European Union: "Final Warning" On Air Pollution From The European Commission

On 15 February 2017, the European Commission (the Commission) sent final warnings (a Reasoned Opinion) to France, Germany, Italy, Spain and the United Kingdom for failing to comply with the air pollution limits for nitrogen dioxide (NO2). Under EU law, Directive 2008/50/EC on air quality and cleaner air for Europe (the Directive) sets air quality limits that cannot be exceeded anywhere in the EU and obliges Member States to limit the exposure of citizens to harmful air pollutants.

The Commission stated in its report, "... while it is up to the Member State authorities to choose the appropriate measures to address exceeding NO2 limits, much more effort is necessary at local, regional and national levels to meet the obligations of EU rules and safeguard public health". The Commission has therefore urged the five Member States to take action to ensure good air quality and safeguard public health. These "final warnings" may have serious consequences. If the said Member States fail to comply with the Directive within two months, the Commission may decide to take the matter to the Court of Justice of the EU (the CJEU).

While the Commission's Reasoned Opinion is focused on levels of NO2, it is widely acknowledged that air quality standards (which generally concern NO2 and particulate matter – especially PM10 – levels) in many parts of Europe are poor. As air quality gains increasing media attention and demands for improvement, we have briefly summarised the position on air quality standards (whether NO2, particulate matter or more generally) in each of the countries that are the subject of the most recent Reasoned Opinion.

France

This is not the first time France has been targeted by Commission warnings in respect of air quality. Back in May 2011, the Commission had taken France before the CJEU for its previous failure to comply with the Directive, because of excessive PM10 levels in no less than 16 major urban areas (including Paris, Marseille, Lyon, Strasbourg, Lille and the Nord Pas-de-Calais region). The Commission's current Reasoned Opinion regarding NO2 levels – which now identifies 19 zones – essentially derives from the most recent and repeated pollution peaks in December 2016 (which has been the longest lasting and most severe air pollution in France in a decade).

Existing measures in France to address air pollution include a Ministerial Order of 7 April 2016, which relates to the triggering of pollution abatement measures in the event of ambient air pollution. In addition, there is the much-publicized amendment in June 2016 to the Road Code (art. R. 318-2), which allows the categorization of vehicles on the basis of Euro emissions-standard performance (Crit'Air labels) and sets the stage for differentiated traffic reduction measures in the future. However, car-pooling and dedicated lanes remain virtually unknown in France. In addition, there is no congestion charge in place in the city centres and parking costs in cities like Paris are modest compared to most European capital cities. Governmental authorities have been reluctant to resort to these measures and those that are implemented, remain poorly accepted.

Germany

In Germany, as many as 28 critical air quality zones, including all major cities such as Berlin, Hamburg, Munich and Cologne, were identified by the Commission as persistently breaching NO2 limit values.

The environmental NGO, Deutsche Umwelthilfe e.V., has filed several lawsuits against municipalities and federal state Governments in Germany on the grounds that these bodies are failing to take adequate measures to ensure compliance with air quality measures (in particular with the NO2 limit values). While the determination of specific air pollution control measures is generally considered to be within the discretionary powers of the municipalities or legislators, in September 2016 the administrative court of Düsseldorf – in one of the lawsuits brought by Deutsche Umwelthilfe e.V. – found that driving bans for diesel vehicles were to be issued promptly in order to reduce the NO2 levels at the critical locations. The court emphasized the need for immediate action and held that such bans are enforceable on the basis of existing legal provisions, i.e. the Federal Emissions Control Act (Bundes-Immissionsschutzgesetz). Due to the significance of the matter, a leapfrog appeal to the Federal Administrative Court was allowed and is currently pending.

As road traffic is identified as the main source of pollutant emissions, in particular with respect to the relative contribution to NO2 values at ground-level, mitigation efforts focus on respective restrictions and/or regulations. Alongside driving bans for certain vehicles, the Federal Government and the relevant stakeholders are considering promotion of hybrid and electric mobility, promotion of car sharing, modernization of entire vehicle fleets for public transportation, incentivizing energy and electricity tax provisions, and expansion of environmental zones into which only vehicles meeting certain environmental standards may enter. Further, in an attempt to mitigate primarily particulate matter (PM10), but also NO2 levels, the Government of Baden-Wurttemberg has very recently announced a driving ban for diesel vehicles in Stuttgart which would start in 2018 and would exempt only those diesel vehicles meeting the strict Euro 6 standard.

Italy

Air quality in Italy continues to be a cause for concern, with critical air quality zones established in 12 areas (including Rome, Milan, Turin and Naples). In November-December of 2015, with particulate matter levels well above the EU daily limit values (50 μg/m3), Milan, Rome and Naples closed their cities to traffic. Road traffic is also considered to be the main source of high NO2 values.

Therefore, alongside driving bans for certain vehicles, major cities are adopting several actions to reduce certain emissions, such as limiting the number of private cars in the city, promoting clean vehicles (e.g. hybrid and electric mobility) and modernizing the vehicles for public transportation (e.g. new hybrid buses). In this regard, Milan has given incentives for owners of hybrid vehicles, such as offering them transportation passes in traffic-calming zones and free parking passes.

Notwithstanding these actions, the Italian Government gave priority to the need to tackle air pollution and commenced joint coordination of the effort between the Regions and the Municipalities and approved medium-and long-term plans, rather than a series of fragmented actions.

However, this has not prevented three Italian Environmental NGOs (supported by the environmental lawyers at ClientEarth) launching a legal action against the Lombardy Region on 22 February 2017 in order to push the administration to adopt further measures to reduce the air pollution. This case could be the first of several in Italy.

Spain

The Spanish Law 34/2007 on air quality and the protection of the environment, provides obligations on municipalities with more than 100,000 inhabitants to inform the competent authority of air pollution levels and air quality as well as to prepare plans and programmes in order to meet clean air objectives. Air pollution limits (including both NO2 and PM10), are exceeded in the two main cities of the country: Madrid and Barcelona.

As such, last November, Madrid activated a pollution protocol that reduced speed limits and banned parking in downtown areas for three days. In late December, it introduced alternate-day travel based on license plate numbers. Madrid City Hall considers that the most efficient way of ending the problem of pollution is to approve medium and long term plans to improve public transport, to promote clean vehicles, to limit the number of private cars in the city, and to reduce the timetables for deliveries to stores, business and other establishments.

Barcelona is preparing incentives for owners of polluting vehicles, such as offering them free public transportation passes for three years if they get rid of a polluting car and refrain from purchasing any new car.

In spite of these measures, it is generally felt that a lot more still needs to be done at a local, regional and national level to combat this growing problem.

United Kingdom (UK)

Air pollution limits continue to be exceeded in 16 of the UK's 32 air quality zones (including in London, Birmingham, Leeds and Glasgow). The UK has also been the subject of previous infringement proceedings by the Commission, for failing to reduce NO2 Levels. Such inaction led, in February 2014, ClientEarth to specifically target the UK Government through a judicial review of the Government's air quality plan. There have been a number of hearings (including at the Supreme Court) (http://www.latham.london/2016/11/court-judgment-demands-more-from-the-uk-government-to-tackle-air-pollution/) regarding this matter and the result went against the Government.

As such, the Government has said that it will be consulting on an air quality plan for NO2 in April 2017 with a final plan to be in place by the end of July 2017 (and an action plan for all pollutants would follow and be implemented by March 2019). We expect to see action targeted at the use of older diesel cars (perhaps reflected in the recent actions of the London Mayor, who has implemented an additional toxicity charge on diesel and petrol vehicles that do not meet the Euro 4 minimum emission standards).

EU infringement proceedings: Next steps

Any violation of European law by a Member State can be challenged by the Commission, who acts as the guardian of the EU Treaties and secondary legislation. On the basis of Article 258 of the Treaty on the Functioning of the European Union (TFUE), the Commission identifies possible infringements on its own initiative or following complaints from citizens, businesses or stakeholders.

At first, the Commission warns the Member State through a letter of formal notice. This exchange of views is normally confidential and, in most cases, is sufficient for Member States to bring their legislation into conformity with EU law requirements.

However, where the Member State fails to take appropriate action to remedy its violation, the Commission may issue a Reasoned Opinion, allowing the Member State two months to comply.

Failure by the Member State to ensure compliance with EU law following a Reasoned Opinion may lead the Commission to decide to refer the Member State to the CJEU. A further failure to comply with the CJEU judgment may lead to the imposition of lump sums and penalty payments.

In this case, air pollution is said to be responsible for the premature death of 400,000 people every year in the EU. In its first European Implementation Review package adopted on 3rd February 2017, the Commission expressed its concern about the overall pace of progress in achieving the limit values set by EU legislation in Member States. The matter will therefore remain at the top of the agenda not only of the Commission but also of the NGO's (in particular, ClientEarth) that are active at Member States' level.

This post was prepared with the assistance of Bianca De Vivo in the Milan office of Latham & Watkins and David Desforges of Desforges Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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