Judgments nº T-9/19 of Tribunal General de la Unión Europea, January 27, 2021

• Resolution Date: January 27, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-9/19

(Environment - Financing of a biomass power generation plant in Galicia - Resolution of the Board of Directors of the EIB approving the financing - Access to justice in environmental matters - Articles 9 and 10 of the Aarhus Convention - Articles 10 to 12 of Regulation (EC) No 1367/2006 - Request for an internal review - Refusal of the request as inadmissible - Action for annulment - Admissibility of a ground of defence - Obligation to state reasons - Concept of an act adopted under environmental law - Concept of an act having a legally binding and external effect)

In Case T-9/19,

ClientEarth, established in London (United Kingdom), represented by J. Flynn QC, H. Leith and S. Abram, Barristers,

applicant,

v

European Investment Bank (EIB), represented by G. Faedo and K. Carr, acting as Agents, and by B. Wägenbaur, lawyer,

defendant,

supported by

European Commission, represented by F. Blanc and G. Gattinara, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU for annulment of the decision of the European Investment Bank (EIB), communicated to the applicant by letter of 30 October 2018, rejecting as inadmissible the request for an internal review of the resolution of the EIB’s Board of Directors of 12 April 2018 approving the financing of a biomass power generation plant in Galicia (Spain) which the applicant had submitted on 9 August 2018, in application of Article 10 of Council Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13) and of Commission Decision 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation No 1367/2006 as regards requests for the internal review of administrative acts (OJ 2008 L 13, p. 24),

THE GENERAL COURT (Second Chamber, Extended Composition),

composed of M. Van der Woude, President, V. Tomljenović, F. Schalin, P. Škvařilová-Pelzl (Rapporteur) and I. Nõmm, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 24 June 2020,

gives the following

Judgment

Background to the dispute

The Aarhus Convention

1 On 25 June 1998, the European Community, which subsequently became the European Union, signed, in Aarhus, the Convention on access to information, public participation in decision-making and access to justice in environmental matters (‘the Aarhus Convention’). The Aarhus Convention entered into force on 30 October 2001. It was subsequently approved, on behalf of the Community, by Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Aarhus Convention (OJ 2005 L 124, p. 1). As from that date the European Union is also a Party to that convention.

2 Article 1 of the Aarhus Convention, which is entitled ‘Objective’, provides that ‘[i]n order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party [to the convention] shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention’.

3 According to the Aarhus Convention Implementation Guide, the right of access to justice in environmental matters, as provided for in Article 9(1) and (2) of the Aarhus Convention, is specifically intended to ensure the rights of access to information in environmental matters and public participation in decision-making in environmental matters, as guaranteed by that convention. Article 9(3) of the Aarhus Convention provides, more generally, that each party is to ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4 The Aarhus Convention Implementation Guide also states the following. The parties to the Aarhus Convention retain considerable discretion in designating which forums (court or administrative body) and forms of procedure (e.g., civil law, administrative law or criminal law) should be available to challenge the acts and omissions referred to in Article 9(3) of the Aarhus Convention. While bearing in mind the general obligation in Article 3(1) of that convention to establish and maintain a clear, transparent and consistent framework, the parties to the convention are not prevented from providing different review procedures for different kinds of acts and omissions. The objective of any administrative or judicial review process is to have erroneous decisions, acts and omissions corrected and, ultimately, to obtain a remedy for transgressions of law Under Article 9(4) of the Aarhus Convention, the parties to the Aarhus Convention must ensure that the review bodies provide ‘adequate and effective’ remedies, including injunctive relief as appropriate. In addition to specifying kinds of remedies, Article 9(4) of the Aarhus Convention requires the parties to the Aarhus Convention to ensure that review procedures under paragraphs 1 to 3 are ‘fair, equitable, timely and not prohibitively expensive’ and that the public be duly informed.

EU policy on the environment and the implementation of Article 9 (3) and (4) of the Aarhus Convention by the Aarhus Regulation

5 EU policy on the environment is based on Articles 191 to 193 TFEU and Article 11 TFEU, which promotes transversal sustainable development.

6 Article 191 TFEU defines the scope of EU policy on the environment and sets out a series of objectives (paragraph 1), principles (paragraph 2) and criteria (paragraph 3) which the EU legislature must respect in implementing that policy.

7 Under Article 191(1) TFEU, the objectives pursued by EU policy on the environment are as follows:

‘- preserving, protecting and improving the quality of the environment,

- protecting human health,

- prudent and rational utilisation of natural resources,

- promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.’

8 At the material time, concrete EU action was based mainly on the Environmental Action Programme for the period 2014-2020. It pursued three objectives, namely, first, conservation of natural capital (soil fertility, air and water quality, biodiversity, etc.), secondly, transition of the European Union into a low-carbon economy which is resource-efficient (waste treatment, waste prevention, recycling, etc.) and, thirdly, protection of human health and welfare (tackling pollution, restricting chemicals, etc.). In addition to those objectives, EU policy on the environment was increasingly integrated into the other areas of EU activity. For example, the 2020, and subsequently the 2030, climate and energy package included binding national targets in order to increase the proportion of renewable energy in national consumption.

9 Article 191(4) TFEU clarifies the scope of the European Union’s external competence in the field of the environment. It establishes the principle of concurrent competence on the part of the Member States and the European Union to enter into international environmental agreements with third countries and relevant international bodies.

10 In order to achieve the objectives of the EU policy on the environment, the Community, which subsequently became the European Union, signed the Aarhus Convention.

11 For the purpose of implementing that convention in the EU legal order, the European Parliament and the Council of the European Union adopted Regulation (EC) No 1367/2006 of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to [European Union] institutions and bodies (OJ 2006 L 264, p. 13) (‘the Aarhus Regulation’), which, according to Article 1(1)(d) thereof, lays down, inter alia, ‘rules to apply the provisions of the Convention to [Union] institutions and bodies, in particular by […] granting access to justice in environmental matters at [EU] level under the conditions laid down by [that] Regulation’. In accordance with Article 14, the Aarhus Regulation entered into force on 28 June 2007.

12 Under Article 10(1) of the Aarhus Regulation, any non-governmental organisation (NGO) which meets the criteria set out in Article 11 thereof may submit a reasoned request and trigger an internal review of an administrative act by the EU institution or body that adopted it under environmental law.

13 Recital 11 of the Aarhus Regulation states that administrative acts of individual scope are to be open to possible internal review where they have legally binding and external effects. In that regard, Article 2(1)(g) of the Aarhus Regulation defines ‘administrative act’ for the purpose of that regulation as meaning any measure of individual scope under environmental law, taken by an EU institution or body, and having legally binding and external effects.

14 Recital 10 of the Aarhus Regulation states that, ‘in view of the fact that environmental law is constantly evolving, the definition of environmental law should refer to the objectives of [EU] policy on the environment as set out in the [FEU] Treaty’. In that regard, Article 2(1)(f) of the Aarhus Regulation provides that, for the purpose of that regulation, ‘environmental law’ means EU legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of EU policy on the environment as set...