Sylvie Gallage-Alwis is a partner at the Paris office of Signature Litigation. She writes about the implications of the recent landmark ruling against France by the European Court of Justice on air pollution.
The decision rendered by the European Court of Justice (ECJ) against France on 24 October 2019 is the very first decision rendered in a case of alleged breach of nitrogen dioxide (NO2) levels by a State, and more specifically of Article 13 of Directive 2008/50/EC of 21 May 2008 which provides that: ‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.’
Back in 2017 and 2018, the ECJ had condemned Bulgaria and Poland for breaches of the levels of sulphur dioxide. The reasoning of the Court in these two decisions is reflected in the recent one against France, creating the starting point of a trend of particular severity.
Here is what you need to know about this decision.
A strict assessment of the existence of a breach
The European Commission, plaintiff in this case, argued that France had, on many occasions, for a number of years, breached the legal thresholds of levels of NO2 in dozens of cities. It further argued that France ignored the warnings sent by the Commission and did not implement the measures it should have in order to have the levels above the thresholds be reduced as quickly as possible.
Despite the many arguments put forward by France to explain (i) why some levels of NO2 exceeded the legal thresholds and (ii) the measures taken to reduce them, the Court ruled that any air monitoring result which exceeds the thresholds provided for by EU regulation characterises, in itself, a breach of regulation.
It stated that the objective finding of a breach by a Member State is sufficient and that whether the State was negligent or whether the breach is linked to technical or structural difficulties is irrelevant.
The Court further ruled that whether the regulatory levels were almost complied with, or whether the gap between the legal thresholds and the reality was significant, is not relevant.
This is a strict and very straightforward approach of the characterisation of a breach. As soon as the numbers are not good, the State has no defence anymore to put forward.
An analysis of the measures taken by the State on a case-by-case basis
The second argument raised by the Commission was that France did not plan properly its air quality strategy.
France argued that the following factors need to be taken into account in order to analyse the quality plans it has established: the magnitude of structural transformations needed, the financial burden they represent, the increase in the number of vehicles in France linked to the increasing number of the population, the time needed to modernise the vehicle fleet, the fact that French people like moving by car and the sensitivity of public opinion when it comes to a tax increase.
The ECJ ruled that such factors are indeed relevant in determining the types of measures that can be implemented and their timing.
However, it criticized the fact that France prepared the same kind of report for each city concerned while they could face different challenges.
In other words, the ECJ is expecting from States to have a tailored plan per city or at least per type of city, population, etc.
The protection of the environment: the new priority of the European Court of Justice?
France had put forward a number of arguments to try to convince the Court that the implementation of the regulation can, in practice, require time and sacrifices for the population.
In this respect, France has drawn the Court’s attention to the other types of rights that could be impeded by the regulatory obligations linked to the air quality. For instance, implementing the regulation immediately and as it is would be restricting the free movement of people and goods.
It could also cause public disorder which is one of the reasons allowing Member States not to implement European regulations as they are in order to take into account national specificities. France even stated that: ‘the efficiency of the measures implemented depends on the behaviour of the population and the evolution of mentalities’, implying that the French population is not ready for the change that the European Commission is expecting.
The Court dismissed all French arguments.
It even ruled that a measure that aims at having only some vehicles authorised: ‘is needed to guarantee that the objective of environment protection is reached and therefore justifies a hindrance to the free movement of goods’.
In other words, the protection of the environment is now an absolute priority of the ECJ and it cannot suffer from any exception.
The first in many decisions against Member States?
France is not the only Member State which has been sued by the European Commission. In its press statement dated 17 May 2018, the Commission explained that: ‘The Commission is today referring France, Germany, Hungary, Italy, Romania and the United Kingdom to the Court of Justice of the EU for failing to respect agreed air quality limit values and for failing to take appropriate measures to keep exceedance periods as short as possible’.
We can expect the same reasoning as the one that already existed against Bulgaria and Poland and has been used against France to be reiterated against the other Member States.
Once such decisions are rendered, all these States will be under even stricter scrutiny by the European Commission which will then have the option to ask that they are condemned to damages.
We can anticipate that NGOs will also pay close attention to the measures that the States will implement.
Corporations should be worried most. Indeed, despite their compliance with their own regulation, they may be scapegoated by the States when it comes to potentially paying damages.
Sylvie Gallage-Alwis is a partner at Signature Litigation, Paris.