ClientEarth: a landmark in the CJEU’s environmental law jurisprudence

 

Anna Dannreuther, Trainee, Research Department of the CJEU

Background

The CJEU gave its judgment yesterday on a preliminary reference from the UK Supreme Court concerning the UK’s failure to apply for an extension of time for compliance with limit values for nitrogen oxide. The case was brought in the UK by ClientEarth, an environmental NGO seeking a declaration to the effect that the UK was in breach of Article 13 of Directive2008/50/EC (the ‘Air Quality Directive’), which laid down a limit of 1 January 2010 for compliance with nitrogen oxide limit values therein.

The UK Supreme Court had little difficulty in finding the UK to be in breach of its nitrogen oxide limit value obligations, the Secretary of State having accepted that the limit values for nitrogen oxide had been exceeded in a number of zones or agglomerations set up for the purposes of the Directive. The breach having been ‘clearly established’, and the Secretary of State’s concession failing to constitute a sufficient reason to decline to grant the declaration, the case was referred to the CJEU for more complex issues of interpretation of Articles 13, 22 and 23 of the Directive.

The UKSC asked the CJEU four questions concerning the obligation on Member States under the Directive to apply for postponement of the limit value deadline, exceptions thereto, whether establishing an air quality plan was sufficient to comply with obligations under the Directive, and the appropriate remedies in the case of breach.

The context of the questions was that in 2011 the Secretary of State had applied to the Commission for an extension of the deadline for compliance in respect of 24 of the 40 zones where nitrogen oxide limits had been exceeded. This was permissible under Article 22 of the Air Quality Directive. In the air quality plans submitted to the Commission, it showed how the limit values would be met by 1 January 2015 at the latest. For the remaining 16 zones, for which the air quality plans projected compliance with the limit values between 2015 and 2025, no request for time extension was made.

The main question for the CJEU then was whether, under Directive 2008/50/CE, the UK was under an obligation to seek postponement of the deadline for compliance with limit values in respect of zones or agglomerations which did not comply with the limit values for nitrogen dioxide by the deadline of January 1 2010. This was unclear from Article 22 of the Directive, which merely stated that Member States ‘may postpone’ the deadline for compliance if compliance cannot be achieved by 1 January 2010. It also sought to know whether compliance with Article 23, by producing air quality plans, was sufficient to comply with Article 13 of the Directive.

Judgment

The ClientEarthjudgment is a landmark, marking a firm line being taken by the Court in terms of breach of air quality obligations. The Court took no prisoners in its judgment, and took every opportunity to reinstate the Member State’s compliance obligations under the Directive.

Describing the general framework of the compliance provisions of the Directive, namely that if Member States are unable to comply with limit values they may apply to postpone the deadline for compliance by a maximum of five years, the CJEU firmly asserted that the obligation to make an application for an extension of time naturally followed from the context of the provision and the aim pursued by the EU legislature, even though the exact wording of the Article did not expressly require an application [para 27]. This is so because such an obligation obliges Member States to anticipate that conformity with the limit values will not be achieved by the deadline specified and to formulate an air quality plan giving details of measures that are capable of remedying the pollution by a later deadline.

The obligation was also to be found in the wording of Article 13 of the Directive, which provides that nitrogen oxide limit values ‘may not be exceeded’ after the specified deadline [para 30]. As a consequence Member States must take all the measures necessary to secure compliance with that requirement, and applying for postponement of the deadline for compliance is one of those measures. As for exceptions to this obligation, the CJEU reminded the UK Supreme Court that Article 22 does not contain any exception to the obligation flowing from Article 22(1) [para 34].

In response to the Supreme Court’s question of whether producing an air quality plan was sufficient for compliance, the CJEU contended that such an interpretation would be liable to impair the effectiveness of Articles 13 and 22 of the Directive, as it would allow a Member State to disregard the deadline imposed by Article 13 under less stringent conditions than those imposed by Article 22 [para 44].

In response to the question on remedies, the CJEU recalled Member States’ general obligations under Article 4 TEU to ensure judicial protection of an individual’s rights under EU law and Article 19(1) TEU to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law [para 52]. It also suggests that the Directive has direct effect [para 54] and that it would be incompatible with the binding nature of Article 288 TFEU to exclude, in principle, the possibility of the obligation imposed by that Directive being relied on by the persons concerned [para 55]. That consideration applies particularly in respect of a Directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (see the prior Janecek judgment, paragraph 37).

Comments

The CJEU pulls out all the stops in this judgment to ensure that the seriousness of the consequences of breach of this Directive is taken into account by Member States. ClientEarth was thrilled with the ruling – its websitecites air pollution as the cause of 29,000 deaths in the UK each year – the biggest health problem after smoking. It should be noted that, not only does the Court fill in the legislature’s gap by purposively reading into the Directive an obligation to apply for a postponement of the compliance deadline, but it also peppers the judgment with assertions of the absolute nature of this obligation. For example in paragraph 30, the Court asserts that, despite the different wording of obligations not to exceed value limits in relation to different chemicals, the wording relating to nitrogen dioxide (‘may not be exceeded’) is just as powerful as that relating to carbon monoxide (Member States are to ‘ensure’ that limit values are not exceeded), and that it too creates an absolute obligation to achieve a certain result.

As there is no express obligation to seek postponement, the UK’s question as to whether the fact that they had produced air quality plans was sufficient to comply with their general obligation under the Directive seems sensible. The Court came down hard on this however, stating that to bypass Article 22, the postponement article, and comply only with Article 23, the air quality plans article, would mean Member States would comply with less stringent conditions than those imposed by both Article 22 and Article 23. Read plainly, this seems to be possible, and the Court seems to be again asserting the implied obligation to apply for postponement in order to avoid the mischief of allowing Member States to bypass the postponement requirements. This is consistent with their previous answer, but the response highlights the Directive’s deficiencies – Article 22 seems to impose a maximum deadline of 5 years for compliance with value limits, whereas Article 23 allows for surpassing this deadline so long as plans setting out appropriate measures keeping the period of exceeding the limits as short as possible are established. It is unclear which time limits Member States must comply with, and it is unclear what the ramifications are for failure to comply.

Whatever the drafting problems with this Directive that gave way to possible wiggle room for the UK government to elude the obvious intention of the legislators may be, the judgment is a fantastic example of the force of purposive interpretation and of using every possible argument to condemn a Member States’ clear breach of laws endangering public health.  

 

Barnard & Peers: chapter 22

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Rottmann Rules UK? Can British citizenship be taken away without regard to EU law?

 

Simon Cox*

Today the UK Supreme Court began grappling with the meaning and effect of the Rottmann judgment of the CJEU, which concerns the constraints placed by EU law on the loss of national citizenship. Counsel for the British Home Secretary argued that an interpretation of that judgment as applying beyond cross-border cases would take the CJEU beyond its competence. The Court questioned whether it could decide the application of Rottmann without first making a reference to the CJEU: an idea which the Government did not seriously oppose.

The case before the Court was brought by Vietnamese-born Mr Pham, known as B2 until he dropped his request for anonymity today. Acting under the British Nationality Act 1981 (BNA), the Home Secretary had deprived him of his British citizenship on national security grounds. Pham argued he had ceased to be a Vietnamese citizen. The Special Immigration Appeal Commission agreed and allowed the appeal under BNA provision preventing statelessness. The Court of Appeal disagreed, holding that Vietnam had not complied with it national law, and so Pham remained its citizen for purposes of the 1954 UN Statelessness Convention. The interpretation of that Convention is a key issue in the appeal.

EU law is also at stake. Aside from statelessness, Pham complained of his loss of EU citizenship under Article 20 TFEU. Pham relied on C-135/08 Rottmann to argue that this result meant the British deprivation decision could only be taken with due regard to EU law, in particular, proportionality.

That argument had been rejected by the Court of Appeal in a different case, R (G1) v Home Secretary [2013] QB 1008. Lord Justice Laws interpreted Rottmannto apply only to cross-border cases. Even more fundamentally, that court queried whether UK law would recognise the CJEU as having authority to alter the operation of the BNA.

G1 was refused permission to appeal from the Court of Appeal by the Supreme Court. Later, the Supreme Court gave Pham permission, including on the EU law point.

At today’s hearing, several judges queried with Pham’s barrister, Hugh Southey QC, whether the court needed to decide whether EU law applies. Would EU law proportionality give greater rights than British law proportionality?, Lord Reed wondered. British citizenship is akin to a fundamental right, so proportionality is required suggested Lord Neuberger. Lord Carnwath asked whether the BNA anyway required a decision to be proportional. Lord Sumption suggested that since a decision to deprive a person of British citizenship definitely does deprive them of EU citizenship, British public law may require the decision on the former to respect the legal approach to the latter.

Tim Eicke QC, counsel for the Home Secretary, accepted that the deprivation decision could only be upheld if it met the proportionality requirements of Article 8 of the European Convention of Human Rights. He argued that Rottmann proportionality would be no greater than those requirements. He did however accept that EU law may require greater disclosure of otherwise secret evidence than the European Convention on Human Rights (ECHR) would require. Pressed on ‘substantive’ proportionality, he conceded UK public law would be less protective than EU law.

Lord Reed and Lady Hale queried whether Article 8 ECHR family life rights would be as extensive as EU law rights of free movement. Mr Eicke argued that the Strasbourg judgment in Karassev v Finland, 12 January 1999, extends the ECHR’s reach to consideration of whether the loss of nationality breaches the Article 8 right to private life.

The court referred to Lord Justice Laws argument in G2 that British citizenship does not fall within the competence of EU law at all. Mr Southey replied that the question is one of interpretation of the EU Treaties.

Lord Mance quizzed Tim Eicke QC, counsel for the Home Secretary, about the effect of the adoption of subsequent EU treaties re-enacting old treaties.

The Open Society Justice Initiative had been given permission to intervene in the Pham case, and made a different EU law point in their written case. Relying on EU instruments conferring advantages on stateless persons, like Regulation 883/2004 (which regulates the coordination of social security for persons moving between Member States), they argued that statelessness is an autonomous concept of EU law. Pham’s argument about the meaning of statelessness could not be rejected unless the UK Court had first taken into account the EU law position. Since the CJEU had not yet interpreted the notion of statelessness, the Supreme Court would have to make a reference, they argued, unless they agreed with Pham under British law read alone.

The UK Government argued that, even if the case fell within the scope of EU law, the notion of statelessness was not an autonomous EU law concept, because it arises here only under the BNA, a British law.

While the hearing continues tomorrow, the Government’s submissions on EU law were largely made today.

Updated: hearing on Wednesday 19 November

Pham – Day 2 – Reference to the CJEU on the cards

The Pham hearing concluded today in Court 1 of the Supreme Court with a morning of oral argument, first from Home Office barrister Robin Tam QC, then a reply by Hugh Southey QC for Pham.

The seven-judge panel’s comments showed them weighing up two alternatives. To ask the CJEU what constraints, if any, EU law places on the procedure and substance of depriving Pham of his British citizenship? Or to dismiss the appeal without ruling on EU law, meaning the case would return to the fact-finding body – the Special Immigration Appeals Commission (SIAC).  The second option would see SIAC making findings on the alternative premises that EU law does, and does not, apply. If SIAC found that the difference in law would cause a difference in result in Pham’s case, a reference could then be made to the CJEU, by SIAC or on a further appeal.

The first option would be slow, pointed out the court. No-one thought the second option would be straightforward. Much of the discussion concerned Mr Pham’s right to know the British security service case that he is a threat to national security. Under the SIAC procedure, this is a crucial tool for appellants. Security service reluctance to disclose their arguments and evidence mean they may choose to abandon claims of terrorism rather than tell the appellant what they have been saying about him in secret. So a greater right to disclosure can mean the case is abandoned altogether.

The extent of legal duties to disclose has been closely fought in challenges to UK Government decisions. UK laws denying any right to disclosure were first weakened by the Court of Human Rights in A & Others v UK, holding that detention without trial could not be used if the gist or essence of the case were not disclosed to the detainee. In AF No 3, the UK’s highest court followed this reasoning in ‘control order’ cases. The CJEU addressed this in C-300/11 ZZ, ruling that an EU citizen facing exclusion from another EU state has a right to know the gist. However, in I.R. v UK Strasbourg rejected arguments that ECHR Article 8 requires the same disclosure.

Could Pham have more under the ZZ approach to EU law than under UK law, asked Lord Mance. Mr Tam conceded that he could: AF No 3 does not apply to citizen deprivation appeals. But even assuming EU law does apply to a citizen deprivation appeal, the UK Government did not accept that EU law would require a ZZ approach. (Rottmann speaks only of states ‘having regard to EU law’.)

All this showed SIAC would likely have a hard job to do without clarification of the basic question - does EU law apply – and, indeed, the further question – what does EU law require. Unsurprisingly, Mr Southey vigorously opposed the second option. A number of cases were left undecided – perhaps undecidable – by the current uncertainty, he suggested.

On Rottmann, Pham’s legal team argued that the language of the judgment showed that the competence invoked was citizenship (article 20 TFEU), not free movement (article 21), and pointed to the Ruiz Zambrano ruling. Mr Southey then addressed the Government’s fall back argument that the CJEU would overreach EU competence under Art 5 TEU by requiring EU law to be applied to deprivation of citizenship (except in free movement cases). He argued that the UK Parliament had made the CJEU the sole arbiter of EU competence. Section 3 of the European Communities Act 1972 requires the UK courts to follow rulings of the CJEU on EU law: EU competence is a question of interpretation of the EU Treaties. If the UK Government did not like a ruling of the CJEU, it must either persuade the other Member States to renegotiate the Treaties, or amend the European Communities Act.

Lord Mance suggested the Supreme Court could ask the CJEU whether it meant to go as far as it appeared to have done in Rottmann. Mr Southey accepted it could.

The Supreme Court reserved judgment, to be given at a later date.

*Simon Cox is the Migration Lawyer of the Open Society Justice Initiative and part of their legal team in their intervention in Pham

 

Barnard & Peers: chapter 13

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