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France: European Court Finds France in Violation of Air Quality Rules

(Nov. 25, 2019) The Court of Justice of the European Union (EU) ruled on October 24, 2019, that France has “systematically and persistently exceeded the annual limit value for nitrogen dioxide since 1 January 2010.” This decision was taken on the basis of three European directives: Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management; Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air; and 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 (“Air Quality Directive”).

Background to the Case

The judgment concludes a case that began in 2009, when the European Commission first warned France that it had not implemented the types of measures it was obligated to take, under these directives, to protect the health of its citizens from various types of air pollution. France requested that the Commission extend the deadline for compliance with the nitrogen dioxide limit values set out in the Air Quality Directive, which the Commission refused. Due to excessive nitrogen dioxide values in several zones of the French territory from January 1, 2010, onwards, the Commission sent a formal warning to France in 2015. The French government adopted an emissions reduction plan in 2016, but the Commission deemed it insufficient. After some additional back-and-forth between the two parties, the Commission filed a complaint with the European Court of Justice on October 11, 2018.

In response to the Commission’s allegation that it had systematically and persistently failed to meet its obligations under the European directives, France made two principal arguments. The first was to challenge the Commission’s methods of measuring air pollution, pointing out that the air quality measuring stations were all located near major roadways, meaning that their high readings were not indicative of the entire zone that they were supposed to be measuring. The French government’s other argument was that the emissions-reduction measures it had taken were largely undermined by external factors such as demographic growth, the evolution of modes of transportation, and the general layout of the urban zones in which excessive emissions were detected. The French government added that solving these problems would require important infrastructure investments, which would be expensive and time-consuming, or would require additional regulations, which would not be well received by the general population. This last point referred to “public order disturbances” in response to additional fuel taxes, a clear allusion to the “Yellow Vest” protests that began in November 2018.

The Court’s Decision

In its decision of October 24, 2019, the European Court of Justice rejected France’s arguments, deeming that it was irrelevant whether a state’s failure to fulfill its obligations was the result of intention or negligence, or was due to technical or structural difficulties. Furthermore, the Court of Justice found that France had not adopted, in a timely manner, appropriate measures to ensure that the excessive emissions period would be kept as short as possible.  Consequently, “the exceedance of the limit values at issue during seven consecutive years remained systematic and persistent in that Member State.”

According to the applicable rules, France could potentially be required to pay an 11 million Euro penalty (about US$12.1 million) and a daily fine of 240,000 Euros (about US$264,500) until the emissions standards are met. However, this would require that the European Commission file a new complaint requiring monetary sanctions against France. Given that a new procedure could potentially take several years, this in effect gives France a significant reprieve and a substantial amount of time to take the measures necessary to meet existing emissions standards.

According to some estimates, air pollution is the cause for 48,000 deaths in France every year. Air pollution is also a problem in several other European countries, and France is far from being the only EU member state to be in the Commission’s sights for air quality standards violations. Poland and Bulgaria have already been found in breach of EU air quality norms by the Court of Justice, and similar complaints are currently pending against Germany, the United Kingdom, Italy, Hungary, and Romania.