Supreme Court rules UK in breach of air quality requirements
Environmental campaigners were in May celebrating a significant decision of the Supreme Court in relation to the UK's obligations under EU law and their enforcement.
In R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs, the Supreme Court ruled that the UK is in breach of requirements laid down by Directive 2008/50/EC (the Air Quality Directive), Article 13 of which requires Member State governments to ensure that nitrous oxide levels are reduced to target levels. Article 23 sets out the means by which this is to be done, namely an obligation to put in place air quality plans, by January 2010. It is possible, under Article 22 of the Directive, for Member States to postpone the deadline until 2015. The 2010 deadline was not met, and the Department for the Environment, Food and Rural Affairs (DEFRA) recognises that in some areas the requisite levels will not be met until 2015, 2020 or, in the case of London, 2025. The UK has applied to the European Commission for extensions in those areas in which it believes it can achieve compliance by 2015. The Commission objected to half of these applications (12 out of 24) and approved the others either conditionally or unconditionally. It has not commented on those areas which are unlikely to become compliant until 2020 or 2025. ClientEarth argued that the UK came under an obligation to ensure air quality was at an appropriate level by 2015, reading together Articles 13, 22 and 23.
At first instance, the High Court declined to make a declaration that the UK was in breach, noting that enforcement in EU law took place at Commission level, and thus legal proceedings were only for the European Court of Justice. The Court of Appeal chose not to address this point in its judgment. The position following these two decisions appeared to be that domestic courts had no role in enforcing European obligations, with that role left entirely to the European institutions who often take action only a number of years after the breach has occurred.
When the case reached the Supreme Court, DEFRA conceded that the UK was, in fact, in breach of the Directive. This avoided much complex discussion of whether Article 22 was discretionary or not, which had formed the core part of the judgment of both the High Court and the Court of Appeal. The Supreme Court made a declaration to that effect. Although this in itself was an important step, it refrained from making any comment as to what further relief might be appropriate, preferring to first seek guidance from the European Court of Justice by way of a reference.
At first instance the claimants had sought not only a declaration but also a mandatory order requiring the UK government to draw up plans which would allow it to meet the imposed targets within the set timescales. They also sought a mandatory order requiring these plans to be published and a ‘reasonable timescale' for public consultation to be given.
Lord Carnwath did, however, note that the importance of a declaration of breach, even where DEFRA had conceded that such a breach existed, was that ‘the way is open to immediate enforcement action at national or European level.'
The questions posed to the ECJ are as follows:
- is the Article 22 procedure for postponing the deadline by which air quality obligations must be met mandatory?
- If Article 22 is indeed mandatory, are there any exceptions to this?
- If Article 22 is not mandatory, where does that leave the requirement to prepare plans aimed at achieving the air quality objectives?
- Where there is breach of Article 13, what remedies can the national courts provide?
The question remains: has the ECJ given any hint as to what it may say on remedies? The Court itself has not, but in correspondence with the UK on this issue it has stressed its reluctance to see the extension provisions used as a means of allowing Member States to escape their obligations. This is particularly the case where, as happened in the UK, plans are drawn up which take implementation past the de facto 2015 deadline, but are simply not submitted to the Commission for approval. The Commission clearly takes the view that 2015 is the ultimate deadline and there are to be no further extensions. However, the Commission is yet to take enforcement action against any country under the Air Quality Directive, so as of yet there is no precedent in, for example, the imposition of fines. Of course, campaigners claim that the real impact will not be whatever enforcement action may come from Europe, or those remedies which may finally be granted by the national courts, but rather the renewed pressure this will place on the UK, which has recognised that it is breach and appears to have left itself exposed.
  UKSC 25.
  EWHC 3623 (Admin).
  EWCA Civ 897.
  UKSC 25 at para 37.