20 December 2019
In 2016, ClientEarth supported German environment organisation Deutsche Umwelthlife (DUH) to bring legal action over illegal air pollution levels in Munich.
Three years on and the Bavarian Environment Minister has still not cleaned up the city’s air. We’re still fighting for the right to breathe clean air and have taken the case all the way to Europe’s top court. The ruling has just come in and the outlook for Bavaria isn’t good.
Here’s what’s happened so far:
We supported German environmental organisation Deutsche Umwelthilfe (DUH) to bring legal action over illegal nitrogen dioxide levels in Munich. We won the case and the court ordered the authorities to adopt strong measures to bring levels of air pollution within legal limits – or face a fine.
The Bavarian authorities immediately appealed the decision, without taking action to protect people’s health.
Germany’s highest court confirmed that traffic restrictions on diesel are legally possible – and indeed necessary where they are the fastest way to protect people’s health from illegal pollution. The Bavarian government was compelled to consult on a Munich diesel restriction and produce a new clean air plan by the end of 2017, showing how a traffic restriction on diesel would be implemented.
The mayor of Munich announced a ban on diesel vehicles following our Federal Administrative Court win, saying there was ‘no other way’ to resolve the issue in the shortest possible timeframe.
Despite the mayoral announcement of a diesel ban, no action was taken. The Bavarian authorities produced inadequate air quality plans and continued to fail to tackle illegal levels of air pollution in Munich.
In the face of their failure to comply with the court’s orders, the court fined the Bavarian environment minister – for the third time. It also set a concrete four-month deadline to take action and warned any further delays could mean a prison sentence – a first in this type of case.
ClientEarth lawyer Ugo Taddei said: “The court decision has made things significantly more embarrassing for the environment minister. The long debate over who’s responsible for ensuring clean air for the people of Germany is wasting valuable time, while people’s health continues to be compromised.”
Munich air pollution case: further failure may mean prison sentence for minister
As part of the ongoing legal battle over the Bavarian Environment minister’s inaction on illegal air pollution, the EU’s top court discussed at a hearing whether consistent inaction by Bavarian authorities could lead to a prison sentence.
ClientEarth clean air lawyer Ugo Taddei said: “Good legal enforcement is just as important as the law itself. Bavarian authorities are openly disregarding EU air quality laws aimed at protecting human health, but have so far faced only low-level fines. These – demonstrably – do not compel authorities to act.
“When faced with such serious legal breaches, national courts must be able to protect citizens by applying penalties that are not purely symbolic, but actually deter authorities from breaking the law. Authorities across the EU dealing with illegally dirty air should be watching this case carefully.”
The Advocate General Henrik Saugmandsgaard Øe released a guiding opinion in advance of the final decision of the EU’s top court. It outlined that the Bavarian Minister’s refusal to comply with court orders is a serious breach of EU law and confirms the need for national courts to take harsher measures.
While Øe did not recommend a prison sentence, he pointed out that there are other avenues national courts can take – including imposing higher fines to be paid repeatedly and regularly - to force action from authorities on dirty air.
These fines, he said, could be paid to third parties – leading ClientEarth to call for the establishment of regional ‘clean air funds’.
Head of ClientEarth’s German office Prof. Dr. Hermann Ott said: “Germany has no excuse for its obstinate refusal to clean up this country’s toxic air – and that prison for officials was even on the table in the first place is a mark of how badly the German authorities are falling short on this crucial public health issue.
“When leaders remain reticent on taking action, national courts need to be empowered to act coercively – and go further in formulating remedies. The air pollution issue has been woefully neglected for years and we need new ways for courts to address it.
“We hope the Court of Justice of the European Union is strong on this point on remedies in its final judgment.”
“German authorities have been covering their eyes and ears while German people continue to breathe illegally dirty air which will permanently damage their health. This ruling sets a precedent: failure to respond to pollution issues breaches fundamental human rights and must trigger stronger sanctions.”
In its final judgment, the EU’s top court has said that the failure by German authorities to follow court orders on air pollution and endangering human health is a serious breach of the rule of law and of fundamental rights.
It endorsed strong sanctions, including higher and repeated fines for the authority in question, and made it clear that, under EU law, prison sentences must be considered.
While it is ultimately down to German courts to decide whether the German authorities should face prison sentences, today’s milestone ruling by the EU’s top court has emphasised the seriousness of the issue.
ClientEarth clean air lawyer Ugo Taddei said: “German authorities have been covering their eyes and ears while German people continue to breathe illegally dirty air which will permanently damage their health.
“We are nearing 40 legal actions in Germany over flagrant breaches of air pollution law and courts consistently rule in our favour. But authorities are complacent. It seems we are still in need of more coercive measures to guarantee that those in charge put people’s health first.
“This ruling sets a precedent: failure to respond to pollution issues breaches fundamental human rights and must trigger stronger sanctions.”