Background to the complaint

1. In 2016, the European Commission opened a formal infringement procedure against Belgium concerning its failure to comply with the Air Quality Directive[1], notably with regard to the limit values for nitrogen dioxide (NO₂) set out in the Directive(INFR(2016)2005).

2. On 28 April 2016, the Commission sent a ‘letter of formal notice’[2] to Belgium. On 8 November 2018, the Commission sent an additional letter of formal notice to Belgium.

3. On 18 February 2021, the Commission sent a ‘reasoned opinion’[3] to Belgium.

4. On 16 November 2021, the complainant, a Belgian citizen, sent an email to the Commission asking about the state of play of the case, given that almost five years had passed since the opening of the infringement procedure. On 30 November 2021, having received no reply, he reminded the Commission about the issue.

5. On 13 December 2021, the Commission replied to the complainant. It explained that the Commission actively supports and enhances the implementation of the Air Quality Directive. The Commission informed the complainant that it had already received Belgium’s reply to the reasoned opinion. The Commission assured the complainant that it was continuing to follow the situation closely.

6. On 23 March 2022, the complainant wrote to the Commission again and asked for an update of the situation in his hometown.

7. On 5 April 2022, the Commission assured the complainant that it takes the matter of air pollution very seriously. As to the current situation in the complainant’s hometown, the Commission noted that the levels of NO₂ had decreased there in 2020 compared to 2019; however, the annual mean limit value continued to be exceeded. While the Commission could not provide the complainant with details about the legal discussions it had had with Belgium, it said that in the meantime it had been made aware of the air quality plans covering the relevant territories and the measures included therein. Nevertheless, it is for the national authorities to decide on the measures, whereas the Commission can only verify whether the measures proposed are appropriate for ensuring respect of the binding limit values. Finally, the Commission concluded that it continues to monitor the situation in Belgium and may also take legal action, depending on how the case evolves.

8. On 5 April 2022, the complainant contended that the fact that air quality was better in 2020 was mainly due to the COVID-19 lockdowns and the fact that more people were working from home. Since then, the situation had deteriorated again. He asked the Commission not to postpone its pursuit of the infringement procedure due to distorted results in 2020.

9. Dissatisfied with the Commission’s actions, the complainant turned to the European Ombudsman.

The inquiry

10. The Ombudsman opened an inquiry into the time taken by the Commission to conclude the infringement procedure.

11. In the course of the inquiry, the Ombudsman received the Commission’s reply to the complaint, and, subsequently, the comments of the complainant in response to the Commission’s reply. The Ombudsman inquiry team also inspected the Commission’s file on this case. The Ombudsman also requested additional information from the Commission about the developments after September 2023, which the Commission provided.

Arguments presented to the Ombudsman

From the Commission

12. In its reply, the Commission took the view that the time it was taking to handle the case was justified. It explained that there were several reasons for the time taken: the challenges of producing sufficient evidence in air quality cases, objective prioritisation factors and the recent developments – partly due to the COVID-19 pandemic – in air quality reports provided by the national authorities.

13. The Commission referred to EU case-law which has established its broad discretion in infringement cases[4] and contended that this discretion also includes the discretion on whether and when to take the next step. The Commission clarified that infringement procedures are not the only way to ensure compliance with EU law and that, in assessing whether to take the next step, the Commission needs to take account of all other possible ways to ensure compliance, as well as their probability of success, time scale and costs in terms of resources. The Commission referred to some recent court cases initiated by other actors as an example of ways, other than via infringement proceedings, to enforce EU air quality legislation.

14. The Commission explained that, while compliance with the limit values laid down in Article 13 of the Air Quality Directive can be verified by a factual, backward-looking assessment, it is significantly more complicated to provide evidence of a breach of Article 23 of the Directive, which requires Member States to provide air quality plans that set out measures that are sufficient to keep the periods of the limits being exceeded ‘as short as possible’. Verifying this entails a complex, forward-looking assessment. The Commission also stated that air quality plans are often large and complex documents setting out future measures and consequences, sometimes with varying levels of certainty or confidence. In relation to larger Member States with many air quality zones, the assessment may require analysing dozens of air quality plans in a single case.

15. The Commission said that it had launched formal infringement proceedings against most Member States due to their exceeding the limit values for various pollutants, such as NO₂, and their failure to take appropriate measures to keep the periods of the limits being exceeded as short as possible. The Commission stated that, in line with Article 258 TFEU, it had so far brought to the Court of Justice of the EU (CJEU) 15 cases against 11 Member States and won all of them, while there were still 28 pending cases against 18 Member States at the time. The Commission recognised that it had to prioritise the cases based on, among other issues, equal treatment of Member States, the seriousness of the case, and whether the case is straightforward requiring less resources or complex requiring more resources.

16. As regards this case, the Commission explained that the 2020 and 2021 air quality reports indicated that the limit values for NO₂ had been exceeded in some areas but not all. The Commission clarified that, in calculating the limit values, a novel type of data reporting (‘modelled data’) had been used.

17. The Commission stated that, due to the COVID-19 pandemic in 2020 and 2021, road traffic (the main source of NO₂ emissions in Brussels and Antwerp) was significantly reduced in those years. The Commission explained that, before considering possible next steps in the case, it considered it prudent to wait for the 2022 validated data, which was to become available at the end of September 2023, to confirm to what extent the limit values were exceeded. The Commission highlighted that the case had already brought improvements given that the NO₂ values in the relevant zones had decreased. The Commission confirmed that, after the analysis of the September 2023 reports, it would be able to consider the next steps in the case.

From the complainant

18. The complainant argued that the Commission had taken too long to reach a decision on whether to refer the matter to the CJEU. It had also failed to provide adequate reasons for the time taken. The complainant contended that the matter is of particular importance, since the continued exceeding of the EU limit values for NO₂ in air quality adversely affects public health. The complainant claimed that the Commission should take the decision forthwith.

19. In his comments on the Commission’s reply, the complainant further argued that the use of ‘modelled data’ is not the only reason why air quality reports showed the limits being exceeded in certain areas in 2020 and 2021 and argued the Commission should ensure it bases its analysis on accurate information.

The Ombudsman's assessment

20. The Ombudsman’s role in the area of infringement complaints covers the administrative and procedural handling of infringement complaints by the Commission, including the time taken and reasons given for any delays. The Ombudsman has taken the view that, if the time the Commission has taken to deal with a case was unnecessarily extended as the result of negligence or unjustified postponements by the Commission, this may constitute maladministration.[5]

21. Exceeding the limit values for NO₂ set out in the Air Quality Directive may have a seriously adverse impact on public health. As such, the Ombudsman understands the complainant’s concern about the time taken to deal with Belgium’s failure to comply with the Directive.

22. At the same time, infringement proceedings related to environmental issues may often require a significant amount of time, due to their very complex and evolving nature. Air pollution is a case in point, as it entails measuring air quality and compiling and analysing complex data on pollutants, as well as on measures introduced by national and regional authorities to improve air quality and the impact of such measures. All of these factors contribute to the length of related infringement proceedings. If the duration of the proceedings is due to the thoroughness of the assessment, additional time may be in the public interest.

23. Given that this case was opened on the Commission’s own initiative, the Ombudsman’s assessment is focused on the time taken by the Commission since the issuance of the letter of formal notice in April 2016. The infringement procedure has been open for about eight and a half years at this stage, which appears long by any standard.

24. As mentioned above, the Ombudsman acknowledges that infringement proceedings related to the Air Quality Directive are complex by their nature, and may require additional time, and that the Commission has wide discretion in determining how to conduct infringement proceedings. The same is true of this case, and the Ombudsman’s inquiry showed that the Commission was active on the case for most of the period concerned. The additional information received from the Commission in December 2024 confirms that this also applies to the period after September 2023.

25. However, there were at least two periods of more than one year where no activity appeared to take place, that is, where the Commission was not in contact with the Belgian authorities. The fact that the Commission was not in contact with the Belgian authorities does not mean it was inactive however. For example, the first period occurred after the Commission received the initial reply to the letter of formal notice. This reply included a significant number of documents and complex information, which the Commission then had to analyse. There is nothing to suggest that the time taken was the result of negligence or unjustified postponements by the Commission. As a result, the Ombudsman concludes that no further inquiries are justified into the complaint at this stage.

26. However, given the major public implications of a Member State’s compliance with the Air Quality Directive, the Ombudsman encourages the Commission to deal with the infringement procedure as a matter of priority. In addition, the Ombudsman considers that the Commission needs to improve how it communicates with the public about this pending infringement procedure. The Commission’s database for ongoing infringement procedures[6] merely shows the main procedural steps in this case. In this respect, the Ombudsman refers to her findings in the strategic initiative SI/6/2024/JN.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

No further inquiries are justified.

The complainant and the European Commission will be informed of this decision.

Emily O'Reilly
European Ombudsman

Strasbourg, 19/12/2024

 

[1] 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, OJ 2008 L 152, p. 1.

[2] The letter of formal notice is the first formal step in an infringement procedure, to which the Member State concerned must send a detailed reply, normally within two months. More details on EU infringement procedures can be found on the Commission’s website: https://commission.europa.eu/law/application-eu-law/implementing-eu-law/infringement-procedure_en

[3] If the Commission concludes that the country is failing to fulfil its obligations under EU law, it may send a reasoned opinion: a formal request to comply with EU law.

[4] Judgment of the Court of Justice in case C-33/04, Commission/Luxembourg, paragraph 67 of the judgment: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62004CJ0033.

[5] In this sense, see the Ombudsman’s decision in case 369/2018/JAP, available at: https://www.ombudsman.europa.eu/en/decision/en/119020.

[6] Available at: https://ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/infringement_decisions/?langCode=EN&version=v1&typeOfSearch=byDecision&refId=INFR(2016)2005&page=1&size=10&order=desc&sortColumns=decisionDate.