Opinion of the Advocate General — ECLI:EU:C:2019:972
Date: 2019-11-14
Language of the case: German
Subject matter: Environment;Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Fundamental rights;Administrative cooperation;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 December 2018 
Referring court: 
Bayerischer Verwaltungsgerichtshof (Germany) 
Date of the decision to refer: 
9 November 2018 
Applicant (party seeking enforcement) 
Deutsche Umwelthilfe eV 
Defendant (party against which enforcement is sought) 
Freistaat Bayern (Free State of Bavaria) 
      
Subject matter of the main proceedings 
Amendment of the air quality plan for the City of Munich; enforcement against 
the State on the basis of an administrative court judgment. 
Subject matter and legal basis of the reference 
Interpretation of EU law with regard to the guaranteeing of its effective 
implementation by the Member States and with regard to the obligation of the 
Member States to ensure effective legal protection, specifically the interpretation 
of the second subparagraph of Article 4(3) TEU and the second subparagraph of 
Article 19(1) TEU, of the first paragraph of Article 47 of the Charter of 
Fundamental Rights of the European Union, of the first sentence of Article 9(4) of 
the Aarhus Convention, and of Article 197(1) TFEU; 
Article 267 TFEU. 
EN 
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Questions referred 
Are 
1. the requirement laid down in the second subparagraph of Article 4(3) of the 
Treaty on European Union (TEU), according to which the Member States must 
take any appropriate measure to ensure fulfilment of the obligations arising out of 
the Treaties or resulting from the acts of the institutions of the European Union, 
2. the principle of effective implementation of EU law by the Member States, 
which is established in, inter alia, Article 197(1) of the Treaty on the Functioning 
of the European Union (TFEU), 
3. the right to an effective remedy guaranteed by the first paragraph of 
Article 47 of the Charter of Fundamental Rights of the European Union, 
4. the obligation devolving on the Member States to ensure effective legal 
protection in environmental matters, which arises from the first sentence of 
Article 9(4) of the Convention on Access to Information, Public Participation in 
Decision-making and Access to Justice in Environmental Matters (the Aarhus 
Convention), 
5. the obligation devolving on the Member States to ensure effective legal 
protection in the fields covered by EU law, which is established in the second 
subparagraph of Article 19(1) TEU, 
to be interpreted to mean that a German court is entitled – and possibly even 
obliged – to impose detention on public officials of a German Federal Land in 
order thereby to enforce the obligation of that Federal Land to update an air 
quality plan within the meaning of Article 23 of Directive 2008/50/EC of the 
European Parliament and of the Council of 21 May 2008 on ambient air quality 
and cleaner air for Europe (OJ 2008 L 152 p. 1) with specific minimum content if 
that Federal Land has been ordered to carry out an update with that specific 
minimum content by way of a final judgment, and 
– the Federal Land has been threatened with and subjected to financial 
penalties on several occasions without success, 
– threats of financial penalties and impositions of financial penalties have not 
resulted in a significant persuasive effect even if higher amounts than before have 
been threatened and imposed, for the reason that the payment of penalties does not 
involve actual losses for the Federal Land sentenced by a final judgment, but 
rather, in this respect, there is merely a transfer of the amount imposed in each 
case from one accounting item within the Land’s budget to another accounting 
item within the Land’s budget, 
– the Federal Land found guilty by way of a final judgment has stated to the 
courts and publicly – inter alia before parliament via its most senior political 
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office-holders – that it will not fulfil the judicially-imposed obligations in 
connection with air quality planning, 
– while national law does in principle provide for the institution of detention 
for the purpose of enforcing judicial decisions, national constitutional case-law 
precludes the application of the relevant provision to a situation of the nature 
involved here, and 
– for a situation of the nature involved here, national law does not provide for 
coercive instruments that are more expedient than threats and impositions of 
financial penalties but are less invasive than detention, and recourse to such 
coercive instruments does not come into consideration from a substantive point of 
view either? 
Provisions of EU law cited 
TEU, the second subparagraph of Article 4(3), the second subparagraph of 
Article 19(1) 
Charter of Fundamental Rights of the European Union (hereinafter: the Charter), 
first paragraph of Article 47, Article 52(3) 
TFEU, Article 197(1) 
Convention on access to information, public participation in decision-making and 
access to justice in environmental matters (hereinafter: the Aarhus Convention), 
first sentence of Article 9(4) 
Directive 2008/50/EC of the European Parliament and of the Council of 21 May 
2008 on ambient air quality and cleaner air for Europe, Article 23 
Case-law referred to: 
Court of Justice of the European Union (hereinafter: the Court of Justice): 
Judgments of 8 March 2011, C-240/09, paragraph 30; of 20 December 2017, 
C-664/15, paragraphs 56 and 57; of 19 November 2014, C-404/13, paragraph 58, 
of 15 March 2017, C-528/15, paragraph 37 et seq. 
European Court of Human Rights (hereinafter: the ECtHR): Judgments of 
19 March 1997 (AppNr 18357/91 – Hornsby v. Greece, paragraphs 40 and 41), of 
22 March 2001 (AppNr 34044/96, 35532/97 and 44801/98, paragraph 86), of 
8 November 2005 (AppNr 34056/02, paragraph 164), of 21 October 2013 
(AppNr 42750/09 – del Rio Prada v. Spain) 
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Provisions of national law cited (in particular) 
Grundgesetz (German Basic Law; ‘the GG’), Article 2(2), 19(4), 20(3), 104(1) 
Verwaltungsgerichtsordnung (Code of administrative court procedure; ‘the 
VwGO’), Paragraphs 167, 172 
Zivilprozessordnung (Code of civil procedure; ‘the ZPO’), Paragraph 888(1) and 
(2) 
National case-law cited (in particular)  
Orders of the Bundesverfassungsgericht (Federal Constitutional Court) of 
9 August 1999 (1 BvR 2245/98), of 13 October 1970 (1 BvR 226/70) 
Judgments of the Bundesverwaltungsgericht (Federal Administrative Court) of 
27 February 2018 (7 C 26.16 and 7 C 30.17) (‘diesel vehicle bans’) 
Brief summary of the facts and procedure 
1 In the territory of the city of Munich, the limit value for nitrogen dioxide (NO2) of 
40 μg/m3, which is laid down pursuant to the second subparagraph of 
Article 13(1) of, in conjunction with Section B of Annex XI to, Directive 2008/50 
and relates to the calendar year as the averaging period, was – in some cases 
hugely – exceeded in numerous locations. According to the figures of Freistaat 
Bayern (party against which enforcement is sought) itself, which are confined to 
approximately 511 kilometres of road distance within Munich, the limit value of 
40 μg/m3 was not complied with across 123 kilometres in 2015. According to 
these figures, the concentration of nitrogen dioxide exceeded a value of 60 μg/m3 
across 16 of those kilometres. They include Landshuter Allee, on which an annual 
average NO2 value of 80 μg/m3 was measured in 2016 and a preliminary annual 
average NO2 value of 78 μg/m3 was measured in 2017. According to the figures 
published by the party against which enforcement is sought, the annual average 
NO2 value was between over 50 and 60 μg/m3 across 27 kilometres; according to 
the figures, the concentration of nitrogen dioxide in the annual average reached 
values that ranged between over 40 μg/m3 and up to 50 μg/m3 across 
80 kilometres of road distance. 
2 The party seeking enforcement is a non-governmental organisation that is entitled 
to bring actions on behalf of environmental protection organisations under 
German law. 
3 Upon the action of the party seeking enforcement, the Verwaltungsgericht 
München (Administrative Court, Munich) issued a judgment upon the party 
against which enforcement is sought on 9 October 2012, the operative part of 
which – in so far as it is still relevant to the present case – reads as follows: ‘The 
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defendant is obliged to amend the air quality plan applicable to Munich so that it 
contains the necessary measures to comply with the NO2 emission limit value of 
40 μg/m3, which is averaged over a calendar year, … in the territory of the city of 
Munich as quickly as possible.’ 
4 On 8 April 2014, the party against which enforcement is sought withdrew the 
appeal that it had lodged against that judgment; the judgment of 9 October 2012 
therefore became final. 
5 In response to the request of the party seeking enforcement, the Administrative 
Court of Munich threatened, by order of 21 June 2016, the party against which 
enforcement is sought with the imposition of a penalty of EUR 10 000 if it did not 
comply with its obligation arising from the judgment of 9 October 2012 within a 
period of one year of the order being served. 
6 In response to the appeal of the party against which enforcement is sought, the 
referring court reproduced the following text from this decision in point II of the 
operative part of its order of 27 February 2017: 
7 ‘1. … 
2. The defendant is threatened with a penalty of EUR 4 000 if, by the end of 
31 August 2017, it does not initiate public participation for preparing a further 
update to the air quality plan for the City of Munich … in such a way that it 
publishes an announcement meeting the requirements of the second sentence of 
Paragraph 47(5a) BImSchG [Federal Law on emission control] in the official 
journal of the [competent authority], from which it is clear that such an 
amendment is to include traffic bans on vehicles with compression-ignition 
engines in relation to enumeratively listed (sections of) streets in the territory of 
the [City of Munich], which restrictions in terms of time and substance – stating 
the reasons relevant to them – may be intended for those traffic bans, and with 
regard to which (sections of) streets in the territory of the [City of Munich] on 
which the emission limit value established in Paragraph 3(2) of the 39. 
Verordnung zur Durchführung des Bundes Immissionsschutzgesetz 
[39th Ordinance for the implementation of the Federal Law on emission control] 
has been exceeded according to the most recent information available to the 
defendant a derogation from the introduction of such a traffic ban is intended, and 
on what grounds. 
3. The defendant is threatened with a further penalty of EUR 4 000 if, by the 
end of 31 December 2017, it does not bring to the attention of the public an 
enforceable concept from which it is clear that a future amendment of the air 
quality plan for the City of Munich includes traffic bans on vehicles with 
compression-ignition engines in relation to enumeratively listed (sections of) 
streets in the territory of the [City of Munich], which restrictions in terms of time 
and substance – stating the reasons relevant to them – are to apply to those traffic 
banes, and with regard to which (sections of) streets in the territory of the 
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interested parties on which the emission limit value established [in the 
aforementioned] Paragraph 3(2) … has been exceeded according to the most 
recent information available to the defendant a derogation from the introduction of 
such a traffic ban is intended, and on what grounds.’ 
8 The aforementioned Paragraph 3(2) of the 39th Ordinance for the implementation 
of the Federal Law on emission control transposes into German law the limit 
value for nitrogen dioxide of 40 μg/m3 established in Section B of Annex XI to 
Directive 2008/50. 
9 As grounds for its decision, the referring court stated inter alia that the party 
against which enforcement is sought had failed to comply with the obligation 
arising from the definitive judgment of 9 October 2012 in relation to compliance 
with the annual average limit value for nitrogen dioxide of 40 μg/m3 as quickly as 
possible. The party against which enforcement was sought had also assumed in 
the sixth update of the air quality plan for Munich that, without additional 
measures, compliance with the annual average limit value for NO2 was expected 
only ‘after’ 2030 at the ‘Landshuter Allee’ measuring station and ‘from’ 2025 at 
the ‘Stachus’ measuring station. The introduction of traffic bans on diesel vehicles 
in a future update of the air quality plan was therefore absolutely essential, 
particularly given the established particularly large proportion of the limit value 
exceedances that is attributable to the nitrogen dioxide emissions caused by diesel 
vehicles. 
10 The order of 27 February 2017 became final on the date of its publication. 
11 In the meantime, it has been clarified at the highest judicial level by two decisions 
of the Bundesverwaltungsgericht (Federal Administrative Court) of February 2017 
that traffic bans on diesel vehicles can be ordered on the basis of the applicable 
national law. The Federal Administrative Court ruled that air quality planning that 
merely sets out measures on the basis of which the limit values for nitrogen 
dioxide would not be complied with until after 2020 infringes the second 
subparagraph of Article 23(1) of Directive 2008/50. In addition, the same court 
ruled that (restricted) traffic bans on (specific) diesel vehicles must be adopted for 
reasons pertaining to EU law if they proved to be the only suitable measures for 
complying with exceeded NO2 limit values as quickly as possible. The referring 
court stresses that, in those decisions, the Federal Administrative Court also 
clarified that road-specific traffic bans (i.e. bans that relate only to specific streets 
or sections of streets) are only moderately invasive and constitute the less 
restrictive means in comparison with zonal traffic bans on diesel vehicles (i.e. 
bans that relate to an extensive, coherent transport network made up of numerous 
major and minor roads). 
12 The party against which enforcement is sought complied with the obligation 
imposed on it in point II.1 of the operative part of the order of 27 February 2017. 
As it did not comply with its obligation arising from point II.2 of that judgment, 
however, the Administrative Court of Munich imposed a penalty of EUR 4 000 by 
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order of 26 October 2017, on the application of the party seeking enforcement. 
The party against which enforcement is sought did not file an appeal against that 
decision and paid the penalty imposed. 
13 On 21 November 2017, the party seeking enforcement initiated a further set of 
enforcement proceedings before the Administrative Court of Munich, by means of 
which it once again seeks the enforcement of the obligation imposed on the party 
against which enforcement is sought in point II.2 of the operative part of the order 
of 27 February 2017. In this dispute, the party seeking enforcement essentially 
requested, in the main request, that the party against which enforcement is sought 
be required to carry out the acts referred to in point II.2, specifically by means of 
detention, to be enforced against the Bavarian Minister of State for the 
Environment and Consumer Protection. This application was rejected by an order 
of the Administrative Court of Munich of 29 January 2018. 
14 The party seeking enforcement filed an appeal against this. That appeal is pending 
before the referring court. Before that court, the party seeking enforcement 
essentially requests, inter alia in the main request, that the party against which 
enforcement is sought be required to carry out the acts referred to in point II.2 of 
the operative part of the order of 27 February 2017 by means of detention, to be 
enforced against the Bavarian Minister of State for the Environment and 
Consumer Protection. 
15 Even in the period following this, however, the party against which enforcement is 
sought has yet to comply with the obligations imposed on it in points II.2 and II.3 
of the order of 27 February 2017. 
The view taken by the party against which enforcement is sought 
16 The party against which enforcement is sought believes that the inclusion of 
vehicle bans in air quality plans is politically undesirable and disproportionate. It 
is convinced that (even the less restrictive) road-specific traffic bans are 
disproportionate and therefore not required by law, as they are unsuitable in view 
of the burdens caused by diverted traffic and are also unnecessary given that there 
are equally effective alternative measures. Although the party against which 
enforcement is sought will be involved in the assessment and public participation 
required by the referring court, the latter takes the view that that assessment and 
public participation will be carried out with the aim of demonstrating the 
disproportionality of road-specific traffic bans on diesel vehicles. In addition, the 
party against which enforcement is sought refers to the power to exhaust all 
redress procedures and file appeals. 
17 The referring court considers this to be obsolete, however, as it is no longer 
possible for an appeal to be filed against either the judgment of 9 October 2012 or 
the order of 27 February 2017, because both decisions have become final. The 
final nature of these decisions means that the party against which enforcement is 
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sought is bound by, and must comply with, the judicial pronouncements contained 
in them. 
Brief summary of the basis for the reference 
18 If the executive power (in this case the party against which enforcement is sought) 
does not comply with a court order that has been issued to it in a final judicial 
decision, under the law of the Federal Republic of Germany the administrative 
courts are restricted in cases of the kind at issue to threatening it with financial 
penalties, setting a deadline for completion of the omitted act, and, if the threat is 
also unsuccessful, to impose the financial penalty. 
19 The party against which enforcement is sought is free to continue to express its 
view that road-specific traffic bans on diesel vehicles – the inclusion of which in 
an update of the air quality plan for Munich is expected of it by the referring 
court, amongst other things – are disproportionate. In any event, however, it is 
obliged to comply with final decisions. 
20 That said, the referring court is not satisfied that the party against which 
enforcement is sought intends to do so. Rather, it has expressed clearly, both 
outside court and in court proceedings in the declarations enclosed in the files, that 
it would not comply with the obligation imposed on it in a legally final manner in, 
inter alia, the aforementioned point II.2 of the cited order. In this respect, the 
referring court refers to a governmental declaration made by the Minister-
President of the party against which enforcement is sought as well as a newspaper 
article and the written submissions of the party against which enforcement is 
sought in the present proceedings. 
21 This failure to comply with final decisions breaches not only national law, but also 
EU law. 
3. Infringement of the rule of law  
From a national perspective: 
22 The binding effect of final judicial decisions is a part of the principle of the rule of 
law under the Grundgesetz (Basic Law; the GG). The binding effect of final 
judicial decisions is also a fundamental requirement of effective judicial 
protection. The referring court takes the view that the conduct of the party against 
which enforcement is sought runs counter to the principles arising from 
Article 20(3) of the GG and the first sentence of Article 19(4) of the GG.  
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From the perspective of European law and, in particular, EU law in relation to 
the principle of the rule of law and the right to an effective remedy:  
23 As the rule of law pursuant to the first sentence of Article 2 TEU is one of the 
values on which the European Union is founded, Article 47 of the Charter also 
guarantees the right to an ‘effective remedy’ and, moreover, the second 
subparagraph of Article 19(1) TEU obliges the Member States to provide 
remedies sufficient to ensure effective legal protection in the fields covered by EU 
law, the failure to comply with final judgments and decisions also has significance 
under EU law. The referring court takes the view that the right of non-
governmental organisations to adequate and effective remedies, which is 
guaranteed by the first sentence of Article 9(4) of the Aarhus Convention, is a 
subjective right guaranteed by EU law. Article 47, first paragraph, of the Charter 
is therefore applicable. Irrespective of this, if Article 47, first paragraph, of the 
Charter were to be regarded as being inapplicable, a failure to comply with final 
judicial decisions that is challenged by a non-governmental organisation within 
the meaning of the second and third sentences of the second subparagraph of 
Article 9(2) of the Aarhus Convention would in any event adversely affect the 
party seeking enforcement in a claim arising directly from the first sentence of 
Article 9(4) of the Aarhus Convention. 
24 The referring court believes that its view is confirmed by a decision of the ECtHR 
(judgment No 18357/91 – Hornsby v. Greece) and regards the considerations set 
out by the ECtHR in that decision to be transferable to EU law in the light of 
Article 52(3) of the Charter. 
From an EU-law perspective in relation to an infringement of Directive 2008/50 
as a result of the fact that not all appropriate measures to comply with the limit 
value prescribed in the directive have been taken: 
25 The approach of the party against which enforcement is sought runs counter to the 
requirement in the first sentence of the second subparagraph of Article 23(1) of 
Directive 2008/50 that the exceedance period of a limit value prescribed under EU 
law must be kept as short as possible.  
26 The air quality planning of the party against which enforcement is sought is 
inefficient: compliance with the limit value for the maximum permissible annual 
average of nitrogen dioxide pollution of 40 μg/m3 established in Directive 2008/50 
became mandatory from 1 January 2010. Even prior to this, EU law had drawn up 
air quality requirements in this regard, which, however, were less strict on account 
of margins of tolerance. On account of the gradual reduction of the margins of 
tolerance over the course of more than a decade, the party against which 
enforcement is sought had sufficient time to take the precautions required to 
comply with this limit value. 
27 Almost nine years have passed since the date from which the currently applicable 
limit value applies, over four years have passed since the judgment of 9 October 
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2012 became final on 8 April 2014, and significantly more than a year and a half 
has passed since the order of 27 February 2017 became final. The party against 
which enforcement is sought has itself essentially acknowledged the inadequacy 
of its air quality planning for the purpose of making a drastic improvement with 
regard to the level of nitrogen dioxide pollution in the area of busy roads. 
28 The lack of efficiency is attributable to the lack of appropriateness of the measures 
taken: of the seven previously adopted versions of the air quality plan drawn up 
for Munich, only two – namely the first and fifth updates – contained a single 
measure that may be regarded, at least to some extent, as a valuable contribution 
to the reduction of the level of nitrogen dioxide pollution. These are the ban on 
heavy lorry traffic through the urban area, included in the first update, and the 
reduction of the maximum permissible speed on a section of Landshuter Allee. 
According to the explicit explanation in the second update, the gradual 
introduction of a green zone in Munich, which was announced for the first time in 
the second update, served at least in the first place to reduce the content of fine 
particulate matter in the air The green zone was unable to make a decisive 
contribution to the reduction of NO2 concentrations for the simple reason that 
even diesel vehicles were still allowed to drive into that zone under certain 
conditions. The party against which enforcement is sought itself now concedes 
that, owing to their high NO2 emission level, there is a need to replace older diesel 
vehicles with lower-emission vehicles. 
29 It is not possible to foresee when the limit value will be complied with: the 
referring court investigates the seventh update of the air quality plan for Munich 
in this connection. Amongst other things, it presents a statement made by 
representatives of the German automotive industry on 2 August 2017, according 
to which the NOx emissions (these are not identical to NO2 emissions) of 
approximately 5.3 million passenger cars equipped with diesel engines in 
emission categories Euro 5 and Euro 6 are to be reduced by an average of 25% to 
30% by the end of 2018 by means of modifications to the vehicle software. 
However, again according to the party against which enforcement is sought, from 
the outset the implementation of this statement was made subject to the proviso 
that, on the one hand, the relevant retrofitting technology be approved by the 
competent authority in Germany and, on the other hand, the vehicles be made 
accessible to the manufacturers. Mention is also made of a commitment made by 
the three German automotive groups to create self-funded incentives to accelerate 
the replacement of diesel vehicles belonging to an emission class below the 
Euro 5 standard with vehicles with the most modern exhaust aftertreatment 
systems or vehicles with electric motors. 
30 Other measures included in the concept for a seventh update include a fund for 
‘Sustainable Urban Mobility’. According to the statements of the party against 
which enforcement is sought itself, this subsidy measure is intended to make 
possible the ‘development of individual master plans to design measures for 
sustainable and emission-free mobility’. Also included is the ‘Express Cycle Path 
Pilot Project’, which is supported by several municipalities or their associations. It 
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should be mentioned in this respect that, in so far as this concept for a seventh 
update mentions state subsidies that in some cases have already been awarded and 
in other cases are intended for the future, the party against which enforcement is 
sought has made them subject to a budgetary proviso. It is also necessary to assess 
the conversion of rolling stock on railways passing through the territory of 
Munich from diesel traction to other means of propulsion. 
31 Citing the decisions of the Federal Administrative Court of February 2018, the 
referring court states in this regard that air quality planning that makes the entry 
into force of measures which are dependent upon conditions that cannot be 
controlled by the planner itself (the party against which enforcement is sought), 
and the introduction of which, moreover, is also uncertain, infringes the obligation 
arising from the second subparagraph of Article 23(1) of Directive 2008/50 to take 
the air quality measures that are currently the most suitable for complying with 
exceeded limit values as quickly as possible. 
32 All the aforementioned measures or projects have one thing in common, namely 
that, in breach of the obligation arising from the first sentence of the third 
subparagraph of Article 23(1) of Directive 2008/50, in conjunction with point 8(b) 
of Section A of Annex XV to that directive, the party against which enforcement 
is sought does not provide in the concept any indication as to when the elements 
of the concept are to be implemented. The information required pursuant to 
point 8(c) of Section A of Annex XV to Directive 2008/50, as to when the 
individual elements of the concept will take practical effect and what approximate 
decrease in the level of nitrogen dioxide pollution the party against which 
enforcement is sought expects from them, is also almost entirely missing. 
33 The fact that the party against which enforcement is sought itself is aware of the 
lack of suitability of its manifestation of a serious air quality plan to achieve 
compliance with the limit value of 40 μg/m3 in Munich within a reasonable period 
of time is demonstrated by the fact that the concept for a seventh update does not 
contain a statement as to when the party against which enforcement is sought 
expects to establish conditions in Munich that comply with EU law on the basis of 
its approach. 
34 There is therefore a lack of effective implementation within the meaning of 
Article 197(1) TFEU. Nor can it be said that the approach described complies with 
the requirement provided for in the second subparagraph of Article 4(3) TEU, 
pursuant to which the Member States are to take any appropriate measure to 
ensure fulfilment of the obligations resulting from the acts of the institutions of 
the European Union (here: Directive 2008/50). 
35 The referring court states the following: In light of the justification for the draft 
for a Law amending the Bayerisches Immissionsschutzgesetz (Bavarian Law on 
emission control) presented by the Government of the Land of Bavaria, it appears 
as though the party against which enforcement is no longer making any attempt 
whatsoever to comply with the limit value of 40 μg/m3, and is more interested in 
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relaxing that limit value or authorising exceptions to it that have previously not 
been provided for. 
36 This justification reads as follows: ‘The exceedances of the emission limit values 
for nitrogen dioxide in locations with high volumes of traffic and unfavourable 
conditions for the dispersion of pollution in the air (street canyons) will continue 
to persist even in the long term. They currently constitute a considerable problem, 
unless disproportionate traffic bans are to be applied.’  
37 Here, the party against which enforcement is sought therefore acknowledges that 
traffic bans (on diesel vehicles) constitute the only means of bringing an end to the 
unlawful situation of an excessive annual average limit value for nitrogen dioxide 
that will continue to persist ‘in the long term’. In a State based on the separation 
of powers and the rule of law, moreover, it is for the courts to make the final 
decision on the question of whether such traffic bans are disproportionate. 
4. Infringement of State obligations of protection 
38 The referring court refers to the fact that human life and health are being 
constantly harmed as a result of the persistent exceedances of the NO2 limit values 
in Munich.  
39 Owing to the failure to carry out the acts – which are required by law and ordered 
by the courts – to reduce the amount of nitrogen dioxide pollution in the air to the 
statutorily permissible level, an incalculable number of people in Munich must 
continue to suffer, for an unnecessarily long time, a decline in life expectancy, 
quality of life and health that such exposure entails in particular if the maximum 
permissible concentration is hugely exceeded in some cases and that deplorable 
situation has already existed for decades. Environmental epidemiological studies 
have identified an association between an increasing NO2 concentration in the 
ambient air with an increase in overall mortality, mortality due to cardiovascular 
diseases, hospital admissions and emergency consultations on account of 
respiratory diseases and asthma, as well as hospital admissions on account of 
chronic bronchitis. Further studies indicate that an increase in the NO2 
concentration of 16 μg/m3 would entail a 17% increase in overall mortality, a 50% 
increase in cardiopulmonary mortality and a 55% increase in cardiovascular 
mortality. These figures on the risks to life and health that are associated with 
impermissibly high levels of exposure to nitrogen dioxide are also supported by a 
report released by the World Health Organisation in 2013. 
40 In view of the harmful effects of excessive nitrogen dioxide concentrations on the 
lives and health of the people affected by it, public officials who do not take all 
the required measures to prevent this ongoing damage breach their public-service 
duty to protect and promote the legal interests of ‘human life’ and ‘human health’. 
Under national law, this duty is derived from Article 2(2) of the GG, while the 
ECtHR derives the obligation of the Member States to take the necessary 
measures to protect the lives of persons subject to their jurisdiction from the first 
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sentence of Article 2(1) ECHR. The referring court assumes that, pursuant to 
Article 52(3) of the Charter, the protection afforded by Article 2(1) and 
Article 3(1) of the Charter is not less far-reaching. 
5. Fundamental importance of this case 
41 For the referring court, this resides in the deliberate breach – which it has 
established – of final judicial decisions by the executive power, which the 
referring  court considers to be unacceptable. 
6. Remedy via coercive measures: Lack of persuasive effect of further threats 
and impositions of penalties 
42 If the executive power demonstrates its determination not to comply with certain 
judicial decisions, both towards parliament and towards the public with clarity and 
perseverance, as has happened in the present case, the referring court takes the 
view that it is out of the question that the threat or imposition of further and higher 
penalties will do anything to change this conduct. This is because the payment of 
penalties does not involve an actual loss of assets for the party against which 
enforcement is sought. Rather, it settles them in such a way that the amount 
imposed by the court is merely charged to a specific individual item in the State 
budget and the same amount is booked as revenue in the accounting office of the 
party against which enforcement is sought. 
7. Recourse to enforcement provisions of civil procedure not possible for 
constitutional reasons 
43 In addition to financial penalties amongst other things, German law also 
recognises, as a coercive measure, detention as a substitute to penalties or as an 
independent coercive measure. To a certain extent, the enforcement provisions of 
civil procedure are applicable mutatis mutandis in German administrative 
enforcement law. The first sentence of Paragraph 888(1) of the ZPO provides as 
follows: ‘If an act cannot be carried out by a third party, and depends exclusively 
on the will of the debtor, the trial court of first instance must find, upon 
application, that the debtor is to be required to carry out the act by means of a 
penalty and, if this cannot be collected, by means of detention, or solely by means 
of detention.’ 
44 In a decision from 1999, the Federal Constitutional Court referred to the 
requirement to ‘interpret and apply the enforcement provisions of the Code of 
Administrative Court Procedure in such a way that effective protection of the 
rights of the individual is also guaranteed vis-à-vis the administration’. 
45 This means: ‘If, for instance on the basis of previous experience, clear statements 
or multiple unsuccessful threats of penalties, it is clearly evident that the authority 
is not yielding to the pressure of the penalty, the principle of effective legal 
protection requires that use be made of the “corresponding” application of 
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provisions of civil procedure, which is possible pursuant to Paragraph 167 of the 
VwGO, and more incisive coercive measures be taken in order to induce lawful 
conduct on the part of the authority […]. It is … for the administrative court to 
assess which of the more incisive coercive measures set out in Paragraphs 885 to 
896 of the ZPO […] are to be used in the enforcement …, if necessary, which 
order they are to be used in, and in what form …’. 
46 Recourse to Paragraph 888 of the ZPO alone can be considered in the present 
case. 
47 However, the imposition of detention by administrative courts on public officials 
of the party against which enforcement is sought as a more extensive enforcement 
measure is currently precluded by the fact that Paragraph 888 of the ZPO does not 
meet the requirements imposed by the Federal Constitutional Court (in a landmark 
decision in 1970) on rules that authorise the deprivation of liberty. According to 
the Federal Constitutional Court’s interpretation of the Basic Law, which – subject 
to contrary provisions of EU law – is binding on the referring court, ‘the Basic 
Law in the area of deprivation of liberty’ pertains to ‘a formal legislative 
framework founded in particular on the rule of law’. 
48 Were detention to be ordered against the public officials of the party against 
which enforcement is sought on the basis of Paragraph 888 of the ZPO, it is true 
that it would not constitute an analogous application of that provision, as it would 
not be applied for that purpose to a circumstance not covered by its wording. 
However, the requirement laid down by the Federal Constitutional Court (in the 
decision of 1970) – according to which the intent of the legislature when it created 
the provision that is used as the legal basis for the deprivation of liberty must have 
also encompassed the objective for the fulfilment of which it is now used – would 
be violated. According to the history of the development of this provision, this is 
not the case as regards public officials of the State. 
49 As it is therefore not possible to impose detention on public officials, the final 
decision of 27 February 2017 remains de facto unenforceable. 
8. Lack of relevance of the constitutional obstacle for reasons arising from EU 
law? 
50 If the imposition of detention were to be required by EU law in a case of the type 
in question, the courts should not take account of the fact that, under German 
constitutional law, deprivation of liberty cannot be ordered if, although such a 
measure is covered by the wording of a statutory provision, that rule was not 
intended to legitimise the specific encroachment in question according to the 
concepts which guided the incumbent legislature when it created it. 
51 The reason for this is that it follows from the case-law of the Court of Justice 
(judgment of 20.12.2017, C-664/15, EU:C:2017:987, paragraphs 56 and 57) that 
national courts which are called upon, within the exercise of their jurisdiction, to 
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apply rules of EU law are under a duty to give full effect to those rules, if 
necessary refusing of their own motion to apply any conflicting provision of 
national legislation, and it is not necessary for the court to request or await the 
prior setting-aside of such a provision by the legislature or other constitutional 
means. 
52 Pursuant to the judgment of the Court of Justice of 19 November 2014 (C-404/13, 
EU:C:2014:2382, paragraph 58), where a Member State has failed to comply with 
the requirements of the second subparagraph of Article 13(1) of Directive 2008/50 
and has not applied for a postponement of the deadline as provided for by 
Article 22 of the directive (the European Commission raised objections to an 
application by the Federal Republic of Germany in this regard in point 3 of 
Article 1 of its Decision of 20 February 2013 – C(2013) 900 final – in relation to 
the Munich metropolitan area, with regard, inter alia, to the annual NO2 limit 
value of 40 μg/m3), it is for the courts of the Member State ‘to take, with regard to 
the national authority, any necessary measure, such as an order in the appropriate 
terms, so that the authority establishes the plan required by the directive in 
accordance with the conditions laid down by the latter.’ 
53 However, this judgment did not clarify whether the ordering of detention against 
public officials of the executive is one of the necessary measures if, although 
national law provides a sufficient legal basis for it according to its wording (in this 
case: Paragraph 888 of the ZPO), that provision was not intended to confer on the 
courts the power to impose detention on public officials in the past, nor is it 
intended to do so at present. This question must be regarded as requiring 
clarification all the more so given that – not unlike the second sentence of 
Article 2(2) of the GG – Article 6 of the Charter confers a right to liberty on 
individuals; pursuant to the first sentence of Article 52(1) of the Charter – once 
again not unlike the third sentence of Article 2(2) of the GG and the first sentence 
of Article 104(1) of the GG – a limitation of this right requires a legal basis. 
54 Drawing on the judgment of the European Court of Human Rights of 21 October 
2013 (AppNr 42750/09 – del Río Prada v. Spain), the requirements that must be 
met by a law authorising the deprivation of liberty in order to be able to comply 
with Article 52(1) of the Charter were given substance by the Court of Justice in 
the judgment of 15 March 2017 (C-528/15, EU:C:2017:213, paragraph 37 et seq.). 
55 From the perspective of the referring court, it does not appear to be clear whether 
an order of detention against public officials of the executive, which is based on 
Paragraph 888 of the ZPO and serves to enforce final judicial decisions, would be 
compatible, in particular, with the requirement of ‘predictability’ of a measure 
depriving a person of liberty. On the other hand, the referring court takes the view 
that the fact that public officials under consideration for detention previously had 
no need to expect such a measure could be overcome by the fact that detention is 
ordered only after the public official to be detained has been threatened with such 
detention in advance and has continued to fail to fulfil the obligations arising from 
the decisions to be enforced, even within a deadline to be attached to the threat. 
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9. Possible addressees of an order of detention 
56 These may be legal persons, which therefore include the party against which 
enforcement is sought or its bodies. If the outcome of the present request for a 
preliminary ruling were to be that the imposition of detention is permissible in the 
given case, the considerations that would then be required as regards the selection 
of detainees would include, at the least, public officials of the authority 
responsible for implementing the Bavarian Law on emission control (hereinafter: 
competent authority) who have the task of drawing up the air quality plan in 
question. 
57 However, account must be taken of the fact that the refusal to include traffic bans 
on diesel vehicles in the air quality plan for Munich is an expression of the 
political will of the Government of the Land of Bavaria, and the competent 
authority is subject to the instructions of the technically superior ministry – in this 
case, the Bavarian Ministry of State for the Environment and Consumer 
Protection. 
58 The right of the ministry to issue instructions and the obligation of the competent 
authority to follow instructions mean that public officials of the Bavarian Ministry 
of State for the Environment and Consumer Protection – first and foremost the 
Minister of State for the Environment and Consumer Protection – potentially also 
belong to the circle of people who could come into consideration as being 
responsible for the infringements to be brought to an end by means of 
enforcement.  
59 Finally, the Minister-President of the German Land of Bavaria could also be 
regarded as being responsible. This would be the case if the refusal of the party 
against which enforcement is sought to include traffic bans on diesel vehicles in 
an update of the air quality plan for Munich were an expression of the authority of 
that public official to set guidelines. 
10. Safeguarding the principle of proportionality 
60 Ordering detention with the objective of inducing the party against which 
enforcement is sought to perform air quality planning in accordance with EU law 
in compliance with final judicial decisions would not infringe the principle of 
proportionality.  
61 In light of the high value attached to the legal rights of ‘human life’ and ‘human 
health’ as well as the desire to safeguard the rule of law and the effectiveness of 
judicial protection, a temporary encroachment on the personal freedom of 
movement of public officials who belong to the Government of the Land of 
Bavaria cannot be regarded as unreasonable. The same applies with regard to the 
requirement to safeguard the claim of validity of EU law and the obligation of 
each Member State to take any appropriate measure to implement directives (see 
the second subparagraph of Article 4(3) TEU), including in Bavaria. 
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11. Request for a prioritised decision 
62 Contrary to a request of the party seeking enforcement, the referring court refrains 
from requesting that the case be dealt with under the expedited procedure pursuant 
to Article 105(1) of the Rules of Procedure, but asks that the case be given priority 
pursuant to Article 53(3) of the Rules of Procedure. The referring court takes the 
view that such an approach would constitute an advantageous compromise 
between the indisputable requirement to expedite the case, which is also in the 
general interest, and the requirement to examine the factual and legal situation in 
depth.