Failure to implement air quality plans: a case for Member States' liability towards private individuals?

The Administrative Court of Appeal of Versailles (France) has referred to the European Court of Justice, the question whether and, if so, under what conditions individuals can claim compensation from the State for health damage caused by infringement of the EU limit values for ambient air quality. The case at hand concerns an infringement resulting from France's failure to implement in time, the air quality plans provided for in the various directives on air pollution.

Pursuant to the opinion of Advocate General Kokott of 5 May 2022, exceeding the limit values set by EU law for the protection of air quality, can create rights for individuals to claim compensation against the State. In other words, it might be possible for individuals to bring a “private damage claim” against the State for health problems caused by air pollution.

According to Advocate General Kokott’s opinion, the three classic conditions under which a Member State can be held liable for infringement of EU law, also apply here, namely:

  1. that the rule of law infringed is intended to confer rights on individuals;
  2. that there is a sufficiently serious breach;
  3. that there is a direct causal link between the breach of the State's obligation and the damage suffered by the injured person.

As regards the first condition, Advocate General Kokott comes to the conclusion that the primary objective of the limit values for air pollutants, laid down in EU directives (Directive 2008/50/EC — Directive 2004/107/EC — Directive 2015/1480/EC) and the obligations to improve air quality are sufficiently clear, being: avoiding, preventing or reducing harmful effects on human health and the environment as a whole (see art. 1 of Directive 2008/50/EC). Thus, the first condition is fulfilled as the European legislation, i.e., the limit values for pollutants in ambient air and the obligations to improve air quality, is intended to confer rights on individuals.

The second condition requires that there is a serious breach of the rules on the protection of air quality.

In the Advocate General's view, there has been such an infringement in all the periods during which the respective limit values were exceeded without there having been a plan (see art. 23 of Directive 2008/50/EC) to improve air quality which was not manifestly deficient.

In order to assert and enforce claims for compensation, a direct causal link between the serious breach of air quality regulations and the actual damage to health, must be demonstrated. While recalling that it is for the national courts to determine the exact standard of proof, Advocate General Kokott gave some guidance as to how to assess the proof. According to her, the injured person must prove that he/she/x has lived, for a sufficiently long period of time, in an unhealthy air environment, stricto sensu one in which the air quality limit values have been seriously exceeded and that it suffered damage, which can in some way be linked to the unhealthy air environment in question.

It has to be noted that in the opinion of the Advocate General, it is specifically stated that, after it has been proved that there is a direct link between the seriously exceeded limit values and certain damage to health, the Member State can still defend itself by showing that those exceedances would also have occurred if air quality plans meeting the requirements of the directive had been adopted in time.

According to Advocate General Kokott’s, it is possible for an individual (when the three conditions above are met) to hold a Member State liable, although much depends on the proof of the causal link as she interprets it.

To conclude, Advocate General Kokott’s opinion would mean that when a Member State is non-compliant with these EU obligations, an individual could bring a private claim against that State and seek compensation.

All eyes are now directed to the European Court of Justice: will it follow the opinion of Advocate General Kokott?

Even if the European Court of Justice would follow the opinion of Advocate General Kokott, all is not said. Indeed, should the European Court of Justice confirm that it is for the national courts to determine the exact standard of proof, then the final determination of the success of such a liability claim, is in hands of the national courts.

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