Lawsuits and decisions

© DUH

The landmark decision of the European Court of Justice from 2008 confirmed the enforceable “Right to clean air” for all EU citizens. The work of the DUH and many successful lawsuits have further changed the legal situation. The judgments of the Wiesbaden Administrative Court (10 October 2011) and the Munich Administrative Court (9 October 2012) also assigned this right of action to organisations. EU limits for nitrogen dioxide are still exceeded in many German cities. The Environmental Action Germany (DUH), supported by British NGO ClientEarth has therefore filed lawsuits against several German Federal States who need to do more in the area of air quality planning. The affected cities are Cologne, Bonn, Aachen, Dusseldorf, Essen, Gelsenkirchen, Frankfurt/Main and Stuttgart. With this measure, the DUH intends to commit the Federal States in question to change their clean air plans. The aim is to include all appropriate measures in the plans so that the limit values, which have been valid for many years, are complied with as soon as possible.

Aachen

On 6 February 2015 DUH asked for a revised air quality plan that entail effective measures to reach compliance with limit values. The revision of the air quality plan predicts compliance after 2020 and doesn’t contain all possible measures. Therefore the DUH started a legal case against the state of Hessen.

Berlin

In March 2011 several residents turned to the traffic management Berlin (VLB) and called for the provision of a speed limit of 30 km/h in the Berliner Allee, because the car traffic is responsible for high amount of pollutants and noise. After a traffic counting and calculating emissions the VLB order a speed limit of 30 km/h at night. Further measures have been rejected on the grounds that the Berliner Allee is a superordinate main thoroughfare and should not receive any further marketing restrictions.

On 18 March 2015 an affected citizen has filed a lawsuit and asked for a full-time speed limit for all vehicles in this road. The Berlin administrative court committed by judgement of 4 January 2016, the VLB to reduce the speed limit on the Berliner Allee and referred to the Air Quality Plan 2011 – 2017. As described here speed limits should been introduced on main roads when NO2 limits are exceeded.

Sentence dated 4 January 2016

The Senate has approved an application for appeal filed with the Higher Administrative Court of Berlin-Brandenburg, to oppose that decision.

Measurements show a continuous breach of EU limits at traffic stations. Therefore on 30 March 2016 DUH asks to revise the air quality plan with effective measures to meet the limit values described with the 39. BImSchV. The Senate didn’t explained until when compliance will be reached with which measures. As a result DUH filed a legal action.

Bonn

Currently the air quality plan for the city of Bonn applies as amended by the 1st updated from 1 July 2012. This plan is not enough to ensure compliance with the Air Quality Directive. For 2015, an update was announced, but a draft is not available yet. Therefore DUH started a lawsuit against the state of North Rhine-Westphalia in November 2015.

Darmstadt

The Environmental Action Germany (Deutsche Umwelthilfe, DUH) brought an action against the state of Hessen for exceeding the limit values of the 39. Ordinance on Air Quality Standards and Emission Ceilings (39. BImSchV). The Administrative Court of Wiesbaden committed on 16 August 2012, the state of Hessen, to revise the clean air action plan and implement measures to fulfill the limit values. This decision was reviewed.

Sentence dated 16 August 2012

On the 5th of September 2013 the Federal Administrative Court gave NGOs the right to sue for each breach against environmental protection regulations based on EU law. The current legislation allows environmental organizations only to take legal action against projects that are associated with environmental impact assessment. These restrictions place Germany in violation of the Aarhus Convention. With the decision of the Federal Administrative Court Leipzig this conclusion must now be included in German law. The state of Hesse has to adjust the air quality plan for the agglomeration Rhein-Main that comprises the city Darmstadt and to implement effective measures to meet the limit values, e.g. a Low Emission Zone.

Sentence dated 5 September 2013

On 17 November 2015 DUH applied for compulsory enforcement measures to be taken against the Hessian ministry of the Environment due to continuing exceedance of limits. The court decided that the ministry has to fulfil the obligation resulting by the previous court decision and set a deadline of twelve month to change the Air Quality Plan. If the ministry does not comply with this requirement the court will threaten them with a fine of 10.000 €. In particular the introduction of a citizen ticket (free use of public transport), a congestion charge and a ban for diesel vehicles (temporarily, depending on the day and the number of the car - "Italian solution") will be considered.

Decision dated 11 January 2016

The federal State of Hessen brought an appeal against that order. The Hessian Administrative Court rejected by decision of 11 May 2016 the request for a financial penalty, because the judgment of the Administrative Court was justified with updating the air quality plan and introducing a LEZ by 1 November 2015.

Decision dated 11 May 2016

Düsseldorf

The air quality plan for Düsseldorf in force since 20 December 2012, doesn’t predict if and when limits will be met. DUH has therefore started a lawsuit against the state of North Rhine-Westphalia in November 2015. With judgment from 13 September 2016 the court obliged the District Council Düsseldorf to review the air quality plan by 1 October 2017 to reach compliance with limit values as soon as possible. The court explained that traffic bans for Diesel vehicles are legally allowed and should be implemented immediately. The federal state brought an appeal against that order before the Federal Administrative Court Leipzig to clarify the question about the legality of a diesel ban. 

Sentence dated 13 September 2016

Essen

The air quality plan applies from 15 October 2015 but doesn’t contain a forecast if and when limits will be met. Therefore DUH started a legal case against the state of North Rhine-Westphalia. The air quality plan is currently under revision.

Frankfurt

DUH has sent a request for air quality measures to the Hessian Ministry of Environment on 13 August 2015. The air quality plan for the city of Frankfurt is currently under revision. Nevertheless a short-term compliance with limits isn’t expected. Therefore DUH has filed a lawsuit against the state of Hessen in November 2015.

Gelsenkirchen

The air quality plan in force since October 2011 sets out measures such as the introduction of a LEZ in July 2014. Compliance with NO2 limits is not expected before 2020, therefore DUH has filed a lawsuit in November 2015.

Hamburg

The environmental organization Friends of the Earth Germany (BUND) sued together with a resident of the high polluted Max-Brauer-Allee in Hamburg for continuous breaches of air quality limit values. On 6 November 2014 the Administrative Court of Hamburg decided that the city has to revise the air quality plan and implement effective measures to meet limits.

Sentence dated 6 November 2014

Due to the delay of the Hamburg Senate to comply with that judgement and the decision to submit a new air quality plan by the beginning of 2018, BUND applied for compulsory enforcement measures. The Administrative Court of Hamburg stated in its decision of 21 July 2016 a delay by the competent authorities and threatened to a penalty payment of 5.000 €, if the city doesn’t submit a new air quality plan until 30 June 2017.

Cologne

Compliance with NO2 limits is expected after 2020. This exceeds the deadline for compliance with limit values by ten years, therefore DUH started a legal action against the State of North Rhine-Westphalia.

Limburg

The DUH brought a legal action against the state of Hessen on 6 February 2015. The reason is the ongoing exceedance of limit values for nitrogen dioxide on all four monitoring stations on traffic sites in the city Limburg. The Administrative Court Wiesbaden decided on 30 June 2015 that the Hessian Ministry of the Environment has to develop an extensive air quality concept with a detailed timeframe showing  when limits will be met. The court makes clear that financial or economic aspects cannot lead to refraining from measures to comply with air quality limits. The concept must include all conceivable measures to reduce NO2 levels. In 2013 the Federal Environment Agency (Umweltbundesamt, UBA) analyses 242 air quality plans and action plans published in Germany and registered 110 standardized measures as suitable for NO2 reduction (http://www.umweltbundesamt.de/publikationen/inventory-effectiveness-of-measures-to-improve-air). The air quality plan is currently under revision.

Sentence dated on 30 June 2015

Mainz

On 30 November 2011, the DUH filed a lawsuit against the state of Rhineland-Palatinate for exceeding the limit values of the 39. BImSchV that was resting meanwhile. The competent authority agreed to identify the main polluters with additional measurements and evaluate effective measures to meet the limit values. Despite this agreement no concrete proposals were communicated, therefore the DUH resumed the lawsuit in October 2016. The revised air quality plan for the reduction of NO2 is entered into force as from 1 April 2017. The plan doesn’t show when limit values will be met. The municipality assumes that a significant reduction of NO2 can be reached, if the fleet is dominated by Euro 6 vehicles that meet limit values under real driving conditions. 

Munich

Between the years 2005 to 2007 the DUH supported a directly affected resident in his suit for the immediate implementation of effective measures to comply with the limit values in Munich. The lawsuit went through all instances to the European Court of Justice. In its judgment of 25 July 2008 the court confirmed that affected residents have the right to demand an action plan, if the limit values are exceeded. The city Munich had to develop an air quality plan that contains measures to meet the limit values as soon as possible.

ECJ sentence dated 25 July 2008

On 29 February 2012 the DUH sued a second time against the state of Bavaria, because of persistent excess of limit values for NO2 and PM10 in Munich. The City introduced a LEZ in 2008, but it is too small and there are too many exceptions. The Bavarian Administrative Court decided on 9 October 2012, that the state of Bavaria has to change the air quality plan, so that these measures will meet the limit values.

The state has appealed to the Bavarian Higher Administrative Court. After the Court announced in advance to reject the appeal the state of Bavaria accepted and withdraw only two days before. Therefore the judgment of the first instance is legally binding. The state of Bavaria has to implement measures that are necessary for a fast compliance with limit values. The state of Bavaria has to update the air quality plan with measures that are effective to meet limit values.

Sentence dated 9 October 2012

According to the 6th revision of the air quality plan, which was published in June 2015 without additional measures the limit values for NO2 can be met only after 2030. Despite the continuing air pollution no short term measures were implemented to meet the limits as short as possible. Therefore DUH has submitted a request for a financial penalty in November 2015. By decision of 29 June 2016, the Bavarian  Administrative Court in Munich threatened an administrative fine of 10.000 EURO, if the Free State of Bavarian doesn’t change the air quality plan within one year. The Free State has lodged a complaint against this decision. The Bavarian Higher Administrative Court denied and threatened an administrative fine of 2.000 EURO, if the government doesn’t publish a full list of all road sections where NO2 limits are exceeded by 29 June 2017. Further compulsory charges of 4.000 EURO each will be threatened if the free state has not initiated public participation until 31 August 2017 or has not publish the revised air quality plan until 31 December 2017. Because the Free State refuses to publish the highest-ranking expert opinion on air quality in Munich DUH has filed an application for the compulsory fine on 30 June 2017.

 

On 18 July 2017, the government of Oberbayern published the complete list of all road sections in the region of the capital, where the limit value for NO2 of 40 µg/m3 is exceeded in the annual average. The report shows that the air is polluted on 123 km of the 511 km main road network. However, the calculation model uses the old lower emission factors. It is therefore to be assumed that the real air situation is significantly worse.

 

Decision dated 29 June 2016

Decision dated 27 February 2017

Offenbach

The DUH started a legal action on 11 November 2013 against the state of Hessen for exceeding the limit values for nitrogen dioxide. The ministry of the environmental of Hessen is developing the air quality plan since 2010. The proposals for measures offered by the city were rejected so far. The Administrative Court Wiesbaden decided on 30 June 2015 that the Hessian Ministry of the Environment has to develop an extensive air quality concept with a detailed timeframe showing when limits will be met. The court makes clear that financial or economic aspects cannot lead to refraining from measures to comply with air quality limits. The concept must include all conceivable measures to reduce NO2 levels. In 2013 the Federal Environment Agency (Umweltbundesamt, UBA) analyses 242 air quality plans and action plans published in Germany and registered 110 standardized measures as suitable for NO2 reduction (http://www.umweltbundesamt.de/publikationen/inventory-effectiveness-of-measures-to-improve-air).

Sentence dated on 30 June 2015

Reutlingen

On 27 January 2012, the DUH filed an action against the state of Baden-Wurttemberg for exceeding the limit values of the 39. BImSchV in Reutlingen. The Administrative Court Sigmaringen decided on 23 October 2014, that the Regional Council of Tübingen has to update the air quality plan and include measures to meet the limit values as soon as possible.

Sentence dated 23 October 2014

More than a year after the decision, the regional council hasn’t taken any action to reduce the air pollution. Within the project “model city Reutlingen” a professional opinion in possible measures and their feasibility and effectiveness will be developed. Considering the public tender, the expert report should be completed after two years – that means in 2018. Soonest compliance with limits, as provided for the final judgment is not reached. Therefore the DUH has applied for compulsory enforcement measures to be taken against the state of Baden-Württemberg on 25 November 2015. The Administrative Court of Sigmaringen rejected this by decision of 24 November 2016, but at the same time confirmed that the air quality plan for the city of Reutlingen must be revised by September 2017 at the latest, the opening of the Scheibengipfeltunnel as one measure against air pollution.

Stuttgart

In 2010 the DUH won a lawsuit in Stuttgart. The aim was that the German Railway (Deutsche Bahn AG, DB) who is in authority for the construction of the new station has to make calls for construction machines with particle filter.

One of the air pollution hotspots in Germany represents the measuring station on Neckartor in Stuttgart. Both the annual average limit value for NO2 and the allowable annual average value for PM10 are substantially exceeded. The currently valid second revision of the air quality plan went into effect in October 2014. On 13 August 2015, DUH sent an application for air quality measures to the Regional Council of Stuttgart, because the plan doesn’t contain sufficient measures. The air quality plan is currently under revision.

Wiesbaden

In July 2011 the DUH and a directly affected resident filed a lawsuit against the state of Hessen for exceeding the limit values of the 39. BImSchV. The court committed the state to implement an air quality plan, that contains necessary short term effective measures to comply with the emission limit values.

Sentence dated 10 October 2011

On 17 November 2015 DUH applied for compulsory enforcement measures to be taken against the Hessian ministry of the Environment due to continuing exceedance of limits. The court decided that the ministry has to fulfil the obligation resulting by the previous court decision and set a deadline of nine month to change the Air Quality Plan. If the ministry does not comply with this requirement the court will threaten them with a fine of 10.000 €. In particular the introduction of a citizen ticket (free use of public transport), a congestion charge and a ban for diesel vehicles (temporarily, depending on the day and the number of the car - "Italian solution") will be considered.

Decision dated 11 January 2016

The federal state of Hessen brought an appeal against that order. The Hessian Administrative Court rejected by decision of 11 May 2016 the request for a financial penalty, because the judgment of the Administrative Court was justified with updating the air quality plan and introducing a LEZ by 1 February 2013.

Decision dated 11 May 2016