Supreme Court refers air pollution case to the EU Court

1 May 2013 by David Hart KC

R (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs  [2013] UKSC 25, Supreme Court, 1 May 2013 – read judgment

on appeal against Court of Appeal 30 May 2012 read CA judgment

The Supreme Court has taken the UK’s lack of compliance  with EU legislation, Directive 2008/50 (limiting the amount of nitrogen dioxide in air)  much more seriously than the courts below.  It has made a declaration that the UK is in breach and has referred questions of interpretation concerning the Directive and remedies to the CJEU.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because at that date 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 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.

This seemed to me like a cop-out – it is for the Commission and the courts to enforce directives, as I suggested in my previous posts (e.g. here) on this case.

The questions referred 

The questions which the Supreme Court wished the CJEU to answer revolve around two provisions in the Directive, Article 22 (concerning the postponement of deadlines) and Article 23 which provided for the provision of air quality plans.

ClientEarth 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. It pointed to Article 22(4): where in the view of a member state paragraph 1 “is applicable”, the state “shall” notify the Commission and communicate the required air quality plan. Paragraph 1 is applicable where “in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified…”

Put simply, 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 and on demonstrating how you were going to achieve conformity with the limit values under the Directive.

The SoS said that 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. True, that exposed the state to an immediate risk of infraction proceedings based on the breach of Article 13, but it remained subject to a continuing duty to maintain plans setting out “appropriate measures so that the exceedance period can be kept as short as possible”.

Helpfully for ClientEarth’s cause, it had elicited a letter of 29 June 2012 (shortly after the CA’s judgment) from the EU Commission to this effect:

The Commission would have some considerable concerns if Article 23 of the Directive were seen to be a way of allowing Member States to circumvent the requirements of Article 22 of the Directive

See [24] of the Supreme Court’s judgment. It makes precisely ClientEarth’s point.

Unsurprisingly, given this, the Supreme Court thought that the case raised difficult points of EU law, and I summarise the proposed questions to be referred to the CJEU

1. Where in a given zone or agglomeration conformity with the limit values for nitrogen dioxide cannot be achieved by the deadline of 1 January 2010, is a Member State obliged pursuant to the Directive and/or article 4 TEU to seek postponement of the deadline in accordance with article 22 of the Directive?
2. If so, in what circumstances (if any) may a Member State be relieved of that obligation?
3.  If the answer to (i) is no, to what extent (if at all) are the obligations of a Member State which has failed to comply with article 13, and has not made an application under article 22, affected by article 23 (in particular its second paragraph)?
4. In the event of non-compliance with article 13, and in the absence of an application under article 22, what (if any) remedies must a national court provide as a matter of European law in order to comply with article 30 of the Directive and/or article 4 or 19 TEU?

The role of the courts

It will be seen that one of the questions to be referred ((iv)) concerned the remedies (if any) which national courts should provide to comply with the Directive.

ClientEarth had argued that the judge and the CA had erred in disregarding the responsibility of the domestic courts to provide an effective remedy for the admitted breach of article 13. Neither practical difficulties nor the expense of compliance can be relied on as defences.

The SoS said that the refusal of discretionary relief by the courts below was consistent with EU principles, both of effective judicial protection, which leave to domestic systems the procedural conditions governing actions for the protection of the rights under EU law and of “sincere co-operation”, in cases of “unforeseeable difficulties” which make it “absolutely impossible” to carry out obligations imposed EU law.

The Court plainly thought that national courts should play some role in enforcement, disagreeing with the refusal of the CA to grant a declaration of breach in these terms

The court is satisfied that it should grant the declaration sought, the relevant breach of article 13 having been clearly established. The fact that the breach has been conceded is not, in the court’s view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief. Such an order is appropriate both as a formal statement of the legal position, and also to make clear that, regardless of arguments about the effect of articles 22 and 23, the way is open to immediate enforcement action at national or European level.

How much more national courts should do than this, depends on the answers given by the CJEU.

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