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.


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.


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.


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.


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) ( 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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions