19 December 2019
German courts must consider prison sentences for air pollution failures – EU top court
The EU’s top court has detailed how German authorities’ direct refusal to follow court orders on air pollution is a clear breach of the rule of law and of fundamental rights, in a crushing ruling issued today.
The court sent the question of potential custodial sentences for ministers back to German court officials but made it clear they must be considered.
In its final judgment, the Court of Justice of the European Union (CJEU) said that failure of authorities to act in this case is all the more serious because it “endangers human health.” Alongside the discussion of prison sentences, it endorsed other strong sanctions, including higher and repeated fines for the authority in question.
The case is the result of ongoing legal action in Germany over urban air pollution by Deutsche Umwelthilfe (DUH) and environmental lawyers ClientEarth.
It was referred to the CJEU to establish whether officials could be sent to prison for persistent failure to act on court rulings – after Bavarian ministers openly refused to comply with a court ruling instead of addressing illegal pollution in Munich. The ministers opted instead to pay small, symbolic, fines.
The ruling issued today emphasised the seriousness of the issue and the impact that the Bavarian authorities’ “persistent refusal” to address pollution from traffic in Munich is having on the fundamental rights of the claimants.
While it is ultimately down to German courts to decide whether German law provides for prison sentences in the national context, the ruling confirms that under EU law, national judges must consider this option.
ClientEarth clean air lawyer Ugo Taddei said: “German authorities have been covering their eyes and ears while German people continue to breathe illegally dirty air which will permanently damage their health.
“We are nearing 40 legal actions in Germany over flagrant breaches of air pollution law and courts consistently rule in our favour. But authorities are complacent. It seems we are still in need of more coercive measures to guarantee that those in charge put people’s health first.
“This ruling sets a precedent: failure to respond to pollution issues breaches fundamental human rights and must trigger stronger sanctions. The CJEU suggested higher fines for authorities failing to take action. We call for those fines to be paid into a clean air fund to help tackle the issue.”
As well as litigation by DUH and ClientEarth, the German state is also facing court action by the European Commission itself over its air pollution failures, via infringement proceedings in front of the CJEU. The German Federal government also tried to relax air pollution laws earlier this year, in an unsuccessful attempt to block courts from issuing diesel restrictions.
Remo Klinger, the lawyer representing DUH, said: “The ruling is a milestone for the rule of law in Germany. It shows the way to effective legal enforcement when those in charge believe themselves to be above the law. When only citizens feel bound by court judgments, and politicians and authorities act as they wish, you no longer have a democracy.”
Notes to editors
Background on the case
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. 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.
Key excerpts from the ruling:
On the seriousness of the breach
In this case, “a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50 [the Air Quality Directive].
“[A] situation where the judgment of a court remains ineffective […] fails to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter”
Paragraph 37: “according to the case-law of the European Court of Human Rights which relates to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 — and in the light of which Article 47 of the Charter should be interpreted […] — the fact that the public authorities do not comply with a final, enforceable judicial decision deprives that provision of all useful effect ”
“The right to an effective remedy is all the more important because, in the field covered by Directive 2008/50, failure to adopt the measures required by that directive would endanger human health”
On the need to impose effective sanctions
“To that end, it is incumbent upon 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 can arrive at an interpretation of domestic law that would enable it to apply effective coercive measures in order to ensure that the public authorities comply with a judgment that has become final, such as, in particular, high financial penalties that are repeated after a short time and the payment of which does not ultimately benefit the budget from which they are funded.”
On the possibility of a custodial sentence
“EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure.”
“It is only if the referring court were to conclude that […] the limitation on the right to liberty which would result from coercive detention being ordered complies with the conditions laid down in that regard in Article 52(1) of the Charter that EU law would not only authorise, but require, recourse to such a measure”