Today, May 5, 2022, Advocate General Kokott issued her opinion [3] in Case C-61/21 Ministre de la Transition écologique and Premier ministre, which arose from French proceedings instituted by a resident of Paris seeking to obtain compensation for ill health allegedly caused by France's air pollution. According to a press release [4] from the Court of Justice of the European Union (CJEU), the Court had found Paris had been breaching the limit values set by the EU for nitrogen dioxiode and particulate matter since 2010. The Administrative Court of Appeal in Versailles, where this case originated, referred to the CJEU the question whether and to what extent a person can claim compensation from the state for damage to health caused by an infringement of the value limits. Advocate General Kokott was of the view that entitlement to compensation may arise if three conditions are fulfilled: "[1] that the rule of EU law infringed is intended to confer rights on them, [2] that the infringement of that rule is sufficiently serious; and [3] there is a direct causal link between that infringement and the damage suffered by those individuals." According to Kokott, the first condition has already been satisfied. In addition, she noted that "[e]xceedance of the limit values burdens, above all, certain groups who live or work in particularly polluted areas [note omitted]. Those groups often consist of people of low socio-economic status, [note omitted] who are particularly reliant on judicial protection." The second condition must be determined by the national court, but the relevant time to examine includes "[a]ny period during which a limit value has been exceeded without a sufficient plan is a period during which the Member State concerned has seriously infringed the air quality rules."

Finally, Kokott indicated that the most difficult part of the assessment lies in the third condition and determining whether there is a direct causal link between the serious breach and the specific damage to health. To evaluate this, the injured party must first prove "that he or she has stayed, for a sufficiently long period of time, in an environment in which limit values for ambient air quality under EU law have been seriously infringed. The duration of that period is a medical question that requires a scientific answer." Second, the injured party must prove "the existence of damage that can be linked to the relevant air pollution in the first place." Third, they must prove "a direct causal link between the abovementioned stay at a place where a limit value for ambient air quality was seriously infringed and the damage claimed." Even if all of these conditions have been met, Kokott explained that a member state may "exonerate itself by proving that such exceedances would also have occurred if it had adopted in good time air quality plans that met the requirements of the directive." The case will now go before the Court for a final determination.