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On 7 March 2013 the Supreme Court will begin hearing the case of R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs.

The hearing is an appeal from the Court of Appeal decision in May 2012 [[2012] EWCA Civ 897], dismissing an appeal from the High Court (Mitting J) of December 2011 [[2011] EWHC 3623 (Admin)].

The wording of the permission, granted on 19 December 2012, is as follows:

“Issue

Whether, as regards areas where compliance with nitrogen dioxide limits set out in Directive 2008/50/EC (the Air Quality Directive) cannot be achieved by 1 January 2010, the Air Quality Directive requires the Respondent to prepare an air quality plan which demonstrates compliance by 1 January 2015.”

Facts

The case concerns the proper interpretation and implementation of the Air Quality Directive. The Directive is addressed to protection of human health and the environment.

More specifically as regards this case, it addresses the establishment of air quality plans, in particular as regards this case nitrogen oxide (NO2). Article 23, as applicable to this case, requires the UK to ensure that, where NO2 levels exceed prescribed limit or target values for areas of the country (zones or agglomerations), air quality plans are established in order to achieve the relevant limit or target values by the date(s) prescribed in the Directive. In relation to NO2, (on a decreasing limit from 1999) the deadline for compliance with the prescribed limit is 1 January 2010. The actual obligation to achieve the NO2 limits is set out in Article 13.

The UK has had at least some 10 years to achieve the air quality limits in question by 1 January 2010 and to establish the required plans intended to achieve those prescribed limits by that date (further to Directive 96/62/EC and Directive 99/30/EC; the Air Quality Directive being a consolidating, simplifying and updating directive of inter alia the two former directives).

The Respondent, Defra, has proposed air quality plans (currently with the Commission), but accepts that such plans will not ensure that the prescribed NO2 limits will be achieved throughout the UK by the prescribed deadline of 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 provides a possibility for Member States to postpone the prescribed deadlines, where relevant values cannot be met by the prescribed date, 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. It is suggested by the High Court judgment that the UK is also in breach of Article 23.

ClientEarth contend that the seeming option in Article 22, when read in light of the purpose of 2008/50/EC, 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. The High Court refused to countenance making a 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 CJEU. The Court of Appeal did not address this issue as it considered it was moot, albeit acknowledging that issues as regards effective judicial protection were engaged but that no substantive issue as regards the same arose from a refusal to grant a declaration.

The result of the judgments in the High Court and the Court of Appeal would appear to be that it is open to the UK to choose to breach/not to act to ensure compliance with EU directives such as the Air Quality Directive intended for the protection of human health and the environment and, while the European Commission may, in its discretion, bring infraction proceedings, generally many years after the event, the domestic courts are powerless to require or ensure compliance with EU directives in such cases by the relevant national competent body/ies in a timely fashion.

Issues

Given the seemingly clear language of the “option” in Article 22, it may legitimately be considered that something other and more substantive than a simple but more detailed linguistic exercise comparing more language versions of the Air Quality Directive than that carried out by the High Court and the Court of Appeal (English and French) lies behind the grant of permission to appeal by the Supreme Court.

In that light, the issues potentially engaged in the hearing may include:

  1. Whether the Air Quality Directive, read in the light of its purpose, and the underlying EU law principle of effectiveness of directives (their effet utile), in particular through its Articles 13 and 23, imposes an obligation on the UK/Defra to ensure full implementation of the Directive by the prescribed deadline(s);
  2. Whether, to that end, the Air Quality Directive, read in the light of the duty of sincere cooperation between Member States and the European Union under Article 4 TEU, imposes an obligation on the UK/Defra to adopt all measures available to it to ensure that it will put itself in a position as soon as legally possible to comply in timely fashion with obligations that may arise under the Directive, including by way of acting pursuant to Article 22; alternatively, whether the UK/Defra, is obliged to consider, acting reasonably and in the light of its duty of sincere cooperation, whether to act further to Article 22 (an issue not addressed by the CJEU in Case C-68/11 involving some issues of similarity to the instant case), and if so, whether in the circumstances of the case the (most) appropriate way for the UK/Defra to satisfy that obligation is by adopting air quality plans under Article 22;
  3. Whether, as regards the considerations material under 2 above, Article 23 and the system for the adoption of air quality plans, whether read with Article 13 or otherwise, establish a directly effective right for individuals which is to be protected by the courts (for example, by parity of reasoning with Joined Cases C-165/09 to C-167/09 regarding the (as material) structurally similar directive 2001/81/EC [the NEC Directive] and provisions therein for programmes for the reduction of pollutants, including NO2, so as to comply with national emission limits by a prescribed deadline); and if not, or in any event, whether these material Articles of the Directive otherwise establish provisions for reviewing and checking whether the UK/Defra has exceeded any margin of discretion under the Directive in the drafting and intended implementation of its air quality plans as regards NO2 (by analogy with CJEU case law in and applying Case C-72/95 (the “Dutch Dykes” case));
  4. Whether, if an answer to an issue under 2 and/or 3 above is in the affirmative, it is incumbent, as a matter of EU law including the duty of sincere cooperation between Member States and the European Union, on the UK courts within the scope of their competences to ensure observance and implementation of the applicable provisions of the Directive;
  5. Whether, if the answer to 4 above is in the affirmative, and for that purpose, (i) the obligation to ensure effective judicial protection is engaged and if so whether that requires the UK courts to make orders that and so as to provide that the UK/Defra ensure compliance with the obligations under the Directive (as exemplified by cases such as Case C-432/05; and as recently expounded on by the Advocate-General in Case C-583/11 P); and (ii) if so in principle, whether the view of the courts in this case that because the drafting itself of air quality plans “raise[s] serious political and economic questions which are not for [the] courts” is a barrier to providing effective judicial protection; and if so, whether, under the obligation to ensure effective judicial protection such barrier must be set aside so as to ensure that the UK courts are able to and do provide duly required protection of individuals and compliance with EU law by the UK/Defra; and
  6. Whether the answers to the issues regarding the Air Quality Directive and its implementation for the purposes of the case are acte clair so as to obviate any need to seek the guidance of the CJEU on the same; and if not, what questions are to be sent to the CJEU under Article 267, indent 3 TFEU.