(Mar. 28, 2018) On February 27, 2018, Germany’s highest administrative court, the Federal Administrative Court (Bundesverwaltungsgericht, BVerwG), held in two not-yet-published decisions that older and more-polluting diesel-run vehicles could be banned from predefined zones in the cities and metropolitan areas that are the worst affected by nitrogen dioxide (NO2)-polluted air. The Federal Administrative Court thereby upheld two lower courts’ judgments that obliged the state governments of North Rhine-Westphalia and Baden-Wuerttemberg and the local governments of their respective capital cities, Düsseldorf and Stuttgart, to implement diesel bans in their Clean Air Plans. However, it pointed out that all diesel bans must comply with the principle of proportionality. (BVerwG, Feb. 27, 2018, Docket Nos. 7 C 26.16 and 7 C 30.17; Press Release No. 9/2018, Luftreinhaltepläne Düsseldorf und Stuttgart: Diesel-Verkehrsverbote ausnahmsweise möglich [Clean Air Plans for Düsseldorf and Stuttgart: Diesel Bans Permissible as an Exception] (Feb. 27, 2018), BVerwG website.)
Prohibiting diesel-run vehicles is in principle compatible with European Union (EU) and domestic German law.
The Federal Administrative Court affirmed, inter alia, the decision of the Administrative Court of Stuttgart (Verwaltungsgericht, VG Stuttgart) and ruled that the constitutional rights to life and health of those affected by NO2-polluted air can, under certain circumstances, outweigh the drivers’ and vehicle owners’ constitutional rights, meaning property rights, the freedom to exercise a trade or profession, and their general freedom of action. (VG Stuttgart [Administrative Court of Stuttgart], July 26, 2017, Docket No. 13 K 5412/15, at 248, 313, 317, VG Stuttgart website; Press Release No. 9/2018, supra; GRUNDGESETZ [GG] [BASIC LAW] (May 23, 1949), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 2 ¶ 2, art. 12 ¶ 1, art. 14 ¶ 1, art. 2 ¶ 1, German Laws Online website (unofficial English translation); Bundes-Immissionsschutzgesetz [BImSchG] [Federal Immission Control Act] (May 17, 2013), BGBl. I at 1274, §§ 1, 47. The Act defines “immissions” as “air pollution, noise, vibration, light, heat, radiation, and similar environmental effects (emissions) which affect human beings, animals and plants, the soil, the water, the atmosphere as well as cultural assets and other material goods.” (Id. § 3, paras. 2 & 3).)
Studies have shown that excessive amounts of NO2 in the air can cause serious health conditions such as asthma and strokes. Every year, around 6,000 people in Germany die from the effects of NO2-polluted air, according to the estimation of some experts. (Press Release No. 6/2018, Umweltbundesamt [German Environment Agency], Nitrogen Dioxide Has Serious Impact on Health (Mar. 9, 2018), German Environment Agency website.)
Because most NO2 in the air can be traced back to vehicle and especially older diesel motors, EU law since 2010, as implemented into German domestic law, has mandated that a threshold of 40 micrograms of NO2 per cubic metre in the air cannot be exceeded. (BImSchG §§ 1, 48a in conjunction with Neununddreißigste Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes/Verordnung über Luftqualitätsstandards und Emissionshöchstmengen [39. BImSchV] [39th Federal Immission Control Ordinance] (Aug. 2, 2010), BGBl. I at 1065, as amended, § 3, ¶ 1, ¶ 2, German Laws Online website.)
The law further requires that the competent state and local governments establish Clean Air Plans as soon as the concentration of NO2 (and/or other pollutants) in metropolitan or other areas exceeds the respective statutory thresholds. These plans must provide suitable measures for limiting the period of excessive air pollution to the shortest possible time. (Federal Immission Control Act §§ 47, ¶ 1 & 48a, ¶ 1 in conjunction with 39th Federal Immission Control Ordinance § 27, ¶ 1, ¶ 2.)
NO2 levels have frequently exceeded the statutory limits in seventy German municipalities and metropolitan areas, most notably Stuttgart and Düsseldorf, the cities at issue in the case, and other major cities such as Cologne or Munich. (Press Release No. 5/2018, German Environment Agency, Air Quality 2017: Mitigation of Nitrogen Dioxide Pollution Still Missing the Mark (Feb. 1, 2018), German Environment Agency website.)
Environmental groups have long fought to reduce NO2-polluted air across the country. In 2013, the Federal Administrative Court in a landmark decision recognized their right to sue on behalf of affected individuals in air pollution-related proceedings. (BVerwG, Sept. 5, 2013, Docket No. 7 C 21.12, ECLI:DE:BVerwG:2013:050913U7C21.12.0, at 46 (in German); VERWALTUNGSGERICHTSORDNUNG [CODE OF ADMINISTRATIVE COURT PROCEDURE] (Mar. 19, 1991), BGBl. I at 686, as amended, § 42, ¶ 2, German Laws Online website (unofficial English translation); Consolidated Version of the Treaty on European Union (TEU) art. 4, para. 3, Oct. 26, 2012, O.J. (C 326) 13; Federal Immission Control Act § 47, ¶ 1; Umwelt-Rechtsbehelfsgesetz [Environmental Appeals Act] (Apr. 8, 2013), BGBl. I at 753, as amended, § 3.)
As a consequence, more than a dozen suits were filed by the environmental group Deutsche Umwelthilfe e.V. (DUH) [German Environmental Aid] and other environmental organizations against German municipalities and federal states in 2016 alone. (Remo Klinger, Das Jahr der Entscheidung im Luftqualitätsrecht [The Year of Decisions in Air Quality Law], 27 ZEITSCHRIFT FÜR UMWELTRECHT (ZUR) [JOURNAL FOR ENVIRONMENTAL LAW], 1, 2 (2008).)
Facts of the Cases
The two cases before the Federal Administrative Court were originally brought by German Environmental Aid in the Administrative Courts of Düsseldorf and of Stuttgart.
The Administrative Court of Düsseldorf (Verwaltungsgericht (VG) Düsseldorf) obliged the state of North Rhine-Westphalia to at least consider implementing bans on certain diesel-fueled vehicles in its Clean Air Plan for the city of Düsseldorf. (VG Düsseldorf [Administrative Court of Düsseldorf], Sept. 13, 2016, Docket No. 3 K 7695/15, ECLI:DE:VGD:2016:0913.3K7695.15.00.) The Administrative Court of Düsseldorf held that the Federal Immission Control Act requires that the competent authorities minimize the NO2 pollution as quickly as possible. (Federal Immission Control Act § 47, ¶ 1, cls. 1 & 3 in conjunction with the 39th Federal Immission Control Ordinance § 27, ¶ 2, cl. 1, no. 1.) The Administrative Court emphasized that bans on certain diesel vehicles are not otherwise legally excluded by the applicable special traffic-law provisions. The purpose of the Act is to guarantee an effective level of health protection. This purpose might reduce the discretion of the competent authority and leave a diesel ban as its only option. Limited discretion, however, does not relieve the competent authority from its duty to respect the principle of proportionality. Hence, the competent authority must take gradual approaches into account (id. at 34) and limit bans in time and location. Furthermore, it must grant exemptions for certain drivers. The Administrative Court finally found that it was factually not impossible to impose and control bans on certain groups of vehicles. (Id. at 45–66.)
In the second case, the Administrative Court of Stuttgart (Verwaltungsgericht (VG) Stuttgart) ruled at first instance that the state government had to implement new NO2 pollution countermeasures in its preexisting Clean Air Plan for Stuttgart (VG Stuttgart, supra). The Administrative Court held that some of the measures that the state government of Baden-Württemberg and the local government of Stuttgart had already included, such as a zone-specific speed limit of 40 km/h (about 25 mp/h), were not reasonable for lowering the NO2 pollution significantly. (VG Stuttgart, supra, at 8, 37, 223.)
The states of North Rhine-Westphalia and Baden-Württemberg appealed the lower court decisions to the Federal Administrative Court.
The Federal Administrative Court essentially affirmed the decisions of the lower courts.
It held that EU and German antipollution law regimes require that the States of North Rhine-Westphalia and Baden-Württemberg update their Clean Air Plans in order to comply with the NO2 threshold. (Press Release No. 9/2018, supra.)
The two state governments argued that there was no proper legal basis for traffic bans on certain older and therefore more-polluting diesel-run vehicle types in German administrative law. The Federal Administrative Court rejected this argument, although it did point out that federal traffic law lacks a provision that would allow zone-specific bans for more-polluting vehicles by permitting cars with a certain badge to enter a protected zone (Plakettenregelung). (Federal Immission Control Act § 40, ¶ 1 BImSchG in conjunction with Fünfunddreißigste Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes (Verordnung zur Kennzeichnung der Kraftfahrzeuge mit geringem Beitrag zur Schadstoffbelastung – 35. BImSchV), [35. BImSchV] [35th Federal Immission Control Ordinance], Oct. 10, 2006, BGBl. I at 2218, as amended, § 3, ¶ 1, ¶ 2, in conjunction with Straßenverkehrsgesetz [StVG] [Road Traffic Act] Mar. 5, 2003, BGBl. I at 310, 919, as amended, §§ 39, 41, ¶ 1, German Laws Online website.)
The Federal Administrative Court affirmed the need for a specific legal basis on a federal level that would enable the state and local governments to impose such a ban on the basis of a vehicle-specific badge. However, EU law mandates that Member States guarantee their citizens a high level of good health. For this reason, the Federal Administrative Court held that the German traffic law is incompatible with the purpose of the EU antipollution laws. Under the effet utile (principle of effectiveness) of EU law, any deviating provisions of Member States’ domestic laws that cannot be interpreted in a manner that conforms to EU law remain unapplied, if no other appropriate measure for reaching the EU legislator’s aims can be identified. (TEU art. 4 para. 3.) In this context, the Federal Administrative Court held that German traffic law permits the state and local governments to set up traffic signs instead of issuing badges to types of vehicles in order to impose zone-related bans on diesel-fueled vehicles. Enforcing a ban issued by traffic signs might be “more complicated” than a vehicle-badge solution but, according to the Federal Administrative Court, this is a question of fact and not of law. This fact alone does not make the measure unlawful by default. (Press Release No. 9/2018, supra.)
The Court added that if the authorities find that bans are the only appropriate measure, they must ensure that they are proportionate. The competent state and local authorities must prevent the infringement of the constitutional rights of the affected drivers or owners of diesel-fueled vehicles. The Administrative Court of Düsseldorf provided examples of private and commercial residents to whom exceptions for their older and hence more-polluting diesel vehicles must be granted. These include local craftsmen or freight companies as well as those engaged in public services like ambulances, the police, or waste-management companies. (VG Düsseldorf, supra, at 60.) The Federal Administrative Court agreed and stated that exemptions for vehicles of “craftsmen or certain private residents,” as an example, must be granted. (Press Release No. 9/2018, supra.)
Germany’s federal government emphasized that the Federal Administrative Court did not establish bans on certain vehicles but only clarified how local governments may restrict traffic for promoting the health of their citizens in the light of EU law. (Press Release, Bundesregierung [Federal Government], Sofortprogramm Saubere Luft umsetzen [Implementing the Immediate Action Program for Clean Air] (Feb 27, 2018), Federal Government website.)
In a recent statement, North Rhine-Westphalia’s Prime Minister, Armin Laschet, announced that he would instruct authorities not to impose diesel-bans in Düsseldorf and elsewhere in the state because they should be used only as a last resort. (Rainer Kellers, Laschet hält Fahrverbote für rechtswidrig [Laschet Considers Bans on Vehicles Unlawful], WESTDEUTSCHER RUNDFUNK (WDR) (Mar. 9, 2018).) In response, DUH’s chairman, Jürgen Resch, announced that his association would request enforcement of the Federal Administrative Court judgment and force Düsseldorf, the city at issue in the case, to implement a diesel ban in its Clean Air Plan and execute it. (Press Release, DUH, NRW-Ministerpräsident Laschet ignoriert Leipziger Urteil zu Diesel-Fahrverboten: Deutsche Umwelthilfe leitet Zwangsvollstreckung für „Saubere Luft“ in Düsseldorf ein [Prime Minister of North Rhine Westphalia ignores Leipzig judgment on Diesel Bans: German Environmental Aid Initiates Enforcement of Judgment for “Clean Air” in Düsseldorf] (Mar. 14, 2018).)
However, the mayor of Stuttgart, Fritz Kuhn from the party the Greens, and the German Police Union (Deutsche Polizeigewerkschaft im DBB) have already stated that in light of current staffing levels, police forces would be unable to provide enough personnel to continuously enforce city-wide or neighborhood-wide bans on diesel-fueled cars. (Markus Wackert & Ilona Wissenbach, Diesel Cars Can Be Banned from German Cities, Court Rules, REUTERS (Feb. 26, 2018); Polizei hält Diesel-Fahrverbote für nicht kontrollierbar [Police Say Diesel Bans Not Enforceable], SPIEGEL ONLINE (Feb. 17, 2018).)
Prepared by Johannes Jäger, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.