EU Air Quality Legislation Legal update Presentation at EJTN-AEAJ-ERA seminar „Judicial Training on EU environmental law on 8./9. July 2018 in Trier by Holger Böhmann, Judge at the Federal Administrativ Court, Leipzig, Germany

EU Air Quality legislation History: fifth action programme of 1992 on the environment, the general approach of Council resolution 93/C 138/01 of 1 February 1993 (4), envisages amendments to existing legislation on air pollutants; recommendation for the establishment of long-term air quality objectives Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management setting of the limit values and alert thresholds for ambient air including deadlines (art. 4) assessment of air quality (art. 6) rather vague obligations for MS (art. 7 no. 1 … take necessary measures to ensure compliance with the limits)

EU Air Quality legislation The four sister directives: Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air Directive 2002/3/EC of the European Parliament and of the Council of 12 February 2002 relating to ozone in ambient air Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air

EU Air Quality legislation Recast: Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe Integration of Dir. 1999/30/EC, 2000/69/EC and 2002/3/EC (2004/107/EC still in force) Aims (art. 1) Assessment of air quality (chapt. II) Quality management (chapt. III) Quality plans (chapt. IV) Information and Reporting (chapt. V) Institutional cooperation (chapt. VI)

EU Air Quality legislation II. CJEU Jurisprudence: 1. Judgement of 25 July 2008 - C‑237/07, ECLI:EU:C:2008:447, Janecek Article 7(3) of Council Directive 96/62/EC must be interpreted as meaning that, where there is a risk that the limit values or alert thresholds may be exceeded, persons directly concerned must be in a position to require the competent national authorities to draw up an action plan, even though, under national law, those persons may have other courses of action available to them for requiring those authorities to take measures to combat atmospheric pollution. The Member States are obliged, subject to judicial review by the national courts, only to take such measures – in the context of an action plan and in the short term – as are capable of reducing to a minimum the risk that the limit values or alert thresholds may be exceeded and of ensuring a gradual return to a level below those values or thresholds, taking into account the factual circumstances and all opposing interests.

EU Air Quality legislation 2. Judgment of 19 December 2012 – C-68/11 - ECLI:EU:C:2012:815, COM vs. Italy By having failed to ensure that, for the years 2006 and 2007, concentrations of PM10 in ambient air did not exceed the limit values set in Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air in the 55 Italian zones and agglomerations referred to in the European Commission’s letter of formal notice of 2 February 2009, the Italian Republic has failed to fulfil its obligations under that provision. par. 59 ff.: The Italian Republic adds that those limit values could not be complied with within the time-limit laid down by Directive 1999/30. In those circumstances, ensuring compliance with those limit values would have involved the adoption of drastic economic and social measures and the infringement of fundamental rights and freedoms such as the free movement of goods and persons, private economic initiative and the right of citizens to public utility services. (…)

EU Air Quality legislation In that regard, it should be noted that, unless a directive has been amended by the European Union legislature for the purpose of extending the time-limits prescribed for implementation, the Member States are required to comply with the time-limits originally laid down. (…) It is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it (…) In any event, a Member State which encounters temporarily insuperable difficulties preventing it from complying with its obligations under European Union law may plead force majeure only for the period necessary in order to resolve those difficulties (…). However, in the present case, the arguments put forward by the Italian Republic are too general and vague to be able to constitute a case of force majeure justifying non-compliance with the limit values applicable to concentrations of PM10 in the 55 Italian zones and agglomerations mentioned by the Commission.

EU Air Quality legislation 3. Judgment of 19 November 2014 – C-404/13 - ECLI:EU:C:2014:2382, Client Earth (35) 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 is required to make an application for postponement and to establish an air quality plan 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. Directive 2008/50 does not contain any exception to the obligation flowing from Article 22(1).

EU Air Quality legislation (49) Where it is apparent that conformity with the limit values for nitrogen dioxide established in Annex XI to Directive 2008/50 cannot 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 has not applied for postponement of that deadline under Article 22(1) of Directive 2008/50, the fact that an air quality plan which complies with the second subparagraph of Article 23(1) of the directive has been drawn up does not, in itself, permit the view to be taken that that Member State has nevertheless met its obligations under Article 13 of the directive. (58) Where a Member State has failed to comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by Article 22 of the directive, it is 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 establishes the plan required by the directive in accordance with the conditions laid down by the latter.

EU Air Quality legislation 4. Jugment of 5 April 2017 – C-488/15 - ECLI:EU:C:2017:267, COM vs. Bulgaria Established a failure of fullfilment of the obligations under Art. 13 (1) in conjunction with Annex XI of Dir. 2008/50/EC; failure to to keep exceedance period (2010 – 2014) as short as possible (Art. 23 (1) of the Dir.) (102) It is apparent from the second subparagraph of Article 23(1) of Directive 2008/50 that in the event of exceedances of the limit values for PM10 concentrations for which the attainment deadline is already expired, the Member State concerned is required to draw up an air quality plan meeting certain requirements. (103) Accordingly, that plan must set out appropriate measures, so that the exceedance period can be kept as short as possible, and may additionally include specific measures designed to protect sensitive population groups, including children. (…) (106) (…) Consequently, the air quality plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests.

EU Air Quality legislation 5. Judgment of 22 February 2018 – C-336/16 - ECLI:EU:C:2018:94, COM vs. Poland Failure to fulfil obligations under Art. 13(1), 23(1), and 22(3), in conjunction with Annex XI of Directive 2008/50/EC because of the exceedance of PM 10 daily and annual limit since 2007 and up to, no appropriate measures have been incorporated in ambient air quality programmes to ensure that the exceedance period of particulate matter PM10 concentrations limit values is kept as short as possible and incorrect transposition of Art. 23 (1) of the Directive. (93) The Court has held that air quality plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests (…). (94) Therefore, the fact that a Member State exceeds the limit values for PM10 concentrations in ambient air is not in itself sufficient to find that that Member State has failed to fulfil its obligations under the second subparagraph of Article 23(1) of Directive 2008/50 (…). (95) In this regard, it follows from that provision that, while Member States have 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 are exceeded is as short as possible (…).

EU Air Quality legislation 98 As is apparent (… that) exceedances of the limit values had already been recorded in Poland at that date. 99 However, it is common ground that the plans adopted subsequently by the Republic of Poland set the expiry of the periods prescribed for putting an end to such exceedances between 2020 and 2024, depending on the different zones, which makes it possible for the Member State concerned to put an end to such exceedances only 10, or even 14, years after the date on which those exceedances were recorded. 100 In this regard, the Republic of Poland contends that the deadlines which it set are fully adapted to the scale of the structural changes necessary to bring an end to the exceedances of the limit values for PM10 concentrations in ambient air, highlighting difficulties arising from the socio-economic and financial challenge of the major technical investments to be carried out. 101 However, while such factors may be taken into account in the context of the balancing exercise referred to in paragraph 93 of the present judgment, the fact remains that it has not been established that the difficulties referred to by the Republic of Poland, which are not exceptional, are such as to rule out the possibility of having set shorter periods, especially since a large portion of the measures envisaged are connected with the replacement of individual and collective boilers by more efficient equipment. 102 It follows that that argument of the Republic of Poland cannot, in itself, justify such long periods for putting an end to those exceedances in the light of the requirement seeking to ensure that the exceedance period is as short as possible. 103 In this context, the adoption of the additional measures referred to by the Republic of Poland, which, it is common ground, cannot, in themselves, actually put an end to the recorded exceedances of the limit values for PM10 concentrations in ambient air, is not sufficient to satisfy the obligations arising under Article 23(1) of Directive 2008/50.

EU Air Quality legislation Case study “Diesel ban” Facts: Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (Air Quality Directive) imposes limit values and alert thresholds for the protection of human health by noxious substances such as nitrogen dioxide. The limits have to be met on 01.01.2010, but can be exceeded for 5 years. If not, Members States have to issue Air Quality Plans (AQP) on how and in which time the criteria will be met. In the two cities Stuttgart and Düsseldorf the criteria on nitrogen dioxide were not met at specific sampling points in 2017. The competent authorities of Federal States (Länder) North Rhine -Westphalia and Baden-Württemberg issued AQP containing several measures (such as a traffic ban for cars with Euro 5 engines from 2020 on, an increase of public transport facilities, support for the use of cleaner busses etc.). The AQP were challenged by a registered environmental charity organization, claim-ing for stricter and timely measures to meet the criteria. As diesel driven cars are the main producers of nitrogen dioxide (beside fine dust/particulate matter) the organiza-tion called especially for a ban of such cars.

EU Air Quality legislation Such measures were refused by the authorities because national road traffic and emission control legislation would not provide for a ban related to type of drive (diesel or gas). Especially they could not introduce blue badges for the indication of admissible diesel engines because this is exclusively under federal (and not under Länder) competence. The organization addressed the Administrative Court and asked to oblige the defendant to issue an AQP including inter alia a diesel ban in specific zones (respectively streets) of the cities. Questions: Would you grant the application? Has an environmental NGO (legal person) the right to sue and claim for the issuance of an AQP? How would the sentence of your verdict look like? Would you explicitly introduce a diesel ban?

Thank you for your attention and fruitfull discussions in the Working Groups!

EU Air Quality legislation Federal Administrative Court of Germany, judgments of 22.02.2018: BVerwG 7 C 26.16 – Deutsche Umwelthilfe vs. Land Baden-Württemberg (Stuttgart) and BVerwG 7 C 30.17 – Deutsche Umwelthilfe vs. Land Nordrhein-Westfalen (Düsseldorf) “The defendant is obliged to adapt the AQP under observance of the legal opinion of the court on the legitimacy and proportionality of traffic bans; the remaining revisions were dismissed.”

EU Air Quality legislation In the reasoning the court established that current road traffic and emission control legislation does not provide for a traffic ban specifically on diesel engines. Due to the primacy of EU-law and its effective implementation these rules have to be set aside, if a diesel ban is the only measure to keep the period of exceeding the limits as short as possible. When implementing such measure the principle of proportionality must be observed. Therefore a staggered implementation of a ban gradated by the age of cars and pollution produced as well as exceptions e.g. for residents and craftspeople must be taken into consideration.