Lawsuits and decisions 

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.
But EU limits for nitrogen dioxide are still exceeded in many German cities. In cooperation with the British International NGO ClientEarth, the DUH brought an action it against several regional authorities in November 2015 for exceeding the air quality limits for NO2. The cities concerned are Stuttgart, Frankfurt, Düsseldorf, Essen, Gelsenkirchen, Aachen, Cologne and Bonn. In 2016, two more lawsuits in Berlin and Mainz followed and in November 2017 legal actions in Halle (Saale), Hannover and Kiel were started. With this legal actions, the NGOs intend 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.

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. On June 8 2018, the Administrative Court Aachen ordered the State of North Rhine-Westphalia to comply with the NO2 limits in the city of Aachen as of January 1, 2019. The judge pointed out that it is currently not recognizable that this will succeed without diesel driving bans. These must now be included in the update of the air quality plan and implemented at the beginning of the year. This first ruling following the decision in principle of the Federal Administrative Court (BVerwG) in Leipzig of 27 January 2018 sets the tone for the further ongoing legal proceedings of the DUH.

Judgement 8 June 2018

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.

Judgement 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. The public Hearing will take place on 9 October 2018

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.

DUH brought an action against the state of Hess 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 is going to be reviewed.

Judgement 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 (BVerwG) Leipzig this conclusion must now be included in German law. The state of Hessen 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 (LEZ).

Judgement 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. At the same time, the
Ecological Transport Club Germany (Verkehrsclub Deutschland, VCD) started a legal case for exceeding the air quality 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

Judgement 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. DUH joined the VCD's action.

Judgement 11 May 2016

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 (BVerwG) Leipzig to clarify the question about the legality of a diesel ban. 

Judgement 13 October 2016

In its ruling of 27 February 2018, the BVerwG demanded that the state of North Rhine-Westphalia be examined for measures to limit emissions from diesel vehicles. If vehicle bans on diesel vehicles turn out to be the only appropriate measure for the fastest possible compliance with NO2 limit values, these must be taken into account and implemented accordingly, in compliance with the principle of proportionality.

Judgement 27 February 2018

 

 

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.

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.

 

 

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. The air quality plan is currently under revision.

The prediction of the air quality plan that the limit value for NO2 would be met by 31 December 2014 at the latest isn't reached yet. A revision of the plan isn't foreseen as well. Therefore DUH filed an action against the State of Saxony-Anhalt at the end of 2017.

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.

Judgement 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.

Judgement 21 July 2016

Almost all monitoring stations in the urban area register a continuous exceedance of the NO2 annual mean value. The main contributor to the air pollution are the local traffic. The city of Hannover predicts that compliance with the NO2 limit value will only occur after 2030 with the measures currently in place and planned. This further burden on citizens' health, given that the threshold has been in place since 2010, is no longer acceptable. Since neither the measures deemed appropriate have been taken nor the aim of compliance with the air quality values in 2018 is targeted, the DUH filed an action against the city of Hannover in November 2017. 

The air quality plan in its version of March 2009 applies. Since 2015, the Ministry of Energy, Agriculture, the Environment, Nature and Digitalization of Schleswig-Holstein has been required to draw up a new air quality plan. In August 2017, the DUH had asked the ministry to immediately amend the plan and include the necessary measures to ensure a compliance with the limit values as soon as possible. In its reply, the ministry did not state which specific measures were initiated or planned. Since compliance with the air quality standards is obviously not the aim for 2018, the DUH filed an action against the state of Schleswig-Holstein in November 2017. 

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.

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 30 June 2015

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.

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.

CJEU sentence dated 25 July 2008

CJEU 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 may 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 until 15 November 2014 with measures that are effective to meet limit values.

Sentence Bavarian Administrative Court dated 9 October 2012

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.

Decision Bavarian Administrative Court in Munich dated 29 June 2016

Decision dated 29 June 2016

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.

Decision Bavarian Higher Administrative Court dated 27 February 2017

Decision dated 27 February 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. Since the Bavarian government also ignored the second deadline for starting the public participation process for the revision of the air quality plan, DUH filed on 21 August 2017 again a request to impose a fine of 4,000 Euro. The Bavarian Administrative Court of Munich approved this application on October 26, 2017. The Bavarian government explained to ignore the existing decision at the expense of environment and citizens health. In November DUH filed again a request to impose a fine up to 25.000 Euro or coercive detention. The Administrative Court Munich invited to a hearing on 29 January 2018.

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 30 June 2015

On 27 January 2012, the DUH filed an action against the state of Baden-Wurttemberg for exceeding the limit values of the 39th 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 on 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.

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 17 November 2015, DUH started a lawsuit for air quality measures against the federal State of Baden-Württemberg, represented by the Regional Council of Stuttgart. The air quality plan is currently under revision. A study shows that with the foreseen measures the limits will not been met before 2020.

On 19 July 2017 the Administrative Court of Stuttgart decides in favor of DUH and explained that the current draft of air quality plan is inefficient. The court lines out that diesel bans are unavoidable to address high pollution and that they are legally feasible as of today. The national authority announced to count on a software update for half of Euro 5 fleet by carmakers instead of a ban on driving. The court did not accept this as a measure that would be reliable, effective or in the hand of authorities to decide on. The federal state brought an appeal against that order before the Federal Administrative Court Leipzig. 

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 39th BImSchV. The court committed the State to implement an air quality action plan that contains necessary short term effective measures to comply with the emission limit values. The federal state of Hessen asked for revision.
- 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 November 2015.
- decision dated 11 May 2016

EU infringements

In November 2014 the EU Commission delivered a reasoned opinion to Germany. The reason is the ongoing breach of PM10 limit values in Stuttgart and Leipzig. The Government has failed to take necessary measures that should have been in place since 2005 to protect citizens’ health. This second step in the infringement procedure follows an additional letter of formal notice sent to Germany on 26 April 2013. If the Member State fail to act, the Commission may take the matter to the EU Court of Justice.
In February 2017 the European Commission issued a final warning to Germany on the grounds that the limits for nitrogen dioxide (NO2) are still being exceeded. The Commission therefore calls on the federal government to take measures to ensure air pollution. The reasoned opinion concerns 28 air quality areas, including Berlin, Munich, Hamburg and Cologne. The Commission has launched legal action against several Member States since 2008 because of poor air quality (Belgium, Denmark, Germany, France, Italy, Austria, Poland, Portugal, the Netherlands, Spain, the Czech Republic, Hungary and the United Kingdom). If the Member States fail to react, the Commission may bring an action before the Court of Justice of the European Union.

EU infringements

In November 2014 the EU Commission delivered a reasoned opinion to Germany. The reason is the ongoing breach of PM10 limit values in Stuttgart and Leipzig. The Government has failed to take necessary measures that should have been in place since 2005 to protect citizens’ health. This second step in the infringement procedure follows an additional letter of formal notice sent to Germany on 26 April 2013. If the Member State fail to act, the Commission may take the matter to the EU Court of Justice.
In February 2017 the European Commission issued a final warning to Germany on the grounds that the limits for nitrogen dioxide (NO2) are still being exceeded. The Commission therefore calls on the federal government to take measures to ensure air pollution. The reasoned opinion concerns 28 air quality areas, including Berlin, Munich, Hamburg and Cologne. The Commission has launched legal action against several Member States since 2008 because of poor air quality (Belgium, Denmark, Germany, France, Italy, Austria, Poland, Portugal, the Netherlands, Spain, the Czech Republic, Hungary and the United Kingdom). If the Member States fail to react, the Commission may bring an action before the Court of Justice of the European Union.


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