EU Environmental Law Trier, 27-28 May 2019 EU Air Quality - - PowerPoint PPT Presentation
EU Environmental Law Trier, 27-28 May 2019 EU Air Quality Legislation - legal update and case study Holger Bhmann [AD/2019/03] With financial support from the Justice Programme of the European Union EU Air Quality Legislation I.
EU Environmental Law Trier, 27-28 May 2019 EU Air Quality Legislation
Holger Böhmann [AD/2019/03]
With financial support from the Justice Programme of the European Union 2
History: fifth action programme of 1992 on the environment, the general approach
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)
Council Decision 97/101/EC of 27 January 1997 establishing a reciprocal exchange of information and data from the networks and individial stations measuring ambient air pollution within the Member States
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The four sister directives:
dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air
2000 relating to limit values for benzene and carbon monoxide in ambient air
2002 relating to ozone in ambient air
2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air
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Recast: Directive 2008/50/EC of the European Parliament and
cleaner air for Europe
still in force)
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Directive (EU) 2016/2284 of the European Parliament and of the Council of 14. December 2016 on the reduction of national emissions of certain atmosphereic pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC
Thematic Strategy on Air Pollution 2005 with strategic objectives for the period up to 2030
national air pollution control programmes be drawn up, adopted and implemented up to 2030
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EU Air Quality Legislation CJEU jurisprudence
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.
– 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
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EU Air Quality Legislation CJEU jurisprudence
Italy
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.
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. (…)
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EU Air Quality Legislation CJEU jurisprudence
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
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.
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EU Air Quality Legislation CJEU jurisprudence
ECLI:EU:C:2014:2382, Client Earth
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).
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EU Air Quality Legislation CJEU jurisprudence
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.
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.
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EU Air Quality Legislation CJEU jurisprudence
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.
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.
period can be kept as short as possible, and may additionally include specific measures designed to protect sensitive population groups, including children. (…)
balance between the aim of minimising the risk of pollution and the various opposing public and private interests.
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EU Air Quality Legislation CJEU jurisprudence
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 programs 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.
balance between the aim of minimising the risk of pollution and the various opposing public and private interests (…).
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 (…).
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 (…).
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EU Air Quality Legislation CJEU jurisprudence
ECLI:EU:C:2012:712, COM vs. Portugal, treaty violation procedure under art. 258 TFEU, violation established
ECLI:EU:C:2019:194, Poland, Hungary and Romania vs. COM, claim for annulment of Directive 2016/2284/EU dismissed
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EU Air Quality Legislation case study
Case study “Diesel ban” Facts:
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.
met at specific sampling points in 2017. The competent authorities of the 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, claiming 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 organization called especially for a ban of such cars.
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EU Air Quality Legislation case study
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 defendant to issue an AQP including inter alia a diesel ban in a specific zone (respectively streets) of the cities. Questions:
the issuance of an AQP?
introduce a diesel ban?
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EU Air Quality Legislation case study – national decision
Federal Administrative Court of Germany, judgments
(Stuttgart) and
(Düsseldorf)
“The defendant is obliged to adapt the AQP under
legitimacy and proportionality of traffic bans; the remaining revisions were dismissed.”
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EU Air Quality Legislation case study – national decision
In the reasoning the court established that current (national) 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.
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