Belgian court provides opportunity to set binding precedent on the right of the public to enforce air quality monitoring rules

On 15 December 2017, the Court of First Instance of Brussels issued an interim judgment in the clean air case that ClientEarth, along with five citizens, is pursuing against the Brussels Regional government, in relation to the illegal levels of pollution in the city. In a first-of-this-type case in Belgium, the judge granted standing to environmental NGOs and citizens to require the adoption of adequate air quality plans. At the same time, he referred the case to the Court of Justice of the European Union (CJEU), to clarify the interpretation of two further provisions of the Air Quality Directive 2008/50/EC, including the question of whether citizens and NGOs can resort to national courts to force compliance by competent authorities with the air quality monitoring requirements. The upcoming decision of the CJEU has the potential to set an important binding precedent across the EU.

In September 2015, ClientEarth and five concerned residents started a legal action against the Brussels government, asking the court to order the adoption of an effective air quality plan and the improvement of the flawed monitoring network.

Among the various defences, the Brussels government pleaded for the case to be declared inadmissible for lack of standing. In its opinion, the claimants did not show the required “personal” interest to have access to Belgian courts. Moreover, the Brussels government argued that courts in Belgium do not have the power to review the content of air quality plans.

In its interim judgement, the Court of First Instance of Brussels held that there cannot be any doubt that citizens and environmental NGOs have the right to resort to Belgian courts to obtain protection of their right to clean air. The judge clarified that an environmental NGO meets the ‘personal interest’ requirement if the legal action aims at achieving its statutory goals. In this particular case, ClientEarth, a foreign NGO with a centre of activity in Belgium, was granted standing, considering that the improvement of the air quality in Brussels would contribute to its statutory goal of ensuring environmental protection.

With regards to natural persons, some of the claimants (due to health conditions – such as asthma and other pulmonary diseases) had a particularly qualified interest, stronger than the average Brussels’ resident. However, the judge held that citizens do not need to show such a strong interest in order to be able to enforce the Air Quality Directive. According to the judge, all of the Brussels residents would benefit from better air quality. Therefore, it is sufficient to live in an area or zone where air quality limit values are exceeded, to be able to require the adoption of an air quality plan.

Furthermore, the Brussels court held that, according to EU law and the case law of the CJEU (such as Case C-404/13 ClientEarth v the United Kingdom), it cannot be called into doubt that national courts have the power to order the adoption of air quality plans, because the public authorities’ room of manoeuvre in that regard is significantly curtailed.

That being said, the Brussels Court of First Instance is seeking guidance from the CJEU on whether national courts have the power not only to order compliance with the obligation to have effective air quality plans (Article 23 Air Quality Directive), but also to mandate the installation of additional monitoring stations (Article 7 Air Quality Directive).

In particular, the claimants argued that the Brussels government failed to comply with the requirement in the Air Quality Directive by not placing monitoring stations in the areas where the highest concentrations of pollutants occur (Annex III, Section B).

In the judge’s view, the CJEU has never clarified whether national courts have the power to enforce monitoring stations requirements, as it was not an issue in the Janecek and ClientEarth cases. He decided, therefore, to stay the proceedings and refer a preliminary question on the point to the CJEU.

The upcoming decision of the CJEU has, therefore, the potential to widen the scope of application of the access to justice principle stated in Janecek and ClientEarth as well as the enforcement of the air quality monitoring requirements.

[1] Case C-237/07 Janecek v Freistaat Bayern.

[2] Case C-404/13 ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs