Response to ECJ decision on measuring air pollutants | Austria

Introduction

The EU Air Quality Directive (2008/50/EC) defines thresholds for certain air pollutants, such as nitrogen dioxide, ozone or particulate matter.(1) If air pollution exceeds the permissible limit, EU member states must establish appropriate air quality plans to remedy this situation as soon as possible.

The directive stipulates where the corresponding air quality measuring points must be set up, and detailed criteria for doing so. The location of measuring points and the calculation method used to determine whether air pollutant limits have been exceeded are clearly important.

In a June 2019 decision,(2) the European Court of Justice (ECJ) commented on these measurement criteria and examined allegations made by concerned residents of the Brussels-Capital Region and a non-governmental organisation (NGO) that the threshold for NO2 set out in the EU Air Quality Directive had been exceeded in the region. As a result, individuals in affected areas and NGOs can now take direct action in Austria against wrongfully installed air quality measuring points.

In September 2019, the Austrian Higher Administrative Court addressed this matter and explained how those concerned in Austria should proceed.(3)

ECJ decision

In its decision, the ECJ addressed whether:

• individuals in the affected area and recognised environmental organisations can have a court review on whether air quality measurements were taken in the right place; and
• it is sufficient to establish that air pollutant thresholds have been exceeded if a pollution level above the limit is measured at only one measuring point, or must such a pollution level result from the average of the measurement results of all measuring points in a given area.

As regards the first question, the ECJ stated that, in accordance with the EU Air Quality Directive, member states may choose the locations of measuring points at their discretion. Referring to previous jurisprudence on air pollution control law(4) and Article 47 of the Charter of Fundamental Rights of the European Union, the ECJ found that this discretion is not beyond legal control and can be reviewed.

Therefore, individuals in affected areas and NGOs may have this discretion checked for compliance with the EU Air Quality Directive. In addition, the courts can issue orders to the competent authorities to ensure that measuring points are set up in accordance with these criteria.

On the second question, the ECJ acknowledged the need to:

• identify the actual air pollution to which the population is exposed; and
• ensure that appropriate measures are taken to combat the sources of such pollution.

Whether there has been a violation of the thresholds does not need to be determined solely on an average value. The ECJ stressed that a violation at one measuring point is enough and obliges the member state to act accordingly.

Practical approach in Austria

In Austria, the competence for determining the location of measuring points is divided between two authorities: the state governor and the competent federal minister. The respective state governor decides on the number of measuring points, including regional distribution, relocation, abandonment, equipment and the quality assurance of measured data.(5)

Annex 2 of the Air Imission Protection Act Measuring Concept Ordinance 2012,(6) issued by the competent federal minister, specifies the location criteria of measuring points in detail.

In that context, the ECJ's decision raised some questions in Austria:

• What would the concrete legal protection by the public concerned look like? Possibilities include challenging the ordinance, which specifies the location criteria of the measuring points, directly before the Constitutional Court or requesting the state governor to reposition the measuring points in question (for further details please see "Right to clean air – latest developments").(7)
• As the ECJ's decision had only addressed the possibility that the courts would be able to act, it was unclear whether an application could also be submitted directly to an authority such as the state governor, or whether a detour must be taken via a superordinate administrative court.

In a September 2019 decision, the Austrian Higher Administrative Court presented a practical solution.(8) Based on the ECJ's ruling, the Austrian Higher Administrative Court concluded that the public concerned has a fundamental right to apply to have the installation of measuring points in a specific area checked for compliance with the EU Air Quality Directive.

Considering the principles of equivalence and effectiveness under EU law, the Austrian Higher Administrative Court assumed that filing an application with the competent authority (ie, the state governor) instead of with an administrative court is the more appropriate solution for establishing a situation that conforms with EU Law.

Comment

As a result of the ECJ's decision, individuals in affected areas and NGOs can now take direct action in Austria against wrongfully installed air quality measuring points; however, it remains difficult to determine whether a measuring point has been wrongfully installed.

Evidently, the ECJ wants to avoid situations where relevant measuring points are disregarded and negative measurements in certain areas are improved by positive measurements in other areas. Thus, as the ECJ stated that an exceedance at one measuring point is already decisive, it must be assumed that this measuring point is relevant to a specific area's emissions. Incorrectly positioned and therefore irrelevant measuring points cannot lead to obligations under the EU Air Quality Directive.

As regards the relevance of exceeding air pollutant thresholds, the Austrian legal situation is compatible with the ECJ's ruling. The Austrian Air Imission Protection Act(9) clearly stipulates that an exceedance at one measuring point is the decisive factor, not the average value of several measuring points.

The possibility created by the Austrian Higher Administrative Court to apply directly to the state governor instead of to an administrative court is a practical solution. After all, the state governor is the authority that ultimately sets up the measuring points and has the necessary information at its disposal. However, the administrative courts have no specific technical details to hand all of the time.

Where the authority rejects such applications, applicants have the right to appeal to the administrative court, which may verify compliance with the EU Air Quality Directive. If the court recognises that a measuring point is unsuitable and the authorities do not react, this will result in liability for abuse of authority.

In addition, it is still possible to appeal directly to the Constitutional Court against the measuring points location criteria set out in the Air Imission Protection Act Measuring Concept Ordinance. However, this question did not arise in the above case.

This article was first published on International Law Office

Endnotes

(1) EU Directive 2008/50/EC of 21 May 2008 on Ambient Air Quality and Cleaner Air for Europe (2008 OJ L 152/1).

(2) ECJ, 26 June 2019, C-723/17 (Craynest).

(3) Austrian Higher Administrative Court, 25 September 2019, Ra 2018/07/0359.

(4) For example, ECJ Decision C-237/07 of 25 July 2008 (Janecek) and ECJ Decision C-404/13 of 19 November 2014 (Client Earth).

(5) Sections 4 and 5 of the Austrian Air Imission Protection Act in conjunction with the Air Imission Protection Act Measuring Concept Ordinance 2012.

(6) Published in Federal Law Gazette II 2012/127, as amended.

(7) Such an application is not actually planned under Austrian law, but could result analogously from the ECJ case law on legal protection in air pollution control law.

(8) Austrian Higher Administrative Court, 25 September 2019, Ra 2018/07/0359.

(9) Published in Federal Law Gazette I 1997/115, as amended.