R (on the application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25

The UK conceded it had breached the Air Quality Directive's nitrogen dioxide limits in most of its zones. Reversing the courts below, the Supreme Court granted a declaration of breach of article 13 and referred questions on articles 22, 23 and remedies to the CJEU.

Facts

Directive 2008/50/EC (“the Air Quality Directive”) sets limit values for nitrogen dioxide (NO2) in ambient air, namely an hourly limit value and an annual mean limit value of 40 µg/m3, both to be attained by 1 January 2010. Nitrogen dioxide arises principally from road traffic and domestic heating in UK urban areas, and, as recorded in the agreed statement of facts and issues, exposure is associated with hospital admissions, deaths and respiratory effects, while related particulate matter has been calculated to have an effect equivalent to 29,000 premature deaths a year in the UK.

The Directive consolidated earlier measures, in particular the Air Quality Framework Directive 96/62/EC and the First Daughter Directive 1999/30/EC, reproducing the same limit values, margins of tolerance and deadlines. Two provisions were central. Article 22 permits a member state, where conformity “cannot be achieved” by the annex XI deadline, to postpone the deadline by up to five years (i.e. to 1 January 2015), on condition that an air quality plan is established which “shall demonstrate how conformity will be achieved with the limit values before the new deadline”, supplemented by the additional information in annex XV section B and notified to the Commission for assessment. Article 23 (largely carrying forward the Framework Directive regime, but with a new second paragraph) requires air quality plans where limit values are exceeded and, where the attainment deadline has already expired, requires those plans to set out “appropriate measures, so that the exceedance period can be kept as short as possible”.

The UK is divided into 43 zones and agglomerations; 40 were in breach of one or more NO2 limit values in 2010. In September 2011 the UK sought article 22 postponements for 24 zones with plans showing compliance by 2015. For 16 zones no article 22 application was made; instead plans were submitted under article 23 projecting compliance at various dates between 2015 and 2025, with Greater London expected to comply only before 2025. The Commission objected to 12 of the 24 article 22 applications, approved nine unconditionally and three conditionally, and made no comment on the remaining zones. Correspondence from the Commission indicated it would have “considerable concerns” if article 23 were used to circumvent article 22, and that its normal policy was to await the outcome of national proceedings before considering infringement action under article 258 TFEU.

ClientEarth sought judicial review, claiming declarations that the plans did not comply with EU law and that the UK was in breach of article 13, and a mandatory order requiring revision of the plans to demonstrate compliance by 1 January 2015 at the latest. Mitting J dismissed the claim (R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2011] EWHC 3623 (Admin)), holding article 22 discretionary, declining a mandatory order because it “would raise serious political and economic questions which are not for this court” (para 15), and refusing a declaration on the basis that it would “serve no purpose other than to make clear that which is already conceded” (para 16), enforcement lying with the Commission. The Court of Appeal dismissed the appeal ([2012] EWCA Civ 897), Laws LJ agreeing that article 22 was discretionary, treating the mandatory order issue as “moot”, and observing of the judge’s refusal of a declaration that “His judgment speaks as a declaration” (paras 22-23).

Issues

The Supreme Court (Lord Hope, Lord Mance, Lord Clarke, Lord Sumption and Lord Carnwath) identified the issues as: (i) whether a member state which cannot achieve conformity with the NO2 limit values by the 1 January 2010 deadline is obliged to seek postponement under article 22, or whether that procedure is discretionary; (ii) if there is such an obligation, whether and when a state may be relieved of it; (iii) if article 22 is not mandatory, how the obligations of a non-compliant state which has made no article 22 application are affected by article 23, particularly its second paragraph; and (iv) what remedies a national court must provide, as a matter of EU law, for non-compliance with article 13 where no article 22 application has been made. A discrete question was whether a declaration of breach of article 13 should be granted notwithstanding the Secretary of State’s concession.

Arguments

ClientEarth

ClientEarth disputed that the UK had adopted all practicable measures to achieve compliance by 2015. It argued that article 22 is mandatory for any state still in breach at 1 January 2010, relying on article 22(4) (“shall notify the Commission”) and on the trigger in article 22(1) that conformity “cannot be achieved”. Article 23, it submitted, merely preserved the pre-existing system and was not an alternative route enabling a state to escape the stricter annex XV section B requirements or the maximum margins of tolerance in article 22(3). It further argued that the courts below had failed in their responsibility to provide an effective remedy for the admitted breach, citing Joined Cases C-444/09 and C-456/09 Gavieiro Gavieiro and Iglesias Torres [2010] ECR I-0000, and that practical difficulty and cost are no defence, citing Case C-390/07 Commission v UK [2009] ECR I-214 and Commission v Italy.

The Secretary of State

The Secretary of State conceded breach of article 13 in certain zones and that plans for some zones did not show conformity by 2015, but maintained that compliance by then was not realistically possible for reasons outside her control and unforeseen in 2008, problems shared with other member states. Article 22 was permissive (“may”), and a plan demonstrating compliance by 1 January 2015 was required only where postponement was sought; postponement could properly be sought only if compliance by the new deadline could be demonstrated. Where postponement was not sought the state was exposed to immediate infraction proceedings but remained bound by the second paragraph of article 23 to keep the exceedance period as short as possible. On remedies, she relied on national procedural autonomy (Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989) and on sincere co-operation where unforeseeable difficulties make compliance “absolutely impossible” (Case C-217/88 Commission v Federal Republic of Germany [1990] ECR I-2879).

Judgment

Lord Carnwath delivered the judgment of the court. The court did not resolve the substantive dispute about articles 22 and 23; the judgment expressly does “no more than set out the factual and legal context of the dispute, and the issues of European law which now arise” as the basis for a reference.

On relief, however, the court departed from both courts below. It held:

The court is satisfied that it should grant the declaration sought, the relevant breach of article 13 having been clearly established. The fact that the breach has been conceded is not, in the court’s view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief.

The court’s reasoning was twofold: a declaration is appropriate “both as a formal statement of the legal position, and also to make clear that, regardless of arguments about the effect of articles 22 and 23, the way is open to immediate enforcement action at national or European level.” Thus the existence of Commission enforcement powers under articles 258 and 260 TFEU, which had weighed with Mitting J, was not a reason to withhold domestic declaratory relief.

In setting out the legislative context the court noted textual features bearing on the referred questions: the difference between the first and second paragraphs of article 13 appears to reflect that the former concerns limits already in force when the Directive was made; the obligation in article 13 is expressed in absolute terms, contrasting with article 16’s requirement of “all necessary measures not entailing disproportionate costs” for the PM2.5 target value; article 23 and annex XV section A largely reproduce article 8 and annex IV of the Framework Directive, whereas article 22 and annex XV section B were new, their purpose being explained by recital (16) as permitting postponement only with a comprehensive plan assessed by the Commission.

Since the remaining issues raised “difficult issues of European law”, and the Supreme Court is the final national court, it was obliged to refer. Taking note of the appellant’s draft questions, the court formulated four questions on: whether article 22 postponement must be sought where conformity cannot be achieved by 1 January 2010 (also by reference to article 4 TEU); in what circumstances, if any, a state may be relieved of that obligation; if there is no such obligation, how article 23 (particularly its second paragraph) affects the obligations of a defaulting state; and what remedies a national court must provide, having regard to article 30 of the Directive and articles 4 and 19 TEU. Decisions on any further relief were deferred pending the CJEU’s answers, and the parties were directed to submit, if possible in agreed form, proposals for revision of the questions and brief summaries of their submissions on the answers within four weeks.

Implications

The immediate significance is remedial. The decision shows that a concession of breach by a public authority does not, without more, deprive a declaration of purpose: where a breach of a directly relevant EU obligation is clearly established and no discretionary bar exists, the court may make a formal declaration recording it, partly because doing so clarifies that enforcement may be pursued at national or European level. That reasoning implicitly rejects the view that the Commission’s infringement powers are a sufficient substitute for national judicial protection—consistent with the Commission’s own observation, reproduced in the judgment, that individuals may plead such obligations before national courts.

The decision is also significant for the enforceability of the Air Quality Directive. The court recorded the concession that the UK was in breach of the NO2 limit values, and declared it, in a context where 40 of 43 zones were non-compliant and compliance in London was projected only before 2025. Environmental NGOs, regulators and government departments must therefore treat article 13 breaches as justiciable domestically, whatever the eventual answer on articles 22 and 23.

Important limits should be noted. The Supreme Court decided nothing on the central substantive question whether article 22 is mandatory, on whether article 23’s second paragraph can lawfully accommodate a state that has not sought postponement, or on whether a mandatory order compelling revision of the plans should issue. Mitting J’s concern about the political and economic character of such an order, and the Secretary of State’s reliance on impossibility and national procedural autonomy, remain live and were referred, in substance, to the CJEU through questions (ii) and (iv). Nor did the court make any finding on whether the UK had in fact taken all practicable measures. The judgment is a single judgment of the whole court; there is no concurring or dissenting reasoning. Its wider importance lies in confirming the role of the national court in giving effect to EU environmental obligations, while leaving the scope of the substantive duties and the required remedies to be settled by the CJEU.

Verdict: The Supreme Court granted the appellant a declaration that the United Kingdom is in breach of its obligations to comply with the nitrogen dioxide limit values in article 13 of Directive 2008/50/EC, departing from the refusal of declaratory relief below, and made a reference to the Court of Justice of the European Union on four questions concerning the mandatory or discretionary nature of article 22, any relief from that obligation, the effect of article 23 (particularly its second paragraph), and the remedies a national court must provide. Decisions on any further relief were deferred pending the CJEU’s ruling, and the parties were directed to submit proposals on the questions within four weeks.

Source: R (on the application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25