‘This could be diesel’s Fukushima moment’

Germany’s highest civil court has confirmed that city councils have the right to ban dirty diesel cars from city centres to bring air pollution down to legally required limits. In a landmark double-ruling on 27 February, the Federal Administrative Court (BVG) said cities are entitled to ban the most polluting engines, in fact they must do so if that is the most effective measure to reduce pollutants, particularly nitrogen dioxide (NO2).

Photo: DUH

Despite EU law setting maximum pollutant levels, numerous German cities have failed to keep to these levels – indeed 66 German cities exceeded the limits in 2017. Legal action by T&E’s German member DUH and environmental lawyers ClientEarth resulted in lower courts ruling that authorities in Stuttgart and Dusseldorf would have to ban the most polluting cars from city centres. The authorities appealed to the BVG against the decisions taken by the lower courts, claiming they didn't have the power to ban diesel, but the decisions were upheld. The Federal Court held that cities do have the power to ban diesel – effectively mandating diesel bans in the two cities, with implications for many other similar court cases open across Germany.

Giving the rulings, the presiding BVG judge said: ‘Bans are generally permissible as long as they are implemented in a way that avoids disproportionate effects.’ He made clear that certain exemptions must be allowed (notably for small businesses and city centre delivery vehicles), but also stressed that EU law means bans on dirty diesels must be implemented ‘if there are no other effective measures to reduce pollution’. Significantly the ruling states that protection of citizens’ health outweighs any mobility restriction caused by a vehicles ban.

DUH had filed the earlier case in Düsseldorf, and was active in a dozen more cities seeking to ban diesels to improve air quality. Its director Jürgen Resch said: ‘We are very happy with these judgements. We have established the right of cities to ban diesels from cities, and on both the Stuttgart and the Düsseldorf models. This is a great day for clean air in Germany.

‘We are not fighting against diesels but in favour of cleaner air. We’re also fighting for the nine million motorists who bought a diesel after being told by the car industry that they were buying a car that was clean, only to find they had emissions five or six times the legal limit and soon won’t be able to drive into certain cities. With this judgement, we can now force the car industry to devote a portion of its profits to correcting these vehicles and help us achieve cleaner air.’

T&E’s executive director William Todts said: ‘This court decision could become the Fukushima moment for diesel. Due to the relentless work of our member DUH, and the ClientEarth team, cities have a new weapon at their disposal to clean up our air when governments and regulators have failed.

‘We should be careful that these dirty diesels don’t end up on the roads of Eastern and Central Europe, polluting cities like Warsaw and Sofia for years to come. At a minimum, second-hand cars should only be registered once they have been fixed and comply with emission limits.’

The rulings commit Stuttgart and Düsseldorf to maintaining NO2 levels no higher than 40 µg/m³ over a year. The resulting city centre bans will affect mostly Euro 4 and Euro 5 diesels. Cars with Euro 4 engines can be banned immediately, while most Euro 5s will have to be retrofitted with filters by September 2019 or be included in bans. The resale value of such cars is expected to suffer. The BVG said Euro 6 diesels are clean enough that they should be excluded from city bans.

The judgement provoked sharp falls in the value of the shares of leading German carmakers who are heavily dependent on diesels. Daimler shares fell 0.6%, BMW 0.8%, while Volkswagen, which has been fined for its ‘Dieselgate’ scandal of using software to cheat emissions regulations, saw its shares fall 2% immediately after the judgement.