Supreme Administrative Court of Poland denies local resident the right to challenge air quality program

In January 2018 the Supreme Administrative Court of Poland upheld the decision of the Regional Administrative Court denying standing to a resident of the town of Rybnik, in the region of Silesia, Poland, to challenge the air quality program adopted by the Silesian Regional Assembly in 2014 for the region of Silesia (hereinafter referred to as the program).

The adoption of the program was required by law due to illegal levels of PM2.5, PM10 and B(a)P in ambient air in Silesia. ClientEarth intervened in the case to support the resident’s claim.

As required by Polish law, the resident first introduced a demand for amendment of the program to the Silesian Region Assembly (administrative proceedings), which refused to respond. He then brought a challenge before the Regional Administrative Court on the basis that the program did not include adequate measures allowing for the reduction of levels of pollutants to the limit levels allowed under EU and Polish law in the shortest possible time, as required by 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 (the Air Quality Directive).

Instead, according to the program, these levels would be reached by 2023 at the earliest, assuming that all of the measures adopted in the program were fully implemented. Additionally, he argued that no real analysis was conducted by the regional assembly as to whether measures to reduce levels of B(a)P in ambient air were financially feasible and should be implemented through the program.

Under Polish law, in order for a challenge to be admissible, it must be brought by a person whose legal interest has been infringed by the law or act in question. Unfortunately, the resident was refused standing because The Supreme Administrative Court agreed with the Regional Administrative Court’s decision that the program did not infringe his legal interest.

Supreme Administrative Court’s rejection of the local resident’s challenge

According to the Supreme Administrative Court, it is undisputed that the condition for challenging an act of local law of the Voivodship[1] self-government authority is the demonstration of a violation of a legal interest. The Court highlighted, however, that the air quality program does not impose any obligations on the resident, nor does it confer any rights, and it is addressed to the administration authorities. Therefore, it is incapable of affecting the legal interest of the resident. The Court found that in such a case there is only a factual interest, but this is insufficient to have standing to challenge the program. The Court held that a violation of a legal interest may not be based on the general non-compliance of an act of local government with the law, which follows directly the Act on the Voivodship Self-Government (art. 90(1)).

Moreover, the Court did not agree with the resident’s argument that the Act on the Voivodship Self-Government should be interpreted in the light of art. 23(1) of the Air Quality Directive. The Court found that such an interpretation was not possible, as it would allow a challenge to be solely based on a factual interest, which is unacceptable not only under the special provision which is Article 90(1) of the Act on the Voivodship Self-Government, but also under the general rules of proceedings before administrative courts.

The Supreme Administrative Court did not find it necessary to make a preliminary reference to the Court of Justice of the European Union on this issue.

The interpretation of the notion of legal interest presented by the Supreme Administrative Court results in real lack of access to court in cases relating to air quality programs. This line of interpretation raises a question of consistency with established case-law of the Court of Justice of the EU, particularly case C-237/07, Dieter Janacek v Freistaat Bayern, governing the legal standing of individuals to challenge air quality programs.

The Supreme Administrative Court’s ruling (case no. II OSK 3218/17) can be found in Polish here.

 [1] A voivodship is the area administered by a voivode (Governor) in several countries of Central and Eastern Europe.