Burgers, L.

English

The 7th of September, the Dutch NGO Milieudefensie won summary proceedings against the Dutch State on air quality. This case fits in a true trend following from the European Union Air Quality Directive 2008/50/EC, which regulates the maximum tolerable levels of pollution in the air caused by inter alia nitrogen and particulate matter. In the UK, the NGO Clientearth has litigated on failing air policy all the way up to the CJEU and back to the UK High Court again, winning every case against the government. In France, Les amis de la terre France obtained a similar result last July before the Conseil d’État. And only one day before the Dutch judgment, the German NGO Deutsche Umwelthilfe reached a comparable outcome before the Verwaltungsgericht Stuttgart. In this blogpost, I focus on the Dutch case

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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Dutch NGO wins summary proceedings against Dutch State on air qualityBurgers, L.Publication date2017Document VersionFinal published versionLink to publicationCitation for published version (APA):Burgers, L. (Author). (2017). Dutch NGO wins summary proceedings against Dutch State onair quality. Web publication or website, Judges in Utopia. https://judgesinutopia.eu/dutch-ngo-wins-summary-proceedings-against-dutch-state-on-air-quality/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:10 Mar 2023Dutch NGO wins summary proceedings against Dutch State on air quality – Judges in Utopiahttps://judgesinutopia.eu/dutch-ngo-wins-summary-proceedings-against-dutch-state-on-air-quality/[28-6-2019 16:54:01]BLOGDUTCH NGO WINS SUMMARY PROCEEDINGS AGAINST DUTCHSTATE ON AIR QUALITYSeptember 8, 2017Judges in UtopiaJudicial law-making in European private lawA trend of European case-law on air qualityThe 7  of September, the Dutch NGO Milieudefensie won summary proceedings against the DutchState on air quality. This case fits in a true trend following from the European Union Air Quality Directive2008/50/EC, which regulates the maximum tolerable levels of pollution in the air caused by inter alianitrogen and particulate matter. In the UK, the NGO Clientearth has litigated on failing air policy all theway up to the CJEU and back to the UK High Court again, winning every case against the government.In France, Les amis de la terre France obtained a similar result last July before the Conseil d’État. Andonly one day before the Dutch judgment, the German NGO Deutsche Umwelthilfe reached acomparable outcome before the Verwaltungsgericht Stuttgart. In this blogpost, I focus on the Dutchcase.Milieudefensie’s case in the NetherlandsAs reported on this blogpost, in August 2016, the Dutch NGO Milieudefensie started tort proceedingsagainst the Dutch State because Dutch policy on air quality would be insufficient. Interestingly, thisclaim did not only rely on the legally binding European directive on air quality, but also on soft law WHOthDutch NGO wins summary proceedings against Dutch State on air quality – Judges in Utopiahttps://judgesinutopia.eu/dutch-ngo-wins-summary-proceedings-against-dutch-state-on-air-quality/[28-6-2019 16:54:01]guidelines in a complex private law construction echoing the reasoning of the controversial DutchUrgenda case.To speed up the proceedings, however, this summer Milieudefensie started summary proceedings(“kort geding”) concerning only the violation of the European directive. The 7  of September 2017, thejudge decided in Milieudefensie’s favour: The Dutch State must, as of now, do everything possible tocomply with the European norms as soon as possible. A decision on the more ambitious WHOguidelines will follow after the substantive proceedings (“bodemprocedure”) to be held at the 14  ofNovember 2017.AdmissibilityIn her judgment, the judge Mrs. Groeneveld-Stubbe rejects the State’s argument that the claim wouldbe inadmissible because it would rather be an issue for administrative law proceedings rather thanprivate law proceedings. In Dutch law, only individual cases can lead to administrative review, whereasthis dispute is about a national plan on air quality, she reasons. Private law proceedings are the onlyoption (§4.2).Furthermore, the judge finds that the case is sufficiently pressing to justify a judgment in summaryproceedings – the earlier measures are taken to improve air quality, the earlier these measures arelikely to have effect (§4.4). Neither is the case too complex for summary proceedings, because bothparties agree on most of the facts (§4.5).The air quality planThe State recognizes that in certain areas, the critical levels demanded by EU Directive 2008/50/EC aresurpassed and that required deadlines have been missed, since these were fixed in 2015 (for nitrogen)and 2011 (for particulate matter), respectively (§4.6). The judge does not agree with the State that itlacks the competences to solve local issues, because it was the State itself that choose to decentralizeits duty to guarantee air quality (§4.7). Furthermore, the judge deems irrelevant the State’s observationthat Dutch air quality is better than before; after all, what matters is not the comparison with earliertimes, but the comparison of Dutch air quality with the quality demanded by the Directive (§4.8). The judge agrees with Milieudefensie that the Dutch “Nationaal Samenwerkingplan Luchtkwaliteit”(national cooperation plan on air quality) does not comply with the Directive: The Directive requires anair quality plan to keep exceedance periods ‘as short as possible’, which cannot be said with certainty ofthe Dutch plan (§4.11). Furthermore, the Dutch plan lacks detailed analyses of problem situations,demanded by Annex XV of the Directive (§4.12). JudgmentFor these reasons, the judge orders the State to do everything possible, within two weeks after theththDutch NGO wins summary proceedings against Dutch State on air quality – Judges in Utopiahttps://judgesinutopia.eu/dutch-ngo-wins-summary-proceedings-against-dutch-state-on-air-quality/[28-6-2019 16:54:01]judgment, to make its air quality plan comply with the Directive. Which measures the air quality planshould contain, is for the Dutch State to decide (§4.13). The judge does not agree with Milieudefensiethat critical levels should per se be met within 2018 – she cannot say with certainty whether this time-frame would be the ‘shortest possible’, since she does not know yet which measures the State willadopt (§4.14). She does however agree with Milieudefensie that the State must immediately begin to identify thelocations where exceedances take place – such is necessary to come to a sound air quality plan(§4.15). Measures can only be taken after the plan is made in detail, not, as Milieudefensie asked,immediately after the identification of these locations (§4.16). Moreover, the judge follows Milieudefensie in forbidding the State to take measures that are expectedby the RIVM (the Dutch national institute for public health and the environment) to statistically contributeto new exceedances, since this is already required by the EU Directive and the national environmentalstatute (“Wet Milieubeheer”). The State tried to invoke Article 6:168 of the Dutch Civil Code, which givesthe judge the possibility not to forbid torts by the State in so far as they should be allowed because ofimperative societal interests. The judge does however not follow this argument, since the State did notpinpoint which measures would be of imperative societal interest.What’s next?Secretary of State Sharon Dijksma has reportedly announced to immediately act upon thejudgement.[1] The judgement is likely to pre-empt plans of the government to raise the maximum speedon highways – unless, of course, the government comes with a plan effective enough to compensate forthe extra pollution caused by faster riding traffic. Thus, the outcome of the summary proceedings canbe called significant. For those interested in judicial law-making in European private law, the substantiveproceedings of Milieudefensie’s claim will be truly exciting. There, the Court will decide whether theDutch State indeed commits a general tort under the doctrine of hazardous negligence (“gevaarzetting”)by not doing even more against air pollution than required by the European Directive, endangering itscitizens’ health, as argued by the NGO.  _________The judgment’s ECLI number is ECLI:NL:RBDHA:2017:10171[1] Marcia Nieuwenhuis ‘Kabinet versnelt plannen tegen luchtvervuiling: ‘Hoop voor longpatiënten’’Algemeen Dagblad 7 September 2017Air quality democratic legitimacy environmental liability European private law Milieudefensie tort lawUrgendaDutch NGO wins summary proceedings against Dutch State on air quality – Judges in Utopiahttps://judgesinutopia.eu/dutch-ngo-wins-summary-proceedings-against-dutch-state-on-air-quality/[28-6-2019 16:54:01] PREVIOUSSPANISH 'FLOOR CLAUSES' (CLÁUSULAS SUELO) -EU COURT OF JUSTICE STEPS IN: NULLITY ISNULLITYNEWER OPINION ON MILIEUDEFENSIE CASE INNEWSPAPER NRCName * Email *WebsiteLEAVE A REPLYYour email address will not be published. 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Dutch NGO wins summary proceedings against Dutch State on air quality

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Dutch NGO wins summary proceedings against Dutch State on air quality

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