After neglecting to heed an initial warning, six Member States may face financial penalties if they do not reduce pollution levels.

By Paul A. Davies, Michael D. Green, and Alexander Wilhelm

The European Commission (EC) has referred the UK, France, Germany, Hungary, Italy, and Romania to the European Court of Justice (ECJ) for failing to adequately tackle and control air pollution in their respective jurisdictions. The Member States, the EC said, had not produced and delivered “credible, effective and timely measures to reduce pollution as soon as possible, as required under EU law”. The EC had already issued these Member States with a warning in January 2018. Polluted and toxic air is thought to cause over 400,000 early deaths each year in Europe. The actions against the UK, France, and Germany concern exceedances of nitrogen dioxide (NO2), while the actions against Hungary, Italy, and Romania target particulate matter (PM10).

The ECJ can impose significant fines stretching to millions of euros, for Member States that fail to remedy their behaviour.

In this blog, a more detailed analysis of the current position in the UK, France, and Germany is set out.

UK

The UK has been referred to the ECJ after the EC issued a reasoned opinion in February 2017. The EC’s view is that the UK has not tackled its air pollution adequately; levels of nitrogen dioxide have exceeded the statutory maximum since 2010 in a significant majority of the UK’s urban areas. This year, the legal limit for air pollution in London was reached before the end of January. The hourly measurement of nitrogen dioxide must not exceed 200 µg/m3 over 18 times in one year. Research has shown that disincentivizing the use of vehicles in certain areas to create clean air zones is the most effective way of decreasing air pollution. However, under law, these remain a voluntary measure that councils are not obliged to enforce.

The UK government has been defeated in a number of legal disputes in the national courts over its failure to control air pollution levels. The government’s 2017 plan to combat the problem was met with significant criticism for failing to do enough. In January 2018, further legal action was brought against the UK government in response to allegedly inadequate plans to tackle the dangerous levels of nitrogen oxide in the UK. The charity that brought the legal action had won two previous cases against ministers for failing to prevent the exceeding of legal maximums for nitrogen oxide. The UK government is set to produce a supplement to its most recent air quality plan of July 2017 by 5 October 2018.

If the ECJ declares the UK is in breach of its legal duty, the Member State will have a period of time to resolve the situation. If the UK does not resolve the situation, the court can then impose large fines. These fines may total millions of pounds, and will continue to increase until the problem is resolved.

The debate has raised questions over the impact of Brexit on this particular area. Critics have accused the government of leveraging Britain’s exit as an opportunity to allow less stringent environmental protection and proposing an environmental watchdog with only advisory powers who will not hold the government to account in the same way as the EC.

France

The EC issued injunctions to France in 2009, 2010, 2011, 2013, 2015, and 2017. In 2016, France’s declared nitrogen dioxide average concentrations peaked at 96 µg/m3 — more than twice the 40 µg/m3 limit that the Directive 2008/50/EC of 21 May 2008 imposed. Measures should have been in place for particulate matter as early as 2005, and for nitrogen dioxide in 2010. According to the World Health Organisation, air pollution is the cause of an estimated 48,000 premature deaths per year in France alone. Under these circumstances, France’s referral to the ECJ comes as no surprise.

On 30 January 2018, the European Environment Commissioner, Karmenu Vella, gave France until mid-February to provide action plans to tackle air pollution as soon as practicable. Absent any response, the French Conseil d’Etat instructed the French Environment Minister to submit such plans to the Commission before 31 March 2018. On 13 April, the minister unveiled road maps for no fewer than 14 zones affected by excessive air emissions readings.

To no avail. The EC found France’s plan lacking and considered it a mere stacking of existing measures. Years, if not decades, of diesel incentives are a difficult trend to reverse, and the huge numbers of diesel vehicles are known to be the main reason for nitrogen dioxide pollution. To date, only two cities, Paris and Grenoble, have adopted coercive plans to enforce low emissions areas. Amidst calls to ban diesel vehicles by 2025, the mayor of Paris is contemplating using the 2024 Summer Olympics to hasten the move. A framework law covering all forms of transportation (Loi d’orientation sur les mobilités) is under preparation. This comprehensive bill should include an ambitious anti-pollution component. Originally slated to be presented in April, Parliament’s examination of the bill is likely to be postponed to next autumn. The anti-pollution measures likely will be published in June.

Germany

The recent escalation of the infringement procedure to the ECJ concerns 26 air quality zones in Germany, among them the biggest cities Berlin, Munich, Hamburg, and Cologne. Notably, in Stuttgart the annual concentrations of nitrogen dioxide reported in 2016 were as high as 82 µg/m3 against the limit value of 40 µg/m3. According to the information the German Federal Environment Agency (Umweltbundesamt) provided, the limit value was still exceeded in 66 cities in 2017. However, the number of affected cities was lower than in 2016.

Svenja Schulze, Germany’s new environmental minister, said she regretted that the EC considered the country’s efforts to cut nitrogen dioxide insufficient. The German Chancellor Angela Merkel pointed out that the necessary measures must be implemented at local level, and that the government’s funding programmes to tackle pollution are unprecedented.

However, the government has possibly reacted too late to support the affected municipalities in combating air pollution. Although the infringement procedure against Germany began in 2015, the government held the first summit regarding the implementation of measures to reduce emissions from diesel vehicles (Diesel-Gipfel) in August 2017. At that summit, the government and the German automotive industry agreed upon free software updates for diesel vehicles and incentives on the purchase of vehicles meeting the Euro 6 standard. Further meetings were held in autumn 2017 with representatives of the German municipalities. As a result, the “Immediate Action Programme Clean Air 2017-2020” (Sofortprogramm Saubere Luft 2017-2020) was adopted. This programme includes measures to electrify urban transportation and to upgrade diesel-powered buses with exhaust after-treatment systems. Those measures should have an impact by 2020 at the latest.

However, several experts think that the government must obligate the automotive industry to provide technical upgrades for all types of diesel vehicles in order to avoid diesel driving bans in German cities. According to two Federal Administrative Court decisions in February 2018, the municipalities are empowered to ban older diesel vehicles, subject to proportionality (see Latham’s previous blog on these decisions). So far, the government has tried to prevent both driving bans at the expense of customers and obligatory technical upgrades at the expense of the automotive industry.

Latham will continue to monitor the progress of the referrals to the ECJ.

This post was prepared with the assistance of David Desforges, Avocat à la Cour in Paris and Olivia Featherstone in the London office of Latham & Watkins.