Introduction
A right to compensation for damage to people’s health that occurred because of a violation of air pollution standards has been long-awaited in EU law. The case law of the Court of Justice of the EU (CJEU) until now was developing very well to guarantee an individual right to clean and healthy air 3. However, the latest judgment of 22 Dec. 2022 in the case JP v Ministre de la Transition écologique 4 turned out to be a big disappointment. This ruling was expected to further advance the case law following seminal Janecek in which the CJEU already recognised rights of directly concerned individuals to demand their local administration authorities to draw up remedial air quality plans in case of heavy air pollution 5. Regrettably, in the commented decision the CJEU, unlike Advocate General Kokott held that the Ambient Air Quality Directive (AAQD) 6 does not grant any right to compensation in case of violation of the air quality limits. The CJEU basically stood firmly by its previous case law according to which Frankovich liability rule is only applicable to EU law cases concerning individual rights to payments or economic benefits. Since the AAQ Directive confers no economic rights that could be invoked to demand compensation from member states, the CJEU did not allow for the application of Francovich rule to protect individuals harmed by air pollution maintained by local authorities breaching EU air quality rules.
In this context, the purpose of this paper is to prove that individual right to clean and healthy air in EU law has its legal consequences among which the crucial one is to be compensated for health damage suffered due to notorious air pollution crisis. This research is mainly based on the analysis of the most recent CJEU decision concerning compensation claims for health pollution - JP v Ministre de la Transition écologique. The diverging arguments both from the CJEU and the Advocate General side in the light of the three conditions of state liability for EU law violation have been presented.
I. Factual and legal background
The case originated in a domestic claim brought by a Paris resident – J. P. against the French state, seeking compensation of 21 million euro on the grounds that, in his view, the increasing air pollution in Paris damaged his health. He argued that France was liable because its local authorities failed to comply with the EU air pollution limit values. In parallel, in 2019 and 2022 the CJEU in the course of infringement proceedings initiated by the European Commission found that the values for NO2 in Paris agglomeration had been permanently exceeded since 2010 7. On the 12 Dec. 2017 the tribunal administrative of Cergy-Pontoise rejected claims of the plaintiff J.P. on the grounds that, as the court said, Articles 13 and 23 of the AAQD did not confer individual rights to compensation for a loss sustained as a result of the deterioration of air quality. On the 25 April 2018 J.P. appealed that decision before the administrative appellate court of Versailles, at the same time the Minister for Ecological Transition advocated for dismissal of this appellation. In this situation, the French appellate court raised questions to the CJEU under the preliminary ruling procedure 8. The key issue concerned interpretations of Articles 13(1) and 23(1) of said directive as possibly entitling EU citizens to claim financial compensation for damage to their health 9.
In fact, the key question concerning pecuniary compensation at stake in JP v. Ministre de la Transition écologique went beyond the pure principle of the direct effect of the above-mentioned provisions that was the key issue in Janecek. This preliminary reference raised novel problems that were yet to be examined thoroughly by the CJEU in relation to the Air Quality Directive. But it has to be mentioned that the CJEU in Deutsche Umwelthilfe case of 2019 had already noted that violation of this directive could give rise to claims for damages in line with EU state liability rule: ‘the full effectiveness of EU law and effective protection of the rights which individuals derive from it may be ensured by the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible, as that principle is inherent in the system of the treaties on which the Union is based.’ 10
The picture of the EU legal background of the commented case shows that despite a global trend to recognise the right to healthy environment, EU law does not explicitly recognise neither the right to healthy environment nor an individual right to clean air as a substantive element of such right 11. However, based on extensive and consistent CJEU case law we assume that the AAQD provisions read in the light of their purpose and systemic values guarantee EU citizens’ rights to air quality with safe for human health levels of pollutants 12. CJEU case law to date made it manifestly clear that Articles 13 and 23 of the AAQD are clear, precise and unconditional enough to confer rights justiciable before domestic courts 13. Just to recall, a few exemplary citations, in the Janecek case in 2008, the CJEU noted that: ‘Article 7(3) of Directive 96/62 (now: Article 13 of AAQD) must be interpreted as meaning that, where there is a risk that the limit values or alert thresholds may be exceeded, persons directly concerned must be able to require the competent national authorities to draw up an action plan, even if under national law, those persons may have other courses of action available for requiring those authorities to take action against atmospheric pollution’ 14. Likewise, in the ClientEarth case in 2014 the CJEU consistently held that ‘individuals may rely against public bodies on the provisions of a directive which are unconditional and sufficiently precise. It is for the competent national authorities and courts to interpret national law, as far as possible, in a way that is compatible with the purpose of that directive’ 15. In addition, in Lies Craeynest case in 2019 the CJEU noticed - that ‘it would be incompatible with the binding effect of directive to exclude the possibility that the citizens concerned relied on the obligation imposed by that directive. This is particularly true in respect of a directive whose objective is to control and reduce atmospheric pollution and which is designed to protect public health’ 16.
Effective application of the AAQD provisions via direct effect before national courts depends on domestic procedural standards. A recent study on national practices in recognising the right to a healthy environment, by the UN Special Rapporteur on human rights and the environment, shows that all of the EU member states have recognized this individual right to clean air directly in their constitutional laws or indirectly via their international commitments, mainly the Aarhus Convention 17. Nonetheless, the execution of this right depends on good practices relating to access to justice and effective procedural remedies in domestic environmental laws. In line with the CJEU case law, EU citizens should have locus standi—that means the right to claim the adoption of air quality plans that would guarantee compliance with specific limit values set in AAQD before a local court 18. To address the problems of divergent domestic interpretations of procedural aspects of environmental rights the European Commission passed an instructional notice on access to justice in environmental matters 19. Nonetheless, access to justice barriers persist in Central and Eastern Europe jurisdictions where national courts, by denying individuals and NGOs standing to challenge air quality plans, routinely ignore the EU law procedural standards, for instance in Bulgaria 20 or Hungary 21. In Poland, direct effect of Article 23 (1) of the AAQD is severely limited. Due to procedural barriers, either individuals or NGOs cannot challenge air quality plans before domestic courts 22. Judicial decisions of Polish administrative courts correspond neither with CJEU case law standards nor with the binding international law agreements. Thus far Polish courts have decided very few cases concerning air quality plans due to limited admissibility 23. To get access to court, claimants hardly proved their legal interest—based on constitutional provisions and European Convention on Human Rights, specifically violation of their rights to privacy and home protection (Article 8 of ECHR) 24. In some jurisdictions, as a matter of fact, procedural remedies exist but are not effective at all in enforcing compliance with air quality standards and preventing damages to human health, for instance: in the Netherlands 25, Germany 26, Czech Republic 27, Slovakia 28 and Austria 29.
II. Right to compensation for health damage caused by air pollution in diverging views of the CJEU and Advocate General
By way of introduction, it has to be mentioned that now, more than 30 years after Francovich case 30 the state liability principle is very well founded in EU law, however still not particularly popular before domestic courts of member states 31. For the last years European Commission has repeatedly reprimanded member states for non-compliance with this rule. And finally brought a few direct actions for violation of the treaty, for instance against Italy 32 in 2011 for notorious nonconformity of Italian rules on professional responsibility of judges with EU law. Though, preliminary ruling in case Traghetti del Mediterraneo 33 had already made it very clear in 2006. It is worth remembering that in line with the procedural autonomy rule, EU law does not impose procedural standards, as long as there is no discrimination and effectiveness is guaranteed for the claims based on EU law. Some of the member states follow a monistic approach and apply the same procedural standard for compensation claims in both types of violation of either EU or domestic law. Most of the states, nonetheless take a dualistic approach that entails the application of different procedures for domestic claims and for the ones based on EU law. The facts of the above cited Commission v. Italy case of 2011 show that member states are very bound to their legal traditions considering compensation claims and are very reluctant to adapt them to EU law. It also proves that limitation by the national in this case Italian legislature of the state’s liability to cases of intentional fault or serious misconduct committed by such a domestic court is contrary to the Francovich rule 34.
Member states routinely consider this rule not to be well founded in the treaties, however, after the Lisbon Treaty amendments one could hardly agree with this objection 35. Since 90.of the XX century Article 340 TFEU as the central Treaty provision in the context of liability regime of the Union has been regarded as the legal basis for compensation claims against the EU. As such, the very notion of ‘general principles common to the laws of the Member States’ of paragraphs 2 and 3 of the same Article was used by the CJEU to actively create judge-made law and to dynamically develop the Union’s legal order. Concerning the liability of member states in any case of a breach of Union law, reference should be made in particular to the principle of loyalty in Article 4 para 3 TEU as legal basis. After Lisbon, treaty-based legitimacy of the Francovich rule was significantly strengthened. First of all, Article 19 TEU (para. 1 subpara. 1) according to which the member states are obliged to configure their own system of legal protection in a way that ensures an effective protection in the fields covered by EU law. This duty relates to laws and acts of the member states institutions which must be compatible with Union law. The CJEU itself has by its case law developed the idea that the procedural court rules must be interpreted in a way enabling citizens to sue this state for damages, if domestic laws, administrative acts or even court judgements have breached the EU law 36. Effective judicial protection principle is also confirmed by Article 47 of the Charter of Fundamental Rights of the EU (CFR) that guarantees access to an effective remedy – including a legality review of an EU or domestic act and right to fair trial. This principle was also cited by the CJEU in the Francovich decision itself to justify the new rule that was formed there 37. This is why codification of effective judicial protection principle by the Lisbon treaty also strengthens the normative grounds of the Francovich rule. Another very important procedural right involving right to compensation under its paragraph 3 is the right to good administration found in Article 41 of the Charter of Fundamental Rights of the EU 38. This provision repeats merits of Article 340 TFEU. Both Articles upgrade public administration liability to general principle of EU law and confirm its status as a fundamental right, even though they guarantee right to compensation from the EU institutions not from member states 39. Concluding, in words of Advocate General Mengozzi: ‘The right to reparation of persons harmed by an infringement of EU law is a fundamental principle of the Union based on the rule of law established by the treaties and a specific variation on the principle of effective judicial protection’ 40.
1. “Conferring rights on individuals” as a 1rst condition for state liability
Judicial decision in the case JP v Ministre de la Transition écologique at first sight looks laconic and offers only fragmentary juridical picture of such a complex issue that is the state liability principle in the EU law. Opinion of Advocate General Kokott otherwise, is very insightful, extensive and considering all possible arguments in for and against the application of Francovich rule when individuals suffered health damages due to air pollution. Regrettably, the Court did not enter into polemic discussion with most of the Advocate’s General valuable arguments.
To explain reasons for its decision the CJEU began with recalling the principle of state liability for damages suffered by individuals for violations of EU law by any public authority of a state 41. The three-limbed test established in Brasserie du Pêcheur was mentioned as a basis for further examination of the disputable AAQD provisions 42. Then, the CJEU dwelled on the subject of the direct effect principle with a reminder that only a breach of an EU law rule that confers rights on individuals gives rise to state liability 43. Furthermore, the CJEU also confirmed that according to its consistent case law, the individual rights arise not only where they are explicitly granted by EU law provisions, but also due to positive or negative obligations imposed clearly on the member states by EU law. Public administration duties (imposed under Articles 13 and 23 of the AAQD) to supervise limit values of air pollution and alert thresholds for the protection of human health or state obligation to pass remedial air quality plans for polluted areas in order to achieve the safe or target air quality values (specified in Annexes XI and XIV AAQD) would serve here as an excellent example. It has already become common knowledge that Articles 13(1) and 23(1) of the AAQD lay down fairly clear, precise and unconditional obligations as to the result to be met by the states. The full effectiveness of these state obligations and the protection of the rights conferred by them require that individuals have the guarantee of obtaining redress. Regrettably, the CJEU in next few short words stated that the mentioned Articles 13 and 23 of the AAQD neither confer express rights to compensation on individuals nor can it be interpreted from the state’s obligations laid down therein. Furthermore, that the claimant JP was only implicitly granted rights that in case of violation could trigger French state liability for loss and damage caused. According to the CJEU Articles 13(1) and 23(1) of the AAQD must be interpreted as meaning that they were not intended to confer compensation rights on individuals under the principle of state liability for damages caused to them by the state breaching EU laws. In this way, as the CJEU said, the 1st of the 3 Brasserie du Pêcheur cumulative conditions has not been satisfied.
At the same time, the CJEU confirmed, that well established direct effect of Articles 13 and 23 of the AAQD should be fully operational before domestic courts where individuals may perfectly execute the adoption of local air quality plans. If necessary, they should also have the procedural guarantees for claiming damages from the state. Eventually, the domestic courts may issue orders accompanied by coercive fines in order for the state to comply with its obligations under EU law 44.
By sending EU citizens to their domestic levels of judicial protection to obtain, if necessary, a court order forcing local authorities to pass recovery air quality plans, the CJEU suggested that it is for the national law to be more generous in remedies 45. At the same time, the CJEU knowingly accepted the unfortunate consequences of no level playing field for individuals claiming damages in line with Francovich liability rule. This solution of course is an encouragement of a certain amount of forum shopping.
2. “Sufficiently serious breach” and a “Causal link” as a 2nd and a 3rd conditions for state liability
The CJEU, due to the negative answer to the 1st question, did not analyse the 2nd nor the 3rd condition of the state liability principle. However, the analysis done by Advocate General Kokott sheds some new light on the subject and therefore is definitely worth a few comments. First of all, the national court when deciding compensation claim must take into account all the factors that could point to a sufficiently serious infringement of EU law. To begin with, the rule infringed on has to be clear and precise. Then, the court has to examine the level of discretion left by that rule to the authorities, and if the violation was intentional or involuntary, if any error of law was excusable or not. Finally, whether the position taken by an EU institution might have contributed to this violation 46 will be determined. It also follows from the well-established case-law that a violation of EU law would clearly be sufficiently serious if it persisted despite of a judicial decision proving this breach or in spite of a preliminary ruling or settled CJEU case law making it clear that the state conduct in question was a breach 47.
The above condition unfortunately, could be easily met by most of the EU member states, having considered the high frequency of their violations of the EU air quality laws. Up to the moment when French citizen JP brought his compensation claim before the French Administrative Court of Appeal (Versailles), the CJEU found at least in 16 infringement cases in which member states (including France) failed to meet ambient air quality standards. In the latest 9 judgments the CJEU even found that infringement of the air quality standards was systematic and persistent 48. Air pollution crisis across Europe have also been the subject of numeric domestic proceedings, for example, in the United Kingdom, Belgium, France, and Germany 49. What needs to be emphasised, as Advocate General Kokott conveyed in her opinion that just only the ‘exceedance of the air quality limit values’ should suffice to prove seriousness of the infringement. Since the obligation to comply with these limits is so clear that leaves no discretion to the state authorities. Such an infringement is serious by its very nature and perfectly may establish right to compensation 50.
In order to meet the 3rd Francovich liability condition—a ‘direct causal link’ between the violation and the damage, the injured party must first prove his or her sufficiently long stay at work or at home—in an environment where air quality standards have been seriously infringed. Secondly, the health damage, for instance specific disease linked to the air pollution in this place has to be diagnosed. And finally, a direct causal link between the abovementioned harmful stay and the damage claimed must be proved. The duration of that period is a medical question that requires a scientific answer. Thus far, in the EU member states there are no available expert medical assessments that could serve as evidence in compensation claims. There was only one, high-profile case that happened in Dec. 2013 in UK when London Coroner officially named air pollution exposure as a cause of death of a 9-year-old Ella Kissi Debrah after the child died of asthma attack and a cardiac arrest 51.
In practice, domestic rules on causality and burden of proof make it impossible or excessively difficult to obtain compensation for damage suffered for breaches of the AAQD. It would be beneficial for the effective protection of individuals if the CJEU considered introducing specific mitigations that are necessary to facilitate these claims 52. As AG Kokott rightly suggested, that burden of proof could be alleviated by application of a rebuttable presumption that a representative type of health damage occurs as a result of one’s exposure to heavily polluted ambient air. As an example, in cases involving fundamental rights before the European Court of Human Rights the need to alleviate the burden of proof of individuals has been raised quite often 53. Presumption that excessive air pollution is harmful to human health, has already been applied by the ECHR in Fadeyeva v. Russia: ‘it possible to assume that the applicant’s health deteriorated as a result of her prolonged exposure to the industrial emissions from the Severstal steel plant. Even if the pollution did not cause any quantifiable harm to her health, it inevitably made the applicant more vulnerable to illnesses. Moreover, there can be no doubt that it adversely affected her quality of life at home. In this way, the Court accepted that the actual detriment to the applicant’s health and well-being reached a level sufficient to bring it within the scope of Article 8 of the Convention’ 54. Likewise, Advocate General Kokott stressed that under EU law, the burden of proof should be reduced for the sake of the principle of effectiveness where the full standard of proof, undoubtedly would make it hardly possible to obtain compensation 55. At the same time, AG Kokott expressed her concern that the Francovich rule may not have been developed enough yet for the common acceptance of such a reversed burden of proof. This issue of a reliable method for linking air pollution with health damages still requires an intensive, scientific discussion 56.
3. Polemic comments
Having considered all the aforementioned arguments, two polemical points have to be raised. Firstly, if according to the EU state liability rule compensation is due for breach of financial interests, shouldn’t it be even more just for human rights violation? And secondly, if air quality laws are to protect human health, isn’t it clear that next to public health they protect individual right to health as a human right as well?
The CJEU traditionally in its case law affirms that for the application of Francovich rule and consequently individual right to compensation—a causal link between the State conduct adversely affecting the ‘legal situation’ (‘situation juridique’) of the injured individual and damage suffered is a precondition 57. An interesting point in course of the commented proceedings was developed by French state that noticed that the previous CJEU’s decisions confirming state liability concerned financial claims, i.e.: wages and old-age people pensions protection in case of the employer’s insolvency 58 or the claims of package travellers if the travel agency goes into bankruptcy 59, deposit protection 60 and the investors’ protection against excessive prices in case of takeovers 61, or the right to compensation for victims of crime 62. Meanwhile, as AG Kokott said - adverse health effects cannot be qualified as a change in the ‘legal situation’ but rather as an infringement of a legal interest which is far more valuable than the asset-related interests. This is because respect for physical and mental integrity as a human right is laid down in Article 3 of the EU Charter of Fundamental Rights. And as such, it is ranked in the top position in relation to the other legal interests 63. Furthermore, Advocate General very righty stated that health impairment also leads to financial losses because of treatment costs or loss of earnings 64. The purpose of the AAQD rules is to at least, prevent such damage. Regrettably, AG Kokott human-rights-based arguments missed the rational reasoning of the CJEU, according to which compensation could not be granted if no specific financial interest or economic right has been violated. On a side note, it has to be noticed that the CJEU in its judicial decisions could use human-rights-based arguments more often for the environmental protection. Unfortunately, so far, they have played only a limited role in the EU environmental case law 65. Besides, the well-known case-law on state liability has not been aimed to protect economic interests of individuals concerned, but its intension was first of all, to ensure the full effectiveness of EU law by protecting rights of individuals. This is what the CJEU exactly said in its milestone judgments, to begin with Francovich and Others of 1991 further in Brasserie du pêcheur and Factortame of 1996 or in Deutsche Umwelthilfe of 2019. For the sake of effectiveness, the principle of state liability is inherent in the system of the treaties on which the Union is based 66.
Last but not least, a critical remark concerns the keynote statement of the commented CJEU decision. The CJEU reiterated that the obligations arising from the AAQD do not have the purpose of conferring private rights on individuals that could be invoked against a state to obtain compensation. Even though the AAQ Directive establishes clear and precise obligations with regard to the result that states must achieve, these duties as the CJEU said, pursue a general objective of protecting human health and the environment as a whole 67. They do not contain any explicit attribution of rights to individuals. They do not allow either for the conclusion that in this case, one individual or categories of individual rights have been implicitly conferred on a person and that violation of these rights would make a state responsible for health damages. Advocate’s General Kokott arguments corresponding with the above thesis appears much more convincing, especially valuable is the analysis of the existing connection between alert thresholds and air pollutants limiting values for the protection of human health (of Article 13 of the AAQD) and individual rights 68. The state obligations concerning air quality, aimed at protecting health, are triggered by excess of those limits. At the same time, the interest in health is highly personal and individual in nature, therefore the objective of health protection could not relate solely to the protection of the general public 69. This AG Kokott analysis concerning public (what is quite obvious) or private character of the disputable provisions (Articles 13 and 23 of the AAQD) is especially enriching the whole dispute in course of these proceedings. To summarise, as the AG said, the final decision—whether the intention of the provisions in question was to confer right to damages or not—should depend not only on the identifiability of potential rights but above all on the objectives of that legislation. Disregarding all the professional and convincing arguments of the AG Opinion, the CJEU stood firmly by its reasoning and finally denied the existence of any right to compensation under the examined Articles 13 and 23 of the AAQD.
Conclusions
By means of judicial decision in JP v Ministre de la Transition écologique the CJEU clearly limited the state liability rule impact on domestic legal systems. The historical ruling in Francovich case has always been treated as quite revolutionary both for the EU and its member states’ systems 70. Discerning public interest protection as a goal of the AAQD rather than individual interests of EU citizens the CJEU avoided opening Pandora’s box - full of discussions on the substance of this ‘right to clean air’. This right should be based on solid foundations: the individual right to effective judicial protection, including the ability to demand compliance with the EU air quality laws, remedies to prevent harm, and finally in case of violation, a right to obtain compensation via effective application of the Francovich rule before a domestic court. What is even more disappointing about the JP vs Ministre de la transition écologique case, is the limited relevance of a human rights toolbox in seeking to establish liability of national administrative authorities for health damages of individuals due to the long-term exposure to air quality below the mandatory limit values 71.
In my view, this latest CJEU decision that impacts also future compensation claims for air pollution is clearly too conservative, probably in order to avoid far reaching legal and financial implications for domestic legal systems, especially in the jurisdictions where compensation claims for health damages are not well grounded in their legal traditions 72. It is also, too far extend inconsistent with new legislative trends. In particular, when we consider the coming new CAFE directive 73 with its promising Chapter VII—‘Access to Justice, Compensation and Penalties’, where Article 27 establishes detailed provisions to ensure access to justice and Article 28 that speaks about compensation for damage to human health. This new legislative act will again bring to light the necessity of harmonising rules on causation across the EU, by alleviating the burden of proof on individual claimants in lawsuits for damages due to heavy air pollution.