Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 3 December 2018 — Deutsche Umwelthilfe e.V. v Freistaat Bayern

(Case C-752/18)

(2019/C 54/14)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Deutsche Umwelthilfe e.V.

Defendant: Freistaat Bayern

Questions referred

Are

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,

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 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?