Environment – Air pollution – Directive 2008/50/EC – Limits on nitrogen dioxide levels in outdoor air – UK not complying with mandatory limits by deadline imposed by directive – Obligations of UK in relation to production of air quality plans under article 22 or 23 of directive – Questions referred to Court of Justice of European Union – Appropriate order in light of answers received – Appeal allowed – Declaration of non-compliance with article 13 granted – Further mandatory order granted
In 2010, mandatory limits came into force, under article 13 of Directive 2008/50/EC (the Air Quality Directive), specifying the permissible levels of nitrogen dioxide in outdoor air throughout the “zones and agglomerations” of the United Kingdom. Those limits were based on scientific assessments of the risks to human health associated with exposure to nitrogen dioxide. The main sources of nitrogen dioxide in most urban areas of the UK were road traffic and domestic heating. Article 23 required air quality plans to be established for zones and agglomerations that exceeded the limits and targets so as to ensure that the exceedance period was kept “as short as possible”. Article 22 provided for time extensions to be sought, for a maximum of five years, if the limit values could not be achieved by the deadline in a given zone or agglomeration, on condition that an air quality plan was submitted under article 23, supplemented by the information listed in Section B of Annex XV in relation to the pollutants concerned and demonstrating how conformity would be achieved with the limit values before the new deadline.
When the limits first came into force, 40 of the 43 zones or agglomerations in the UK were in breach of them. Draft air quality plans published by the respondent secretary of state in June 2011 indicated that compliance in 17 zones and agglomerations would not be achieved until after 2015; 16 zones were expected to achieve compliance between 2015 and 2020, while compliance in Greater London was expected by 2025.
The appellant brought judicial review proceedings, seeking a declaration that the UK was in breach of its obligations to comply with the nitrogen dioxide limits provided for in article 13 and a mandatory order requiring the respondent to revise the drafts so as to ensure that compliance was achieved by 2015 at the latest. That relief was refused by the judge at first instance and by the Court of Appeal: see [2011] EWHC 3623 (Admin) and [2012] EWCA Civ 897.
On a further appeal, the Supreme Court held that it was appropriate to make a declaration in relation to the admitted breach of article 13: see [2013] UKSC 25; [2013] PLSCS 87. It referred certain questions to the Court of Justice of the European Union (CJEU) regarding the interpretation of articles 22 and 23, including the question of whether a member state was obliged to follow the article 22 procedure wherever it did not achieve the relevant limit by the January 2010 deadline. After receiving the answers (Case C-404/13), it proceeded to make a further ruling.
Held: The appeal was allowed.
(A) The answers given by the CJEU were as follows:
(1) Article 22(1) of the Air Quality Directive meant 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 was required to make an application for postponement and to establish an air quality plan when it was 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 could not be achieved in a given zone or agglomeration by the specified deadline. The directive did not contain any exception to the obligation flowing from article 22(1).
(2) Where it was apparent that conformity with the limit values for nitrogen dioxide established in Annex XI could not be achieved in a given zone or agglomeration by January 2010, and that member state had not applied for postponement of that deadline under article 22, then the fact that an air quality plan complying with the second subparagraph of article 23(1) had been drawn up did not, in itself, amount to compliance with the state’s obligations under article 13 of the directive.
(3) Where a member state had failed to comply with the requirements of the second subparagraph of article 13(1), and had not applied for a postponement under article 22, it was for the national court having jurisdiction, should a case be brought before it, to take any necessary measure with regard to the national authority, such as an order in the appropriate terms, so that the authority established the plan required by the directive in accordance with the conditions laid down therein.
(B) The CJEU had reformulated the questions referred to it in such a way as to introduce a degree of ambiguity that the original formulation had sought to avoid, in particular with regard to whether the article 22 procedure was discretionary or mandatory for a members state which could not meet the relevant limits by the January 2010 deadline. The CJEU did not say whether or not the state was obliged to make the application, but simply that it was obliged to do so “in order to be able to postpone the deadline”. However, it was unnecessary for present purposes to make a final ruling on that matter or make a further reference for that purpose. Furthermore, the observations of the European Commission in relation to the CJEU’s decision, giving the Commission’s proposed responses to the questions, were of assistance. They indicated the Commission’s view that:
(1) The article 22 procedure was not mandatory but was foreseen as an “optional derogation” for member states to obligations that already existed. Consequently, the UK was not obliged to apply for a derogation but was rather obliged to adopt all necessary measures to put an end to the infringement of article 13 as soon as possible. The UK’s infringement of article 13 did not result from its decision not to apply for a derogation but was a consequence of its failure to adopt adequate measures to achieve compliance by January 2010.
(2) Where a state chose not to apply for derogation under article 22, it remained under a mandatory obligation by virtue of article 23 to prepare air quality plans showing measures appropriate to keep the exceedance period as short as possible. While air quality plans produced under article 22 had to meet the stricter conditions laid down by section B of Annex XV, the obligation under article 23(1) was not less onerous but was more specific. The obligation in article 23(1), in the case of exceedances for which a derogation had been granted, required member states to achieve a very precise result, namely compliance with the limit values for nitrogen dioxide in the shortest possible time; or, in other words, to bring the infringement to as swift an end as possible by adopting measures that would be appropriate for the specific zone or agglomeration and would most swiftly and concretely tackle the specific problems in that area.
(3) The effect of the above was that, where a member state found itself in breach of article 13, it could either request and obtain a derogation under article 22, or comply with article 23(1) by preparing plans to bring the breach to an end as soon as possible. It was the duty of national courts to ensure that those directly concerned by a violation of article 13 were in a position to require the competent authorities either to seek or obtain a derogation under article 22 or, if they chose not to do so, to adopt and communicate to the European Commission air quality plans compliant with article 23(1) so as to deal with the specific problems in the relevant zones as swiftly as possible.
(C) In the light of the above, the Supreme Court made the following ruling in relation to the UK’s breach of article 13:
(1) The court’s obligations were unaffected by the fact that the Commission had launched formal infringement proceedings against the UK for failure to meet the nitrogen dioxide limit value. Any enforcement action by the Commission did not detract from the responsibility of the domestic courts for enforcement within this country.
(20 The time taken by the proceedings, including the reference to the CJEU, meant that article 22 was no longer of any practical significance since an extension of time to January 2015, the maximum permitted under article 22, was no longer of any use. The only possible relevance of article 22 related to the requirements of section B of Annex XV, which would apply to a plan produced under article 22 but not under article 23. However, the difference was more apparent that real in light of the Commission’s view that the requirements of article 23(1) were no less onerous, but possibly more specific, than those under article 22. They were also subject to judicial review by the national court, which was able to impose such detailed requirements as were appropriate to secure effective compliance at the earliest opportunity. Accordingly, it was not necessary to reach a concluded view on whether the article 22 procedure was discretionary or mandatory.
(3) The critical breach was of article 13, not of article 22 or 23, which were supplementary. The CJEU judgment left no doubt as to the seriousness of the breach, which had been continuing for more than five years, or as to the responsibility of the national court for securing compliance. Furthermore, the prospects of early compliance had become worse, not better, during the five year of breach. In those circumstances, the court had clear jurisdiction to make an order. In addition to the declaration already granted, a mandatory order was made requiring the secretary of state to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plan to the Commission not later than 31 December 2015, with liberty to apply to the Administrative Court for variation of the timetable or determination of any other legal issues which might arise between the present parties in the course of preparation of the plans.
Per curiam: There was considerable force in the reasoning of the European Commission so far as it treated article 22 as an optional derogation but made clear that a failure to apply, far from strengthening the position of the state, rather reinforced its essential obligation to act urgently under article 23(1) in order to remedy a real and continuing danger to public health as soon as possible.
Ben Jaffey (instructed by ClientEarth) appeared for the appellant; Kassie Smith QC (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
Click here to read transcript: Clientearth v Secretary of State
