwards breach of its nitrogen oxide bound value obligations, the Secretary of State having accepted that the bound values for nitrogen oxide had been exceeded inwards a number of zones or agglomerations gear upward for the purposes of the Directive. The breach having been ‘clearly established’, as well as the Secretary of State’s concession failing to constitute a sufficient argue to turn down to grant the declaration, the illustration was referred to the CJEU for to a greater extent than complex issues of interpretation of Articles 13, 22 as well as 23 of the Directive.

The UKSC asked the CJEU 4 questions concerning the obligation on Member US nether the Directive to apply for postponement of the bound value deadline, exceptions thereto, whether establishing an air lineament programme was sufficient to comply amongst obligations nether the Directive, as well as the appropriate remedies inwards the illustration of breach.

The context of the questions was that inwards 2011 the Secretary of State had applied to the Commission for an extension of the deadline for compliance inwards abide by of 24 of the xl zones where nitrogen oxide limits had been exceeded. This was permissible nether Article 22 of the Air Quality Directive. In the air lineament plans submitted to the Commission, it showed how the bound values would last met past times 1 Jan 2015 at the latest. For the remaining xvi zones, for which the air lineament plans projected compliance amongst the bound values betwixt 2015 as well as 2025, no asking for fourth dimension extension was made.

The main query for the CJEU as well as so was whether, nether Directive 2008/50/CE, the UK of Britain as well as Northern Republic of Ireland was nether an obligation to essay postponement of the deadline for compliance amongst bound values inwards abide by of zones or agglomerations which did non comply amongst the bound values for nitrogen dioxide past times the deadline of Jan 1 2010. This was unclear from Article 22 of the Directive, which only stated that Member US ‘may postpone’ the deadline for compliance if compliance cannot last achieved past times 1 Jan 2010. It also sought to know whether compliance amongst Article 23, past times producing air lineament plans, was sufficient to comply amongst Article thirteen of the Directive.

Judgment

The ClientEarth judgment is a landmark, marker a work solid draw beingness taken past times the Court inwards price of breach of air lineament obligations. The Court took no prisoners inwards its judgment, as well as took every chance to reinstate the Member State’s compliance obligations nether the Directive.

Describing the full general framework of the compliance provisions of the Directive, namely that if Member US are unable to comply amongst bound values they may apply to postpone the deadline for compliance past times a maximum of 5 years, the CJEU firmly asserted that the obligation to brand an application for an extension of fourth dimension naturally followed from the context of the provision as well as the aim pursued past times the European Union legislature, fifty-fifty though the exact wording of the Article did non expressly require an application [para 27]. This is so because such an obligation obliges Member US to anticipate that conformity amongst the bound values volition non last achieved past times the deadline specified as well as to formulate an air lineament programme giving details of measures that are capable of remedying the pollution past times a afterwards deadline.

The obligation was also to last found inwards the wording of Article thirteen of the Directive, which provides that nitrogen oxide bound values ‘may non last exceeded’ after the specified deadline [para 30]. As a effect Member US must bring all the measures necessary to secure compliance amongst that requirement, as well as applying for postponement of the deadline for compliance is i of those measures. As for exceptions to this obligation, the CJEU reminded the UK of Britain as well as Northern Republic of Ireland Supreme Court that Article 22 does non incorporate whatever exception to the obligation flowing from Article 22(1) [para 34].

In response to the Supreme Court’s query of whether producing an air lineament programme was sufficient for compliance, the CJEU contended that such an interpretation would last liable to impair the effectiveness of Articles thirteen as well as 22 of the Directive, every bit it would let a Member State to disregard the deadline imposed past times Article thirteen nether less stringent weather condition than those imposed past times Article 22 [para 44].

In response to the query on remedies, the CJEU recalled Member States’ full general obligations nether Article 4 TEU to ensure judicial protection of an individual’s rights nether European Union police as well as Article 19(1) TEU to furnish remedies sufficient to ensure effective legal protection inwards the fields covered past times European Union police [para 52]. It also suggests that the Directive has straight effect [para 54] as well as that it would last incompatible amongst the binding nature of Article 288 TFEU to exclude, inwards principle, the possibility of the obligation imposed past times that Directive beingness relied on past times the persons concerned [para 55]. That consideration applies peculiarly inwards abide by of a Directive whose objective is to command as well as trim back atmospheric pollution as well as which is designed, therefore, to protect populace wellness (see the prior Janecek judgment, paragraph 37).

Comments

The CJEU pulls out all the stops inwards this judgment to ensure that the seriousness of the consequences of breach of this Directive is taken into concern human relationship past times Member States. ClientEarth was thrilled amongst the ruling – its website cites air pollution every bit the crusade of 29,000 deaths inwards the UK of Britain as well as Northern Republic of Ireland each twelvemonth – the biggest wellness work after smoking. It should last noted that, non alone does the Court fill upward inwards the legislature’s gap past times purposively reading into the Directive an obligation to apply for a postponement of the compliance deadline, but it also peppers the judgment amongst assertions of the absolute nature of this obligation. For illustration inwards paragraph 30, the Court asserts that, despite the dissimilar wording of obligations non to reach value limits inwards relation to dissimilar chemicals, the wording relating to nitrogen dioxide (‘may non last exceeded’) is exactly every bit powerful every bit that relating to carbon monoxide (Member US are to ‘ensure’ that bound values are non exceeded), as well as that it besides creates an absolute obligation to attain a sure as shooting result.

As at that topographic point is no limited obligation to essay postponement, the UK’s query every bit to whether the fact that they had produced air lineament plans was sufficient to comply amongst their full general obligation nether the Directive seems sensible. The Court came downward hard on this however, stating that to bypass Article 22, the postponement article, as well as comply alone amongst Article 23, the air lineament plans article, would hateful Member US would comply amongst less stringent weather condition than those imposed past times both Article 22 as well as Article 23. Read plainly, this seems to last possible, as well as the Court seems to last i time again asserting the implied obligation to apply for postponement inwards companionship to avoid the mischief of allowing Member US to bypass the postponement requirements. This is consistent amongst their previous answer, but the response highlights the Directive’s deficiencies – Article 22 seems to impose a maximum deadline of 5 years for compliance amongst value limits, whereas Article 23 allows for surpassing this deadline so long every bit plans setting out appropriate measures keeping the menses of exceeding the limits every bit brusk every bit possible are established. It is unclear which fourth dimension limits Member US must comply with, as well as it is unclear what the ramifications are for failure to comply.

Whatever the drafting problems amongst this Directive that gave agency to possible wiggle room for the UK of Britain as well as Northern Republic of Ireland authorities to elude the obvious intention of the legislators may be, the judgment is a fantastic illustration of the forcefulness of purposive interpretation as well as of using every possible statement to condemn a Member States’ clear breach of laws endangering populace health.  

 

Barnard & Peers: chapter 22

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