German Judges See `Duty' to Meet EU Diesel Pollution Limits

(Bloomberg) -- Two German cities, toiling to convince a top court to spare them having to ban diesel cars to improve air quality, were told at a hearing Thursday that European Union pollution standards may trump national obstacles for such a step.

The Federal Administrative Court is reviewing appeals against tribunal decisions in Dusseldorf and Stuttgart that said driving prohibitions should be added to the options for local environmental controls. Such restrictions would potentially affect millions of German drivers. The top court has scheduled a ruling Feb. 27 at noon local time.

“EU rules impose a pretty clear duty to meet the pollution limits,” Judge Andreas Korbmacher said at the hearing in Leipzig. “The question is now whether the EU rules force us to set aside any German legal obstacles for diesel bans.”

Diesel engines are the main emitters of nitrogen dioxide, which causes respiratory problems and has been linked to premature deaths. Under EU rules, member countries must keep the exhaust gas under 40 micrograms per cubic meter of air. Six years after a 2010 deadline, average levels in the southern German city of Stuttgart were almost double the allowed figure.

Lower Courts

The lower courts argued that preventing diesel cars from being driven in inner cities is the most effective way to cut pollution swiftly and to meet the regulations. No other proposal would bring cleaner air to quickly mend the situation, the courts ruled in cases that environmental group DUH brought against Stuttgart and Dusseldorf. Car owners’ property rights are less important than protecting the health of citizens, according to those rulings.

Lawyers for the two home states of the municipalities on Thursday said that bans can only be imposed if federal law provides a legal framework that still hasn’t been created.

“Banning cars that are only two years old the same way as older models would be excessive,” said Wolfram Sandner, a lawyer for Baden-Wuerttemberg, Stuttgart’s home state. “Bans are expropriating cars without compensation, making such a step unconstitutional.”

Korbmacher, who spoke for the five judges hearing the case, said the court could add guidelines to mitigate some of the effects on car owners living in inner cities if it opted to uphold the rulings. The court will also look into whether it has to send the case to the EU’s top court for guidance.

Local Obstacles

Sending the suits to Luxembourg, home to the European Court of Justice, isn’t necessary, said Remo Klinger, the attorney representing DUH. The ECJ has made it clear in several rulings that legal obstacles at the national level must be set aside to reach EU pollution limits, he said.

The decision by the top German panel for regulatory issues will be a blueprint for more than 50 other municipalities that also struggle with rules-busting pollution levels. DUH has 19 cases pending and is preparing more suits. A Munich appeals court stayed a bid to enforce driving bans, saying it will wait what the top panel says on the issue.

Korbmacher said at the end of Thursday’s hearing that the session gave the judges additional questions to deliberate, making it impossible to issue a ruling the same day as proposed. The hearing took more than four hours.
 
“It was getting a bit later now than we planned," the judge said.

The case is: BVerwG, 7 C 26.16 u.a.

To contact the reporters on this story: Karin Matussek in Leipzig at kmatussek@bloomberg.net, Elisabeth Behrmann in Munich at ebehrmann1@bloomberg.net.

To contact the editors responsible for this story: Anthony Palazzo at apalazzo@bloomberg.net, Tom Lavell, Christopher Elser

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