Ruling against Bulgaria opens door for air pollution action

The recent decision from the EU Court of Justice opens the door for the Commission to take more robust action in relation to air quality infringements and will facilitate legal actions before national courts by individuals and NGOs.

On 5 April 2017, the Court of Justice of the European Union (CJEU) found the Bulgarian government to be in breach of Directive 2008/50/EC (the Air Quality Directive) for having systematically and continuously exceeded PM₁₀ limit values throughout its territory and for having failed to prepare air quality plans, which would keep the duration of the breach as short as possible (Case C-488/15). This case marks a fundamental step forward in the enforcement of the right to clean air, as the Commission will now be able to seek financial sanctions against member states in breach of the Air Quality Directive.

Historically, air quality infringements have been problematic. Limit values for PM have been in place since 1 January 2005. The Commission started infringement actions against member states in 2008 and eventually obtained CJEU judgments against four member states: Slovenia, Sweden, Portugal and Italy.

These were “round one” actions, in which the CJEU only had the power to make a declaration that the member state had failed to fulfil its treaty obligations. If the member state then fails to comply with the judgment, the Commission can start “round two” actions and request the CJEU to apply fines. In particular, the CJEU found that these four member states had breached the PM₁₀ limit values during a specific period of time in the past, but did not force them to take any measures to comply with the limits in the future, and therefore gave no opportunity to the Commission to bring “round two” proceedings.

The decisions were, therefore, useless as no follow-up enforcement proceedings could be started by the Commission to ensure compliance. The result of these setbacks is that more than 10 years after the PM₁₀ limit values came into force, not a single fine has been issued, despite the fact that 21 member states were still in breach as of 2014.

Since the previous approach was ineffective, the Commission adopted a fresh approach to air quality infringement proceedings in 2013. Based on both the failure to ensure compliance with limit values under Article 13 and the failure to adopt plans which meet limit values in the shortest time possible under Article 23, such an approach would empower the Commission to bring round two proceedings and seek the application of fines against member states that continuously fail to adopt adequate air quality plans.

The action against Bulgaria was particularly important, as it was the first case under the fresh approach to reach CJEU judgment. The decision of 5 April 2017 supports the Commission’s approach. The CJEU found not only that PM10 concentrations were systematically and continuously exceeded between 2007 and 2014. A direct link between the breach of limit values and the drawing up of air quality plans was also expressly identified. Bulgaria failed to fulfil its obligations under Article 23(1) to keep the duration of the breach “as short as possible” from 11 June 2010 until 2014, by adopting appropriate measures in an air quality plan. Failure to comply with this judgment and, therefore, to improve the existing, inadequate, air quality plans would expose Bulgaria to the payment of fines.

Beyond the issue of EU infringements, this latest CJEU judgment will also facilitate the enforcement of the right to clean air by individuals and NGOs before national courts.

First, the CJEU found that Article 13 sets an obligation for results. This means that a member state does not satisfy its obligation to achieve limit values simply by establishing an air quality plan.

The CJEU also stated that member states cannot claim technical difficulties or their socio-economic situation to justify their failure to achieve limit values. Such considerations are irrelevant in light of a member state’s persisting breach of Article 13.

In preparing plans, member states do still retain a margin of discretion, but there are “limits on the exercise of that discretion”. The court stated that in exercising this discretion, account must be taken of the balance between protecting human health and opposing public and private interests. However, this statement – taken from the Janecek case C-237/07 – needs to be understood in light of the fact that member states can no longer rely on using socio-economic reasoning as an excuse. Moreover, the Janecek case was a ruling on obligations laid down by an earlier version of the Directive (96/62/EC).

Article 23 of the Air Quality Directive introduced the new concept of an “air quality plan”, which was much more demanding than the equivalent requirements for “plans or programmes” under the 1996 Directive. In particular, it required air quality plans to keep the exceedance period “as short as possible”. In this regard, the reasoning of the CJEU becomes clearer when read in conjunction with paragraph 96 of the opinion of the Advocate General Kokott. The Advocate General’s opinion qualifies the need to strike a balance with the requirement to carry out a strict review of the balancing exercise. Member states’ discretion is clearly reduced even where a balance must be struck, simply because of the impact ambient air quality has on human health and life. Such overriding importance placed on ambient air quality “leaves little room for any other consideration”.

Finally, the CJEU decision dealt with the “as short as possible” requirement. According to the Court, this can only be assessed on a case by case basis. It therefore remains that “as short as possible” means “as short as possible”.

In conclusion, this latest decision from the CJEU, on the one hand, opens the door for the Commission to take more robust action in relation to air quality infringements and, on the other, will facilitate legal actions before national courts by individuals and NGOs to claim the protection of our right to breathe clean air.

Nabeeha Uddin
ClientEarth