The European Court of Justice (ECJ) heard arguments on Tuesday about whether Bavarian State Premier Markus Söder and other members of his government should be jailed for failing to implement clean air rulings to bring down levels of the nitric oxide, caused by diesel fumes, in Munich.

The campaign group Environmental Action Germany (Deutsche Umwelthilfe, or DUH) brought a suit after Bavaria failed to implement a ruling in the Bavarian administrative court in 2012 and a later one in the higher federal court.

The court had already fined the state, but no measures have been implemented, which prompted the DUH to bring a suit demanding that the members of the government could be jailed. The Munich court referred the case to the ECJ.

In another decree from November 2018, the Bavarian administrative court accused Söder and his government of violating their oath of office, contempt of court, and threatening the rule of law. The court also rejected the government's argument that it had not yet exhausted all its legal options.

In a statement made at the time, DUH head Jürgen Resch said, "The refusal of the Bavarian government to implement a clean air court verdict in Munich … represents a full frontal attack on democracy." He added that Söder and his predecessor Horst Seehofer "endangered the health of thousands of people in Munich who have a right to clean air."

Dirty air

The case has wider political implications, as it highlights the difficulties that the German judiciary often has trying to force state authorities to comply with court rulings. According to a DUH statement, such cases are currently increasing.

Fines for failure to comply are limited to €10,000 ($11,000) and have often proven ineffective, not least because the money ends up in state coffers anyway.

The DUH said the ECJ verdict, which is not expected for some months, will send a "clear signal for the relevance of this legal question."

The DUH has been campaigning to force city authorities to implement the EU's clean air directives, and, according to its website, currently has another 37 legal cases running throughout Germany. Several German cities have implemented bans on certain diesel cars in the wake of the "diesel scandal," which exposed the car industry practice of building "cheat software" into new models.

German Environment Agency (UBA) figures released earlier this year showed that nitric oxide levels exceed EU limits in 57 German cities, though overall the levels were dropping.

The DUH also made clear that the ruling would almost certainly not actually mean that Söder, or any other German politician, would end up behind bars, largely because they could simply implement the ruling.

Each evening at 1830 UTC, DW's editors send out a selection of the day's hard news and quality feature journalism. You can sign up to receive it directly here.