European Commission v Portuguese Republic.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:521
• Date: 29 June 2023
• Docket Number: C-220/22
• Celex Number: 62022CJ0220
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

29 June 2023 (*)

(Failure of a Member State to fulfil obligations – Environment – Directive 2008/50/EC – Ambient air quality – Systematic and persistent exceedance of the annual limit value for nitrogen dioxide (ΝΟ2) – Appropriate measures – As short an exceedance period as possible)

In Case C‑220/22,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 25 March 2022,

European Commission, represented by I. Melo Sampaio and M. Noll-Ehlers, acting as Agents,

applicant,

v

Portuguese Republic, represented by H. Almeida, P. Barros da Costa and J. Reis Silva, acting as Agents,

defendant,

THE COURT (Sixth Chamber),

composed of P.G. Xuereb, President of the Chamber, T. von Danwitz (Rapporteur) and A. Kumin, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its application, the European Commission asks the Court of Justice to declare that:

– by systematically and persistently exceeding the annual limit value for nitrogen dioxide (ΝΟ2) from 1 January 2010 in the zones of Lisboa Norte (PT‑3001), Porto Litoral (PT‑1004) and Entre Douro e Minho (PT‑1009), the Portuguese Republic has failed to fulfil its obligations under Article 13(1) of 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 (OJ 2008 L 152, p. 1), read in conjunction with Section B of Annex XI to that directive, and

– in respect of all those zones, the Portuguese Republic has failed to fulfil its obligations under Article 23(1) of Directive 2008/50, read individually and in conjunction with Section A of Annex XV to that directive, and in particular its obligation under the second subparagraph of Article 23(1) to take appropriate measures so that the period of exceedance of the annual limit value for the pollutant concerned can be kept as short as possible.

Legal context

2 Recitals 2, 17 and 18 of Directive 2008/50 state:

‘(2) In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account relevant World Health Organisation [(WHO)] standards, guidelines and programmes.

…

(17) The necessary Community measures to reduce emissions at source, in particular measures to improve the effectiveness of Community legislation on industrial emissions, to limit the exhaust emissions of engines installed in heavy duty vehicles, to further reduce the Member States’ permitted national emissions of key pollutants and the emissions associated with refuelling of petrol cars at service stations, and to address the sulphur content of fuels including marine fuels should be duly examined as a priority by all institutions involved.

(18) Air quality plans should be developed for zones and agglomerations within which concentrations of pollutants in ambient air exceed the relevant air quality target values or limit values, plus any temporary margins of tolerance, where applicable. Air pollutants are emitted from many different sources and activities. To ensure coherence between different policies, such air quality plans should where feasible be consistent, and integrated with plans and programmes prepared pursuant to Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants [(OJ 2001 L 309, p. 1)], Directive 2001/81/EC [of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (OJ 2001 L 309, p. 22)] and Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise [(OJ 2002 L 189, p. 12)]. Full account will also be taken of the ambient air quality objectives provided for in this directive, where permits are granted for industrial activities pursuant to Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control [(OJ 2008 L 24, p. 8)].’

3 Headed ‘Subject matter’, Article 1 of Directive 2008/50 states, in points 1 to 3:

‘This Directive lays down measures aimed at the following:

1. defining and establishing objectives for ambient air quality designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole;

2. assessing the ambient air quality in Member States on the basis of common methods and criteria;

3. obtaining information on ambient air quality in order to help combat air pollution and nuisance and to monitor long-term trends and improvements resulting from national and Community measures’.

4 Headed ‘Definitions’, Article 2 of that directive provides, in points 5, 7, 8, 16, 18 and 24:

‘For the purposes of this Directive:

…

(5) “limit value” shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;

…

(7) “margin of tolerance” shall mean the percentage of the limit value by which that value may be exceeded subject to the conditions laid down in this Directive;

(8) “air quality plans” shall mean plans that set out measures in order to attain the limit values or target values;

…

(16) “zone” shall mean part of the territory of a Member State, as delimited by that Member State for the purposes of air quality assessment and management;

…

(18) “PM10” shall mean particulate matter which passes through a size-selective inlet as defined in the reference method for the sampling and measurement of PM10, EN 12341, with a 50% efficiency cut-off at 10 μm aerodynamic diameter;

…

(24) “oxides of nitrogen” shall mean the sum of the volume mixing ratio (ppbv) of nitrogen monoxide (nitric oxide) and nitrogen dioxide expressed in units of mass concentration of nitrogen dioxide (μg/m³)’.

5 Headed ‘Limit values and alert thresholds for the protection of human health’, Article 13 of Directive 2008/50 provides, in paragraph 1:

‘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.

In respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein.

Compliance with these requirements shall be assessed in accordance with Annex III.

The margins of tolerance laid down in Annex XI shall apply in accordance with Article 22(3) and Article 23(1).’

6 Headed ‘Air quality plans’, Article 23 of Directive 2008/50 states, in paragraph 1:

‘Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.

In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.

Those air quality plans shall incorporate at least the information listed in Section A of Annex XV and may include measures pursuant to Article 24. Those plans shall be communicated to the Commission without delay, but no later than two years after the end of the year the first exceedance was observed.

Where air quality plans must be prepared or implemented in respect of several pollutants, Member States shall, where appropriate, prepare and implement integrated air quality plans covering all pollutants concerned.’

7 Article 27 of Directive 2008/50 contains obligations concerning the submission of annual air quality reports by the national authorities. It provides that Member States must transmit to the Commission information on ambient air quality no later than nine months after the end of each year, including on zones and agglomerations in which the levels of one or more pollutants are higher than the limit values laid down in that directive, plus any margin of tolerance.

8 Annex XI to that directive, entitled ‘Limit values for the protection of human health’, sets, in Section B, the following limit values for ΝΟ2:

‘…

Averaging Period Limit value Margin of tolerance Date by which limit value is to be met

…

Nitrogen dioxide

One hour	200 μg/m3, not to be exceeded more than 18 times a calendar year	… 0% by 1 January 2010	1 January 2010
Calendar year	40 μg/m3	… 0% by 1 January 2010	1 January 2010

…’

9 Annex XV to that directive lists the information to be included in the local, regional or national air quality plans for improvement in ambient air quality. Under point 8 of Section A of that annex, details are required of the measures or projects adopted with a view to reducing pollution, including the listing and description of all the measures set out in the project concerned, the timetable for the implementation of those measures and the estimate of the improvement of air quality planned and of the expected time required to attain those...