European Investment Bank v ClientEarth.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:546
• Date: 06 July 2023
• Docket Number: C-212/21
• Celex Number: 62021CJ0212
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Third Chamber)

6 July 2023 ( *1 )

(Appeal – Environment – Aarhus Convention – Regulation (EC) No 1367/2006 – Article 2(1)(f) – Concept of ‘environmental law’ – Article 2(1)(g) – Concept of ‘administrative act’ – Article 10(1) – Internal review of administrative acts – Resolution of the Board of Directors of the European Investment Bank (EIB) approving the financing of a biomass power generation plant – Rejection of the request for internal review of that resolution as inadmissible – Independence of the EIB in the sphere of its financial operations – Article 271(c) TFEU – Scope)

In Joined Cases C‑212/21 P and C‑223/21 P,

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 April 2021,

European Investment Bank (EIB), represented by K. Carr, G. Faedo and T. Gilliams, acting as Agents, and by J. Bouckaert and G. Schaiko, avocats,

appellant in Case C‑212/21 P,

the other parties to the proceedings being:

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

applicant at first instance,

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

intervener at first instance,

and

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

appellant in Case C‑223/21 P,

the other parties to the proceedings being:

ClientEarth, established in London, represented by S. Abram KC and J. Flynn KC, and H. Leith, Barrister,

applicant at first instance,

European Investment Bank (EIB), represented by K. Carr, G. Faedo and T. Gilliams, acting as Agents, and by J. Bouckaert and G. Schaiko, avocats,

defendant at first instance,

THE COURT (Third Chamber),

composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra (Rapporteur), N. Jääskinen and M. Gavalec, Judges,

Advocate General: J. Kokott,

Registrar: R. Stefanova-Kamisheva, Administrator,

having regard to the written procedure and further to the hearing on 20 October 2022,

after hearing the Opinion of the Advocate General at the sitting on 15 December 2022,

gives the following

Judgment

1 By their respective appeals, the European Investment Bank (EIB) (Case C‑212/21 P) and the European Commission (Case C‑223/21 P) seek to have set aside the judgment of the General Court of the European Union of 27 January 2021, ClientEarth v EIB (T‑9/19, EU:T:2021:42; ‘the judgment under appeal’). By that judgment, the General Court annulled the decision of the EIB, communicated to ClientEarth by letter of 30 October 2018, which had rejected 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) (‘the decision at issue’) which ClientEarth had submitted on 9 August 2018 on the basis of Article 10(1) 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 (EC) No 1367/2006 of the European Parliament of the Council on the Aarhus Convention as regards requests for the internal review of administrative acts (OJ 2008 L 13, p. 24).

Legal context

International law

2 Article 2(2) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus (Denmark) on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’), provides that, for the purposes of that convention: ‘“Public authority” means: … (d) The institutions of any regional economic integration organisation referred to in article 17 which is a Party to this Convention. This definition does not include bodies or institutions acting in a judicial or legislative capacity.’

3 Article 9 of the Aarhus Convention, entitled ‘Access to justice’, provides, in paragraphs 3 and 4 thereof, that each party to that convention 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, and that such procedures must provide adequate and effective remedies and be fair, equitable, timely and not prohibitively expensive.

European Union law

4 Recitals 3, 7, 10, 11, 18 and 20 of Regulation No 1367/2006 state: ‘(3) … Provisions of [EU] law should be consistent with [the Aarhus] Convention. … (7) The Aarhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the [EU] institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Aarhus Convention, [EU] institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial or legislative capacity. … … (10) 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 Treaty. (11) Administrative acts of individual scope should be open to possible internal review where they have legally binding and external effects. … Given that acts adopted by [an EU] institution or body acting in a judicial or legislative capacity can be excluded, the same should apply to other inquiry procedures where the [EU] institution or body acts as an administrative review body under provisions of the Treaty. … (18) Article 9(3) of the Aarhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Provisions on access to justice should be consistent with the Treaty. It is appropriate in this context that this Regulation address only acts and omissions by public authorities. … (20) Non-governmental organisations active in the field of environmental protection which meet certain criteria, in particular in order to ensure that they are independent and accountable organisations that have demonstrated that their primary objective is to promote environmental protection, should be entitled to request internal review at [EU] level of acts adopted or of omissions under environmental law by [an EU] institution or body, with a view to their reconsideration by the institution or body in question.’

5 Article 1(1) of that regulation defines its objective as follows: ‘The objective of this Regulation is to contribute to the implementation of the obligations arising under the [Aarhus Convention], by laying down rules to apply the provisions of [that] Convention to [EU] institutions and bodies, in particular by: … (d) granting access to justice in environmental matters at [EU] level under the conditions laid down by this Regulation.’

6 Under Article 2 of that regulation: ‘1. For the purpose of this Regulation: … (c) “[EU] institution or body” means any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity … … (f) “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 out in the Treaty … (g) “administrative act” means any measure of individual scope under environmental law, taken by [an EU] institution or body, and having legally binding and external effects; …’

7 Article 10 of that regulation, entitled ‘Request for internal review of administrative acts’, provides in paragraph 1 thereof: ‘Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the [EU] institution or body that has adopted an administrative act under environmental law …’

8 Article 12 of Regulation No 1367/2006, entitled ‘Proceedings before the Court of Justice’, provides in paragraph 1 thereof: ‘The non-governmental organisation which made the request for internal review pursuant to Article 10 may institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.’

Background to the dispute

9 The background to the dispute, as described in paragraphs 37 to 62 of the judgment under appeal, may be summarised as follows.

10 By a resolution adopted on 12 April 2018, published on the EIB’s website on 28 June 2018, the EIB’s Board of Directors approved the financing proposal of a construction project, in the municipality of Curtis (Teixeiro), located in the province of Coruña, Galicia (Spain), of a biomass power generation plant with a capacity of approximately 50 megawatts electrical fuelled by forest waste collected within a radius of 100 km (‘the Curtis project’), in...