Court action for clean air in Brussels – Court of Justice for the EU ruling

Media briefing

June 2019

Important Information

Who: ClientEarth and five Brussels citizens (Lies Craeynest, Karin de Schepper, Stefan Vandermeulen, Frédéric Mertens and Cristina Lopez Devaux) are suing the Brussels government over its failure to ensure the right to clean air in the city.
What: Following a request for preliminary ruling made by the Court of First Instance of Brussels in December 2017, the Court of Justice of the European Union (CJEU) will provide binding guidance to the Court of First Instance on how to assess whether Brussels air quality legal standards are exceeded and whether the monitoring stations are properly located.
Where: The judgment will be handed down in the First Chamber of the Court of Justice of the EU, Rue du Fort Niedergrünewald, Luxembourgh-Kirchberg.
When: Wednesday, 26 June 2019, 09:30.

Court challenge

ClientEarth, along with five Brussels citizens, are pursuing legal action against the Brussels regional government for failure to deliver an adequate air quality plan and to properly monitor concentrations of pollutants in the city.

The levels of nitrogen dioxide (NO2) in Brussels have breached legal limits since 2010. The regional Plan “Air-Climat-Energie” was only adopted by the Brussels government in June 2016. This is not an air quality plan. It is a programmatic document setting the general framework for actions on air quality, climate change and energy issues.

The plan is woefully inadequate as it fails to reduce illegal levels of air pollution “as soon as possible”, which is required by the law. It proposed the introduction of a low emission zone (LEZ) from January 2018. This was a step in the right direction, but was too little, too late. As of January 2018, only the oldest vehicles (Euro 0 and Euro 1) have been banned from circulating in the capital. Only 9% of cars in Brussels are Euro 0 and Euro 1, so this decision is unlikely to have any tangible effect on air quality.

ClientEarth and the group of residents are asking the Brussels Court of First Instance to oblige the Brussels authorities to develop and implement an appropriate air quality plan to tackle the dangerous level of air pollution in the region and bring it within legal limits.

To do so, the Brussels government must adopt a plan that goes beyond general policy statements. The protection of the right to clean air in the city requires a new plan with detailed measures, a clear implementation calendar and, above all, greater ambition to achieve compliance in the shortest time possible.

The legal case also calls for air pollution to be measured where there is the highest public exposure, as the law requires. An independent study by ClientEarth suggested that some of the most polluted areas in Brussels had NO2 concentrations double the highest official records published by authorities. However, Brussels authorities are refusing to measure air quality in the most congested and polluted streets, hiding the real scale of the air pollution problem in the city from the public.

Background & Timeline

  • 21 September 2016: ClientEarth and five citizens launch a clean air legal challenge against the Brussels regional government. The case focuses on NO2, a harmful gas which in towns and cities comes mostly from diesel vehicles. The legal challenge calls for the authorities to produce an effective plan to clean up the city’s air as well as correctly monitor air pollution in the city.
  • 13 January 2017: Court hearing on the illegal absence of key air quality monitoring stations in Brussels. As part of the complaint lodged in September, ClientEarth identified that monitoring stations at Arts-Loi and Rue Belliard had been turned off since 2008 and 2014, respectively.
    • Note: Since the hearing, the monitoring stations at Arts-Loi and Rue Belliard have been switched back on. However, Brussels authorities refuse to use the results from these stations to check compliance with pollutants concentrations in the city, despite them consistently reporting the highest levels of NO2.
  • 10 February 2017: Outcome of January hearing. The Brussels government avoids having to immediately monitor air pollution at hotspots by using a technicality. The court of first instance issues a ruling saying that a decision on monitoring stations must wait until the entire case is concluded.
  • February – June 2017: ClientEarth carries out independent study and reveals shockingly high levels of NO2 in the capital.
    • ClientEarth measures NO2 levels at various points in four different spots within the capital (Rue Belliard, Rue de la Loi, Arts-Loi and Avenue des Arts).
    • The measurements reveal concentrations of the gas were almost 2.5 times the legal limit and almost double the highest official records published by Brussels authorities. Full dataset and methodology available here.
  • 11 October 2017: Air quality data for 2016 submitted by Belgium reveals air quality in Brussels has not improved in any significant way since 2011.
    • Air quality data submitted under the EU Ambient Air Quality Directive shows that, yet again, Brussels had breached the legal limit for NO2 (40 μg/m3), with annual average pollution levels for 2016 (48 μg/m3) even higher than those recorded in 2015 (45 μg/m3).
  • 16 November 2017: Final hearing before the judge in ClientEarth’s case against the Brussels regional government.
  • 15 December 2017: The judge requests further guidance from the Court of Justice of the European Union (CJEU) before making a final decision. However, the court states expressly that the Brussels government’s current “Air-Climate-Energy Plan” does not meet the requirements under the EU Ambient Air Quality Directive.
    The judge is seeking clarification from the CJEU (Case C-723/17) on how authorities should assess compliance with air quality limits. Only where limits are exceeded, are the relevant authorities obliged to adopt an air quality plan. ClientEarth and the five citizens argue that, in order to protect human health, levels of air pollution should be below the legal standards at every monitoring station in the city. However, the Brussels regional government argues that it is fine to exceed legal standards at specific monitoring stations (as is the case in Brussels), if the average from all monitoring stations is below the legal threshold. The response from the CJEU on this question will clarify which is the correct method to assess compliance with air quality legal standards and, therefore, whether the Brussels regional government is obliged to adopt an air quality plan on top of the “Air-Climate-Energy Plan”.
    The CJEU is also called upon to examine whether citizens can challenge the authorities’ failure to properly monitor air quality and whether a national court can order a monitoring station to be installed in the most polluted streets. The response from the CJEU on this question will help the Brussels court to decide if additional monitoring stations should be placed in Brussels’ most polluted roads, including Rue de la Loi and Rue Belliard. The CJEU ruling will also set a binding precedent across the EU on the right of individuals and NGOs to hold authorities accountable to their air quality monitoring obligations.
  • 1 January 2018: The Brussels government introduces a LEZ. The initial stage only applies to Euro 1 diesel cars and vans – those built prior to 1992 – with a gradual rollout to Euro 5 vehicles only by 2025. Petrol vehicles have been included in the scope of the scheme as of 2019, with a gradual limit introduced up to Euro 2 petrol vehicles (manufactured before 1997) coming into force in 2025. Compared to other EU countries, Brussels’ LEZ is not ambitious enough. For instance, as of 1 January 2019, Stuttgart has introduced a LEZ banning all diesel vehicles that fail to comply with the Euro 5 standard.
  • 31 May 2018: Brussels Environment Minister, Céline Fremault, announces that the city will ban all diesel vehicles by 2030. She also suggests banning all internal combustion engine vehicles by the same date.
  • 11 September 2018: The European Court of Auditors publishes an air pollution report that shows that Brussels’ air quality plan for reducing nitrogen dioxide by restricting traffic was “unreliable” and highlights the lack of air quality monitoring stations in high traffic zones compared to other cities.
  • 27 September 2018: Air quality data published by the Belgian government shows that for the second consecutive year, air pollution has worsened in Brussels. The statistics, which all EU countries must submit annually to the European Commission, reveals that, yet again, Brussels has breached the legal limits for NO2, with annual pollution levels for 2017 (49 μg/m3) even higher than those recorded in 2016 (48 μg/m3) and 2015 (45 μg/m3). The legal limit is 40 μg/m3.
  • 8 November 2018: The European Commission sends a letter of formal notice to Belgium for its continued failure to address illegal levels of air pollution. The letter or formal notice expressly mentions that the Commission is concerned that the current measures to improve air quality are not good enough and questions the way air quality is monitored in Brussels. Belgium has two months to provide an explanation for its lack of action.
  • 11 December 2018: Brussels Environment Minister, Céline Fremault, announces that the Brussels government will install an additional monitoring station every year until 2026. Any outdated monitoring stations will also either be upgraded or replaced until 2023. However, the Brussels government has not provided any information on where the new monitoring stations will be placed.
  • 10 January 2019: Hearing before the CJEU. During the hearing, the European Commission intervened and stated that the Brussels government’s attempt to use averages to assess whether the city is breaching legal levels of air pollution, rather than actual readings at single monitoring stations, has no basis in EU law and has never been used by any other European authority.
  • 28 February 2019: The Advocate General publishes her opinion following the hearing before the CJEU. In her opinion, the CJEU should rule that national courts should carry out a full review of whether monitoring stations are correctly sited and, in particular, that they are sited where the highest concentrations of air pollution occur.
    She specified that, even if authorities have discretion over scientific assessments on where to place monitoring stations, EU law requires judicial review “on account of the importance of the rules on ambient air quality for human life and health”.
    In her view, national courts should be able to order authorities to site sampling points at certain locations, if it is clear from the available information that sampling points must be sited there.
    The Advocate General also ruled out any chance of the Brussels government using the average concentration of nitrogen dioxide from the monitoring stations across the region to assess compliance with air quality.
    The CJEU’s ruling will be handed down on Wednesday, 26 June 2019 in Luxembourg.

Air pollution: a public health crisis

Air pollution triggers heart attacks and strokes and exacerbates respiratory conditions including asthma. It causes cancer and is linked with stunted lung growth in children, dementia and diabetes.

The latest report by the European Environment Agency estimates that 76,000 premature deaths were linked to NO2 pollution in Europe in 2015, including an estimated 1,500 premature deaths in Belgium. The WHO’s 2015 report calculated that the deaths caused by air pollution cost the Belgian economy the equivalent of 4.6% of GDP.

What do ClientEarth and the five citizens want to see?

A plan to achieve compliance in the shortest time possible should consider a more ambitious LEZ, which would prevent the most polluting diesel vehicles from entering the Brussels region. The LEZ, which started in January 2018, is a step in the right direction, but its level of ambition is too low to have any real impact on air quality in the city.

For instance, from January 2018 only Euro 0 and Euro 1 diesel vehicles have been banned – these are vehicles over 21 years old. It will take until 2025 to see only the most recent diesel technology (Euro 6) allowed in the region. Moreover, the Brussels authorities should take steps to ensure that only diesel vehicles that comply with emissions limits on the roads are allowed.

By way of comparison, the Ultra Low Emission Zone, which came into force in London in April 2019, charges drivers of all but the most recent (Euro 6) diesel vehicles. Similarly, in Stuttgart from 1 January 2019, a LEZ has come into force banning all diesel vehicles older that Euro 5. As of September 2019, the Federal Administrative Court of Stuttgart has ordered the LEZ to include all Euro 5 in the ban, allowing only the most recent Euro 6 vehicles to circulate in the city.

In connection with the introduction of the LEZ, authorities should consider financial mechanisms to avoid penalising lower income households.

Beyond the LEZ, the new plan should outline clear additional measures to be implemented over a set timeline. This should include a clean mobility plan centred on the least polluting modes of transport, more parking for bicycles as well as subsidies for electric bicycles, better infrastructure to encourage car sharing, and stricter parking regulations.

Brussels authorities should also start adequately monitoring air pollution levels in the city and provide reliable information to citizens. In particular, the monitor network should include monitoring stations in the most polluted streets.

The authorities should therefore install official monitoring stations in highly polluted and congested streets (such as Arts-Loi and Rue Belliard) and use the monitoring results for official reporting and compliance assessment purposes. Moreover, monitoring stations that measure particulate matter (PM10) should be installed in the city’s street canyons (such as Arts-Loi, Rue Belliard or Avenue de la Couronne).

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