In ClientEarth, the Supreme Court dealt with two points:
i) Whether the Court should grant a declaration of breach of Article 13 of the Air Quality Directive 2008, despite the fact that the Secretary of State had conceded that there was such a breach;
ii) Whether to make a reference to the CJEU on the interpretation of Article 22 of the Directive.
Breach of Article 13 and Grant of a Declaration
Article 13 of the Air Quality Directive (2008/50/EC) provided limit values and alert levels for various gases. The Secretary of State admitted that it was in breach of Article 13 for certain zones. ClientEarth sought a declaration of this breach. Mitting J, at first instance ( EWHC 3623 (Admin)), was not willing to make such a declaration :
“… A declaration will serve no purpose other than to make clear that which is already conceded. The means of enforcing Article 13 lie elsewhere in the hands of the Commission under article 258 of the Treaty on the Functioning of the European Union, and if referred to it, the Court of Justice of the European union under Article 260. Those remedies are sufficient to deal with the mischief at which the 2008 Directive is aimed.”
Laws LJ, giving the judgment of the Court of Appeal ( EWCA Civ 897), likewise refused to make such a declaration, and stated of Mitting J’s decision on this point :
“… it seems to me that he was, with respect, plainly right and the contrary is not contended. His judgment speaks as a declaration. No substantive issue of effective judicial protection arises from his refusal to grant a formal declaration.”
The Supreme Court disagreed, holding that the mere fact that breach was conceded did not mean that there were grounds for refusing a declaration, in a situation where there are no other discretionary bars to the grant of relief. The Court also held :
“Such an order is appropriate both as a formal statement of the legal position, and also to make clear that … the way is open to immediate enforcement action at national or European level.”
Interpretation of Article 22
Article 22 of the 2008 Directive provides:
“1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI [1 January 2010], a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline.
3. Where a Member State applies paragraphs 1 or 2, it shall ensure that the limit value for each pollutant is not exceeded by more than the maximum margin of tolerance specified in Annex XI for each of the pollutants concerned.
4. Member States shall notify the Commission where, in their view, paragraphs 1 or 2 are applicable, and shall communicate the air quality plan referred to in paragraph 1 including all relevant information necessary for the Commission to assess whether or not the relevant conditions are satisfied. In its assessment, the Commission shall take into account estimated effects on ambient air quality in the Member States, at present and in the future, of measures that have been taken by the Member States as well as estimated effects on ambient air quality of current Community measures and planned Community measures to be proposed by the Commission.
Where the Commission has raised no objections within nine months of receipt of that notification, the relevant conditions for the application of paragraphs 1 or 2 shall be deemed to be satisfied.
If objections are raised, the Commission may require Member States to adjust or provide new air quality plans.”
The Supreme Court summarised the state of progress :
“Final plans were submitted to the Commission on 22 September 2011, including applications for time extensions under Article 22 in 24 cases supported by plans showing how the limit values would be met by 1 January 2015 at the latest. In the remaining 16 cases, no application has been made under Article 22 for a time extension, but air quality plans were prepared projecting compliance between 2015 and 2015.”
ClientEarth sought a declaration that the Air Quality Plans did not comply with the requirements of EU law, and a mandatory order requiring the Secretary of State to revise the Air Quality Plans so that they show how conformity with the nitrogen dioxide limit values will be achieved as soon as possible and by 1 January 2015 at the latest, and to publish these as public consultation documents, giving a reasonable timeframe for response.
Mitting J found that Article 22 was discretionary, based on the word “may” in the first sentence of Article 22(1), as well as the word peut in the French version of the text. There could therefore be no breach. His Lordship also found that a mandatory order was inappropriate, given the political and economic questions, and the burden upon taxpayers of compliance.
The Court of Appeal also found Article 22 to be discretionary, although Laws LJ found the mandatory order point to be “moot”.
Lord Carnwath SCJ, giving the judgment of the Supreme Court, found that these questions “raise difficult issues of European law, the determination of which in the view of the court, requires the guidance of the CJEU, and on which accordingly as the final national court we are obliged to make a reference” .
Reference to the CJEU
The following questions were referred to the CJEU:
i) Where in a given zone or agglomeration conformity with the limit values for nitrogen dioxide cannot be achieved by the deadline of 1 January 2010 specified in annex XI of Directive 2008/50/EC (“the Directive”), is a Member State obliged pursuant to the Directive and/or article 4 TEU [duty of co-operation] to seek postponement of the deadline in accordance with article 22 of the Directive?
ii) If so, in what circumstances (if any) may a Member State be relieved of that obligation?
iii) If the answer to (i) is no, to what extent (if at all) are the obligations of a Member State which has failed to comply with article 13, and has not made an application under article 22, affected by article 23 (in particular its second paragraph)?
iv) In the event of non-compliance with article 13, and in the absence of an application under article 22, what (if any) remedies must a national court provide as a matter of European law in order to comply with article 30 of the Directive and/or article 4 or 19 TEU [Member States to give sufficient legal remedies]?
Ultimately, the matter of interpretation of Article 22 will be resolved by the CJEU. However, the question in practice is whether a decision by the CJEU will be received in time for a meaningful chance of Air Quality Plans being produced which lead to compliance by 2015.