Follow-up to Dieselgate: Individuals’ actions for damages before the EU General Court dismissed

Individuals seeking compensations for harm caused by air pollution dismissed by the Court of Justice of the EU

1,429 individuals brought an action before the General Court of the EU against the European Commission to seek compensation for the harm, which they claim to have suffered as a result of the adoption of the Commission Regulation 2016/646 regarding emissions from light passenger and commercial vehicles (the Regulation).

The Regulation defines the limits of pollutants, particularly, nitrogen oxides emitted during real driving emissions test (“RDE tests”) to which car manufacturers must subject light passenger and commercial vehicles to as part of the approval processes for new types of vehicles. The new tests were introduced to address the “Dieselgate” scandal and the realisation that tests carried out in laboratories do not accurately reflect the level of pollutants emitted during real driving conditions and to prevent the use of “defeat devices”.

This regulation is also being challenged by the cities of Paris, Brussels, Athens and Madrid. However, the cities are seeking the annulment of the regulation. A hearing before the Court will take place on 17 May 2018.

In the present case, the individual applicants have claimed that the regulation has caused them material damage linked to the deterioration of the quality of the air that they breathe and the impact on their health. They have also claimed that they have suffered non-material damage. This is linked to the fears pollutants cause to their health and the health of their families. They finally raised their fears due to a lack of confidence in the EU institutions’ action to combat environmental degradation. Each of them sought a symbolic sum of €1 as compensation for material damage and €1000 as compensation for non-material damage.

The action was dismissed as lacking any basis in law.

The Court started by recalling that, according to settle case-law, three cumulative conditions must be met to bring a non-contractual action. The EU institution must have acted unlawfully by committing a sufficiently serious breach of a rule of law intended to confer rights on individuals; the harm alleged must actually exist; and there must be a causal link between the EU’s conduct and the damage. The judge can examine the conditions in the order he chooses.

The Court only examines alleged harm

The court chose not to rule on the legality of the regulation and only examined whether the alleged harm existed. It explained that it is up to the applicants to prove that the harm is actual and certain. In addition, the harm must impact each applicant personally. The Court found that even if the applicants relied on data stressing the negative impacts of nitrogen oxides and the significant contribution originating from car emissions, their arguments were so general that they were unable demonstrate the certainty and the extent of the damage to the requisite standard regarding the health impact that they would have suffered personally.

It should be noted that there were 1,429 applicants living in different regions and conditions.

The request for compensation by a symbolic euro was seen by the General Court as a confirmation that, for each of the applicants, there lacked a solid demonstration of the reality and of the extent of the damage.

With regard to non-material damage, the Court found that such a lack of trust cannot constitute a reparable harm. By only stating that the applicants feared for their health and the fact that they had a high level of awareness of the problems around air pollution, was not enough to establish that each of them actually feared for their health. It also failed to show that such fear affects their living conditions to the extent that a finding of damage can be made.

This case provides essential elements to take into account for potential future non-contractual liability cases in environmental matters with regards to the number of applicants and the necessity to show actual, certain and individual harm for each of them. It is noteworthy that the request for a symbolic euro does not seem to be strategic and convincing to the Court. The case brought by the cities will be most interesting from a legal standing right perspective and will tell whether the General Court is willing to open up access to justice.

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Kaique Rocha