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ClientEarth Communications

20th March 2017

Rule of law
Air pollution
Access to Justice for a Greener Europe

Long-awaited EU environment law implementation review shows Commission cares little for citizens’ health

Communication: The EU environmental implementation review: common challenges and how to combine efforts to deliver better results, COM(2017) 63 of 3 February2017, SWD(2017)33-58

The Commission has published a Communication on how the Member States have implemented and applied EU environmental legislation. The Communication is rather narrow in scope; it does not cover climate change issues, industrial emissions, energy-saving and energy-efficiency measures, chemicals and all environment-related measures in the area of transport, agriculture, nuclear energy, fisheries, and regional policy. The information on measures such as environmental impact assessments, access to environmental information, participation in decision-making and access to justice is very succinct or even non-existent. The communication is accompanied by country reports which describe, for each Member State, the state of affairs for the remaining pieces of EU environmental legislation. Ludwig Kramer says this report shows the Juncker Commission simply does not care about citizens’ health.

The Commission does not go into the details of Member State non-compliance. Rather, it remains general, even superficial, and tries to convey an overall positive and optimistic impression of the state of implementation.

An annex to the communication suggests to Member States some actions in order to improve environmental implementation. Partly, the suggested measures are policy measures; partly, though, they refer to clear infringements of EU environmental law.

The Commission's approach will be exemplified here by two examples which were selected at random, air quality (Directive 2008/50) and noise legislation (Directive 2002/49).

As regards air quality, the Commission indicates that air pollution by NO² (nitrogen oxides), O³ (ozone) and PM (particulate matters) caused, in 2013, a total of 520,000 annual premature deaths within the EU. It does not indicate that the annual economic loss which it describes in the different country reports is 398.7 billion euro (composed in particular of workdays lost, cost for employers, healthcare and crop losses).

The Commission suggests that, to reduce PM emissions, measures addressing solid fuels "needed" to be implemented by 18 Member States, industrial sources should be tackled by permits that go beyond the best available techniques and agricultural waste burning needed to be addressed.

Measures to include NO2 compliance should target diesel vehicles by introducing low emission zones in inner cities or by phasing out preferential tax treatment. Also strategic urban mobility plans should be used.

These proposals omit to mention two essential things: first, there is a principle laid down in Article 191 TFEU that environmental impairment should preferably be tackled at source. Why does the Commission not apply this principle by enforcing Directive 2010/75 which requires the issuing of permits going beyond the best available techniques, when the air pollution situation so requires?

The Commission has, until now, never taken any action against any Member State which did not implement Directive 2010/75 (or its predecessors) in practice. And why did the Commission propose and adopt regulations which allow NOx emissions from diesel cars to be considered to be in compliance with EU requirements (80 mg/km emissions), when the measuring shows 120 mg/km emissions (regulation 2016/646)?

It is doublespeak to mention the necessity of reducing air pollution by NOx, when at the same time the limit values which the EU legislator fixed are bypassed with the help of doubtful measuring calculations. And this observation does not even concern the question of why US emission standards for NOx emissions from diesel vehicles are so much stricter than the EU standards.

The second comment concerns the question of what the Commission does to ensure compliance with EU air pollution legislation. According to Directive 2008/50, the quality values for NOx, ozone and PM10 had to be respected since 2010.

What did the Commission do between 2010 and 2017 to ensure that the values were effectively complied with? The Communication mentions that infringement procedures are ongoing. Yet, the Court of Justice's (ECJ) register only mentions two cases (against Poland and Bulgaria, both for PM10) of 2015 and 2016, where a Member State was brought before the Court because it had not properly applied Directive 2008/50.

Publishing the number of annual premature deaths is, in these circumstances, almost cynical: the Commission is obliged, under Article 17 TEU, to ensure the application of EU legislation; and with regard to Directive 2008/50 it has not done so during the past six or seven years.

Judicial action can be effective. In 2009 a provision was inserted into the Treaty on the Functioning of the European Union that the ECJ could fix a penalty against a Member State which had not transposed EU legislation into its national law. Since then, in the environmental sector, cases of non-transposition have no longer been brought before the ECJ, apparently because Member States were afraid of the penalty.

In the sector of noise legislation (Directive 2002/49), the Commission's communication mentions that "more than 30% of the required noise maps and around 60 % of the [noise reduction] action plans are missing".

Slovenia, Czech Republic and Luxembourg have elaborated no action plans. In Belgium, France, Spain, Portugal, Germany, Latvia, Italy, Slovakia and Romania many action plans are lacking.

Mapping and action plans to reduce noise should have been available since 2011. Yet, in all cases, the Commission only indicated that it made contact with the national authorities.

In this way, the legally binding directive is treated as if it were a recommendation. This is not in compliance with the Commission's obligation to ensure that Directive 2002/49 is applied.

Nothing undermines the credibility of a public authority more than legislation which is not applied. The Juncker Commission, which intends to act big in big things and little in little things, demonstrates with this report that it simply does not care about citizens’ health. 520,000 premature deaths per year are not worth act on more speedily to ensure compliance with the rules which were set by the EU legislator itself. What a surprise that citizens do not trust the Commission and the EU!