Arm Wrestling around Air Quality and Effective Judicial Protection. Can Arrogant Resistance to EU Law-related Orders Put You in Jail?

Abstract

In the judgment Deutsche Umwelthilfe (C-752/18) of December 2019, the Court of Justice of the European Union (ecj) addresses the situation where a referring court has already ordered a public authority to adopt traffic bans, based upon the need to comply with Directive 2008/50 on air quality, but is confronted, together with the non-governmental organization which is at the initiative of the lawsuit, to the public authority’s persistent refusal to comply with that injunction, even though it has become final. In such awkward situation and due to the lack of success of other avenues, is a national court entitled – and possibly even obliged – to impose coercive detention on officials, by virtue of the right to an effective remedy and the obligation to ensure effective legal protection in the fields covered by EU law, asked the referring Court? It is not surprising that the Court of Justice sat as the Grand Chamber for delivering the preliminary ruling. The case is a landmark on the right to an effective remedy and on the right to liberty, in a context of procedural autonomy. The case is also essential in the way it embraces human health and adds a higher step in the ascending line gradually constructed by the ecj on the binding force of EU law on air quality standards. The ecj decides that EU law only empowers and even obliges a national court to have recourse to the privation of liberty of a public official, like a Minister-President, if this is provided for in a domestic legal basis, which is sufficiently accessible, precise and foreseeable in its application. This contribution observes that, if the judgement may look like a victoire à la Pyrrhus for the environmental association and if it confirms that EU environmental law remains systemically dependent upon the choices made at domestic level on enforcement matters, the judgment also truly consolidates the right to effective judicial protection and the right to an effective remedy, in more normal circumstances and when human health is in the balance. It also cements the direct effect of Directive 2008/50 on ambient air quality and associated rights for individuals.