Pollution levels have long exceeded EU limits in the southern German city of Munich
Pollution levels have long exceeded EU limits in the southern German city of Munich AFP / Daniel LEAL-OLIVAS

The European Court of Justice will this week examine whether German judges can impose prison sentences on politicians for failing to enforce inner-city bans on polluting vehicles.

In a case starting Tuesday, the court will advise in a long-standing dispute between environmental activists and the state government of Bavaria, just one battle in a furious national debate over diesel and driving bans.

The ECJ's opinion, though not legally binding, could have implications for leading politicians in the Bavarian sister-party of Chancellor Angela Merkel's ruling Christian Democrats.

In a legal tug-of-war stretching back to 2012, environmental group Deutsche Umwelthilfe (DUH) is attempting to force the Bavarian government to implement measures against air pollution in the state capital Munich.

"We are asking that air pollution limits be respected," DUH chairman Juergen Resch told AFP.

Nitrogen dioxide levels have long exceeded EU limits in the southern German city, and following a final decision in 2014, a Munich court demanded a plan of action from the state government which included a city ban for diesel-fuelled vehicles.

'No precedent'

Yet both activists and the judiciary have claimed the government is flagrantly ignoring the 2014 ruling.

In November last year, the Bavarian higher administrative court referred the case to the ECJ, saying that "high-ranking political figures" had "made it clear, both publicly and to the court, that they would not fulfil their responsibilities."

The court said that a 4,000 euro ($4,433) fine had proved "inefficient", and asked the magistrates in Luxembourg to advise on the legality of threatening lawmakers with imprisonment.

"It is quite a spectacular case," Philipp Reimer, a professor of public law at the University of Bonn, told AFP.

"I don't know of any precedent in German law."

Even if the ECJ rules that politicians could be handed prison sentences, it would remain up to the Bavarian courts to decide whether or not to do so.

"If the ECJ says that European law allows for imprisonment, then I can imagine it will be tried," Reimer told AFP, adding that such a measure would "shift the goalposts in terms of the division of powers".

Yet DUH chairman Resch insisted that no politicians would be sent to prison, because the threat alone would force them to implement the measures demanded by the court.

"Anyone threatened with prison has the keys to their own handcuffs in their pocket," said Resch.

For Bavaria's governing Christian Social Union, a diesel ban in Munich, the city which is home to BMW, remains out of the question.

"Driving bans are a bad solution," a spokesperson for the state environment ministry told AFP.

"The air quality in Bavaria is improving, so the measures taken so far are working," said the ministry, pointing to investment in software updates and cycling and public transport infrastructure.

Emissions scandal

Bans on diesel vehicles have been introduced in several major cities since the Volkswagen scandal in 2015, when the automobile behemoth was revealed to have installed illegal software which cheated emissions tests on millions of new diesel cars.

The bans are already in place in Stuttgart and parts of Hamburg and are set to be introduced in selected streets in Berlin this October.

According to automobile industry consultancy firm Berylls, 60 million drivers of both diesel and other cars across Europe are affected by city driving bans imposed to curb air pollution.

The issue is particularly divisive in Germany, where the industry provides tens of thousands of people with jobs.

Amid outrage from car owners and opposition parties such as the far-right AfD and the liberal FDP, the federal government introduced a law to limit driving bans last March.

That in turn attracted the wrath of environmentalists. In June, the Green Party's transport expert Stephan Kuehn accused the government of attempting to "hollow out European law".