ClientEarth, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

A Member State in breach of air-quality limit values is not obliged to use the statutory mechanism for postponing the compliance deadline. Article 22 of Directive 2008/50/EC confers a discretion to seek postponement and does not impose an independent duty to submit an air-quality plan demonstrating compliance by the postponed deadline. A domestic court may record an admitted breach but need not grant declaratory relief where enforcement mechanisms under the Treaty are available. Mandatory relief will be refused where it would require the court to determine matters involving substantial political and economic choices.

ClientEarth sought declaratory and mandatory relief concerning the United Kingdom’s admitted failure to comply with nitrogen-dioxide limit values imposed by Directive 2008/50/EC. The claimant argued that Article 22(4), read with Article 22(1), required the Government to submit an air-quality plan showing compliance, or likely compliance, by 1 January 2015. The Secretary of State accepted that the United Kingdom was in breach of Article 13 but maintained that postponement under Article 22 was optional. The central issues were whether Article 22 imposed the alleged duty and what relief, if any, should follow from the admitted breach.

1. Article 22 postponement mechanism. Article 22(1) gives Member States a discretion to seek postponement of the compliance deadline by up to five years. The word “may”, supported by the French text “peut”, is unequivocal. Article 22(4) requires notification and communication of an air-quality plan only where the Member State considers that the postponement provisions apply and chooses to use that machinery. It does not impose a freestanding duty to submit a plan.
2. The United Kingdom could admit its breach of Article 13 and leave enforcement to the European Commission under Article 258 of the Treaty on the Functioning of the European Union. There was therefore no basis for a mandatory order requiring the Secretary of State to apply for postponement.
3. Article 23. Article 23 principally defines the content of an air-quality plan submitted for the purpose of seeking an exemption under Article 22. It might also require plans where exceedances first occur after 2011, on the Commission’s interpretation, but it was unnecessary to decide that issue because any such obligation would not relieve the United Kingdom from the consequences of breaching Article 13.
4. The court accepted that the United Kingdom was in breach of Article 13, but declined to make a declaration because the breach was already conceded and a declaration would serve no practical purpose. Enforcement lay with the Commission and, if necessary, the Court of Justice under Article 260.
5. A mandatory order enforcing compliance with Article 13, or requiring a plan to achieve compliance by 1 January 2015, would raise serious political and economic questions. It was not just or expedient to grant such relief under section 31(2) of the Supreme Court Act 1981. The claim was therefore determined in the claimant’s favour on part of the legal reasoning, but no relief was granted. There was no order as to costs, and permission to appeal on the Article 22 issue was refused.