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R on the Application of Client Earth v Secretary of State for the Environment, Food and Rural Affairs (EU Case C‑404/13)

European environmental legislation which aims to achieve goals for improvements to the environment by a stated deadline often contains extensions for compliance.  Such extensions exist in, for instance, the Water Framework Directive and have recently been examined by the Supreme Court and the Court of Justice of the European Union (CJEU) in a ruling on the Ambient Air Quality Directive (EC 2008/50).

Ambient Air Quality Directive (EC 2008/50).

The Ambient Air Quality Directive lays down  objectives designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole (Article 1). In order to do so it imposes obligations on member states to keep to limits for air quality for substances such as sulphur dioxide, lead, carbon monoxide, benzene and nitrogen dioxide.

The UK – as with other member states – needed to reduce levels of nitrogen dioxide to the specified limits by 2010. However, Article 22 of the Directive, allows that, where in a “zone or agglomeration”, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadline, a Member State can postpone compliance with the limit by a “maximum of five years. . .on condition that an air quality plan is established in accordance with Article 23. . .”

Article 23, in turn, specifies that, “where in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value”

Article 23 continues, “In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible”

The idea is that these plans are passed to the European Commission for approval.

UK implementation of the Directive

The UK has been divided into 43 “zones” and “agglomerations”. In 40 of these zones one or more of the limit values was exceeded in 2010. 

In September 2011, the UK submitted final plans to the European Commission, seeking approval for extensions for compliance for 24 of the 40 failing zones and agglomerations – showing how the UK would comply by 2015. In 2012, the Commission approved nine of the applications for time extensions, approved three subject to conditions and objected to 12 others. 

However, for 16 zones and agglomerations where the UK had admitted that compliance would not be until sometime between 2015 and 2025, the UK did not apply for extensions. The reasoning behind this was that although the inability to meet the targets for compliance required that a plan be submitted to the Commission, the UK did not need to apply for an extension as there was discretion to do so under Article 23. 

R on the Application of Client Earth v Secretary of State for the Environment, Food and Rural Affairs ((EU Case C‑404/13)

The case in question arose because the NGO Client Earth had brought judicial review proceedings seeking an order for the Secretary of State for Environment, Food and Rural Affairs to revise the plans to ensure that they demonstrated how they would seek to meet the limits by 2015 at the latest – as required by Article 22. 

The Secretary of State argued before the courts that if a member state has not complied with its obligations under the Directive, it is not required to apply for an extension under Article 22; it is sufficient, so the argument goes, for the purposes of Article 23 that air quality plans are drawn up where there is an exceedance, “so that the exceedance period can be kept as short as possible.” 

Both the Administrative Court and the Court of Appeal dismissed the arguments brought by Client Earth - but they were granted permission to appeal to the Supreme Court which then made a reference to the CJEU for a “preliminary ruling”

The Supreme Court asked the CJEU to clarify whether, when a limit is not reached by 2010, a member state is obliged to ask for an extension; if so, in what circumstances may a member state be relieved of that obligation? Also, if the limits cannot be achieved by 2010, is it sufficient for a member state to produce an air quality plan under Article 23 without applying for an extension? Lastly, what are the powers of national courts to provide remedies if there has been a breach of the directive? 

The Court of Justice of the European Union’s ruling

On the first and second questions, the CJEU answered that Article 22 obliged member states to apply for postponement and that there were no exceptions.  

“Member States must take all the measures necessary to secure compliance with that requirement and cannot consider that the power to postpone the deadline, which they are afforded by Article 22(1) of Directive 2008/50, allows them to defer, as they wish, implementation of those measures” (para 31).

The CJEU also went further in narrowing the circumstances for extensions under Article 22. They must be applied only where, not with standing the implementation of appropriate pollution abatement measures, ‘acute compliance problems’ exist in specific zones and agglomerations.

As for Article 23, simply submitting a plan under this provision without applying for an extension where the limit is breached does not fulfil the obligations set by the Directive and it would “impair the effectiveness” of the Directive (para 44). 

On the final question of remedy, the member state must ensure “judicial protection of an individual’s rights under EU law.”

The Directive imposes “a clear obligation on member states to establish an air quality plan that complies with certain requirements” if a time limit is exceeded where there has been no application for an extension. It follows that 

“. . .it is for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the directive in accordance with the conditions laid down by the latter” (para 58). 


The judgement effectively means that national courts should be looking at the detail of decision making in the implementation of the Directive – perhaps assessing compliance or ordering that plans be undertaken where none have been carried out. This could lead to increased expense for the UK where it will not be able to avoid compliance.  

There is an added possibility that the principles set out by the CJEU ruling may be applied to other directives. For instance, the Water Framework Directive requires that River Basin Management Plans include “programmes of measures” for the achievement of good ecological status where an extension is relied upon. Should the national courts be required to examine the detail of such plans to assess whether they comply? 

Justin Neal, Irwin Mitchell

Reproduced with kind permission from Environmental Law Monthly where this article first appeared

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