30 July 2019
Three major cities are back in court over diesel bans while a prison threat looms for Munich minister
Following multiple court victories by Deutsche Umwelthilfe (DUH), with the support of ClientEarth, over illegally dirty air in many German cities, diesel bans are coming into force across the country.
But some cities are still fighting back against diesel restrictions. Appeal hearings are in the pipeline, coming up from July to December.
Meanwhile, in September, there will be a hearing in the EU’s highest court in Luxembourg, over whether a consistent failure to comply with court rulings on air pollution could send Munich’s environment minister to prison.
The attached briefing covers the case summaries so far and outlines what the upcoming hearings mean. Hearing dates can be found below.
– 31 July – Aachen case (appeal) Oberverwaltungsgericht Münster
– 03 September – Munich case (appeal) – CJEU Luxembourg
– 12 September – Cologne case (appeal) – Oberverwaltungsgericht Münster
– 10 December – Frankfurt case (appeal) – Hessischer Verwaltungsgerichtshof
Diesel bans in Germany – what’s the story so far?
Air pollution has been at illegal levels across Germany ever since clean air laws came in over a decade ago. Following multiple legal actions by Deutsche Umwelthilfe, with the support of ClientEarth, judges started to call for diesel restrictions in several German cities, as the fastest way to bring air pollution down and protect people’s health.
Regional leaders appealed these judgments, and the debate eventually reached Germany’s highest court last February. But in a market-changing moment, the Federal Administrative Court agreed that restrictions on all but the newest diesel vehicles were not just legally possible, but necessary when that would be the quickest way to reduce people’s exposure to dangerous and illegal air pollution.
Cologne and Aachen are the latest to attempt to overturn diesel bans
Germany’s second diesel restriction was ordered in Aachen, to be implemented in April 2019.
Cologne, meanwhile, was ordered in November 2018 to introduce a restriction on vehicles up to Euro 4 by April 2019, expanding to include vehicles up to Euro 5 by September 2019.
Both authorities have appealed. The cases will be heard in the Oberverwaltungsgericht, Münster, on July 31 (Aachen) and September 12 (Cologne). It is understood that the authorities may try to push this case to another hearing in the Federal Administrative Court, as happened with the hearings last February.
Prison sentence looms for Munich’s environment minister
In an unprecedented turn of events, the Munich environment minister’s repeated failure to introduce diesel restrictions as per court orders has prompted a call for courts to consider a prison sentence as a mode of enforcement. The minister has been avoiding action for years.
Given the novel type of sanction, the question will be discussed before the Court of Justice of the European Union on September 3. Representatives of DUH and ClientEarth will be in attendance.
Background – transport and air pollution in Germany today
Air pollution in Germany is still at illegal levels across the country. The latest data from the German environment agency confirmed nitrogen dioxide (NO2) concentrations are exceeding legal limits in nearly 60 German cities. NO2 is known for the lasting respiratory issues it causes – with potentially lifelong consequences for children exposed to it.
However, the German car industry is anxious to appear like it’s making progress towards cleaner vehicles. Latest calculations suggest one in five vehicles will be electric within the next five years. Whether the PR campaign is contradicted by continued lobbying against diesel restrictions at government level is yet to be established.
Another danger is the assumption that new diesel cars are clean. While the technology is definitely more advanced, all evidence points to the fact that many Euro 6 cars underperform dramatically on the roads when it comes to pollution.
At the start of this year, Germany attempted to circumvent EU law, and avoid restrictions on diesel, by introducing a ‘proportionality threshold’ that aimed to prevent courts ruling for restrictions unless annual average levels of NO2 were 50µg/m3 or above – an arbitrary 25% higher than EU law specifies. A coalition of European experts expressed disbelief at this move. In February 2019, the European Commission made unmistakeably clear that the legal limit continues to be 40µg/m3 and compliance with this legal limit as soon as possible remains the priority.
Deutsche Umwelthilfe and ClientEarth’s work on air pollution
In Germany, ClientEarth is supporting DUH to bring legal actions against dangerous and illegal urban NO2 pollution, which is primarily from diesel vehicles. In total, there are 33 cases open in Germany today; the groups are active in 36 cities.
What we’re calling for in Germany
– Retrofits for passenger cars, funded by the manufacturers responsible for illegal defeat devices and high NOx emissions
– Retrofitting of buses, waste removal lorries etc. (public funding is available)
– Effective parking space management and pricing
– More infrastructure for public transport, cycling and walking
– Simplified and low-cost pricing for public transport
– Effective on-road emissions policing
– Periodic inspection to detect malfunctioning exhaust filters
– Restrictions for diesel vehicles that do not meet Euro 6/VI on the road in pollution hotspots
About DUH (‘Environmental Action Germany’)
Deutsche Umwelthilfe e.V. (DUH) is a non-governmental environmental and consumer protection organisation, founded in 1975. The organisation is politically independent, recognised as a non-profit organisation, entitled to bring legal action and it campaigns mainly on a national and European level. DUH supports all sustainable ways of life and economic systems that respect ecological boundaries. At the same time, the organisation fights for the preservation of biological diversity, the protection of natural assets, and climate protection.
ClientEarth is a charity that uses the power of the law to protect people and the planet. We are international lawyers finding practical solutions for the world’s biggest environmental challenges. We are fighting climate change, protecting oceans and wildlife, making forest governance stronger, greening energy, making business more responsible and pushing for government transparency. We believe the law is a tool for positive change. From our offices in London, Brussels, Warsaw, Berlin, New York City and Beijing, we work on laws throughout their lifetime, from the earliest stages to implementation. And when those laws are broken, we go to court to enforce them.