EU countries don’t have to pay compensation for polluted air, says ECJ

European Union countries that fail to keep air pollution below agreed levels do not have to provide financial compensation to citizens, the European Court of Justice ruled on Thursday.

The case was brought forward by JP — a resident of the Paris region — who claimed compensation from the French State for €21 million. He alleged that his health has deteriorated since 2003 because of declining air quality in the French capital.

He accused the country’s authorities of failing to fulfil their obligations under EU law to ensure air pollution is kept below a certain level.

Under a 2008 EU directive, the daily mean of PM10 pollution — small particles that are inhaled into the lungs and can cause adverse health effects — cannot exceed 50 micrograms per cubic metre more than 35 times in a year. The annual mean may not exceed 40 micrograms per cubic metre.

Several EU countries, including France, Poland and Italy, have been dragged in front of the ECJ by the European Commission in recent years over “systematic failure” to meet these EU rules.

JP’s case had been referred to the ECJ by the Versailles Administrative Court of Appeal. 

In an opinion released earlier this year, an adviser to the ECJ had sided with the plaintiff, arguing that “an infringement of the limit values for the protection of air quality under EU law may give rise to an entitlement to compensation from the state”.

Advocate General Juliane Kokott noted however that governments could avoid liability if they could prove the pollution limits would still have been breached if a sufficient air quality plan had been in place.

But the ECJ broke with the advice, ruling that “European directives setting standards for ambient air quality are not, as such, intended to confer rights on individuals, the violation of which could give them a right to compensation”.

It said that individuals must “nevertheless be able to obtain from the national authorities, possibly by bringing an action before the competent courts, that they adopt the measures required under the European directives, such as an air quality plan”.

It added that liability can be incurred “on the basis of domestic law, under less restrictive conditions” and that domestic courts can also “issue injunctions accompanied by periodic penalty payments to ensure compliance by that State with its obligations under Union law”.

The latest figures from the European Environment Agency show that air pollution causes more than 300,000 premature deaths a year — a sharp decline from the roughly one million premature deaths that were caused by fine particulate pollution in the early 1990s.

The report found that if the most recent air quality guidelines from the World Health Organisation (WHO) were followed, the number of fatalities could be cut in half.

The European Commission proposed in October to update its air pollution directive with stricter guidelines to align more closely with WHO standards and achieve zero pollution for air by 2050 at the latest. 

Under the proposal, the annual limit value for the main pollutant — fine particulate matter (PM2.5) — is proposed to be cut by more than half while people suffering health damages from air pollution would have the right to be compensated in the case of a violation of EU air quality rules or be represented by non-governmental organisations through collective actions for damage compensation.

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