Introduction
According to the European Environment Agency, air pollution is currently the most important environmental health risk factor in Europe causing in particular respiratory and cardiovascular diseases as well as premature deaths.[1] Even though the Directive on ambient air quality and cleaner air for Europe (hereafter: Air Quality Directive) tries to take on these issues, practice made clear that a lot of provisions of the Directive needed to be further developed. When the Craeynest case reached the CJEU, an opportunity presented itself to further clarify some of the provisions from the Directive. In doing so, Craeynest became a landmark case in which citizens were offered new tools to hold authorities accountable before national courts and in which judicial review in complex technical assessments was intensified, ultimately strengthening the right to clean air.[2]
Factual Background
The case was brought on by 5 residents in the Brussels-Capital Region, namely Ms Craeynest, Ms Lopez Devaux, Mr Mertens, Ms Goeyens and Ms De Schepper. Ms Goeyens passed away during the proceedings after which Mr Vandermeulen continued the case in her place.[3] Concerned with the air quality in Brussels, these residents decided to take the Brussels-Capital Region and the Brussels Institute for Management of the Environment to court. They were joined in their action by ClientEarth. This non-governmental organization was established under English law and has its center of activities in Brussels. Their main mission is to protect the environment and the earth in general, inter alia by starting legal procedures.[4] In an action brought on 21 September 2016, the 5 residents and ClientEarth, contested before the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-speaking Court of First Instance of Brussels) the siting of the sampling points by the Brussels-Capital-Region. More specifically, the applicants argued that Brussels-Capital Region didn’t include locations with the highest concentrations of pollution which the public can be exposed to.[5] Stating that the limit values in art. 23 of the Air Quality Directive have been exceeded, the applicants demand that the proper air quality plan, in accordance with art. 23 of the Directive, be developed.[6]
Legal Background
In 2008 the Air Quality Directive entered into force with the purpose to regulate the gathering of information and the assessment regarding air quality as well as to avoid, prevent or reduce its harmful effects on human health and the environment.[7] To attain these objectives, article 4 of the Directive requires Member States to establish zones and agglomerations throughout their territory as well as to carry out air quality assessments and management in all zones and agglomerations. Furthermore, article 7(1) read in conjunction with annex III states that sampling points shall be sited in ‘areas within zones and agglomerations where the highest concentrations of pollutants occur’ to which the population can be exposed. When it comes to nitrogen dioxide specifically, article 13(1) of the Directive, read in conjunction with annex XI, sets the limit value throughout zones and agglomerations at 40 μg/m3 a year. When this limit value is exceeded, air quality plans must be established according to article 23 of the Directive.
In casu, the Brussels Capital Region makes up such a zone as referred to in article 4 of the Directive and is therefore subject to the air quality assessments and management.[8] However, the applicants in the main proceedings didn’t consider the requirements under article 7(1) and annex III to be met and consequently asked the referring court to order the Brussels Capital region to establish sampling points at appropriate locations.[9] The applicants argue that, if measured correctly, the limit value for nitrogen dioxide has been exceeded and therefore demand that the proper air quality plan is drafted by the competent authorities.[10] In contrast, the referring court considered that the rule laid down in annex III (‘areas within zones and agglomerations where ‘the highest concentrations’ of pollutants ‘occur’) implies a certain margin of discretion for the competent authority and therefore wasn’t certain whether a court may assess these sampling points themself.[11] Lastly, the referring court notes that in essence the parties are disagreeing on the interpretation of article 13 (1) of the Directive.[12] The Court itself finds it impossible to derive from the wording of the article whether each sampling point should be taken into account separately, as argued by the applicant and in which case the limit value was exceeded at various points or whether the air quality should be assessed for a zone or agglomeration as a whole, as argued by Brussels Capital Region and the Brussels Institute for Environmental Management and in which case the limit value was not exceeded.[13]
In light of these uncertainties, the Nederlandstalige rechtbank van eerste aanleg Brussel decided to refer the following questions to the CJEU for a preliminary ruling:
“(1) Should Article 4(3) and the second subparagraph of Article 19(1) [TEU], read in conjunction with the third paragraph of Article 288 [TFEU], and Articles 6 and 7 of Directive [2008/50] be interpreted as meaning that, when it is alleged that a Member State has not sited the sampling points in a zone in accordance with the criteria set out in paragraph 1(a) of Section B of Annex III to Directive 2008/50, it is for the national courts, on application by individuals who are directly affected by the exceedance of the limit values referred to in Article 13(1) of that directive, to examine whether the sampling points were established in accordance with those criteria and, if they were not, to take all necessary measures in respect of the national authority, such as an order, with a view to ensuring that the sampling points are sited in accordance with those criteria?
(2) Is a limit value within the meaning of Article 13(1) and Article 23(1) of Directive [2008/50] exceeded in the case where an exceedance of a limit value with an averaging period of one calendar year, as laid down in Annex XI to that directive, has been established on the basis of the measurement results from one single sampling point within the meaning of Article 7 of that directive, or does such an exceedance occur only when this becomes apparent from the average of the measurement results from all sampling points in a particular zone within the meaning of Directive 2008/50?”
Legal Reasoning of the Judgement
In answering the first question, the CJEU starts by reminding the referring Court of its obligation under the principle of sincere cooperation (art. 4(3) TEU) and the principle of effective legal protection (art. 19 (1) TEU).[14] It then points to the principle of binding effect encompassed in Article 288 TFEU which allows concerned individuals to rely on an obligation imposed in a directive, even more so when that directive is designed to protect public health.[15] Referring to the Advocate General’s opinion, the CJEU then determines that the rules in the Directive “put into concrete terms the EU’s obligations concerning environmental protection and the protection of public health, which stem, inter alia, from Article 3(3) TEU and Article 191(1) and (2) TFEU, according to which Union policy on the environment is to aim at a high level of protection […]”.[16] Therefore, the effectiveness of these obligations would be weakened if individuals could not rely on them before national courts as well as if the courts wouldn’t be allowed to review the national measures and the level of discretion within it.[17] The CJEU goes on to state that some of the provisions of the Directive, in particular those concerning the establishment of sampling points[18], contain “clear, precise and unconditional obligations” meaning these provisions can have direct effect and can be invoked by individuals against the state.[19] The CJEU proceeds to recognize that, when confronted with different possibilities, it is within the discretion of the competent national authority to choose the actual location of the sampling points.[20] However, this doesn’t exempt the authorities’ discretion from judicial review.[21] According to the CJEU, the limits of the discretionary powers lie within the purpose and the effectiveness of the act.[22] In this case, CJEU holds that the location of the sampling points is central to the purpose of the directive and that this purpose would be compromised if the sampling points were not established lawfully.[23] Furthermore, to ensure the effectiveness of the Directive too, national authorities must “choose the location of sampling points in such a way as to minimise the risk that incidents in which limit values are exceeded may go unnoticed”.[24] The limits to the discretionary powers also hold true when the choice of sampling point locations requires technical and complex assessments.[25] Based on these reasonings, the CJEU concludes that the national court may verify whether sampling points have been established in accordance with the criteria of the Directive and that it can take all necessary measures to that end, including, if provided for by the national law, ordering that the sampling points are sited according to the prescribed criteria.[26]
Moving on to the second question, the CJEU acknowledges that the answer to that question cannot be found through a literal interpretation of the provision.[27] In such a case, one must look at the general scheme and purpose of the Directive.[28] In this case, a teleological reading of paragraph 1(a) and (f) of Section B of Annex III to Directive 2008/50 tells us that a sampling point must not only represent its own level of pollution, but also that of other similar locations.[29] Following this assessment, the CJEU confirms that determining the average of the values measured at all the sampling points in a zone or agglomeration does not meet this purpose as it doesn’t provide a valid indication of the population’s exposure to pollutants.[30] In conclusion, this means that it is sufficient for a limit value to be exceeded at one sampling point to trigger the obligation of making an air quality plan as prescribed by article 23 of the Directive.[31]
Critical Assessment
The Air Quality Directive is not the Union’s first attempt at regulating air quality. The EU has tried to deal with air pollution through a series of directives going all the way back to 1980.[32] In 2008, the Union introduced the Air Quality Directive which harmonized previous directives and clarified the rules in an attempt to meet the recommendations of the World Health Organization regarding air quality standards and to better protect our health.[33] Despite its importance for public health, the Air Quality Directive contains no provisions on access to justice.[34] However, through its case law, the CJEU has made it possible for citizens to demand proper implementation of the Air Quality Directive before their national courts. Most notable were the cases Janecek and ClientEarth in which the CJEU confirmed that when limit values are exceeded, directly concerned individuals have the right to demand the drafting of an air quality plan which should ensure that the period in which the values are exceeded is as short as possible.[35] As a result, citizens and NGOs have not been shy in trying to enforce the limit values, causing a considerable rise in air quality cases across Europe.[36] With Craeynest, the CJEU continues its trend towards a stronger protection of clean air by once more improving the enforcement of air quality standards in the EU.[37]
It is worth mentioning that with the answer to the second question, the CJEU strengthened human health and provided a solid precedent for future cases.[38] But the essence of the case lies in the answer to the first question in which the CJEU clarifies the intensity of the judicial review.[39] Previously, the CJEU has judged in cases like Upjohn that when complex assessments need to be made by national authorities, they enjoy a broad discretion in their decision-making meaning that national courts should intervene only in cases of ‘manifest errors’.[40] Reasons for this are among others the legitimacy that decisions from specialized agencies and local authorities are endowed with as well as the significant costs for civilians to obtain expert evidence.[41] In Craeynest however, the CJEU urges a different approach, seemingly inspired by the opinion of Attorney General Kokott. Kokott recognized that ‘complex scientific or technical assessments’ (such as the siting of sampling points) do indeed imply broad discretion for authorities and limited review for national courts.[42] However Kokott also states that one must take into account the objectives of the Air Quality Directive. Kokott argues that the objectives of the Directive (inter alia reducing premature deaths) put into concrete terms fundamental rights such as the right to life (art. 2(1) of the Charter) and the high level of environmental protection required by EU obligations (art. 3(3) TEU, art. 37 of the Charter and art. 191(2) TFEU). Interfering with the effectiveness of the Air Quality Directive can therefore be compared to interfering with fundamental rights resulting in the need for a strict review by national courts instead of a ‘light touch review’.[43] Even though the CJEU doesn’t repeat Kokott’s exact words, it agrees ‘in essence’ with her opinion by limiting the discretionary powers through the purpose and effectiveness of the act.[44] Although arguments can be made that the CJEU remains rather vague in defining the exact scope of the intensity of the judicial review[45], it is undeniable that the judgment strengthens the right to clean air of Citizens by expanding the set of tools available to enforce this right.[46] Considering that the judgment allows for strict judicial review, even when it concerns complex technical evidence, citizens and NGO’s can from now on also challenge technical assessments such as the siting of the sampling points and demand that air quality be measured correctly in accordance with the Directive.[47] Furthermore, imposing stricter judicial review whenever a breach of fundamental rights occurs may also have impacts on environmental cases in general, strengthening environmental rights beyond those related to air quality.[48]
Conclusion
With the Craeynest judgment, the CJEU takes another step towards its goal of clean air throughout the European Union. The court achieved this by reinforcing the role citizens and national courts have to play in ensuring proper enforcement of the Air Quality Directive. Allowing citizens to challenge the location of sampling points and imposing onto national courts the obligation of a stricter judicial review in complex assessments, broadens the access to justice and will make sure that national authorities can be better held accountable for exceeding limit values. Notably, the judgment also left room to use similar tactics when other fundamental rights are involved. Therefore, it will be interesting to see the impact of the Craeynest judgment beyond air quality and onto other environmental rights.
[1] EEA, ‘Harm to human health from air pollution in Europe: burden of disease 2023’ (European Environment Agency, 24 november 2023)
<https://www.eea.europa.eu/publications/harm-to-human-health-from-air-pollution/> accessed 4 december 2024.
[2] Ugo Taddei, ‘Case C-723/17 Craeynest: New Developments for the Right to Clean Air in the EU’ (2020) 32 J. Envtl. L. 151, 151.
[3] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, Opinion of AG Kokott, par. 12.
[4] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, par. 21; Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, Opinion of AG Kokott, par. 12.
[5] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, paras 20 and 22.
[6] Ibid., par. 24.
[7] EP and Council directive 2008/50/EC on ambient air quality and cleaner air for Europe [2008] OJ L152/1, art 1.
[8] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, par. 20.
[9] Ibid., par 22.
[10] Ibid., par 24.
[11] Ibid., par. 23.
[12] Ibid., par. 26.
[13] Ibid., paras 27-28.
[14] Ibid., par. 31.
[15] Ibid., par. 32.
[16] Ibid., par. 33.
[17] Ibid., paras 33-34.
[18] EP and Council directive 2008/50/EC on ambient air quality and cleaner air for Europe [2008] OJ L152/1, first indent of paragraph 1(a) of Section B of Annex III; Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, par. 43.
[19] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, par. 42.
[20] Ibid., par. 44.
[21] Ibid., par. 45.
[22] Ibid., par. 46.
[23] Ibid., paras 47-49.
[24] Ibid., par. 50.
[25] Ibid., par. 52.
[26] Ibid., paras 53-56.
[27] Ibid., par. 59.
[28] Ibid., par. 60.
[29] Ibid., par. 62.
[30] Ibid., paras 62-63.
[31] Ibid., paras 64-68.
[32] Among others the Council Directive 80/779/EEC of 15 July 1980 on air quality limit values for sulphur dioxide and sus- pended particulates, the Council Directive 82/884/EEC of 3 December 1982 on a limit value for lead in the air, the Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and manage- ment (‘Air Quality Framework Directive’) and its four Daughter Directives.
[33] EC, ‘Air Quality’ (European Commission)
<https://environment.ec.europa.eu/topics/air/air-quality_en> accessed 4 december 2024.
[34] Morgan Eleanor Harris, ‘Air quality inequality and access to effective remedies in the revision of the Ambient Air Quality Directive 2008/50/EC’ [2023] 3 Rivista Quadrimestrale di Diritto dell’Ambiente 37, 44.
[35] Case C-237/07 Dieter Janecek v Freistaat Bayern [2008] ECR I-06221; Case C-404/13 The Queen, on the application of: ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs [2014] ECR general.
[36] Delphine Misonne, ‘The emergence of a right to clean air: Transforming European Union law through litigation and citizen science.’ (2020) RECIEL., 6-7 <https:// doi.org/10.1111/reel.12336>; Ugo Taddei, ‘Case C-723/17 Craeynest: New Developments for the Right to Clean Air in the EU’ (2020) 32 J. Envtl. L. 151, 153.
[37] Kendro Pedrosa, ‘The Decentralised Enforcement of the Provisions on Measurement and Assessment of Air Quality underDirective 2008/50/EC: Comment on CJEU Case C-723/17 of 26 June 2019, Craeynest’ (2020) 17 J. Eur. Envtl. & Plan. L. 247, 256.
[38] Ibid., 259-260.
[39] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, Opinion of AG Kokott, par. 2; Kendro Pedrosa, ‘The Decentralised Enforcement of the Provisions on Measurement and Assessment of Air Quality under Directive 2008/50/EC: Comment on CJEU Case C-723/17 of 26 June 2019, Craeynest’ (2020) 17 J. Eur. Envtl. & Plan. L. 247, 250.
[40] Case C-112/89 Upjohn Company and Upjohn NV v Farzoo Inc. and J. Kortmann [1991] ECR I-01703; Kendro Pedrosa, ‘The Decentralised Enforcement of the Provisions on Measurement and Assessment of Air Quality underDirective 2008/50/EC: Comment on CJEU Case C-723/17 of 26 June 2019, Craeynest’ (2020) 17 J. Eur. Envtl. & Plan. L. 247, 251; Morgan Eleanor Harris, ‘Air quality inequality and access to effective remedies in the revision of the Ambient Air Quality Directive 2008/50/EC’ [2023] 3 Rivista Quadrimestrale di Diritto dell’Ambiente 37, 51.
[41] Ole W. Pedersen, ‘A Study of Administrative Environmental Decision-Making before the Courts’ (2019) 31 J. Envtl. L. 1, 9-10.; Ugo Taddei, ‘Case C-723/17 Craeynest: New Developments for the Right to Clean Air in the EU’ (2020) 32 J. Envtl. L. 151, 157.
[42] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, Opinion of AG Kokott, paras 43, 51 and 52.
[43] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, Opinion of AG Kokott, par. 53.
[44] Case C‑723/17 Lies Craeynest and Others v Brussels Hoofdstedelijk Gewest and Others [2019] OJ C 280, par. 45-46; Delphine Misonne, ‘The emergence of a right to clean air: Transforming European Union law through litigation and citizen science.’ (2020) RECIEL., 6 <https:// doi.org/10.1111/reel.12336>; ClientEarth, ‘Individual right to clean and healthy air in the EU:
An analysis of the existing system of legal protection and possible options to strengthen the legal framework’ (2021), 11.
[45]Kendro Pedrosa, ‘The Decentralised Enforcement of the Provisions on Measurement and Assessment of Air Quality underDirective 2008/50/EC: Comment on CJEU Case C-723/17 of 26 June 2019, Craeynest’ (2020) 17 J. Eur. Envtl. & Plan. L. 247, 256-258.
[46] Ugo Taddei, ‘Case C-723/17 Craeynest: New Developments for the Right to Clean Air in the EU’ (2020) 32 J. Envtl. L. 151, 156.
[47] Kendro Pedrosa, ‘The Decentralised Enforcement of the Provisions on Measurement and Assessment of Air Quality underDirective 2008/50/EC: Comment on CJEU Case C-723/17 of 26 June 2019, Craeynest’ (2020) 17 J. Eur. Envtl. & Plan. L. 247, 260-261.
[48] Ugo Taddei, ‘Case C-723/17 Craeynest: New Developments for the Right to Clean Air in the EU’ (2020) 32 J. Envtl. L. 151, 159.
