European Court of Justice (ECJ) Advocate General Juliane Kokott Thursday stated before the court that European Union (EU) citizens may sue their governments for monetary compensation if air pollution levels exceed EU limits and damage their health. The Advocate General gave her opinion in the ongoing Case C-61/21, in which the ECJ is examining state liability for air pollution.

In 2017, a Paris resident sought compensation amounting to €21 million from the French government based on the claim that rising air pollution in his local area damaged his health. He submitted that the French government had not adhered to EU limits on air pollution and was therefore owed him compensation. The Administrative Court of Appeal of Versailles, which is hearing the dispute, referred the case to the ECJ in January 2021 to determine whether individuals can claim compensation from the state for the violation of EU limits and, if so, under what conditions. In October 2019, the ECJ found that France systematically and persistently exceeds the annual nitrogen dioxide limit and has done so since January 2010. The relevant EU limits are defined in the EU Air Quality Directives.

In her opinion Thursday, Kokott stated that individuals may be able to claim compensation from the state because the three conditions for state liability, as defined by prior EU case law, are applicable here.

The first condition is that the rule of EU law must confer rights on the individual. According to Kokott, this condition is satisfied because the EU Air Quality Directives intended to confer rights upon individuals. She cited the directive’s main purpose, the protection of human health, as support for this assertion. Kokott observed that infringement upon these rights mainly affects low socio-economic groups stuck in polluted areas.

The second condition is that the breach must be sufficiently serious. Kokott speculated that national courts must determine this question by examining whether the breach spans periods in which the EU limits were applicable, but without enforcement through an effective air quality improvement plan.

The last condition is the existence of a direct causal link between the breach and the resulting damage. Kokott noted that establishing this direct causal link will be the actual difficult problem in enforcing claims. To satisfy this condition, the injured party must first prove that they have stayed for a sufficiently long period in an area where EU limits have been seriously violated. Second, the injured party must prove that the damage to their health is a result of air pollution. Third, they must establish the direct causal link, which generally requires a medical assessment.

However, she clarified that proving a direct link would not suffice if the EU member state could prove that the violation of EU limits would have occurred even if the state had adopted air quality plans adhering to the EU directive.

The ECJ now begins its deliberations on the matter. Kokott’s opinion is not binding on the ECJ.