Of Munich’s Air and Prisons: New Court docket of Justice Ruling on Efficient Treatments

C-752/18 – Deutsche Umwelthilfe

Shortly earlier than Christmas, the Court docket of Justice (CJEU) rendered judgement on a preliminary reference from the Larger Administrative Court docket of Bavaria. The reference originated from a case introduced by Deutsche Umwelthilfe (DUH) with the help of ClientEarth. The referred query was fairly dramatic: Was the courtroom entitled, and even obliged, to order imprisonment of the Bavarian Minister of Surroundings or Minister-President due to their open refusal to adjust to EU regulation? The CJEU offers a balanced reply to the query however emphasizes the necessity to discover a answer in keeping with the applicant’s proper to an efficient treatment.


In October 2012, the Administrative Court docket of Munich ordered the Land of Bavaria to amend the air high quality plan for town of Munich as a result of the relevant common restrict worth of nitrogen oxide (NO2), as prescribed by the Air High quality Directive (2008/50), had been exceeded at numerous places within the metropolis. In 2017 and 2018, the Administrative Court docket ordered the Land of Bavaria twice to pay fines of EUR 4000. The Land paid, having misplaced its appeals towards these orders. Nevertheless, in apply these fines had been merely paid from one Bavarian Ministry to a different; that they had due to this fact no actual impact. On the identical time, the Minister-President brazenly said that he didn’t intend to adjust to the courtroom order to amend the air high quality plan and to impose the required diesel bans.
The relevant German procedural guidelines apply the sanction guidelines of the Code of Civil Process. These guidelines present for 2 prospects: fines and coercive detention. Fines having proved ineffective, the candidates additionally requested the courtroom to order detention of the Bavarian Minister of Surroundings, or failing this, the Minister-President. The Administrative Court docket refused to order detention. Nevertheless, the Larger Administrative Court docket determined to make a preliminary reference to the CJEU asking whether or not EU regulation entitled, and even obliged, it to order detention on this case.

The judgement

The Court docket firstly emphasizes that the best to an efficient treatment (Artwork. 47 of the Constitution of Basic Rights and Artwork. 9(4) Aarhus Conference) would turn into illusory if nationwide courtroom judgements weren’t enforced. It then highlights that this proper is within the current case “all of the extra necessary” as a result of the failure to amend the air high quality plan would endanger human well being. Subsequently, it’s on the nationwide courtroom to determine, “taking the entire physique of home regulation into consideration and making use of the interpretative strategies recognised by that regulation”, whether or not it may apply efficient coercive measures to make sure that the general public authorities complied with the judgement. The CJEU particularly refers on this regard to the potential of excessive monetary penalties repeated after a short while, which might not be paid again into the Land’s funds.

Solely after clarifying this, the Court docket turns to the query of whether or not EU regulation requires detention underneath the current circumstances. On this regard, the Court docket highlighted that the best to an efficient treatment (Artwork 47 Constitution) must be balanced with the best to liberty (Artwork 6 Constitution). Based mostly on Artwork 6, a deprivation of liberty is firstly solely permissible if based mostly on a regulation that’s “sufficiently accessible, exact and foreseeable in its software with the intention to keep away from all threat of arbitrariness”. Secondly, the nationwide courtroom should strike a “honest steadiness”, making certain that “no much less restrictive measure” could be obtainable to safeguard the best to efficient treatments with out resorting to a deprivation of liberty. The CJEU concludes that the nationwide courtroom is required to order detention if each these situations are fulfilled. If not, EU regulation doesn’t empower the courtroom to order detention.


The CJEU locations nice emphasis on the best to an efficient treatment. Earlier than addressing the query of detention, the judges present their seemingly most well-liked choice of extra dissuasive, repeated fines that don’t return into the Land’s funds. Whereas not mirrored within the questions referred by the Munich courtroom, this concern had additionally acquired appreciable consideration throughout the listening to. The judgement can thereby function a helpful reference level for different circumstances by which public authorities fail to treatment breaches of EU environmental regulation.

On the purpose of detention itself, the brink is essentially excessive, because the related regulation should be utilized in a “sufficiently accessible, exact and foreseeable” method to justify proscribing the Ministers’ liberty. That is on prime of the query of lifting the immunity of the Ministers, some extent addressed within the Advocate Common’s Opinion. Furthermore, even when these hurdles had been cleared, the nationwide judges could be required as soon as once more to determine if there are actually no different, much less restrictive measures that will enable the Ministers to proceed having fun with the (polluted) air of Munich with out inhibitions.

Apparently, the Court docket mentions the chance to carry a state legal responsibility declare for failure to adjust to EU regulation as a final resort. This so-called “Francovich doctrine” permits candidates to acquire damages from EU Member States which are a direct results of a violation of EU regulation. Being a harm declare, state legal responsibility wouldn’t obtain the supposed results of higher safety of the residents from air air pollution. Furthermore, a central hurdle would probably be to quantify the harm suffered by Munich’s residents as a direct causal results of the failure to amend the air high quality plan. Whereas clearly not an efficient treatment and freighted with hurdles, state legal responsibility stays an extra route that continues to be considerably untested within the environmental area because the unsuccessful declare in case C-420/11 Leth.

On first sight, this case could seem uncommon, as it’s tough to think about a Minister being imprisoned for an administrative matter. Nevertheless, on the coronary heart of the case lies a really severe concern, specifically the observance of fundamental tenets of the rule of regulation by elected officers. The place a Minister brazenly states that he doesn’t intend to adjust to a courtroom order and certainly refuses to take action, it’s elementary in a democratic society {that a} choose has a way at his or her disposal to coerce compliance. That is non-negotiable in a society dominated by regulation. It would due to this fact be essential that the Administrative Court docket orders a sanction that respects and protects these fundamental ideas, whether or not by means of detention or not.

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