Article 6 - Right to liberty and security
Article 47 - Right to an effective remedy and to a fair trial
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling — Environment — Article 6, the first paragraph of Article 47 and Article 52(1) of the Charter of Fundamental Rights of the European Union — Directive 2008/50/EC — Atmospheric pollution — Ambient air quality — Air quality plan — Limit values for nitrogen dioxide — Obligation to adopt appropriate measures to ensure that any exceedance period is very short — Obligation on the national courts to take any necessary measure — Refusal of a regional government to comply with an injunction — Coercive detention contemplated in respect of senior political representatives or senior officials of the region concerned — Effective judicial protection — Right to liberty of the person — Legal basis — Proportionality.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measur
1) This request for a preliminary ruling concerns the interpretation of the first sentence of Article 9(4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’), of Articles 4(3) and 19(1) TEU, of Article 197(1) TFEU and of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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28) In those circumstances, the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court of Bavaria) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘
Are
to be interpreted as meaning that a German court is entitled — and possibly even obliged — to impose coercive detention on office holders involved in the exercise of the official authority … of a German Federal Land in order thereby to enforce the obligation of that Federal Land to update an air quality plan, within the meaning of Article 23 of Directive [2008/50], with specific minimum content if that Federal Land has been ordered, by way of a final judgment, to carry out an update having that specific minimum content, and
the Federal Land has been threatened with and subjected to financial penalties on several occasions without success,
threats of financial penalties and the imposition of financial penalties do not result in a significant persuasive effect even if higher amounts than before are threatened and imposed, for the reason that the payment of penalties does not involve actual losses for the Federal Land against which a final judgment has been given, but rather, in this respect, there is merely a transfer of the amount imposed in each case from one accounting item within the Land’s budget to another accounting item within the Land’s budget,
the Federal Land against which a final judgment has been given has stated to the courts and publicly — inter alia before parliament via its most senior political office-holder — that it will not fulfil the judicially imposed obligations in connection with air quality planning,
while national law does in principle provide for the instrument of coercive detention for the purpose of enforcing judicial decisions, case-law of the national constitutional court precludes the application of the relevant provision to a situation of the nature involved here, and
for a situation of the nature involved here, national law does not provide for coercive instruments that are more expedient than threats and imposition of financial penalties but are less invasive than detention, and recourse to such coercive instruments does not come into consideration from a substantive point of view either?’
29) By its question, the referring court seeks, in essence, to ascertain whether EU law, in particular the first paragraph of Article 47 of the Charter, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50, EU law empowers or even obliges the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority.
34) In the second place, when the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter (judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 69), a provision which constitutes a reaffirmation of the principle of effective judicial protection. In the case of actions intended to secure compliance with environmental law, in the particular on the initiative of environmental protection associations as in the main proceedings, that right to an effective remedy is also enshrined in Article 9(4) of the Aarhus Convention.
35) According to the Court’s case-law, national legislation which results in a situation where the judgment of a court remains ineffective because that court does not have any means of securing observance of the judgment fails to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter (see, to that effect, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 72).
37) More specifically, according to the case-law of the European Court of Human Rights which relates to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 — and in the light of which Article 47 of the Charter should be interpreted (judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 41 and the case-law cited) — the fact that the public authorities do not comply with a final, enforceable judicial decision deprives that provision of all useful effect (see, to that effect, ECtHR, 19 March 1997, Hornsby v. Greece, CE:ECHR:1997:0319JUD001835791, §§ 41 and 45).
43) Nevertheless, that case-law of the Court cannot be understood as meaning that the principle of effectiveness of EU law and observance of the right, guaranteed by the first paragraph of Article 47 of the Charter, to effective judicial protection oblige the national court to disapply a provision of national law or not to follow the only interpretation of that provision which seems to it to accord with the national constitution if, in so doing, it infringes another fundamental right guaranteed by EU law.
44) Indeed, and as is apparent from Article 52(1) of the Charter, the right to effective judicial protection is not an absolute right and may be restricted, in particular in order to protect the rights and freedoms of others. A coercive measure such as coercive detention entails a limitation on the right to liberty, guaranteed by Article 6 of the Charter.
45) In order to answer the question referred for a preliminary ruling, it is accordingly necessary, in the third place, to weigh against one another the fundamental rights at issue in the light of the requirements laid down in the first sentence of Article 52(1) of the Charter.
46) As regards the requirements that the legal basis for a limitation on the right to liberty must satisfy, the Court has already stated, in the light of the judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v. Spain (CE:ECHR:2013:1021JUD004275009), that a law empowering a court to deprive a person of his or her liberty must, so as to meet the requirements of Article 52(1) of the Charter, be sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness (judgment of 15 March 2017, Al Chodor, C‑528/15, EU:C:2017:213, paragraphs 38 and 40).
52) It is only if the referring court were to conclude that, in the context of the balancing exercise referred to in paragraph 45 of the present judgment, the limitation on the right to liberty which would result from coercive detention being ordered complies with the conditions laid down in that regard in Article 52(1) of the Charter that EU law would not only authorise, but require, recourse to such a measure.
56) In the light of all the foregoing, the answer to the question referred is that EU law, in particular the first paragraph of Article 47 of the Charter, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure.
57) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
EU law, in particular the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances in which a national authority persistently refuses to comply with a judicial decision enjoining it to perform a clear, precise and unconditional obligation flowing from EU law, in particular from Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, it is incumbent upon the national court having jurisdiction to order the coercive detention of office holders involved in the exercise of official authority where provisions of domestic law contain a legal basis for ordering such detention which is sufficiently accessible, precise and foreseeable in its application and provided that the limitation on the right to liberty, guaranteed by Article 6 of the Charter of Fundamental Rights, that would result from so ordering complies with the other conditions laid down in that regard in Article 52(1) of the Charter. On the other hand, if there is no such legal basis in domestic law, EU law does not empower that court to have recourse to such a measure.
