Access to Justice

The Directives have been essential in driving action against air pollution and have enshrined in EU law the right to clean air. The air quality directives have given possibility for individuals, NGOs and the Commission to pursue effective legal actions. Litigation has been a key driver to force competent authorities to act to improve air quality. Without the Directives, air pollution in the EU today would be much worse than it currently is.

The air quality legislation does not contain comprehensive rules as regards access to justice. Detailed requirements are Article 25 of the Industrial Emissions Directive (2010/75/EU) and related legislation: Article 11 of the Environmental Impact Assessment Directive (2011/92/EU); and Article 23 of the Seveso III Directive (2012/18/EU). Article 25 of the IED, in particular, requires the Member States to ensure that the members of the public concerned have access to a review procedure to challenge the legality of permits for new large industrial installations, permits for any substantial change or updates of permits. Such procedure must be fair, equitable, timely and not prohibitively expensive.

However, there is a link between the air protection and rights of individuals which satisfies the conditions for direct applicability of certain provisions of directives which do not contain requirements on access to justice – such as the AQD or the NEC Directive. This is because the quality (concentration) limit values of the directive aim at the protection of human health . Thus, they have the objective to protect the individual right to health. They are sufficiently precise and unconditional to be of direct application.

This means that the individual person has a right to trace back the limit values in his national legislation; it follows from this that Member States are obliged to transpose the limit values of the air pollution directive into their national law.

Furthermore, the EU Court of Justice confirmed in Case C-237/07 Janecek that "whenever the failure to observe the measures regarded by the directives which relate to air quality and drinking water and which are designed to protect public health, could endanger human health, the persons concerned must be in a position to rely on the mandatory rules included in those directives". In this particular case, a Munich resident asked a German court to issue an order requiring the Bavarian Government to draw up an air quality plan to reduce air pollution in his neighbourhood. He lived only 900 metres away from an air quality measuring station, which showed that EU air quality limit-values for particulate matter were exceeded more than 35 times in 2005-2006. Initially, he was told by a German court that he had no right to be heard. However, following questions put to it, the CJEU upheld his right to bring a case. It reasoned that someone affected by health concerns was entitled to file a claim before a national court to ask for action to be taken.