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

Where a member state has exceeded the nitrogen dioxide limit values imposed by Article 13 of Directive 2008/50/EC, a domestic court may formally declare the resulting breach despite the government’s concession that a breach occurred. A concession alone is insufficient reason to withhold declaratory relief where no other discretionary bar applies.

Where unresolved questions concerning the interaction of Articles 13, 22 and 23, and the remedies required by EU law, are necessary to determine further relief, a final national court must obtain guidance from the Court of Justice of the European Union. Further relief may be reserved pending that determination.

The appellant environmental organisation challenged the United Kingdom’s failure to comply with nitrogen dioxide limit values under Article 13 of Directive 2008/50/EC. Air quality plans projected that several zones would remain non-compliant after 2015, and no Article 22 application for postponement had been made for those zones.

Mitting J dismissed the judicial review claim in [2011] EWHC 3623 (Admin). The Court of Appeal dismissed the appeal in [2012] EWCA Civ 897. Both courts regarded Article 22 as discretionary, and neither granted a declaration or mandatory relief.

The Secretary of State conceded before the Supreme Court that the United Kingdom was in breach of Article 13 in certain zones. The remaining questions concerned the operation of Articles 22 and 23 and the remedies which EU law required a national court to provide.

1. Declaration granted. The United Kingdom’s breach of Article 13 of Directive 2008/50/EC was clearly established. The Secretary of State’s concession did not provide a sufficient reason to refuse declaratory relief where no other discretionary bar existed. A declaration was appropriate as a formal statement of the legal position and to confirm that immediate enforcement action remained available at national or European level (Lord Carnwath, delivering the judgment of the court, paras [37]–[38]).

2. The court did not determine whether Article 22 required a member state to seek postponement whenever conformity with the nitrogen dioxide limit values could not be achieved by 1 January 2010. Nor did it determine the extent to which Article 23 governed a member state which had failed to comply with Article 13 and had made no Article 22 application. Those questions presented difficult and unresolved issues of EU law (paras [38]–[39]).

3. As the final national court, the Supreme Court was obliged to refer those issues to the Court of Justice of the European Union. The proposed reference also asked what remedies a national court must provide following non-compliance with Article 13 where no Article 22 application had been made, having regard to Article 30 of the Directive and Articles 4 and 19 TEU (paras [38]–[40]).

4. The parties were directed to submit proposed revisions to the questions and summaries of their respective answers within four weeks. Determination of the extent of any relief beyond the declaration was reserved pending the CJEU’s ruling (paras [1], [39]–[40]).

1. United Kingdom Supreme Court: Granted a declaration that the United Kingdom was in breach of Article 13 of Directive 2008/50/EC, referred unresolved EU law questions to the CJEU, and reserved further relief: [2013] UKSC 25.
2. Court of Appeal: Dismissed the appeal, holding that Article 22 was discretionary and upholding the refusal of declaratory relief: [2012] EWCA Civ 897.
3. High Court, Administrative Court: Mitting J dismissed the judicial review claim, held Article 22 discretionary, and refused mandatory and declaratory relief: [2011] EWHC 3623 (Admin).