European Court clarifies rules on air quality sampling and citizen rights

The Court of Justice of the European Union (CJEU) has clarified two issues relating to air quality sampling in a case involving a challenge to the air quality plan for the Brussels region.

The CJEU has given its judgment in Craeynest v Brussels Hoofdstedelijk Gewest (C-723/17), a case involving a reference from the Dutch-speaking Court of First Instance in Brussels regarding the interpretation of the Treaty on the Functioning of the European Union and Directive 2008/50/EC on ambient air quality and cleaner air for Europe (Air Quality Directive).

The Belgian court made the reference in the course of proceedings started in 2016 by several Belgian citizens and ClientEarth against the Brussels-Capital Region and the Brussels Institute for Environmental Management, for alleged failures to develop an air quality plan for the Brussels Zone and seeking an order requiring the installation of sampling points at appropriate locations.

The CJEU had to answer two questions. The first question was whether Article 23 of the Air Quality Directive allowed national courts to verify whether sampling points had been correctly located and, if they had not been correctly located, to order national authorities to establish sampling points in locations determined by the court.

The second question was whether the correct method of measuring whether limit values had been exceeded under Article 13 of the Air Quality Directive was to take the average measurement of all sampling points in the area or to consider measurements at individual sampling points.

In answering the first question, the CJEU ruled that the obligations in Article 23 were clear, precise and unconditional, which meant that they could be invoked by individuals against the State. While accepting that the competent national authorities had discretion to determine the actual location of sampling points, the CJEU considered that that discretion was in no way exempt from judicial review.

In cases involving claims by individuals that air quality standards had been breached, national courts therefore had the power to verify whether sampling points had been established in accordance with the criteria laid down in the Air Quality Directive. Furthermore, where a national court established that sampling points were not in accordance with those criteria, it had the power to take necessary measures to ensure that national authorities rectified the situation to ensure sampling points were properly sited (including making an order).

As regards the second question, the CJEU noted that achieving the objective of Article 13 of the Air Quality Directive of protecting human health required determining the actual air pollution to which the population was exposed. The fact that a limit value had been exceeded at a single sampling point was therefore sufficient to trigger the obligation to draw up an air quality plan under Article 23. The average of the values measured across all the sampling points in an area would not provide a valid indication of the population’s exposure to pollutants.

In the UK responsibility for meeting the limit values laid down in the Air Quality Directive is devolved to the administrations in Scotland, Wales and Northern Ireland. The Secretary of State for Environment, Food and Rural Affairs has responsibility for meeting the limit values in England and DEFRA co-ordinates assessments and air quality plans for the UK as a whole.

Under the Environment Act 1995 local authorities are required to review the air quality in their areas and any areas which fail to meet the limit values must be designated as an ‘air quality management area’ and the local authority must put in place an action plan to improve the air quality. The UK government’s failure to comply with the Air Quality Directive has already been the subject of extensive litigation (culminating in R (ClientEarth) v Secretary of State for Environment, Food and Rural Affairs and Others [2018] 315 (Admin)) and this latest ruling by the CJEU is helpful in reconfirming that individuals have the right to take legal action if limit values are breached in their area. Even after Brexit, the judgment will be ‘retained EU case law’ under section 6 of the European Union (Withdrawal) Act 2018 and, as such, will have to be taken into account by the UK’s domestic courts.

A version of this article appeared in the ENDS Report.