21 novembre: Venezia festeggia la Madonna della Salute e una sentenza storica
Venezia, 19 novembre 2014.
Il Gruppo25Aprile accoglie con soddisfazione e con grande interesse, per le strade che potrebbe dischiudere anche a Venezia, la storica sentenza con cui oggi 19 novembre la Corte europea di Giustizia ha definitivamente chiarito che:
- La normativa europea sulla qualità dell’aria stabilisce un obbligo di risultato con riferimento al rispetto dei valori limite introdotti, a tutela della salute umana, dalla direttiva 2008/50.
- Tale obbligo è sufficientemente chiaro e incondizionato da creare anche un corrispondente diritto individuale a richiedere l’adozione, a livello locale, di tutte le misure necessarie per garantire il rispetto di quei valori limite e, con esso, il diritto alla salute dei cittadini.
- Laddove i valori limite vengano superati e le misure in vigore non si siano dimostrate sufficienti, i tribunali nazionali sono tenuti ad assicurare la tutela di questo diritto con tutti i mezzi previsti dall’ordinamento giuridico, ivi compresa la tutela inibitoria.
Nel caso specifico di Venezia, il superamento dei valori limite riguarda due sostanze inquinanti: le polveri sottili (PM10) e il biossido di azoto (NO2), le cui emissioni sono principalmente dovute all’utilizzo di combustibili fossili nel settore del trasporto, acqueo e terrestre: emissioni dei motori diesel in particolare, classificate come cancerogene dall’OMS (Organizzazione Mondiale della Sanità). Come cittadini CHIEDIAMO ARIA PULITA per i nostri polmoni e per i nostri figli in quella che, essendo una città pedonale, dovrebbe essere al riparo dai problemi di inquinamento tipici delle grandi città. Del vivere in una città senza macchine sopportiamo volentieri i disagi, ma vogliamo almeno conservarne i benefici? A tutela della nostra salute CHIEDIAMO l’adozione di tutte le misure idonee a riportare i livelli di PM10 e biossido di azoto al di sotto della soglia prevista dalla normativa europea e questo nel più breve termine possibile, come indicato dalla sentenza odierna che è vincolante per TUTTI gli Stati membri.
G25A: nato per riflettere, discutere, agire
La sentenza della Corte europea di Giustizia nella causa C-404/13
JUDGMENT OF THE COURT
19 November 2014
In Case C‑404/13, REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 16 July 2013, received at the Court on 19 July 2013, in the proceedings The Queen, on the application of: ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs, THE COURT (Second Chamber), composed of R. Silva de Lapuerta, President of the Chamber, K. Lenaerts, Vice‑President of the Court, acting as Judge of the Second Chamber, J.‑C. Bonichot (Rapporteur), A. Arabadjiev and J.L. da Cruz Vilaça, Judges, Advocate General: N. Jääskinen, Registrar: L. Hewlett, Principal Administrator, having regard to the written procedure and further to the hearing on 10 July 2014, after considering the observations submitted on behalf of: – ClientEarth, by P. Kirch, lawyer, D. Rose QC, E. Dixon and B. Jaffey, Barristers; – the United Kingdom Government, by M. Holt and J. Beeko, acting as Agents, and by K. Smith QC; – the European Commission, by K. Mifsud-Bonnici and S. Petrova, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following
1 This request for a preliminary ruling concerns the interpretation of Articles 4 TEU and 19 TEU and Articles 13, 22, 23 and 30 of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1).
2 The request has been made in proceedings between ClientEarth, a non‑governmental organisation interested in protection of the environment, and the Secretary of State for the Environment, Food and Rural Affairs, concerning that organisation’s request for revision of the air quality plans drawn up by the United Kingdom of Great Britain and Northern Ireland under Directive 2008/50 for certain of its zones and agglomerations.
Directive 2008/50 3 Recital 16 in the preamble to Directive 2008/50 is worded as follows: ‘For zones and agglomerations where conditions are particularly difficult, it should be possible to postpone the deadline for compliance with the air quality limit values in cases where, notwithstanding the implementation of appropriate pollution abatement measures, acute compliance problems exist in specific zones and agglomerations. Any postponement for a given zone or agglomeration should be accompanied by a comprehensive plan to be assessed by the Commission to ensure compliance by the revised deadline. The availability of necessary Community measures reflecting the chosen ambition level in the Thematic Strategy on air pollution to reduce emissions at source will be important for an effective emission reduction by the timeframe established in this Directive for compliance with the limit values and should be taken into account when assessing requests to postpone deadlines for compliance.’ 4 Article 1 of Directive 2008/50, entitled ‘Subject matter’, provides: ‘This Directive lays down measures aimed at the following:
- defining and establishing objectives for ambient air quality designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole;
…’ 5 Article 2 of Directive 2008/50, entitled ‘Definitions’, provides: ‘For the purposes of this Directive: …
- “limit value” shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;
34 As regards the question of whether certain circumstances may nevertheless justify a failure to comply with that obligation, it suffices to observe that Directive 2008/50 does not contain any exception to the obligation flowing from Article 22(1).
40. It follows, next, from the second subparagraph of Article 23(1) of Directive 2008/50 that where the limit values for nitrogen dioxide are exceeded after the deadline laid down for their attainment, the Member State concerned is required to establish an air quality plan that meets certain requirements. 41 Thus, that plan must set out appropriate measures so that the period during which the limit values are exceeded can be kept as short as possible and may also include specific measures aimed at protecting sensitive population groups, including children. Furthermore, under the third subparagraph of Article 23(1) of Directive 2008/50, that plan is to incorporate at least the information listed in Section A of Annex XV to the directive, may also include measures pursuant to Article 24 of the directive and must be communicated to the Commission without delay, and no later than two years after the end of the year in which the first breach of the limit values was observed. 42. However, an analysis which proposes that a Member State would, in circumstances such as those in the main proceedings, have entirely satisfied its obligations under the second subparagraph of Article 13(1) of Directive 2008/50 merely because such a plan has been established, cannot be accepted. 43. First, it must be observed that only Article 22(1) of Directive 2008/50 expressly provides for the possibility of a Member State postponing the deadline laid down in Annex XI to the directive for achieving conformity with the limit values for nitrogen dioxide established in that annex. 44. Second, such an analysis would be liable to impair the effectiveness of Articles 13 and 22 of Directive 2008/50 because it would allow a Member State to disregard the deadline imposed by Article 13 under less stringent conditions than those imposed by Article 22. 45 Article 22(1) of Directive 2008/50 requires that the air quality plan contains not only the information that must be provided under Article 23 of the directive, which is listed in Section A of Annex XV thereto, but also the information listed in Section B of Annex XV, concerning the status of implementation of a number of directives and on all air pollution abatement measures that have been considered at the appropriate local, regional or national level for implementation in connection with the attainment of air quality objectives. That plan must, furthermore, demonstrate how conformity with the limit values will be achieved before the new deadline. 46 Finally, this interpretation is also supported by the fact that Articles 22 and 23 of Directive 2008/50 are, in principle, to apply in different situations and are different in scope. 47 Article 22(1) of the directive applies where conformity with the limit values of certain pollutants ‘cannot’ be achieved by the deadline initially laid down by Directive 2008/50, account being taken, as is clear from recital 16 in the preamble to the directive, of a particularly high level of pollution. Moreover, that provision allows the deadline to be postponed only where the Member State is able to demonstrate that it will be able to comply with the limit values within a further period of a maximum of five years. Article 22(1) has, therefore, only limited temporal scope. 48 By contrast, Article 23(1) of Directive 2008/50 has a more general scope because it applies, without being limited in time, to breaches of any pollutant limit value established by that directive, after the deadline fixed for its application, whether that deadline is fixed by Directive 2008/50 or by the Commission under Article 22(1) of the directive.
52 As regards Article 4 TEU, it should be recalled that according to settled case-law, under the principle of sincere cooperation laid down in paragraph 3 of that article, it is for the Member States to ensure judicial protection of an individual’s rights under EU law (see, to that effect, inter alia the judgment in Unibet, C‑432/05, EU:C:2007:163, paragraph 38). In addition, Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.
53 If the limit values for nitrogen dioxide are exceeded after 1 January 2010 in a Member State that has not applied for a postponement of that deadline under Article 22(1) of Directive 2008/50, the second subparagraph of Article 23(1) of that directive imposes a clear obligation on that Member State to establish an air quality plan that complies with certain requirements (see, by analogy, judgment in Janecek, C‑237/07, EU:C:2008:447, paragraph 35).
54 In addition, the Court has consistently held that individuals are entitled, as against public bodies, to rely 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. Where such an interpretation is not possible, they must disapply the rules of national law which are incompatible with the directive concerned (see, to that effect, judgment in Janecek, EU:C:2008:447, paragraph 36 and the case-law cited.) 55 Lastly, as the Court of Justice has noted on numerous occasions, it is incompatible with the binding effect that Article 288 TFEU ascribes to Directive 2008/50 to exclude, in principle, the possibility of the obligation imposed by that directive being relied on by the persons concerned. That consideration applies particularly in respect of a directive whose objective is to control and reduce atmospheric pollution and which is designed, therefore, to protect public health (see, to that effect, judgment in Janecek, EU:C:2008:447, paragraph 37).
56 It follows that the natural or legal persons directly concerned by the limit values being exceeded after 1 January 2010 must be in a position to require the competent authorities, if necessary by bringing an action before the courts having jurisdiction, to establish an air quality plan which complies with the second subparagraph of Article 23(1) of Directive 2008/50, where a Member State has failed to secure compliance with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by Article 22 of the directive (see, by analogy, judgment in Janecek, EU:C:2008:447, paragraph 39). 57 As regards the content of the plan, it follows from the second subparagraph of Article 23(1) of Directive 2008/50 that, while Member States have a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values are exceeded is as short as possible.
58 The answer to the fourth question is therefore that, where a Member State has failed to comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by Article 22 of the directive, it is for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the directive in accordance with the conditions laid down by the latter. 59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules:
- Article 22(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe must be interpreted as meaning that, in order to be able to postpone by a maximum of five years the deadline specified by the directive for achieving conformity with the limit values for nitrogen dioxide specified in Annex XI thereto, a Member State is required to make an application for postponement and to establish an air quality plan when it is objectively apparent, having regard to existing data, and notwithstanding the implementation by that Member State of appropriate pollution abatement measures, that conformity with those values cannot be achieved in a given zone or agglomeration by the specified deadline. Directive 2008/50 does not contain any exception to the obligation flowing from Article 22(1).
- Where it is apparent that conformity with the limit values for nitrogen dioxide established in Annex XI to Directive 2008/50 cannot be achieved in a given zone or agglomeration of a Member State by 1 January 2010, the date specified in that annex, and that Member State has not applied for postponement of that deadline under Article 22(1) of Directive 2008/50, the fact that an air quality plan which complies with the second subparagraph of Article 23(1) of the directive has been drawn up, does not, in itself, permit the view to be taken that that Member State has nevertheless met its obligations under Article 13 of the directive.
- Where a Member State has failed to comply with the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by Article 22 of the directive, it is for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the directive in accordance with the conditions laid down by the latter.