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ECJ Rules that Poland Failed to Fulfil Obligations under Ambient Air Directive

Published online by Cambridge University Press:  26 June 2018

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Case Commentaries
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European Journal of Risk Regulation , Volume 9 , Issue 2 , June 2018, pp. 372 - 379
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© Cambridge University Press 

Case C-336/16, European Commission v Republic of Poland [2018] ECLI:EU:C:2018:94

The European Commission (Commission) brought an action alleging that the Republic of Poland (Poland) had persistently exceeded PM 10 limits under the Ambient Air Directive Footnote 1 and did not adopt “appropriate measures” in their air quality programmes to ensure compliance within the shortest time possible. The European Court of Justice (ECJ) agreed, concluding that Poland had failed to fulfil its obligations under the Directive. The Court rejected Poland’s timeline for compliance as inadequate and dismissed arguments concerning the socio-economic and financial challenges that the Member State faced.

Article 13(1), in conjunction with Annex XI, the second subparagraph of Article 23(1), and Article 22(3) of, in conjunction with Annex XI to, Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p 1).

I Introduction

Air pollution is an invisible killer.Footnote 2 Each year over 400,000 European Union (EU) citizens die prematurely as a result of poor air quality,Footnote 3 more than 15 times the number of fatalities from road traffic accidents.Footnote 4 Millions more suffer from related respiratory and cardiovascular diseases.Footnote 5 Particulate matter especially affects more people than any other pollutant.Footnote 6 Consisting of a mixture of both organic and inorganic particles suspended in the air, the most health-damaging are those with a diameter of 10 microns or less (PM10), which can penetrate and lodge deep inside the lungs.Footnote 7

In 2015, the World Health Assembly (WHA) identified air pollution as the single largest environmental threat faced by the world todayFootnote 8 and adopted a resolutionFootnote 9 aimed at addressing its “adverse health effects”.Footnote 10 Some estimates conclude that up to 80% of PM10 infringements are preventable using available technology.Footnote 11 The slow progress on improving ambient air quality is not due to a lack of scientific evidence; it is due to a lack of political will. With the total number of deaths now standing at a higher level than in 2000,Footnote 12 there is an urgent need to act. This is particularly the case in Poland, which is home to 33 of Europe’s 50 most polluted cities.Footnote 13

Since its accession to the EU, Poland has experienced impressive economic growth but remains one of the most resource and carbon-intensive economies in the Organisation for Economic Co-operation and Development (OCED) due to its strong industrial base and reliance on coal.Footnote 14 The burning of coal, alongside heavy traffic and the widespread use of outdated heating systems, is largely responsible for the country’s alarming air pollution rates.

Given the persistent and avoidable health costs that air pollution presents,Footnote 15 it is unsurprising that Karmenu Vella, the European Commissioner for Environment, has urged Member States such as Poland to “up their game”, warning that failure to combat air pollution “is not an option”.Footnote 16

II Facts

The EU Ambient Air Directive (the Directive) was adopted on 21 May 2008 and came into force on 11 June 2008.Footnote 17 Article 13 set out a substantive and unconditional obligation to meet limit values.Footnote 18 Although Member States had until 11 June 2010 to transpose the provisions,Footnote 19 the Directive was a codifying measure,Footnote 20 leaving PM10 limits and compliance deadlines unchanged from previous legislation. Therefore, Member States had been under an obligation to comply with PM10 limits since 1 January 2005.Footnote 21

However, acknowledging that immediate transposition by some Member States could pose problems,Footnote 22 Article 22 granted the option to postpone compliance until 11 June 2011 provided that, during the extension period, the Member State kept PM10 limits within the maximum margin of tolerance.Footnote 23 If a Member State exceeded the margin, air quality plans had to be established, setting out a roadmap to compliance.Footnote 24 These were an attempt to encourage Member States to take prompt action rather than to wait until the extended deadline of 11 June 2011.

Despite the expiry of all Article 22 extensions, PM10 limits are still not being met in 23 out of 28 Member States.Footnote 25 When limits are exceeded, Member States come under an Article 23 obligation to submit air quality plans, setting out “appropriate measures” to ensure that the time taken to comply with the limits is kept “as short as possible”.Footnote 26 Member States must include an “analysis of the situation” within their air quality plans, setting out “details of those factors responsible for the exceedance” and “details of possible measures for the improvement of air quality”.Footnote 27

On 12 November 2008, Poland applied to the Commission for an Article 22 extension to the deadline for PM10 compliance.Footnote 28 In response, in February 2009, the Commission initiated round one proceedings against Poland for its failure to fulfil obligations under the Directive. Following further communications, in February 2015, the Commission issued its final reasoned opinion and referred Poland to the ECJ on 5 June 2016.Footnote 29

The Commission’s grounds for complaint were that Poland had:

  1. (i) persistently exceeded PM10 limits;

  2. (ii) failed to adopt “appropriate measures” within air quality plans to ensure the exceedance period was kept as “short as possible”;

  3. (iii) exceeded the PM10 limits as increased by the margin of tolerance; and

  4. (iv) incorrectly transposed the second subparagraph of Article 23(1) of the Directive.

III Judgment

Dispensing with the need for Advocate General Sharpston’s written opinion, the Third Chamber of the Court held on 22 February 2018 that Poland’s infringement of PM10 limits was in itself sufficient to establish a failure to fulfil obligations under Article 13.Footnote 30 Further, the failure was “persistent” given that, between 2005 and 2007, Poland regularly exceeded the daily PM10 limits in 35 zones and the annual limit in 9 zones.Footnote 31

Secondly, the Court held that air quality plans are to be adopted on the basis of a balancing exercise to be conducted between air pollution risks on the one hand, and the protection of conflicting public and private interests on the other.Footnote 32 Whilst Poland enjoys a degree of discretion in deciding which measures to adopt, it must ensure that the period of exceedance is kept “as short as possible”.Footnote 33 Given that Poland was under a legal obligation to establish air quality plans as of 11 June 2010,Footnote 34 the Court was unconvinced by Poland’s plans to set the date of compliance at between 2020 and 2024: 10–14 years after it had first infringed PM10 limits.Footnote 35

The Court was equally unconvinced by Poland’s contention that the length of time needed for compliance was due to the socio-economic challenges involved in undertaking a major structural shift towards a greener economy. The Court held:

“While such factors may be taken into account in the context of the balancing exercise … it has not been established that the difficulties … which are not exceptional, are such as to rule out the possibility of having set shorter periods”.Footnote 36

Therefore, in the absence of further evidence, Poland’s arguments were insufficient in establishing the need for such a long period of compliance, failing to satisfy the Court that the air quality plans were designed to keep the period of exceedance “as short as possible”.Footnote 37

The third aspect of the Court’s judgment focused on the period between January 2010 and June 2011, during which time Poland had been granted an extension under Article 22. Given that Poland had continued to exceed the daily PM10 limit (even when increased by the margin of tolerance) in four zones, the same reasoning applied as under Article 13.Footnote 38

Finally, with reference to the Commission’s fourth allegation, given that none of the air quality plans adopted by Poland expressly referred to the need to keep the exceedance period “as short as possible” (and taking into account that the first three complaints had been upheld) the Court concluded that Poland’s transposition of the Directive could not ensure its full and effective application.Footnote 39

IV Comment

Undoubtedly, the Court’s judgment in this case is to be welcomed and is a further sign of the Commission’s renewed determination that Member States will face legal consequences for their “longstanding failure to take serious action”.Footnote 40

It is also an example of the Commission’s new approach to infringement proceedings, trialled in Commission v Bulgaria.Footnote 41 Previously, the Commission simply sought a declaration that a Member State had failed to comply with PM10 limits.Footnote 42 By adding the second ground of infringement,Footnote 43 proceedings are now aimed at encouraging Member States to take positive steps in improving air quality.

Crucially, if such action is not taken, the Commission may bring round two proceedings.Footnote 44 Client EarthFootnote 45 estimates that such proceedings in Poland’s case could lead to a lump sum fine of more than €50,000,000 and / or daily penalties of €300,000.Footnote 46

Noting that Articles 13 and 23 are “interconnected”,Footnote 47 Advocate General Kokott suggested in Commission v Bulgaria that “faithful implementation” of an air quality plan may preclude the Court from imposing a fine for PM10 limit infringement.Footnote 48 Such a view illustrates how the Directive has been “recast” to take into account the difficulties of implementation.Footnote 49 It also arguably explains why both Bulgaria and Poland are said to have infringed both Articles rather than simply Article 13.

A key (albeit limited) aspect of the Court’s reasoning in Commission v Poland focuses on the balancing exercise to be conducted under Article 23.Footnote 50 Fortunately, Advocate General Kokott’s Opinion in Commission v Bulgaria provides a little more detail. Given that the Directive is aimed at encouraging an “integrated reduction of pollution”, it is for Member States to exercise their own discretion in balancing measures, aimed at minimising PM10 limit infringement, against opposing interests, taking account of all material circumstances.Footnote 51 However, such a margin of discretion is heavily limited given that the “high importance of ambient air quality for the protection of life and health leaves only very little room for consideration of other interests”.Footnote 52 As a result, the Court will adopt “a strict review of the assessment made” by Member States under Article 23.Footnote 53 For Bulgaria, the fact that information of “central importance”Footnote 54 was “largely absent” from the air quality plan meant that it fell short under such a “strict review”.Footnote 55

Advocate General Kokott does though leave the door open for Member States, concluding that “there are undeniably overriding interests which may preclude certain appropriate measures”.Footnote 56 Quite what the outer reaches of such “overriding interests” are remains to be seen. The Advocate General did, though, use the example of a heating ban to suggest that although some measures may seem appropriate prima facie, if they de facto lead to even greater effects on human health, then they would not be expected to feature in an air quality plan.Footnote 57

As to the precise definition of “as short as possible”, the Court reaffirmed in Commission v Poland that air quality plans are to be judged on a case-by-case basis, declining to give further guidance.Footnote 58 Advocate General Kokott provides a similarly mixed message. On the one hand, inferences are not to be drawn simply from the length of time that a Member State has infringed the PM10 limits.Footnote 59 On the other, protracted infringement (given that air pollution has a serious effect on population health) can be said to strongly indicate that a Member State’s actions under Article 23 are insufficient.Footnote 60 Essentially, the length of infringement goes towards the Court’s judgment as to the effectiveness or otherwise of an air quality plan. This provides further evidence of an interplay between Articles 13 and 23.

Following Commission v Poland, Member States seeking to rely on “overriding interests” of an economic nature are likely to find little favour with the Court. Given that the EU’s Clean Air PackageFootnote 61 is estimated to yield an extraordinarily high benefit to cost ratio (BCR) of 42:1,Footnote 62 Member States need to be supported in understanding that the economic costs of action are far less than those of inaction.Footnote 63 This is especially so given that the 2018 annual Global Risks Report of the World Economic Forum identified that five of the ten largest risks to the global economy are likely to be environmental.Footnote 64 Such warnings are unsurprising given that the cost of air pollution is estimated to reach $25 trillion a year by 2060, with significant repercussions for economic growth.Footnote 65

Moreover, it is to be hoped that the Advocate General’s focus in Commission v Bulgaria on the “high importance of public health” is to be followed in future judgments. Air pollution must be taken seriously as a public health emergency, the improvement of which is a fundamental step in the realisation of an individual’s right to the highest attainable standard of health.Footnote 66 This is particularly so given that exposure to air pollution is largely beyond the control of individuals and requires action by Member States to reduce not only the overall population risk but the significant health inequalities arising from the disproportionate disease burden.Footnote 67

For its part, the Commission appears resolute in its determination to bring to an end 13 years of non-compliance and enforce the legal obligations of Member States. Nine Member States currently face infringement proceedingsFootnote 68 and the Court has indicated in Commission v Poland that further delays within air quality plans must be strongly justified.

Poland does, however, seem to be taking action. From September 2019, the use of coal and solid fossil fuels for domestic heating will be illegal in Krakow.Footnote 69 The switch to “greener” fuels is aided by generous subsidies, with up to €1,800 available per household for coal boiler replacementsFootnote 70 and €43 million allocated by the government for improvements in insulation.Footnote 71 Poland appears to be taking inspiration from the Czech Republic, which has implemented a successful regulatory switch towards cleaner fuel in similar socio-economic circumstances.Footnote 72

Ultimately, the need for immediate action by Member States is undeniable and whilst the Directive is currently one of the strictest legislative measures in the world concerning PM10 pollution, limits are still set substantially higher than those issued by WHO.Footnote 73 Given that there is no evidence of a “safe” level of PM10 pollutionFootnote 74 and that poor air quality accounts for up to a third of deaths from non-communicable diseases,Footnote 75 a multi-sectoral and co-ordinated approach is needed to integrate PM10 reduction into existing global public health programmes, such as the NCD Global Policy Dialogue.Footnote 76 In turn, Member States will be better placed to meet not only the EU’s vision of living well within the limits of the planet by 2050Footnote 77 but also to work towards the achievement of the Sustainable Development Goals.Footnote 78

Footnotes

*

PhD Candidate, University of Liverpool, kirsten.ward@liverpool.ac.uk.

1 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p 1). The Commission is currently undertaking a fitness check of the Directive. For further details, see <ec.europa.eu/info/law/better-regulation/initiatives/ares-2017-3763998_en> accessed 5 April 2018.

2 OECD, The Cost of Air Pollution: Health Impacts of Road Transport (OECD Publishing 2014).

3 WHO, Ambient air pollution: A global assessment of exposure and burden of disease (WHO 2016) p 40 .

4 Vella, K, “Speech, Clean Air Forum” (Clean Air Forum, Paris 16 November 2017) <ec.europa.eu/commission/commissioners/2014-2019/vella/announcements/clean-air-forum-paris-16th-november-2017_en> accessed 5 April 2018.

5 WHO European Centre for Environment and Health, Bonn, WHO Regional Office for Europe, “Review of evidence on health aspects of air pollution — REVIHAAP Project: Technical Report” (WHO 2013) p 35.

6 WHO, “Ambient (outdoor) air quality and health: Key facts” (WHO 5 February 2018) <www.who.int/en/news-room/fact-sheets/detail/ambient-(outdoor)-air-quality-and-health> accessed 5 April 2018.

7 supra, note 1, Art 2(18) for definition of PM10.

8 WHO, “Global Health Observatory” (WHO 2012) <www.who.int/gho/phe/en/> accessed 5 April 2018.

9 WHO, “Health and the Environment: Addressing the health impact of air pollution” A68/A/CONF./2 Rev.1 26.

10 ibid OP1.4.

11 WHO Regional Office for Europe, “Health risks of particulate matter from long-range transboundary air pollution” (WHO 2006).

12 R Roy and NA Braathen, “The Rising Cost of Ambient Air Pollution thus far in the 21st Century: Results from the BRIICS and the OECD Countries” (OECD Environment Working Papers, No 124, OECD Publishing 2017).

13 supra, note 3.

14 OECD (2015), OECD Environmental Performance Reviews: Poland 2015, OECD Environmental Performance Reviews (OECD Publishing, Paris).

15 The International Agency for Research on Cancer has classified air pollution in general, as well as PM as a separate component of air pollution mixtures, as carcinogenic. See Straif, K, Cohen, A and Samet, J (eds), Air Pollution and Cancer (IARC Scientific Publications 161 2013).

16 Vella, K, “Press Statement: Environment Council” (Environment Council, Brussels, 5 March 2018).

17 The Directive was adopted on the basis of Art 175 of the Treaty establishing the European Community (now Art 192 TFEU). See Directive preamble at para. 1: the Directive was guided by “the need to reduce pollution to levels which minimise harmful effects on human health, paying particular attention to sensitive populations, and the environment as a whole”.

18 Annex XI of the Directive sets out an annual mean for PM10 of 40 μg/m3 and a daily limit value of 50 μg/m3, which may be exceeded not more than 35 days per year.

19 Art 33(1) of the Directive.

20 See Directive preamble at para 3.

21 For discussion, see C-488/15, Commission v Bulgaria [2017] ECLI: EU:C:2017:267 paras. 52–54.

22 See Art 22(2) – problems are restricted to those arising “because of site-specific dispersion characteristics, adverse climatic conditions or transboundary contributions”.

23 See Art 22(3) of the Directive. Further, supra, note 18: the PM10 margin of tolerance was set at 50% to cap the health risks posed by the time extension.

24 See Art 22(4) of the Directive.

25 European Environment Agency, Air Quality in Europe – 2017 Report (EEA 2017).

26 See the second subparagraph of Art 23(1) of the Directive.

27 See Annex XV Section A of the Directive.

28 For further background to the case, see paras. 19–35 of the judgment.

29 The Commission brought an action for failure to fulfil obligations under Art 258 TFEU. The Commissions’ enforcement power derives from Art 17 TFEU.

30 supra, note 21, paras. 68–69 and case law cited for the basis of the Court’s reasoning.

31 Paras. 63–64 of the judgment. Note para. 65: a possible partial downward trend in PM10 data does not invalidate a finding of infringement if the data indicates that Poland remains in violation of PM10 limits.

32 supra, note 21, paras. 106–107. The fact that a Member State has exceeded PM10 limits is insufficient on its own to justify a finding of failure to fulfil Art 23 obligations.

33 supra, note 21, para. 109 and case law cited for the basis of the Court’s reasoning.

34 supra, note 20.

35 Para. 99 of the judgment.

36 Para. 101 of the judgment.

37 Para. 102 of the judgment. Note para. 103: additional measures cannot satisfy Art 23 obligations if they do not result in compliance with PM10 limits.

38 Para. 115 of the judgment.

39 Paras. 121–123 of the judgment.

40 K Vella, “Statement by Commissioner Karmenu Vella following Air Quality Ministerial meeting” (European Commission Press Release 30 January 2018).

41 supra, note 21.

42 For further discussion and relevant case law, see Andrews, A, The Clean Air Handbook: A practical guide to EU air quality law (2nd edn, ClientEarth 2015) pp 40–41 .

43 Failure to adopt “appropriate measures” under Art 23.

44 See Art 260 TFEU.

45 supra, note 42, pp 38–39 for discussion of relevant case law relating to infringement fines.

46 See ClientEarth, “Poland breaks EU air pollution laws with illegal levels of PM10” (ClientEarth, 22 February 2018) <www.clientearth.org/poland-breaks-eu-air-pollution-laws-illegal-levels-pm10/> accessed 5 April 2018.

47 See Opinion of AG Kokott: Case C-488/15, Commission v Bulgaria [2017] ECLI:EU:C:2016:862, para. 75.

48 ibid para. 76 and case law cited as basis for reasoning.

49 supra, note 47, para. 72.

50 supra, note 36.

51 supra, note 47, para. 95.

52 supra, note 47, para. 96.

53 ibid.

54 In accordance with Annex XV of the Directive.

55 supra, note 47, paras. 113–114.

56 supra, note 47, para. 96.

57 supra, note 47, para. 97.

58 Paras. 94–96 of the judgment.

59 supra, note 47, para. 98.

60 supra, note 47, para. 102.

61 See European Commission, “Clean Air Programme” (2013) for further details <ec.europa.eu/environment/air/clean_air/index.htm> accessed 5 April 2018.

62 WHO Regional Office for Europe and OECD “Economic cost of the health impact of air pollution in Europe: Clean air, health and wealth” (WHO 2015) p 38 .

63 See Mathis, K and Huber, BR (eds), Economic Analysis of Law in European Legal Scholarship (Springer 2017) p 4 .

64 World Economic Forum, Global Risks Report 2018 (13th edn, World Economic Forum 2018).

65 OECD, “The economic consequences of outdoor air pollution: policy highlights” (OECD Publishing 2016) p 11 .

66 See Art 12 of the International Covenant on Economic, Social and Cultural Rights and supra, note 9 (OP1.10 ter). Further, given that PM10 pollution is responsible for 50% of childhood pneumonia deaths and leads to chronic deficiencies in the long-term lung capacity of infants, improving ambient air can very much be viewed as a children’s rights issue. See WHO Regional Office for Europe, “Exposure to air pollution (particulate matter) in outdoor air” (ENHIS Factsheet 3.3, WHO 2011). Further, see Committee on the Rights of the Child, General comment No 15 on the right of the child to the enjoyment of the highest attainable standard of health (17 April 2013) CRC/C/GC/15 and supra, note 9 (OP2.3).

67 supra, note 9 (PP8).

68 See K Vella, “Press Conference – Informal Environment Council in Sofia” (10 April 2018) <ec.europa.eu/commission/commissioners/2014-2019/vella/announcements/press-conference-informal-environment-council-sofia_en> accessed 5 April 2018.

69 See European Forum on Eco-Innovation, “21st European Forum on Eco-innovation: key messages and summary of the event” (5–6 February 2018) p 11 <ec.europa.eu/environment/ecoinnovation2018/1st_forum/material/EcoAP%20report%2021%2012-04%20-%20ld.pdf> accessed 5 April 2018.

70 L Berardi, “The air we can´t breathe” (Visegradrevue, 2 February 2016) <visegradrevue.eu/the-air-we-cant-breathe/> accessed 5 April 2018.

71 A Brzozowski, “EU court rules against Poland’s air pollution” (Euractiv, 22 February 2018) <www.euractiv.com/section/air-pollution/news/eu-court-rules-against-polands-air-pollution/> accessed 5 April 2018.

72 supra, note 70.

73 WHO, Air quality guidelines. Global update 2005. Particulate matter, ozone, nitrogen dioxide and sulfur dioxide (WHO 2005).

74 ibid.

75 Chan, Dr Margaret, Ten years in public health: 2007–2017 (WHO 2017).

76 For further discussion see, WHO, “Health and the environment: Draft road map for an enhanced global response to the adverse health effects of air pollution” EB138/17.

77 Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020 “Living well, within the limits of our planet” OJ L 354, 28.12.2013, pp 171–200.

78 See WHO, “WHO Global Conference on Noncommunicable diseases: Enhancing policy coherence between different spheres of policy making that have a bearing on attaining SDG target 3.4 on NCDs by 2030” (18–20 October 2017) <www.who.int/nmh/events/2017/montevideo/about/en/> accessed 5 April 2018. Further, relevant SDG indicators are 3.9.1 (air pollution related mortality), 7.1.2 (access to clean energy in homes) and 11.6.2 (air quality in cities). See <www.undp.org/content/undp/en/home/sustainable-development-goals.html> accessed 5 April 2018.

* PhD Candidate, University of Liverpool, .