Opinion of Advocate General Kokott delivered on 5 May 2022.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Date05 May 2022
Celex Number62021CC0061

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 5 May 2022 (1)

Case C61/21

JP

v

Ministre de la Transition écologique,

Premier ministre

(Request for a preliminary ruling from the Cour administrative d’appel de Versailles (Administrative Court of Appeal, Versailles, France))

(Request for a preliminary ruling – Directive 2008/50/EC – Ambient air quality – Limit values for the protection of human health – Exceedance – Air quality plans – State liability – Right of an individual to obtain compensation for damage to health resulting from an infringement of EU law – Serious infringement – Direct causal link – Time at which the infringement is to be assessed)






I. Introduction

1. The ambitious limit values for ambient air quality under Directive 2008/50 (2) are not (yet?) sufficiently observed in many places. (3) Important decisions in this area are, however, expected in 2022. At the political level, the European Commission is planning proposals to revise the current rules. (4) At the same time, various cases in which the Court can clarify important issues concerning the enforcement of the legislation are currently pending. In addition to one request for a preliminary ruling concerning the relevance of Directive 2008/50 to the authorisation of projects (5) and another concerning the first penalty payment proceedings to enforce a judgment finding that a Member State infringed that directive, (6) the present case raises the question as to whether individuals are able to demand compensation for damage to health resulting from an infringement of the limit values.

2. At the heart of this case is the first requirement of non-contractual liability of Member States for infringement of EU law, namely the question as to whether the provisions of Directive 2008/50 establish rights for individuals. In addition, it is necessary to examine the conditions under which a possible infringement of Directive 2008/50 is sufficiently serious, and the proof of a direct causal link between the infringement and the damage, in order to provide the referring court with guidance as to the relevant point in time for the assessment of the infringement.

II. Legal framework

3. For the period relevant to the main proceedings, the rules on air quality were initially laid down in Directives 96/62 (7) and 1999/30, (8) which were replaced by Directive 2008/50 with effect from 11 June 2010.

A. Directive 96/62

4. According to the first indent of Article 1 of Directive 96/62, the aim of that directive was to define the basic principles of a common strategy to ‘define and establish objectives for ambient air quality in the Community designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole’. This is also apparent from the second recital.

5. Article 2(5) of Directive 96/62 defined the term ‘limit value’ as ‘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’.

6. Article 7 of Directive 96/62 contained the general requirements for the improvement of ambient air quality:

‘1. Member States shall take the necessary measures to ensure compliance with the limit values.

2. Measures taken in order to achieve the aims of this Directive shall:

(a) take into account an integrated approach to the protection of air, water and soil;

(b) not contravene Community legislation on the protection of safety and health of workers at work;

(c) have no significant negative effects on the environment in the other Member States.

3. Member States shall draw up action plans indicating the measures to be taken in the short term where there is a risk of the limit values and/or alert thresholds being exceeded, in order to reduce that risk and to limit the duration of such an occurrence. Such plans may, depending on the individual case, provide for measures to control and, where necessary, suspend activities, including motor-vehicle traffic, which contribute to the limit values being exceeded.’

7. Article 8 of the directive concerned zones where levels are higher than the limit value:

‘1. Member States shall draw up a list of zones and agglomerations in which the levels of one or more pollutants are higher than the limit value plus the margin of tolerance.

Where no margin of tolerance has been fixed for a specific pollutant, zones and agglomerations in which the level of that pollutant exceeds the limit value shall be treated in the same way as the zones and agglomerations referred to in the first subparagraph, and paragraphs 3, 4 and 5 shall apply to them.

3. In the zones and agglomerations referred to in paragraph 1, Member States shall take measures to ensure that a plan or programme is prepared or implemented for attaining the limit value within the specific time limit.

The said plan or programme, which must be made available to the public, shall incorporate at least the information listed in Annex IV.

4. In the zones and agglomerations referred to in paragraph 1, where the level of more than one pollutant is higher than the limit values, Member States shall provide an integrated plan covering all the pollutants concerned.

…’

8. In accordance with the twelfth recital of Directive 96/62, that provision also served to protect health and the environment as a whole.

9. Article 11(1)(a)(iii) of Directive 96/62 specifies a time limit for sending plans under Article 8:

‘In the zones referred to in Article 8(1) [Member States] shall:

(iii) send to the Commission the plans or programmes referred to in Article 8(3) no later than two years after the end of the year during which the levels were observed’.

10. Annex IV to Directive 96/62 provided that the plans or programmes for attaining the limit values were to contain, in particular, information on the causes of pollution and time projections for the improvement in ambient air quality resulting from the measures taken:

‘1. Localization of excess pollution

– region

– city (map)

– measuring station (map, geographical coordinates).

2. General information

– type of zone (city, industrial or rural area)

– estimate of the polluted area (km²) and of the population exposed to the pollution

– useful climatic data

– relevant data on topography

– sufficient information on the type of targets requiring protection in the zone.

4. Nature and assessment of pollution

– concentrations observed over previous years (before the implementation of the improvement measures)

– concentrations measured since the beginning of the project

– techniques used for the assessment.

5. Origin of pollution

– list of the main emission sources responsible for pollution (map)

– total quantity of emissions from these sources (tonnes/year)

– information on pollution imported from other regions.

6. Analysis of the situation

– details of those factors responsible for the excess (transport, including cross-border transport, formation)

– details of possible measures for improvement of air quality.

7. Details of those measures or projects for improvement which existed prior to the entry into force of this Directive i.e.

– local, regional, national, international measures

– observed effects of these measures.

8. Details of those measures or projects adopted with a view to reducing pollution following the entry into force of this Directive

– listing and description of all the measures set out in the project

– timetable for implementation

– estimate of the improvement of air quality planned and of the expected time required to attain these objectives.

9. Details of the measures or projects planned or being researched for the long term.

B. Directive 1999/30

11. Directive 1999/30 laid down the limit values and alert thresholds for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air required for the application of Directive 96/62. Article 1 of Directive 1999/30 confirms that the objective of that legislation was to avoid, prevent or reduce harmful effects on human health and the environment as a whole.

12. For nitrogen dioxide (NO2), the limit values for the protection of human health as laid down in Article 4 of and Section I of Annex II to Directive 1999/30 applied from 1 January 2010. First, the one-hour limit value of 200 μg/m3 may not be exceeded more than 18 times in any calendar year. Second, the annual limit value was set at 40 μg/m3.

13. For particulate matter (PM10), however, the limit values for the protection of human health as laid down in Article 5 and Annex III, Section I, Stage 1, of Directive 1999/30 applied already from 1 January 2005. The 24-hour limit value for the protection of human health of 50 μg/m3 of PM10 may not be exceeded more than 35 times in any calendar year. The annual limit value was set at 40 μg/m3 of PM10.

C. Directive 2008/50

14. Recitals 1 and 2 of Directive 2008/50 describe the overarching objectives of that directive:

‘(1) The Sixth Community Environment Action Programme … establishes the need to reduce pollution to levels which minimise harmful effects on human health, paying particular attention to sensitive populations, and the environment as a whole, to improve the monitoring and assessment of air quality including the deposition of pollutants and to provide information to the public.

(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 standards, guidelines and programmes.’

15. Article 1(1) of Directive...

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