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Court of Justice decision on liability of Member States for damages caused by air pollution

In a recent case (C-61/21), contrary to settled case-law, the Court of Justice of the European Union did not oblige a Member State to pay compensation. Article 13 of the 2008/50/EC Directive on ambient air quality and cleaner air for Europe obliges Member States to ensure that ambient air levels of NO2 and PM10 do not exceed EU-wide limit values. A resident in the Paris region considered that the French State had failed to ensure this and by this he has suffered damage to his health since 2003, caused by the deterioration of the ambient air quality in the Paris agglomeration. For these damages, he has claimed a total of EUR 21 million from the French State as compensation.

The claimant’s action was dismissed and the competent court (Cour administrative d'appel de Versailles) asked the Court of Justice whether and under what conditions individuals can claim compensation from the state for damage to their health caused by exceeding the concentration limits for NO2 and PM10 laid down in EU legislation.

According to Article 288 of the Treaty on the Functioning of the European Union, a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed. According to settled case law, where a Member State fails to fulfil its obligation under the referred Article to take all the measures necessary to achieve the objective laid down by a directive, the full application of that provision of EU law gives rise to a right to compensation.

On 12 December 2022 the Court of Justice finally ruled against Advocate General Juliane Kokott's opinion. In its opinion, the Advocate General stated that Member States may be liable for health damage caused by excessive air pollution. The Advocate General's opinion is not binding on the Court of Justice, but practice shows that the panel often agrees with the Advocate General when taking decisions.

However, in its judgment, the Court of Justice pointed out that it is true that the air quality directives impose clear and precise obligations on the results to be achieved by Member States. However, they do not expressly confer rights on individuals, which would make it possible to hold the Member State liable for the damage caused to individuals. Nevertheless, the Court of Justice recalled that individuals must be able to obtain – before the competent courts – the adoption by the national authorities of the measures required under EU directives, such as the air quality plan.