Immigration law /

Liability of persons in public office for failure to comply with court judgments ordering action to protect air quality. Comments on the judgment of the Court of Justice of the EU of December 19, 2019

On December 19, 2019, the Court of Justice of the European Union gave judgment in Case C-752/18, reference for a preliminary ruling from the Bavarian Higher Administrative Court in Germany in proceedings between the non-profit-making environmental organisation Deutsche Umwelthilfe e. V. and the Free State of Bavaria – the Land of Germany.

In the facts of the case, the administrative court in Munich (Germany), in a judgment of October 9, 2012, ordered the Free State of Bavaria to amend the „Air Quality Action Plan”, which corresponds to the „air quality plan” within the meaning of Article 23 of the Treaty on European Union of Directive 2008/50/EC of the European Parliament and of the Council of May 21, 2008 on ambient air quality and cleaner air for Europe (OJ EU L of 2008, No 152, p. 1), so that it contains the necessary measures to achieve the limit value for nitrogen dioxide in that city as soon as possible.

In order to comply with that judgment, the Bavarian Higher Administrative Court (Germany) called on Bavaria, on pain of fines ranging from € 2000 to € 4000, to take the necessary measures, including a ban on the movement of certain diesel vehicles in various urban areas, in order to comply with the limits set out in Directive 2008/50.

The Free State of Bavaria, despite the further fines imposed, has not complied with all the orders ordered. On the contrary, representatives of Bavaria, including the Land’s Prime Minister, have publicly stated that they have no intention of complying with their obligations regarding the vehicle ban.

In view of the dispute before the German judiciary as to the admissibility of the imposition of an injunction on politicians and arrest officials in order to enforce a court judgment requiring them to take action to protect air quality, it proved necessary for the CJEU to resolve these concerns.

The Court stated that „the interpretation of Union law, in particular art. 47 first paragraph of the Charter of Fundamental Rights of the European Union, should be made in such a way that in circumstances characterized by persistent refusal by the national authority to comply with a court decision ordering it to comply with a clear, precise and unconditional obligation arising from that right, in particular Directive 2008 / 50 / EC of the European Parliament and of the Council of May 21, 2008 on air quality and cleaner air for Europe (OJ EU L 2008, No. 152, p. 1), the competent national court has an obligation a detention order for the purpose of execution against persons discharging the function of exercising public authority if there is a sufficiently available, precise and predictable legal basis in its internal law system and provided that the restriction guaranteed in art. 6 of the Charter of Fundamental Rights, the right to freedom arising from such a judgment meets other conditions provided in this respect in art. 52 paragraph 1 card. However, in the absence of such a legal basis in national law, EU law does not entitle that court to apply such a measure.

When transferring the above case to the Polish law, it should be noted that Article 1053 of the Code of Civil Procedure allows arrest, in lieu of a fine, for the enforcement of a court sentence. However, the overall duration of the detention shall not exceed 6 months in any given case.

Author team leader DKP Legal Michał Puk
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