Sebastian Bechtel is a ClientEarth lawyer
For some years, ClientEarth has been involved in court cases challenging inadequate or altogether absent air quality plans in some of the EU’s most polluted cities. These cases have led to a number of court rulings in favour of cleaner air, for instance in the United Kingdom, Germany, Slovakia and the Czech Republic. However, in Poland and Bulgaria concerned citizens and NGOs have hit a brick wall before even seeing the court room – the courts held that the applicants did not have standing to bring a challenge.
The Polish situation
According to the general standing provisions in the Polish Law of Procedure before Administrative Courts, individuals can bring a challenge when their legal interest is infringed by the act and, crucially, NGOs have standing when they have participated in the procedure to adopt the act in question. However, air quality plans are considered “local laws” which are adopted under a separate Act on Provincial Self-Government. Under this Act, both individuals and NGOs need to show an infringement of their legal rights or interests.
In April 2017, a resident of the town of Rybnik in Silesia challenged the air quality plan adopted by the responsible provincial authority before the administrative courts. ClientEarth was permitted to intervene in the proceedings. However, the court considered that the air quality plan was addressed to the administrative authority and, as a result, the applicants lacked the required legal interest to bring the case. The applicants appealed but the Supreme Administrative Court confirmed the judgement in January 2018.
The Bulgarian situation
Under Bulgarian law, specific standing provisions for natural and legal persons are spread throughout sectoral laws. For instance, the Bulgarian Environmental Protection Act gives the right to challenge environmental impact assessment (EIA) decisions and strategic environmental assessment (SEA) decisions, while the Water Act provides for a right to challenge water permits. Since no such provision exists for air quality plans, an applicant needs to rely on the general standing provisions under the Administrative Procedure Code. However, the Code is not applicable to “internal acts” (i.e. acts that create rights or obligations for bodies or organizations subordinate to the body, which has issued the act), unless they affect the rights, freedoms or legitimate interests of citizens or legal entities.
In June 2017, a group of local residents and the Bulgarian NGO Za Zemiata, supported by ClientEarth, challenged the Sofia air quality plan before the Administrative Court. However, the court held that the air quality plan was an internal administrative act that did not affect the rights and interests of citizens and NGOs and decided that the challenge was inadmissible. The applicants appealed to the Supreme Administrative Court but were again rejected in November 2017. Subsequently, a challenge by local residents and Za Zemiata against an air quality plan was declared inadmissible by the Administrative Court in Plovdiv. In December 2018, the Supreme Administrative Court upheld the negative ruling against the NGO, while the appeal of the local residents is still ongoing.
The cases constitute particularly egregious denials of access to justice because of the clear CJEU jurisprudence establishing that affected persons should be able to challenge air quality plans. Based on a case brought by ClientEarth over air pollution in the UK, the CJEU held that “natural or legal persons directly concerned by the limit values being exceeded […] must be in a position to require the competent authorities, if necessary by bringing an action before the courts having jurisdiction, to establish an air quality plan” (Case C-404/13 ClientEarth, para. 56, following the earlier ruling in C-237/07 Janecek).
Both in Bulgaria and Poland, the applicants alerted the courts to the relevant provisions of EU law, this pre-existing EU case law and the need to make a preliminary reference to the CJEU, in case there was any doubt as to the interpretation of the applicable EU law. Neither the Bulgarian nor the Polish court referred a question. This is an obvious violation of the duty of a final instance court to refer a question under article 267 TFEU. Last year, the CJEU held that this duty had been breached by the French Conseil d’Etat (Case C-416/17) and the same circumstances appear to apply here. In particular, the Polish Supreme Administrative Court refused to refer a preliminary question explaining that, in its opinion, an interpretation of the Air Quality Directive granting access to justice to individuals and NGOs would have led to an interpretation contra legem of the relevant Polish provisions. While a national, final instance court may refuse to refer a question where the provision has already been interpreted by the Court (acte éclairé), which is arguably the case here, the court is then of course obliged to implement the CJEU’s interpretation. It may not decide the exact opposite of what the CJEU established.
This month, ClientEarth has filed a complaint with the European Commission based on this failure of Poland and Bulgaria to provide for effective judicial protection of their citizens. The issue has also already been raised in the context of two pending communications to the Aarhus Compliance Committee (ACCC/C/2016 151 (Poland) and ACCC/C/2018/161 (Bulgaria)). These communications highlight also wider systemic access to justice barriers in both States, such as the general lack of possibilities for NGOs to challenge local laws in Poland and cost barriers, limiting court appeals against certain permitting decisions to one court instance and penalisation of NGOs in Bulgaria.
Poland and Bulgaria have some of the worst air quality in Europe. This has also already been established by the CJEU, which found that Bulgaria (Case C-488/15) and Poland (Case C-336/16) systematically and continuously exceeded the limit values for PM10 and failed to adopt adequate air quality plans. Since then, the situation has not improved significantly. Just 5 months ago, the European Commission issued a letter of formal notice to Bulgaria for failure to comply with the earlier ruling. As is so often the case, this breach of the procedural requirement to ensure access to justice coincides with a serious breach of substantive environmental law, in this case resulting in harm to the health of thousands of citizens.