Shortly before Christmas, the Court of Justice (CJEU) rendered judgement on a preliminary reference from the Higher Administrative Court of Bavaria. The reference originated from a case brought by Deutsche Umwelthilfe (DUH) with the support of ClientEarth. The referred question was quite dramatic: Was the court entitled, or even obliged, to order imprisonment of the Bavarian Minister of Environment or Minister-President because of their open refusal to comply with EU law? The CJEU gives a balanced reply to the question but emphasizes the need to find a solution consistent with the applicant’s right to an effective remedy.
In October 2012, the Administrative Court of Munich ordered the Land of Bavaria to amend the air quality plan for the city of Munich because the applicable average limit value of nitrogen oxide (NO2), as prescribed by the Air Quality Directive (2008/50), had been exceeded at various locations in the city. In 2017 and 2018, the Administrative Court ordered the Land of Bavaria twice to pay fines of EUR 4000. The Land paid, having lost its appeals against these orders. However, in practice these fines were simply paid from one Bavarian Ministry to another; they had therefore no real effect. At the same time, the Minister-President openly stated that he did not intend to comply with the court order to amend the air quality plan and to impose the required diesel bans.
The applicable German procedural rules apply the sanction rules of the Code of Civil Procedure. These rules provide for two possibilities: fines and coercive detention. Fines having proved ineffective, the applicants also requested the court to order detention of the Bavarian Minister of Environment, or failing this, the Minister-President. The Administrative Court refused to order detention. However, the Higher Administrative Court decided to make a preliminary reference to the CJEU asking whether EU law entitled, or even obliged, it to order detention in this case.
The Court firstly emphasizes that the right to an effective remedy (Art. 47 of the Charter of Fundamental Rights and Art. 9(4) Aarhus Convention) would become illusory if national court judgements were not enforced. It then highlights that this right is in the present case “all the more important” because the failure to amend the air quality plan would endanger human health. Therefore, it is on the national court to ascertain, “taking the whole body of domestic law into consideration and applying the interpretative methods recognised by that law”, whether it could apply effective coercive measures to ensure that the public authorities complied with the judgement. The CJEU specifically refers in this regard to the possibility of high financial penalties repeated after a short time, which would not be paid back into the Land’s budget.
Only after clarifying this, the Court turns to the question of whether EU law requires detention under the present circumstances. In this regard, the Court highlighted that the right to an effective remedy (Art 47 Charter) needs to be balanced with the right to liberty (Art 6 Charter). Based on Art 6, a deprivation of liberty is firstly only permissible if based on a law that is “sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness”. Secondly, the national court must strike a “fair balance”, ensuring that “no less restrictive measure” would be available to safeguard the right to effective remedies without resorting to a deprivation of liberty. The CJEU concludes that the national court is required to order detention if both these conditions are fulfilled. If not, EU law does not empower the court to order detention.
The CJEU places great emphasis on the right to an effective remedy. Before addressing the question of detention, the judges provide their seemingly preferred option of more dissuasive, repeated fines that do not go back into the Land’s budget. While not reflected in the questions referred by the Munich court, this issue had also received considerable attention during the hearing. The judgement can thereby serve as a useful reference point for other cases in which public authorities fail to remedy breaches of EU environmental law.
On the point of detention itself, the threshold is necessarily high, as the relevant law must be applied in a “sufficiently accessible, precise and foreseeable” manner to justify restricting the Ministers’ liberty. This is on top of the question of lifting the immunity of the Ministers, a point addressed in the Advocate General’s Opinion. Moreover, even if these hurdles were cleared, the national judges would be required once again to ascertain if there are truly no other, less restrictive measures that would allow the Ministers to continue enjoying the (polluted) air of Munich without inhibitions.
Interestingly, the Court mentions the possibility to bring a state liability claim for failure to comply with EU law as a last resort. This so-called “Francovich doctrine” permits applicants to obtain damages from EU Member States that are a direct result of a violation of EU law. Being a damage claim, state liability would not achieve the intended result of greater protection of the residents from air pollution. Moreover, a central hurdle would likely be to quantify the damage suffered by Munich’s residents as a direct causal result of the failure to amend the air quality plan. While clearly not an effective remedy and freighted with hurdles, state liability remains an additional route that remains somewhat untested in the environmental arena since the unsuccessful claim in case C-420/11 Leth.
On first sight, this case may appear unusual, as it is difficult to imagine a Minister being imprisoned for an administrative matter. However, at the heart of the case lies a very serious issue, namely the observance of basic tenets of the rule of law by elected officials. Where a Minister openly states that he does not intend to comply with a court order and indeed refuses to do so, it is fundamental in a democratic society that a judge has a means at his or her disposal to coerce compliance. This is non-negotiable in a society ruled by law. It will therefore be crucial that the Administrative Court orders a sanction that respects and protects these basic principles, whether by way of detention or not.