On appeal from: [2013] UKSC 25


This case concerns the Government’s obligations under Directive 2008/50/EC (“the Air Quality Directive”) to reduce the levels of nitrogen dioxide in outdoor air in the UK. The Air Quality Directive sets limits to the level of various pollutants and sets corresponding margins of tolerance and time limits for compliance. The deadline for compliance with the limits on nitrogen dioxide levels was 1 January 2010. Although art 13 of the Directive imposes an absolute obligation on Member States to ensure the limits and margins of tolerance are not exceeded after the deadline, art 22 states that where in a given zone or agglomeration, “conformity with the limit values for nitrogen dioxide… cannot be achieved… a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on the condition that an air quality plan is established”. Art 23 provides that the Member States must submit an air quality plan for approval by the Commission, when the levels are exceeded in a particular zone, indicating how the limits will be met.

In 2010, the limits set by the Air Quality Directive had been exceeded in 40 of the 43 zones and agglomerations in the UK. The Secretary of State for the European Commission submitted air quality plans under art 22 relating to 24 zones, including applications for extensions of the deadline for compliance until 1 January 2015. However, the Secretary of State indicated that 16 zones and agglomerations in the UK, including Greater London, could not be realistically met by 1 January 2015, and some could not even be expected to be achieved by 2025.

ClientEarth brought a claim for judicial review of the nitrogen dioxide plans submitted by the Secretary of State, to which they accepted there was a breach of the Air Quality Directive, art 13. However the Secretary of State argued that art 22 of the directive was not mandatory and the claim was dismissed by the High Court and Court of Appeal.

Previous Supreme Court Decision

The Supreme Court allowed the appeal and full details of the judgment were commented on this Blog here. It granted the declaration that there had been a breach of the Air Quality Directive, art 13, and stayed the proceedings whilst other issues were referred to the CJEU. It proposed the following questions:

  • 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, is a Member State obliged pursuant to the Directive and/or the TEU, art 4, to seek postponement of the deadline in accordance with art 22 of the Directive?
  • If so, in what circumstances (if any) may a Member State be relieved of that obligation?
  • 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 art 13, and has not made an application under article 22, affected by art 23 (in particular its second paragraph)?
  • In the event of non-compliance with article 13, and in the absence of an application under art 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?

Court of Justice for the European Union Decision

The CJEU clarified Member States obligations in regards to respecting the limit values for nitrogen dioxide and stated that when a member State finds that the limit values cannot be respected before the deadline fixed by the Air Quality Directive and wishes to postpone that deadline for a maximum of five years, that Member State is required to make an application for the postponement by drawing up an air quality plan demonstrating how those limits will be met before the new deadline. It stated that the option to postpone is only possible where that Member State has made an application for postponement as soon as it is objectively apparent that conformity with the limits cannot be achieved in a given zone of agglomeration by the specified deadline; the directive does not contain any exception to that obligation.

The Court further clarified that where a member state has not compiled with the limit values and has not applied for a postponement in accordance with the prescribed conditions, it for the national court with regard to the national authority, to take any necessary measure so that the authority establishes the plan required by the directive to ensure that the period during which the limit values are exceeded is as short as possible.

Current appeal to the Supreme Court

The matter has now returned to the Supreme Court as the appellant and the respondent take different views as to the interpretation of the CJEU judgment. The Court must now decide firstly whether the Air Quality Directive requires the respondent to have prepared an air quality plan which demonstrates compliance by 1 January 2015, and secondly what remedies the Court should provide where this has not been achieved.

According to a press release by ClimateEarth, the appellants are calling on the Court to order the government to produce a new plan which will deliver urgent cuts to the illegal levels of air pollution in towns and cities. They call on the new plan to specifically target diesel vehicles which they believe is the main source of nitrogen dioxide pollution.