R v Secretary of State for the Environment, Food and Rural Affairs

Where binding air-quality limits have been exceeded, an air-quality plan does not cure the breach. The responsible authority must adopt measures which bring the infringement to an end as soon as possible and must prepare a plan meeting the requirements of article 23(1) of Directive 2008/50/EC.

Domestic courts share responsibility for enforcing those obligations, independently of enforcement action by the European Commission. They must grant effective relief, including a mandatory order where assurances or undertakings provide insufficient legal protection. Practical difficulties do not loosen binding limit values, and the scope for relying on economic or practical impossibility is very limited.

The United Kingdom had failed since 2010 to comply in several zones with nitrogen dioxide limits imposed by Directive 2008/50/EC. ClientEarth sought judicial review of the Secretary of State’s response and the air-quality plans prepared in 2011.

The High Court regarded enforcement as principally a matter for the European Commission. The Court of Appeal adopted that approach in [2012] EWCA Civ 897. The Supreme Court subsequently declared a breach of article 13 and referred questions concerning articles 13, 22 and 23, and the national court’s remedial duties, to the Court of Justice of the European Union.

After the Court of Justice answered those questions in Case C-404/13, the principal remaining issue was what domestic order was necessary to secure preparation of legally compliant plans within a definite timetable.

Appeal allowed unanimously. Lord Carnwath delivered the judgment, with which Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption agreed.

1. The critical breach was the continuing failure to comply with article 13 of Directive 2008/50/EC. Articles 22 and 23 were supplementary. An air-quality plan under article 23 did not itself satisfy article 13 or permit a member state to defer the necessary compliance measures. The limit values remained legally binding despite matters beyond the control of individual states and the worsening practical outlook.

2. It was unnecessary to decide whether the article 22 extension procedure had been mandatory. By the time of judgment, the maximum extension to January 2015 had lost practical significance. Lord Carnwath nevertheless considered that there was considerable force in treating article 22 as an optional derogation. On that approach, choosing not to seek a derogation reinforced the urgent obligation under article 23(1) to remedy the danger to public health as soon as possible.

3. The requirements of article 23(1) were no less onerous than those applicable to an article 22 plan under annex XV section B, although they were more specific to the affected zone. The national court could impose detailed requirements needed to secure effective compliance at the earliest opportunity. Consideration of the measures listed in paragraph 3 of section B was a useful checklist, but it was unnecessary to reproduce it in the order.

4. The High Court and Court of Appeal had treated compliance as a matter for European Commission enforcement. That approach was untenable. Regardless of Commission action, national courts were responsible for enforcing the Directive and had jurisdiction to make any necessary order. The continuing breach, deterioration in projected compliance and acknowledged need for new plans made legal relief necessary.

5. A court may ordinarily accept a suitable undertaking from a responsible authority which admits its breach and is taking appropriate corrective steps. No undertaking was available here. Accepting the Secretary of State’s assurances without legal underpinning would have failed to discharge the court’s enforcement duty.

6. The Secretary of State was ordered to prepare new plans under article 23(1), under a defined timetable ending with delivery to the Commission by 31 December 2015. Either party had liberty to apply to the Administrative Court for variation or determination of legal issues arising during preparation. The meaning of “as short as possible” was left open, although the scope for relying on practical or economic impossibility appeared very limited.

1. United Kingdom Supreme Court: In [2015] UKSC 28, unanimously allowed the appeal and ordered preparation of new air-quality plans under article 23(1) of Directive 2008/50/EC by 31 December 2015.
2. United Kingdom Supreme Court: In [2013] UKSC 25, declared the breach of article 13 and referred questions concerning articles 13, 22 and 23 and domestic remedies to the Court of Justice of the European Union.
3. Court of Appeal: In [2012] EWCA Civ 897, adopted the High Court’s view that enforcement could be left to the European Commission.
4. High Court: Mitting J treated the article 22 procedure as optional and considered that the admitted breach could be left to European Commission enforcement.