Individual right to clean air including compensation for health damage – comment on JP v Ministre de la Transition écologique, C-61/21

On the one hand, the EU member states are to manage ambient air quality in line with the Air Quality Directive (dir. 2008/50/EC) provisions that put forward local air quality targets. On the other hand, EU citizens have their right to demand that their local authorities pass ‘air quality plans’ for towns or districts where air quality standards were below the so-called limit values. In 2008, in the Janecek Judgement of the Court of Justice of 25.07.2008, C-237/07 Dieter Janecek v. Freistaat Bayern EU:C:2008:447. case the Court of Justice of the EU (the CJEU) for the first time recognised the direct effect of Articles 13 and 23 of this directive, and in this way granted rights to individuals to challenge local air quality plans for their inefficiency. The main point of this article is to prove that EU citizens have a subjective, justiciable right to clean and healthy air, and to examine whether this right entitles them to compensation for health damage due to air pollution, as was the subject matter of the commented case: JP v Ministre de la Transition écologique. Therefore, it is necessary to examine the three conditions of the Francovich rule for state liability established in the Brasserie du Pêcheur case: ‘1. the rule of law infringed must be intended to confer rights on individuals; 2. the breach must be sufficiently serious, 3. and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties’ Judgement of the Court of Justice of 5.03.1996, C-46/93 and 48/93 Brasserie du Pêcheur EU:C:1996:79..