EU Environmental Law Trier, 27-28 May 2019 EU Air Quality Legislation - legal update and case study Holger Böhmann [AD/2019/03] With financial support from the Justice Programme of the European Union
EU Air Quality Legislation I. Legislation: History: fifth action programme of 1992 on the environment, the general approach of Council resolution 93/C 138/01 of 1 February 1993 (4), envisages 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) 2
EU Air Quality Legislation 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 3
EU Air Quality Legislation The four sister directives: • 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 • Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air • Directive 2002/3/EC of the European Parliament and of the Council of 12 February 2002 relating to ozone in ambient air • Directive 2004/107/EC of the European Parliament and of the Council of 15 December 2004 relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air 4
EU Air Quality Legislation Recast: Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe • Integration of Dir. 1999/30/EC, 2000/69/EC and 2002/3/EC (2004/107/EC still in force) • Aims (art. 1) • Assessment of air quality (chapt. II) • Quality management (chapt. III) • Quality plans (chapt. IV) • Information and Reporting (chapt. V) • Institutional cooperation (chapt. VI) 5
EU Air Quality Legislation 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 - based on 7th Environment Action Programme from 2013 to 2020 and Thematic Strategy on Air Pollution 2005 with strategic objectives for the period up to 2030 - establishes the emission reduction commitments for the MS, requires that national air pollution control programmes be drawn up, adopted and implemented up to 2030 - monitoring and reporting mechanism 6
EU Air Quality Legislation CJEU jurisprudence 1. Judgement of 25 July 2008 - C-237/07, ECLI:EU:C:2008:447, Janecek • Article 7(3) of Council Directive 96/62/EC must be interpreted as meaning that, 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. • The Member States are obliged, subject to judicial review by the national courts, only to take such measures – in the context of an action plan and in the short term – 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 opposing interests. 7
EU Air Quality Legislation CJEU jurisprudence 2. Judgment of 19 December 2012 – C-68/11 - ECLI:EU:C:2012:815, COM vs. Italy • By having failed to ensure that, for the years 2006 and 2007, concentrations of 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. par. 59 ff.: • The Italian Republic adds that those limit values could not be complied with within 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. (…) 8
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 originally laid down. (…) 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. 9
EU Air Quality Legislation CJEU jurisprudence 3. Judgment of 19 November 2014 – C-404/13 - ECLI:EU:C:2014:2382, Client Earth • (35) Article 22(1) of Directive 2008/50 must be interpreted as 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). 10
EU Air Quality Legislation CJEU jurisprudence • (49) Where it is apparent that conformity with the limit values for nitrogen 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. • (58) Where a Member State has failed to comply with the requirements of 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. 11
EU Air Quality Legislation CJEU jurisprudence 4. Jugdment of 5 April 2017 – C-488/15 - ECLI:EU:C:2017:267, COM vs. Bulgaria • Established a failure of fullfilment of the obligations under Art. 13 (1) in conjunction with 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. • (102) It is apparent from the second subparagraph of Article 23(1) of Directive 2008/50 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. • (103) Accordingly, that plan must set out appropriate measures, so that the exceedance period can be kept as short as possible, and may additionally include specific measures designed to protect sensitive population groups, including children. (…) • (106) (…) Consequently, the air quality plans may be adopted only on the basis of the balance between the aim of minimising the risk of pollution and the various opposing public and private interests. 12
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