Opinion of Advocate General Saugmandsgaard Øe delivered on 14 November 2019.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2019:972
• Date: 14 November 2019
• Celex Number: 62018CC0752
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 14 November 2019 (1)

Case C‑752/18

Deutsche Umwelthilfe eV

v

Freistaat Bayern

(Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria, Germany))

(Reference for a preliminary ruling — Environment — Atmospheric pollution — Directive 2008/50/EC — Air quality plan — Limit values for nitrogen dioxide — Effectiveness of EU law — Obligation of the national courts to take all necessary measures to ensure the implementation of a directive — Non-compliance by the administration with judicial decisions — Orders and financial penalties ineffective — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective judicial remedy — Committal to prison of public officials — Need for compliance with Article 6 of the Charter of Fundamental Rights — Right to liberty of the person)

I. Introduction

1. This request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria, Germany) concerns the effective implementation of EU law, and more specifically 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. (2) How is it to be ensured that national judicial decisions — in this case in the particularly sensitive area of environmental law — are complied with? Where there is a manifest intention on the part of public officials not to comply with judicial decisions which have become final, does EU law permit or require a committal order — a measure involving deprivation of liberty — to be made, if committal orders are provided for within the national legal system, but not in relation to such persons? This question requires two fundamental rights to be considered: the right to an effective judicial remedy and the right to liberty.

2. The issue has been raised in a dispute between the non-governmental organisation Deutsche Umwelthilfe e.V. and the Freistaat Bayern (Land of Bavaria, Germany) concerning a decision of the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria) ordering the Land of Bavaria to amend its air quality plan by imposing a traffic ban on diesel vehicles in the city of Munich (Germany). The Land of Bavaria refuses to introduce such a ban, however, despite an order for recurring financial penalties having been made against it.

3. Finding that it does not have adequate means available to it, under national law, to compel the Land of Bavaria to comply with that decision, the referring court enquires, in those circumstances, as to the extent of its obligations under EU law to ensure the implementation of Directive 2008/50, and the extent of the fundamental right to an effective judicial remedy.

4. In this Opinion, I will explain why, in my view, there is a limit to the national court’s obligation, under EU law, to impose coercive measures to ensure the effectiveness of that law, particularly where such measures may infringe another fundamental right — here the right to liberty.

5. I will propose that the Court of Justice should hold that, while the national court must, as a general rule, do everything possible to ensure the effective implementation of EU law, and to that end take any measure available in national law to compel public officials to comply with a judicial decision which has become final, EU law does not require or permit the national court to adopt a measure involving deprivation of liberty where that measure is not provided for by a clear, foreseeable, accessible and non-arbitrary law.

II. Legal background

A. International law

6. Article 9 of the Aarhus Convention (3) provides for wide public access to justice in order to contribute, in accordance with Article 1 of the convention, to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being.

B. EU law

7. Article 13 of Directive 2008/50, entitled ‘Limit values and alert thresholds for the protection of human health’ provides, in paragraph 1, that Member States must ensure that levels of nitrogen dioxide do not exceed certain limit values.

8. Article 23(1) of that directive requires Member States to draw up air quality plans where, in a given zone or agglomeration, the levels of pollutants in ambient air exceed the limit values laid down by the directive.

C. German law

9. The second sentence of Paragraph 2(2) of the Grundgesetz für die Bundesrepublik Deutschand (Basic Law of the Federal Republic of Germany), of 23 May 1949 (BGB1 1949 I, p. 1; ‘the Basic Law’) provides for a fundamental right to personal liberty. Under the first sentence of Paragraph 104(1) of the Basic Law, ‘liberty of the person may be restricted only pursuant to a formal law and in accordance with the procedures prescribed therein’.

10. The first sentence of Paragraph 167(1) of the Verwaltungsgerichtsordnung (Code of Administrative Justice; ‘the VwGO’) provides:

‘Save where a special provision of this Law provides otherwise, enforcement is governed, mutatis mutandis, by book eight of the Zivilprozessordnung [Civil Procedure Code; ‘the ZPO’].’

11. According to the national court, Paragraph 172 of the VwGO constitutes such a special provision. In accordance with the introductory words of Paragraph 167(1) of the VwGO, it disapplies, in principle, the enforcement provisions of book eight of the ZPO, providing as follows:

‘In cases falling within the second sentence of Paragraph 113(1), Paragraph 113(5), and Paragraph 123, if the administration fails to comply with an obligation imposed on it by judgment or interim order, the court of first instance may, upon application, impose a suspended financial penalty of up to EUR 10 000, payable in default of compliance within the period determined by the court, declare, in the event of such default, that the financial penalty has become payable, and enforce it of its own motion. Such suspended penalties may be imposed, declared payable and enforced more than once in respect of the same obligation.’

12. Paragraph 888(1) and (2) of book eight of the ZPO states that:

‘1. Where an act can only be performed voluntarily by the person subject to the obligation, and not by a third party, and an application is made, the court of first instance hearing the case shall, with a view to ensuring that the person concerned performs the obligation, impose a suspended financial penalty and, in the event that the penalty becomes payable but payment cannot be obtained make an order for committal to prison, or make such a committal order. A financial penalty may not exceed EUR 25 000 in amount. The provisions of Chapter 2 relating to deprivation of liberty are applicable mutatis mutandis to committal orders.

2. No advance warning shall be given of such coercive orders.’

13. Paragraph 890(1) and (2) of the ZPO require advance warning of coercive measures to be given to a person who is under an obligation not to do something, or to tolerate its being done, before that person can be fined or committed to prison.

III. The main proceedings, the question referred for a preliminary ruling and the procedure before the Court

14. Deutsche Umwelthilfe, a German non-governmental organisation empowered to initiate group litigation in environmental matters pursuant to the second subparagraph of Article 9(2) of the Aarhus Convention and the second and third sentences of Article 11(3) of Directive 2011/92/EU, (4) brought an action against the Land of Bavaria seeking to compel it to comply with nitrogen dioxide limit values prescribed by Directive 2008/50.

15. The order for reference indicates that, over a number of years, judicial findings have been made that the limit values have been exceeded within the geographical area of the city of Munich, sometimes to a considerable extent. The instances in which the limit values have been exceeded relate to approximately 250 roads or sections of road, with levels sometimes reaching twice the permitted values.

16. By judgment of 9 October 2012, the Verwaltungsgericht München (Administrative Court of Munich, Germany) ordered the Land of Bavaria to amend its ‘air quality action plan’ (which corresponds to the ‘air quality plan’ referred to in Article 23 of Directive 2008/50) in respect of the city of Munich, so as to bring it into line with those values. That judgment has become final.

17. By order of 21 June 2016, that court gave the Land of Bavaria advance warning of a coercive measure, threatening a financial penalty for exceeding the limit values in question. The Land brought an action in respect of that warning.

18. By order of 27 February 2017, the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria) dismissed the action. It found that the Land of Bavaria had still not complied with the judgment of 9 October 2012, and imposed a series of suspended financial penalties, totalling EUR 10 000, payable in the event that the Land failed to take the necessary steps to bring the values within the limits. Those measures comprised the introduction of a traffic ban on certain diesel vehicles in certain urban zones. (5) That order has also become final.

19. On the application of Deutsche Umwelthilfe, the Verwaltungsgericht München (Administrative Court of Munich, Germany) made an order of 26 October 2017, declaring that one of the financial penalties provided for in the earlier order of 27 February 2017 had become payable. The Land of Bavaria did not appeal against that order and paid the penalty.

20. By orders of 29 January 2018, the same court, again on the application of Deutsche Umwelthilfe, declared that another of the penalties contemplated by the order of 27 February 2017 had become payable, and imposed a further suspended financial...