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Earlier this month, on 1 May 2013, the Supreme Court handed down its judgment in the case of R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs concerning the Air Quality Directive 2008/50/EC and UK compliance with it.

Background

The Air Quality Directive provides for the establishment of air quality plans, in particular as regards this case nitrogen oxide (NO2). Article 23 requires the UK to ensure that, where NO2 levels exceed prescribed limit or target values for prescribed areas, air quality plans are established in order to achieve the relevant values by the date(s) prescribed. In relation to NO2, the deadline for compliance with the prescribed limit was 1 January 2010. The specific obligation to achieve the NO2 limits is set out in Article 13.

Defra, has proposed air quality plans, but accepts that such plans will not ensure that the prescribed NO2 limits will be achieved throughout the UK by 1 January 2010. In some cases (23 areas) the UK estimates that the limits will not be met until 1 January 2015; in others (17 areas) not until 1 January 2020; and for London, not much before 2025.

Article 22 allows Member States to postpone the prescribed deadlines by up to 5 years, here to 1 January 2015. The language of this possibility is, in the English and French (and various other languages), in the form of an apparent option – “may”.

Defra accepts that the UK is in breach of its obligations under Article 13.

ClientEarth contend that the seeming option in Article 22, when read in light of the purpose of the Air Quality Directive, imposes an obligation on the UK to establish an air quality plan that will ensure the Article 13 result by, at the latest, 1 January 2015.

To that end, it sought further a declaration from the Courts that the UK was in breach of Article 13; and a mandatory order that the UK (a) draft revisions to the applicable air quality plans demonstrating compliance with the Air Quality Directive and (b) publish them as public consultation documents.

The High Court

The High Court refused to make the declaration, saying that the system for enforcing the UK’s obligations were such that it lay in the hands of the Commission alone under Article 258 TFEU, and thereby, in the hands of the Court of Justice of the European Union (“CJEU”). It also refused to grant a mandatory order on the basis that it raised serious political and economic questions which were not for the court to decide.

The Court of Appeal

The Court of Appeal also refused to make the declaration, saying that no substantive issue arose from a refusal to grant a declaration. It did not address this issue of a mandatory order as it considered it was moot, albeit acknowledging that issues as regards effective judicial protection were engaged, and so also refused to grant a mandatory order.

The Supreme Court

In its “preliminary conclusion”, the Court decided to grant a declaration that the UK is in breach of its obligations under Article 13 of the Air Quality Directive, considering that there were no other discretionary bars to the grant of the relief.

It considered that it required guidance on the other issues raised in the case, and because it was the final national court it was so obliged, to make a reference to the CJEU under Article 267.3 TFEU. It considered the following questions appeared appropriate:

i) Where in a given zone or agglomeration conformity with the limit values for nitrogen dioxide cannot be achieved by the deadline of 1 January 2010 specified in annex XI of Directive 2008/50/EC (“the Directive”), is a Member State obliged pursuant to the Directive and/or article 4 TEU to seek postponement of the deadline in accordance with article 22 of the Directive?

ii) If so, in what circumstances (if any) may a Member State be relieved of that obligation?

iii) If the answer to (i) is no, to what extent (if at all) are the obligations of a Member State which has failed to comply with article 13, and has not made an application under article 22, affected by article 23 (in particular its second paragraph)?

iv) In the event of non-compliance with article 13, and in the absence of an application under article 22, what (if any) remedies must a national court provide as a matter of European law in order to comply with article 30 of the Directive and/or article 4 or 19 TEU?

Comment

First, the Judgment is important in that it grants one aspect of the relief originally sought, the declaration that the UK is in breach of the Article 13 deadline, notwithstanding that that breach was conceded by the Government. The UKSC acknowledged that the effect was to make clear that the way was then open to immediate enforcement action at national and EU level. This is welcome as it reflects (i) the notion of “open justice”; and (ii) the rule of law. What is intriguing is whether this outcome will pave the way to other courts overcoming previous reluctance in making similar declarations in equally clear cases. What is not so easy to identify is what “other discretionary bars to the grant of relief” the UKSC might have had in mind which could have led the UKSC not to make the declaration or other courts not to make declarations in similar circumstances. These points may be answered by the court’s final judgment following the Judgment of the CJEU on the Reference.

Second, and, however, of even greater and wider legal importance, are the questions to be sent to the CJEU. Although the first 3 questions are obviously very pertinent to the proper operation of the Air Quality Directive, a directive aimed at protecting human health, the key question is the fourth. (The reference to “Article 4” is to the provision in the Treaty on the European Union (“TEU”) setting out the duty of sincere cooperation between Member States and the EU and the reference to “Article 19” is to the provision in the TEU requiring Member States to ensure effective legal protection in the fields covered by EU law.) It has long been an issue in the UK courts as to what remedies could or, more pertinently, should (by way of obligation) be provided by national courts as regards breaches of EU obligations especially in the environmental sector, and what if any scope is left for the refusal, as a discretionary act of the courts, to grant relief that would bring to an end or rectify such breaches of EU law, especially those by public authorities. The answer of the CJEU to the fourth question is bound to be keenly awaited.

Finally, the Judgment is interesting in that it sets out in a very basic form the facts and legal context for the court’s decision to make a Reference under Article 267.3 TFEU to the CJEU. The latter approach by the court is consistent with the wishes of the CJEU that References only set out the basic factual and legal situation necessary to allow the CJEU and at least the other Member States and EU institutions to decide whether they wish to intervene in the case, while reducing the translation costs of the References themselves (it is only the References that are translated, not the accompanying case materials). It may well serve as a useful template for future references to the CJEU.