CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 avril 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s98FF0DB { font-family:Arial; font-size:8pt; vertical-align:sub } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .sF4F7263B { height:25.5pt } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } Published on 12 May 2025   FIRST SECTION Application no. 36351/18 Zdzisław KUCZMA against Poland and 5 other applications (see list appended) communicated on 25 April 2025 SUBJECT MATTER OF THE CASE 1.     The applications concern the lack of legal standing for individuals and environmental associations for the purposes of judicial review of administrative acts on air quality issued by local self-governments. The applications may also raise an issue of the State’s positive obligations to protect the applicants from exposure to severe air pollution, by taking measures to mitigate ambient air pollution, including by regulating the use of polluting household heating systems. 2.     The applications were lodged by seven individuals, among them six adults and one child, and by two associations (see appendix below). Among those, application no. 2082/23, was introduced by the heirs of late Mr Uliasz, on their own and on Mr Uliasz’ behalf. At the relevant time, the applicants resided or had their seats in Rybnik, Zakopane or Warsaw, respectively. The individual applicants claim to have been directly and negatively affected by severe air pollution which, in wintertime, is mainly caused by emissions of chemical compounds such as fine particles, nitrogen dioxide and benzo(a)pyren, from household heating systems. The applicants essentially submit that air quality in their cities depends, among others, on Air Protection Programmes ( Program ochrony powietrza, “APP”) which are supposed to set out measures and tools aiming at the improvement of the air quality in the regions by phasing out the pollution sources. In particular, APPs can set out emission limits for small heaters or boilers; order elimination of the sale of coal duff ( miały węglowe ) and sludge ( muły węglowe ); impose restrictions on household use of bituminous coal ( węgiel kamienny ), through the requirement to use certified high-efficiency heaters or boilers; bar the use of double-chamber boilers; order improvements in collective heating systems; set out a legal obligation for entities using inefficient heating systems to comply with the APP; and harmonise the country monitoring of the quality of heaters. Pursuant to the 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 (“AAQ Directive”), applicable at the material time, when the limit values set by European Union (“EU”) legislation are exceeded, the Directive requires Member States to adopt air quality plans and set appropriate measures to keep exceedance periods as short as possible. The applicants submit that the applicable EU law (in particular, the AAQ Directive) and Article 9 (3) of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“Aarhus Convention”) grant them the right to seek improvement of air quality, including by means of instituting the judicial review of APPs that they consider insufficient for effective mitigation of ambient air pollution. 3.     All applicants sought annulment of local APPs adopted by the local self-governments ( Sejmik Województwa ) of their respective regions. Regarding application no. 36351/18, the applicant, Mr Kuczma, applied for annulment of resolution no. IV/57/3/2014 approving the APP for Silesia, adopted by the Silesia local self-government on 17 November 2014. Regarding application no. 29053/22, the applicant, Ms Sitarz-Wójcicka, applied for annulment of resolution no. XLII/662/13 approving the APP for Malopolska, adopted by the Malopolska local self-government on 30   September 2013. Regarding the remaining applications, the applicant associations (applications nos. 1138/23 and 1215/23), the individual applicants M. (application no. 1188/23) and Mr Uliasz (application no. 2082/23), all applied for annulment of resolution no. 115/20 approving the APP for the Mazowiecki region, adopted by the Mazowiecki local self-government on 8   September 2020. 4.     The applicants essentially argued that those APPs set out actions that were based on flawed consultation procedures or inaccurate models, and were arbitrary, untimely, not ambitious enough and, overall, inadequate for the improvement of air quality. In their appeals, the applicants (with the exception of Ms Jędrzejczyk, who did not take part in court proceedings in her private capacity but as a representative of the association Miasto Jest Nasze, application no. 1138/23) alleged that the respective APPs breached various provisions of the Polish Constitution and of the Environment Protection Law ( Prawo ochrony środowiska ) in that they were not compliant with the State’s policies and strategies on the environment, climate, energy and on sustainable development, or with the AAQ Directive. The applicant associations (applications nos. 1215/23 and 1138/23), Mr   Kuczma (application no. 36351/18) and applicant M. (application no.   1188/23), as well as Mr Uliasz (application no. 2082/23) also submitted a request for a preliminary ruling by the Court of Justice of the EU (“CJEU”) on a series of questions pertaining to the interpretation of the EU law, the Aarhus Convention and the applicable domestic law, in respect of the legal standing of individuals and environmental NGOs for the purposes of a judicial review of APPs. The individual claimants derived their legal interest in challenging the APPs from the fact that they had lived in cities where air pollution had systematically and drastically exceeded the norms which, in turn, had a severe negative impact on their private and family life, health and enjoyment of their homes. The applicant associations derived their interest from their statutory goal which was to effectively protect the health of Warsaw residents directly affected by air pollution. The association Miasto Jest Nasze stressed that many affected residents were the association’s members. Both applicant associations also claimed that, in so far as the air quality was non-compliant with the applicable legal standards, that infringed their own civil right, namely the right to clean air, which was part of a wider, constitutionally guaranteed, right to a healthy environment. In that context, in the light of the Aarhus Convention, environmental associations were presumed to have interest in environmental decision-making affecting the society and the environment, while, in the light of the AAQ Directive, as interpreted by the CJEU, they had a right to seek the adoption of APPs that would be complaint with that Directive. 5.     The administrative courts, in all instances, refused to examine the merits of the applicants’ appeals for lack of legal standing. The courts reasoned that, contrary to what was required by the applicable provision of the administrative law (Section 90(1) of the 1998 Act on regional self ‑ government, Ustawa o samorządzie województwa ), the applicants did not have legal interest to challenge the APPs, because they were not directly or objectively affected by those resolutions. In particular, the resolutions in question did not set out any obligations, prohibitions or rights directly pertaining to the applicants, but only concerned the organs of public administration. 6.     Regarding application no. 36351/18, on 15 September 2017 the Gliwice Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) rejected the appeal lodged by Mr Kuczma. On 23 January 2018 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed his cassation appeal and held that there was no need to seek a preliminary ruling from the CJEU. This decision was served on the applicant on 9   February 2018. Regarding application no. 29053/22, on 6 July 2016 the Cracow Regional Administrative Court rejected the appeal lodged by Ms Sitarz-Wójcicka. On 29   November 2016 the Supreme Administrative Court dismissed her cassation appeal. In 2017 Ms Sitarz-Wójcicka filed a constitutional complaint in which she challenged the constitutionality of Section 90(1) of the 1998 Act on regional self-government in so far as that provision, as interpreted by domestic courts, excluded legal standing of individuals affected by air pollution for the purposes of challenging APPs for the areas in which those individuals lived. On 1 July 2021 the Constitutional Court declared the impugned provision compliant with the Constitution. The court observed that the AAQ Directive did not oblige member States to provide for the possibility for any resident of a zone covered by an air protection programme to challenge such a programme before a court. The desirability of such a solution was indirectly pointed out by the CJEU in its judgment of 19 November 2014 in the case no. C-404/13 (The Queen, on the application of ClientEarth v.   The   Secretary of State for the Environment, Food and Rural Affairs. Request for a preliminary ruling from the Supreme Court of the United Kingdom, ECLI:EU:C:2014:2382) and, similarly, in the judgment of 25 July 2008 in the case no. C ‑ 237/07 (Dieter Janecek v Freistaat Bayern. Request for a preliminary ruling from Bundesverwaltungsgericht – Germany, ECLI:EU:C:2008:447). However, the view expressed in that case-law could not be a basis for extending the scope of impugned Section 90(1). The reasoned judgment of the Constitutional Court was served on the applicant’s lawyer on 26 November 2021. Regarding the remaining applications, in separate decisions issued on 28   January 2022, the Warsaw Regional Administrative Court rejected the appeals lodged by the applicant associations (applications nos. 1138/23 and   1215/23), by applicant M. (application no. 1188/23) and by Mr Uliasz, as pursued after his death by his heirs (application no. 2082/23). On 21   July 2022 the Supreme Administrative Court issued separate decisions, dismissing the cassation appeals introduced by the applicants. The court held that the applicants and Mr Uliasz, respectively, lacked legal standing and that there was no need to submit a request for a preliminary ruling to the CJEU. It appears that, in respect of all these applications, a copy of the Administrative Supreme Court’s judgment was served on the applicants’ lawyer on 8   September 2022. 7.     All applicants complain about the breach of Article 6 of the Convention on account of their lack of access to a review by the administrative court of the respective APPs that they attempted to challenge. Mr Kuczma (application no. 36351/18) also specifically complains under the same provision that the administrative court has denied him the protection of his civil right to a clean environment as guaranteed by the Polish Constitution. All individual applicants also complain about the breach of Article 8 of the Convention on account of their or Mr Uliasz’ long-term exposure to severe air pollution that, in their view, has negatively affected their quality of life, well-being and health. They submit that the concentrations of PM 10 and PM 2.5 (fine particles or particulate matter 10 or 2.5 micrometres, respectively), of benzo(a)pyrene and nitrogen dioxide (NO 2 ) in ambient air have significantly and persistently exceeded the statutory maximum levels, or the levels acceptable under the EU law or the recommendations of the World Health Organisation (“WHO”). In this context, regarding application no. 1188/23, applicant M. claims that her child, applicant N., suffers from asthma, which significantly worsens during the heating season when the toxic pollution in their hometown, Warsaw, is at its peak. Regarding application no. 2082/23, the applicants claim that late Mr Uliasz suffered from serious, post-heart attack, cardiovascular ailments, diabetes, and hypertension. As they claim, air pollution increased Mr Uliasz’ risk of premature death from 11% to 27%, depending on the toxic compound, and severely and negatively affected his daily life. Regarding application no. 36351/18, the applicant additionally complains that, apart from the substantive aspects of the right to respect for his private life and for home, his procedural rights derived from Article 8 have also been disproportionately breached in that he was denied standing before the administrative court to challenge the APPs. Lastly, all applicants complain under Article 13 of the Convention, either in connection with their respective Article 6 or Article 8 complains, or with both, that there is no domestic remedy available to them to challenge APPs and, thus, to require the State to effectively combat air pollution. In this context, the individual applicants claim that a compensatory remedy under the civil law cannot serve any such goal and cannot ensure prevention of harm to health caused by air pollution. QUESTIONS TO THE PARTIES I.     Application-specific questions:   1.     Owing to the fact that Mr Uliasz died while the domestic proceedings were on-going and that his next of kin pursued those proceedings, and later, lodged the application with the Court, do the applicants in application no.   2082/23 have standing to introduce complaints in the name of late Mr   Uliasz (for general principles, see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 97-100, ECHR   2014; and see, mutatis mutandis , Micallef v. Malta [GC], no.   17056/06, §§   48-51, ECHR 2009; Sanles Sanles v. Spain (dec.), no.   48335/99, ECHR 2000–XI; and Petithory Lanzmann v. France (dec.), no.   23038/19, § 16, 12   November 2019 (Committee)?   2.     Owing to the fact that the Foundation Client Earth Prawnicy dla Ziemi , the applicant in application no. 1215/23, filed a communication with the Compliance Committee of the Aarhus Convention, arguing that the Polish law, in particular Section 90(1) of the 1998 Act on regional self-government, made it effectively impossible for environmental NGOs to challenge local acts on the environment and thus breached Article 9(3) of the Aarhus Convention, do this applicant’s complaints under Articles 6 and 13 of the Convention concern a matter which is essentially the same as that which the applicant submitted to the Aarhus Convention Compliance Committee? If so, can the proceedings before that institution be considered as another procedure of international investigation or settlement, within the meaning of Article   35 §   2 of the Convention?   3.     Has Ms Jędrzejczyk, the individual applicant in application no. 1138/23 exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention (see Gorraiz Lizarraga and Others v. Spain , no. 62543/00, §   39, ECHR 2004-III)?   4.     Has the applicant in application no. 29053/92 complied with the time ‑ limit laid down in Article   35 §   1 of the Convention, given the dates on which the Supreme Administrative Court and the Constitutional Court issued and served their respective rulings?   II.     Questions pertaining to all applications:   5.     Can the applicants be regarded as victims, within the meaning of Article 34 of the Convention as interpreted by the Court, of a breach of one of the Convention rights relied on in the present applications, by reason of the failure of the Polish authorities to protect them and/or their relative effectively against the effects of ambient air pollution? In particular, have the applicants and/or their relative suffered severe consequences of the inadequate action or inaction alleged by the respondent State (for general principles, see Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.), no. 37857/14, §§ 36-41, 20 January 2022, and Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no.   53600/20, §§ 460-77 and §§ 590-93, 9 April 2024)?   6.     Is Article 6 § 1 of the Convention, under its civil head, applicable? In particular, did the administrative proceedings in question pertain to a dispute over a “right” which can be said at least on arguable grounds, to be recognised under domestic law and was the outcome of the proceedings directly decisive for the right in question (for general principles, see Verein KlimaSeniorinnen Schweiz and Others , §§ 594-607, cited above, with further references therein; see also, mutatis mutandis , Cangı and Others v. Türkiye , no. 48173/18, §§   34 ‑ 38, 14 November 2023; Gorraiz Lizarraga and Others , §§ 43-48, cited above; and Theocharisti Lorentzatou v. Greece (dec.), no. 2947/08, 25   February 2010)?   7.     If the answer to question 6 is in the affirmative, was there a violation of the right of access to a court within the meaning of Article 6 of the Convention (for general principles, see Verein KlimaSeniorinnen Schweiz and Others , §§   626-28, cited above, see also, mutatis mutandis , ibid §§   629 ‑ 40)?   8.     Was Article 8 of the Convention applicable?   9.     If the answer to question 8 is in the affirmative, did the State comply with its positive obligations under Article 8 to take all measures the authorities could reasonably be expected to take, in the light of the relevant provisions and principles, contained in the applicable EU law on ambient air quality, in order protect the applicants’ rights to respect for their private and family life and home (see, mutatis mutandis , Pavlov and Others v. Russia , no.   31612/09, §   75, 11 October 2022, and Greenpeace E.V. and Others v.   Germany (dec.), no. 18215/06, 19   May 2009)? Would the ambient air pollution complained of have been avoidable if the public authorities had put in place and enforced restrictions on the use of household and similar heaters and burners fuelled by coal derivatives?   10.     Did the applicants have an “arguable claim” that there had been violation of their rights under Articles 6 and 8 of the Convention so as to bring Article 13 into play?   11.     If the answer to question 10 is in the affirmative, did the applicants have an effective remedy within the meaning of Article 13 of the Convention in respect of the alleged violations of Articles 6 and 8 of the Convention (see Hatton and Others v. the United Kingdom [GC], no.   36022/97, §§ 137-42, ECHR 2003-VIII)?   12.     The Government are also asked to submit copies of the relevant decisions and documents listing and describing the measures undertaken since 2004 in order to reduce air pollution in Rybnik, Zakopane, Warsaw and the respective regions, as well as to mitigate its effects on the well-being and on the health of the populations concerned, including the applicants.   APPENDIX No. Application no. Case name Lodged on Represented by 1. 36351/18 Kuczma v. Poland 20/07/2018 Bolesław MATUSZEWSKI 2. 29053/22 Sitarz-Wójcicka v. Poland 25/05/2022 Miłosz JAKUBOWSKI 3. 1138/23 Miasto jest Nasze Stowarzyszenie and Jędrzejczyk v. Poland 19/12/2022 Agata BZDYŃ 4. 1188/23 M. and N. v. Poland 19/12/2022 5. 1215/23 Fundacja ‘ClientEarth Prawnicy Dla Ziemi’ v.   Poland 19/12/2022 6. 2082/23 Uliasz v. Poland 01/12/2022