CJEU Advocate General calls for new, stronger remedies on German pollution failings

Media release

14 November 2019

Advocate General Saugmandsgaard Øe has issued a damning opinion, confirming the need for national courts to take ever harsher measures to force action from authorities on dirty air. The guiding opinion comes in advance of the final decision of the EU’s top court, in a case set to find whether repeat failure to clean up toxic air pollution could trigger a prison sentence for Bavaria’s Environment Minister.

In the opinion, the Advocate General notes that the Bavarian Minister’s open refusal to comply with a court order constitutes a “particularly serious” breach of EU law, violates the fundamental right to an effective remedy for those going to court and flies in the face of the rule of law.

While he did not recommend a prison sentence, the Advocate General also pointed out that national courts may not have exhausted all remedies available to them, and has pointed to potential new avenues – like higher fines, to be paid regularly and repeatedly, including to third parties.

The case is the result of ongoing legal action in Germany over urban air pollution by Deutsche Umwelthilfe (DUH) and environmental lawyers ClientEarth.

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.

“Over 30 legal cases have been taken against local authorities over dirty air. The European Commission is taking court action against the German government over air pollution failures. The eyes of EU law enforcers at all levels are on the German state, which is failing flagrantly to protect people’s health.”

The opinion also highlights the need for national courts’ rulings to be decisive and powerful, and reliably adhered to by authorities.

Ott said: “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 – in this case, fines paid by the authority in question into a ‘clean air fund’, to help address the problem, might be appropriate.

“We hope the Court of Justice of the European Union is strong on this point on remedies in its final judgment.”

ENDS

Notes to editors

Read the Advocate General’s opinion here.

Extracts referred to in the press release, above:

“in the present case, […] the infringement of EU law is especially serious. […]”

The authority’s failure to act “infringes the fundamental right of litigants to an effective judicial remedy”.

It is “also liable to undermine the rule of law, which is one of the values on which the European Union is founded”

“it is not indeed clear, in the present case, that the referring court has used all the means available to it under national law. It was suggested at the hearing that other measures could be considered, such as financial penalties of €25,000 potentially recurring at short intervals. The possibility was also raised that such financial penalties could be payable to a third party, or even the applicant in the main proceedings, rather than to the Land. It is a matter for the referring court to determine whether such measures could be imposed.”

The regional court called for a traffic restriction on diesel in Munich early in 2017. Since then, successive leaders have failed to act on the ruling. Fines have repeatedly been imposed, which the authorities pay and then continue to take no action while publicly stating that they do not intend to comply with the court ruling. This led the court to question whether a prison sentence could be on the table for those in charge.

Munich has some of Germany’s highest pollution levels, consistently breaching legal limits. In 2018, the average nitrogen dioxide concentrations were 50% higher than the law allows.

DUH and ClientEarth have taken legal action in more than 30 cities in Germany, over the country’s lamentable air quality and the dangers it poses to human health.

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