New Judgment: R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs  UKSC 25
01 Wednesday May 2013
On appeal from:  EWCA Civ 897.
Concerns the Government’s obligations under the Air Quality Directive (Dir 2008/50/EC) to reduce the levels of nitrogen dioxide in outdoor air in the UK. Art 13 of the Directive imposes an absolute obligation to ensure that the limits and margins of tolerance for nitrogen dioxide are not exceeded after a deadline, and art 22 provides a process to apply for an extension of the deadline. The Secretary of State accepted that there has been a breach of article 13 of the Air Quality Directive but argued that art 22 was not mandatory.
The Supreme Court allowed ClientEarth’s appeal to the extent that it granted a declaration that there has been a breach of art 13 of the Directive. The proceedings were stayed whilst the other issues concerning the Air Quality Directive are referred to the CJEU. The fact that the breach of art 13 has been conceded was not a sufficient reason to decline to grant such a declaration, where the breach was clearly established and there were no other discretionary bars to relief. The proper interpretation of arts 22 and 23 of the Air Quality Directive raised difficult issues of EU law, the determination of which required the guidance of the CJEU. Accordingly, the Supreme Court referred the matter to the CJEU.