Diesel vehicle bans in Germany and the Commission’s interpretation of the subsidiarity principle

Diesel vehicle bans in Germany and the Commission’s interpretation of the subsidiarity principle

On 20 November 2020, German Member of the European Parliament (MEP) Sylvia Limmer of the Identity and Democracy Group posed a written parliamentary question to the European Commission:

“Older diesel vehicles have been banned in Stuttgart since 1 January 2019. Vehicle bans are on the horizon in other German cities too.

The basis for this is Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe.

The first sentence of recital 25 reads as follows:

‘Since the objectives of this Directive cannot be sufficiently achieved by the Member States by reason of the transboundary nature of air pollutants and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty.’

The ‘transboundary nature of air pollutants’ is what is cited, then, as providing grounds for the EU’s power to regulate under the subsidiarity principle.

However, diesel bans in Germany – for exceeding the limit values for oxides of nitrogen and particulate matter that are laid down in the directive – are exclusively local. Only individual municipalities – and only particular sections of roads there – are affected.

1. In what way, then, do exceedances of limit values for nitrogen oxide and fine particulate matter, which result in these diesel vehicle bans, have a ‘transboundary nature’?

2. In connection with which of the pollutants listed in the directive is regular transboundary pollution likely?

3. Does the EU also have power to regulate under the subsidiarity principle in accordance with Article 5(1) TEU if the ‘transboundary nature of air pollutants’ is not given as the basis, and on what is that power based?”

On 28 January 2021, Environment, Oceans and Fisheries Commissioner Virginijus Sinkevičius responded on behalf of the European Commission stating: “           Driving restrictions for certain types of diesel vehicles in the area of Stuttgart constitute a measure designed and implemented by the competent regional and local authorities. While the Ambient Air Quality Directive (AAQD) obliges Member States to respect the agreed air quality standards, the choice of means to achieve those standards is left to them.

This is based, among others, on the reasoning that Member States are better placed to take into account local needs and specificities when choosing the appropriate measures.

Recital 25 of the AAQD refers to the transboundary nature of air pollutants, not to the nature of exceedances of limit values. Transboundary pollution is possible with regard to all pollutants for which the AAQD sets limit values.

Long-range transboundary air pollutants are in particular sulphur oxides (SOx) and nitrogen oxides (NOx), ground-level ozone, particulate matter and heavy metals. Certain pollutants, such as NOx (including NO2) may react with other chemicals in the air to form particulate matter and ozone, which contribute to long-range transboundary air pollution.

The Union’s power to act in the area of the environment has its legal basis in Articles 191 and 192 of the Treaty on the Functioning of the European Union (TFEU). The EU is committed to a high level of protection and improvement of the quality of the environment as set out under Article 3(3) of the Treaty on European Union (TEU).

According to Article 5(3) TEU, the Union is competent to act where the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

Source: https://www.europarl.europa.eu/doceo/document/E-9-2020-006343_EN.html

Photo Credit : https://pixabay.com/photos/auto-ban-prohibitory-diesel-2679744/

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