December 2017, Cergy (France). On December 12, a French court rejected a lawsuit from a French citizen, a common occurrence that happens daily in courts around the world. However, this decision may unleash a cascade of subsequent lawsuits.
The complaint from the resident of the Val d’Oise prefecture, northwest of the French capital, claimed 21 million euros from the French state “as a result of the growing air pollution in the city.”
An argument that was not considered valid by the judiciary of the neighboring country. However, the judicial process did not stop at this first instance. The Gimalac law firm appealed to the Contentious-Administrative Court of Appeal of Versailles the ruling: “The State is responsible for the quality of the air, by virtue of article L. 220-1 of the environmental code.”
The response in the second instance has been to take the case to the community courts in the face of “the serious difficulty of interpreting European Union law” with the following question: “Should the rules of European Union law resulting from the provisions of the Article 13, paragraph 1, and Article 23, paragraph 1, of Directive 2008/50/EC in the sense that they recognize individuals, in the event of a sufficient breach by a Member State of the obligations incumbent on it in under such provisions, the right to obtain compensation for the damage suffered to their health when there is a direct and certain causal relationship between such damage and the degradation of air quality?
A question that has received an answer and that leaves open a way for states to compensate citizens for high pollution. This is, at least, suggested by Juliane Kokott, the German attorney general at the Court of Justice of the European Union.
However, the loophole is small, since “the injured party must prove a direct causal relationship between staying in the place where the air quality limit value was exceeded and the alleged damages, for which, they will normally need medical reports” , warns the lawyer.
The Advocate General’s conclusions come after a series of rulings issued in recent years by the EU Court of Justice, based in Luxembourg, in which a dozen member countries, including France, Poland, Italy and Romania, have been found guilty of illegal air pollution.
Community thresholds
Directive 2008/50/CE of May 21, 2008 updated these red lines, a modification that entered into force on January 1, 2010. This change in the articles lowered the limits “to protect the health of citizens”.
This includes that 200 µg/m3 of nitrogen dioxide (NO2) cannot be exceeded “more than 18 times a year” and the total average for the year “may not exceed 40 µg/m3”, details the community law. As for PM10 particles (particles smaller than 10 μm that can penetrate to the lower respiratory tract), the limit is set at
50 µg/m3, “which may not be exceeded more than 35 times in 12 months”, and the annual average is set at 40 µg/m3. For its part, PM2.5 (particles smaller than 2.5μm, which can penetrate to the gas exchange zones of the lung) is 25 µg/m3.
“The State is responsible for the quality of the air, by virtue of article L. 220-1 of the environmental code,” denounced the Gimalac law firm in defense of its client. “Exceeding the pollution limit values may compromise the State’s responsibility with respect to the obligations imposed by the European directive of May 21, 2008,” he recalls in the letter.
Along the same lines, the French Council of State warned Emmanuel Macron’s executive in 2020 and sanctioned him with a fine of 10 million euros for not doing everything possible, in his opinion, to reduce pollution. “Although measures have been taken, the Council of State now considers that they will not improve the situation in the shortest possible time, because the implementation of some of them remains uncertain and their effects have not been evaluated,” argued the body two years ago .
According to French government data, pollution is a problem that kills 40,000 people a year in the neighboring country. “The responsibility of the State is committed by virtue of its obligation to take all necessary measures to protect people’s lives,” the Gimalac law firm highlights in its complaint.
An assumption, the latter, that the lawyer Kokott accepts, although with a nuance: «The Member State can avoid its responsibility if it demonstrates that the limit values would have been exceeded even if it had drawn up air quality plans in a timely manner that meet the requirements of the Directive”, he relates in his letter.
Since 2019, the Elysee has been working on the preparation of its Climate and Resilience Law, baptized by Macron’s cabinet as a “rupture text to change what does not work in our model.” The Law sets the end of the sale of light vehicles with combustion engines in 2030 and from 2040 the sale of heavy vehicles powered by fossil fuels is prohibited, among many other measures.
Pollution-health relationship
However, this is not the only clarification in the German lawyer’s conclusions regarding the French court’s question. Lawyer Juliane Kokott in her text, which is not binding, warns that there must be “proof of a direct causal relationship between the characterized violation of air quality standards and specific damage to health,” she highlights. .
There are more and more reports that highlight the impact of pollution on human health. Research commissioned by the World Meteorological Organization (WMO) and carried out by the Global Burden of Disease (GBD) indicates that global mortality due to air pollution is estimated at more than four million in 2019. In Spain, this figure is There would be around 44,600 people left, according to Harvard University, in collaboration with Birmingham, Leicester and College London.
Very wide ranges that the CJEU General Advocate wants to put an end to. “Exceeding the limit values affects, above all, certain groups of people who live or work in particularly polluted areas,” she argues. She also adds that “the injured party must demonstrate that for a sufficiently long period they have remained in an environment in which the air quality limit values imposed by Community legislation have been exceeded in a characterized manner. The affected party must prove a damage that can be associated with the corresponding air pollution.
Complicated certification
So far, there is only one death certificate in the Old Continent that relates environmental pollution to loss of life and it is signed by coroner Philip Barlow.
Ella Adoo-Kissi-Debrah, just 9 years old, died of acute respiratory failure caused by a rare form of asthma. According to the autopsy, the young woman was exposed during her illness, between 2010 and 2013, to high levels of nitrogen dioxide and suspended particles, which exceeded the thresholds recommended by the World Meteorological Organization.
The origin of these pollutants is evident: road traffic, which generates the aggressive PM2.5, small particles with a diameter of less than 2.5 micrometers, the equivalent of 3% the thickness of a human hair, which easily penetrate the lungs, enter the bloodstream and can cause significant damage to veins and organs of the human body.
Finally, and after a second autopsy, Ella is the first ‘official’ victim of contamination.
“It will be difficult to prove the damage caused by the contamination”
The General Counsel of the Court of Justice of the European Union (CJEU) has already ruled, however “these conclusions are not binding, but they are very important”, warns Javier Fernández Rivaya, partner in the Garrigues Administrative Law department.
However, “it is not ruled out that the CJEU adopts the same criteria”, adds Victoria Esteban, counsel at Garrigues. In this sense, “the door is opened for individuals to claim compensation.”
A half-open door that remains closed when it comes to demonstrating the damage caused by pollution. “This is where the difficulty will be,” explains Esteban. “If it is achieved, there could be eventual compensation,” he replies.
In the argument, the CJEU lawyer, Juliane Kokott, maintains that non-compliance with the limit values established in Union Law to protect air quality can justify a right to compensation against the State. “Three requirements are necessary for the right to compensation for damage to arise,” says Fernández.
The first of these is that a community rule confers a right, the second that the infringement of the limits is duly characterized and that the third aims to trace a causal relationship between the breach and the damage invoked. “The conclusions confirm that at least the first of these is fulfilled,” comments the partner in Garrigues’ Administrative Law department.
Despite this, the experts agree that it will be difficult to prove causality between the breach and the damage invoked.
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