Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Saturday, June 15, 2024 | Back issues
Courthouse News Service Courthouse News Service

EU Pooh-Poohs Coercing Compliance by Jailing Public Officials

Financial penalties have failed for years to bring Bavaria’s pollution-control measures in line, but an EU magistrate called it unjust Thursday to compel resolution by jailing public officials from the German state.

(CN) — Financial penalties have failed for years to bring Bavaria’s pollution-control measures in line, but an EU magistrate called it unjust Thursday to compel resolution by jailing public officials from the German state.

“I share the German government’s view that individual liberty cannot be restricted without a sufficient legal basis,” Advocate General Saugmandsgaard Øe wrote in an opinion for the European Court of Justice. “Any such restriction must be based on a law that is clear, foreseeable, accessible and non-arbitrary. Otherwise, the restriction of liberty might, in turn, seriously undermine the rule of law."

Øe did not dispute that the refusal by public officials to comply with a final court decision is serious. Still, he said, national courts are not empowered to give their directives full effect by contravening the fundamental right to liberty.

The case stems from an action that the German nongovernmental organization Deutsche Umwelthilfe initiated to make Freistaat Bayern, otherwise known as the Land of Bavaria, comply with nitrogen dioxide limits set by the EU in 2008.

Øe wrote that the city of Munich has failed to meet these limit values for years, “sometimes to a considerable extent.”

Bavaria nonetheless bucked a 2012 administrative court judgment to bring Munich in line, filing suit in 2016 when the court said further inaction would result in financial penalties.

By 2017 the court said Bavaria would owe 10,000 euros unless it adopted a series of measures, the chief of which was banning certain diesel vehicles in certain urban zones. German law caps such penalties at 25,000 euros.

Rather than comply, Bavaria opted to pay the first of the penalties in 2017. The court imposed another fine, this time at 4,000 euros, in 2018.

Deutsche Umwelthilfe appealed meanwhile when the court turned down its bid to jail Bavaria’s minister for the environment and for consumer protection.

Unsure how to proceed, the Higher Administrative Court of Bavaria decided to stay the proceedings and invite input from the Luxembourg-based Court of Justice.

As paraphrased by Øe today, the German bench called it “entirely unrealistic to expect that further suspended penalties ... would affect [Bavaria’s] conduct — particularly as the payment of financial penalties does not reduce the Land’s resources.”

Indeed Bavaria handles such penalties by entering the fine as a debit item in its budget, and then crediting the same amount to its central funds.

Øe called it unclear, however, that jailing public officials would prove more effective at getting Bavaria to comply.

He wrote that tougher financial penalties still exist, specifically the maximum 25,000 euro fine, “potentially recurring at short intervals.”

Øe said it is for the referring court to decide what non-jail penalty might suffice. Other options include having the fines payable to a third party, or even the NGO challenging Bavaria, rather than to the Land.

Coercive remedies are also available to the EU, Øe said, noting that the European Commission has already initiated such proceedings with regard to Munich air pollution. EU involvement would result in a lump-sum judgment plus penalty payments for each day of noncompliance.

Øe’s opinion is not binding but will be given some weight as the chamber begins deliberations.

Follow @bleonardcns
Categories / Appeals, Environment, Government, International

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Loading...