Public awareness regarding air pollution in the European Union is at an all-time high and citizens expect authorities to act. In this vein, the European Commission^[1] has recently taken a number of direct and indirect actions, including engagement of the Court of Justice of the EU, enforcement measures against car manufacturers and a Europe-specific “Green Deal,” to stem the tide of rising air pollution and become the world’s first climate-neutral continent by 2050.

In one such action, the Commission referred several EU “Member States” to the Court of Justice of the EU over poor air quality. The Commission is of the opinion that those Member States failed to respect limit values for nitrogen dioxide (NO₂) and to take appropriate measures to keep exceedance periods as short as possible. Once the limit values are exceeded, an appropriate measure is, among others, the implementation of diesel car bans for either specific streets or even whole cities in order to reduce NO₂ emissions. Politicians, however, hesitate to impose such car bans as they are not popular with affected citizens.

For example, the German Free State of Bavaria refused to comply with a German judicial decision ordering it to introduce diesel car bans on certain roads in Munich. The Bavarian government stated that such car bans are politically undesirable and disproportionate. The Administrative Court of Bavaria requested a preliminary ruling from the Court of Justice of the EU regarding whether coercive detention might be ordered against the Bavarian Prime Minister and other Bavarian officials. The Court of Justice of the EU, however, held on December 19, 2019, that such coercive detention can be ordered only if a national legal basis to that end exists which is sufficiently accessible, precise and foreseeable in its application and if the detention is proportionate (C-752/18). The Court stated that the right to effective judicial protection must be weighed against the right to liberty and highlighted that a law empowering a court to deprive a person of his or her liberty must avoid all risk of arbitrariness. It is now on the Administrative Court of Bavaria to ascertain whether those conditions are met.

Apart from infringement proceedings against Member States, the Commission is – indirectly – taking action to achieve clean air also by enforcing competition law against car manufacturers. In April 2019, the Commission informed BMW, Daimler, and VW of its preliminary view that they have breached competition law by colluding in a scheme to limit the development and roll-out of emission cleaning technology for new diesel and gasoline passenger cars. The Commission is of the opinion that the car manufacturers’ behavior restricted competition in innovation with the result that consumers could not buy less polluting cars, despite the technology currently available to the manufacturers (AT.40178).

In line with the actions above, the new Commission President unveiled on December 11, 2019, the so-called European Green Deal. This Green Deal, which is one of the top priorities of the Commission, comprises a number of measures accompanied by an initial roadmap of key policies with the overarching goal to become the world’s first climate-neutral continent by 2050.

This includes, among others, the adoption of the EU’s first “Climate Law” to be presented in March 2020, which would legally establish the 2050 climate neutrality target. In addition, the Commission aims to deploy one million public charging points across Europe for 13 million zero- and low-emission vehicles by 2025. The deployment of recharging points should be supported where persistent gaps exist, notably for long-distance travel and in less densely populated areas. Finally, in order to prevent European businesses from fleeing to other countries with less severe restrictions on greenhouse gases, the Green Deal aims to tax emissions associated with imports from countries with weaker climate goals. Such a border adjustment carbon tax would hit trading partners like the United States and China as they have weaker climate change policies.

For an in-depth discussion on this topic, listen to Dr. Michael Hofmann of Sheppard Mullin’s Brussels office on Episode 63 of the firm’s Nota Bene podcast.

[1] The European Commission is the executive branch of the EU, responsible for proposing legislation, implementing decisions, upholding the EU treaties and managing the day-to-day business of the EU.