The Bundesverwaltungsgericht (Federal Administrative Court) has given its ruling. If compliance with the emission limits that have been mandatory pursuant to European and German law since 1 January 2010 can only be ensured by driving bans, the competent road administration authorities may impose respective driving bans. However, there have to be exemptions and transition periods.

Hearing before the Bundesverwaltungsgericht

On 27 February 2018, the Bundesverwaltungsgericht heard the proceedings of the state capitals Dusseldorf and Stuttgart. There, the respective courts of first instance had decided that if driving bans for vehicles equipped with diesel engine were the only effective measure to comply with the limits that have uniformly applied since 2010, then the competent authorities would already now be entitled and obliged to include respective regulations in their air pollution control plans (see GvW Newsletter January 2018).  The states of North Rhine-Westphalia and Baden-Wurttemberg, against which the actions had been brought, and the federal capitals that had been requested to join the proceedings did not contest that driving bans would be required in order to keep transgression of the limits as small as possible. However, they argued that the federal government would have to create a legal basis in this regard, e.g. in the form of the so-called “Blaue Plakette” (blue label). Only in the context of such regulations applying throughout Germany, similar to the standards for the low emission zones, the principle of proportionality could be maintained, amongst others by creating exemptions from the ban for particular types of traffic, vehicles or persons. As long as this regulation would not exist, the municipalities could only plan other measures that would only lead to air quality improvements in the mid- or long-term. If the federal government did not act, this unlawful situation would have to be addressed by a ruling against the Federal Republic of Germany before the European Court of Justice.

Potential Proceedings before the European Court of Justice

As is known, the European Commission has already initiated this procedure in the meantime. In February, the acting minister for the environment, Barbara Hendricks, was summoned to Brussels to the EU minister for the environment, Vella. Subsequently, the (acting) federal government sent a notification to the European Commission stating that effective measures to reduce nitrogen dioxide emissions such as free public transport would be checked at short notice. It seems unlikely that this announcement will suffice in order to avoid infringement proceedings against the Federal Republic of Germany. Several years would probably again pass until a ruling of the European Court of Justice and a subsequent implementation by the federal government would take place.

The present Ruling of the Bundesverwaltungsgericht

As a consequence of the ruling of the supreme German administrative court of 27 February 2018, driving bans could become a reality much quicker. The Bundesverwaltungsgericht found that the competent authorities already now are obliged and also in a position to impose driving bans if, insofar and as long as these prove to be the only effective means to avoid transgression of the limits as quickly as possible. The fact that European law prevails would require that regulations of German law preventing such a ban on traffic would not be applied. At the same time, the court emphasizes the principle of proportionality that is also enshrined in European law. Accordingly, the authority responsible for air pollution control would have to provide for exemptions in its application of driving bans, for example for craftsmen or particular groups of residents. Furthermore, it may be necessary to establish temporal transitional regulations. The court was specific in view of the air pollution control plan Stuttgart that was at issue. In this case, the court assumes that for Euro-5 vehicles, driving bans must not apply prior to 1 September 2019.

Conclusion and Outlook

If and as long as compliance with limits according to the air quality directive is not ensured by other measures, German authorities will impose driving bans (for vehicles equipped with diesel engine). In doing so, they have to consider the principle of proportionality. It follows from this that there will be exemptions. For the competent authorities, this means that they will have to adjust their air pollution control plans accordingly.  In view of proportionality, they will also particularly check and promote those measures that will render driving bans superfluous for the individual.

Bundesverwaltungsgericht, ruling of 27 February 2018 – 7 C 26.16; 7 C 30.17

Dr Sigrid Wienhues, Lawyer, Accredited Specialist in Administrative Law
Hamburg