The Court of Justice of the European Union ruled, on Thursday 19 December, that a prison sentence could be imposed on Bavarian politicians to force them to adopt anti-pollution measures. However, the judgment (C-752/18) states that this constraint must be “proportionate” and that Germany has “accessible, precise and foreseeable” legislation to that end.
The dispute which gave rise to this judgment is between a German environmental organisation, Deutsche Umwelthilfe, and the Land of Bavaria. The latter refuses to adopt the necessary measures to ensure that the limit value for nitrogen dioxide is complied with in Munich.
Bavaria was fined three times between 2012 and 2017 and paid a penalty payment but publicly announced that it would not comply with its obligations. The environmental organisation has therefore brought a new action, demanding, among other things, that the Bavarian Minister for the Environment and Consumer Protection or the Minister-President be taken into custody and ordered to impose a 'detention order' on the Bavarian authorities.
Does Union law allow national courts to adopt such a measure? This is the question that was referred to the Court.
The latter held that the “persistent refusal of a national authority to comply with a judicial decision requiring it to fulfil a specific obligation arising under Union law” justified the imposition of a prison sentence by the competent national court.
However, the Court sets two conditions. On the one hand, a law empowering a judge to deprive a person of his liberty must exist in domestic law. On the other hand, the principle of proportionality must be respected: such a penalty can only be imposed where no less restrictive measure exists.
The Advocate General of the CJEU in charge of this case had taken the view, for his part, that Bavarian officials could not be detained, since Germany did not have a law providing for such a possibility.
To consult the judgment: https://bit.ly/38PxRV7 (Agathe Cherki - intern)