Opinion of Advocate General Kokott delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:1003
• Date: 15 December 2022
• Celex Number: 62021CC0212
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 December 2022 (1)

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

European Investment Bank (EIB) (C‑212/21 P)

and

European Commission (C‑223/21 P)

v

ClientEarth

(Appeal – Environment – Aarhus Convention – Regulation No 1367/2006 – Review of administrative acts under environmental law – European Investment Bank – Granting of credit – Powers of the Courts of the European Union)

I. Introduction

1. Can environmental organisations object to the European Investment Bank’s lending on the ground of an infringement of provisions of environmental law? This is the subject matter of the appeal in the present case.

2. In order to implement the Aarhus Convention, (2) the European Union created, by way of the Aarhus Regulation, (3) a review procedure by means of which environmental organisations in particular can complain about infringements of provisions of EU environmental law by EU institutions and bodies.

3. ClientEarth, an environmental NGO, requested, on that basis, that the EIB review the resolution of the Board of Directors of the EIB approving the financing of a biomass power generation plant in Spain (‘the resolution in question’). However, the EIB refused to review the resolution in question since it was not an administrative act in the field of environmental law having legally binding and external effects (‘the letter at issue’).

4. In its judgment of 27 January 2021, ClientEarth v EIB (T‑9/19, EU:T:2021:42) (‘the judgment under appeal’), the General Court confined itself to examining the statement of reasons in the letter at issue. By contrast, the EIB’s argument that the request for an internal review of the resolution in question was inadmissible on the basis that it was incompatible with the EIB’s independence in the sphere of its financial operations was rejected by the General Court without that court carrying out a substantive examination, on the ground that the argument was not included in that statement of reasons.

5. However, that argument of the EIB must be examined of the Court’s own motion, since it concerns the jurisdiction of the Courts of the European Union to hear the present dispute. Moreover, it is necessary to examine the objections to the General Court’s findings concerning the statement of reasons in the letter at issue.

II. Legal framework

A. Aarhus Convention

6. Article 9(3) of the Aarhus Convention provides that each Contracting Party must give members of the public 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. Article 9(4) requires those procedures to be adequate and effective, as well as fair, equitable, timely and not prohibitively expensive.

B. Aarhus Regulation

7. The Aarhus Regulation implements inter alia Article 9(3) of the Aarhus Convention in respect of EU institutions and bodies.

8. Article 2(1) of the Aarhus Regulation defines various concepts:

‘For the purpose of this Regulation:

(a) …

…

(c) “[EU] institution or body” means any public institution, body, office or agency established by, or on the basis of, the Treaty …

…

(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: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems;

(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;

…’

9. Article 10 of the Aarhus Regulation lays down an internal review procedure:

‘1. 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 or, in case of an alleged administrative omission, should have adopted such an act.

… The request shall state the grounds for the review.

2. The [EU] institution or body referred to in paragraph 1 shall consider any such request … The [EU] institution or body shall state its reasons in a written reply ….

…’

10. Article 12(1) of the Aarhus Regulation refers to the possibility of instituting proceedings before the Courts of the European Union:

‘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.’

11. The review procedure is explained in recitals 19 to 21 of the Aarhus Regulation:

‘(19) To ensure adequate and effective remedies, including those available before the Court of Justice of the European [Union] under the relevant provisions of the Treaty, it is appropriate that the [EU] institution or body which issued the act to be challenged or which, in the case of an alleged administrative omission, omitted to act, be given the opportunity to reconsider its former decision, or, in the case of an omission, to act.

(20) Non-governmental organisations active in the field of environmental protection which meet certain criteria, …, 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.

(21) Where previous requests for internal review have been unsuccessful, the non-governmental organisation concerned should be able to institute proceedings before the Court of Justice in accordance with the relevant provisions of the Treaty.’

C. Special provisions relating to the EIB

12. Article 271 TFEU contains special provisions on the jurisdiction of the Court of Justice with regard to the EIB:

‘The Court of Justice of the European Union shall, within the limits hereinafter laid down, have jurisdiction in disputes concerning:

…

(c) measures adopted by the Board of Directors of the European Investment Bank. Proceedings against such measures may be instituted only by Member States or by the Commission, under the conditions laid down in Article 263, and solely on the grounds of non-compliance with the procedure provided for in Article 19(2), (5), (6) and (7) of the Statute of the [EIB];

…’

13. In accordance with Article 308 TFEU, the EIB has a legal personality distinct from that of the European Union. It is administered and managed by its own bodies. It has its own resources and its own budget.

14. Article 309 TFEU sets out the task of the EIB:

‘The task of the European Investment Bank shall be to contribute, by having recourse to the capital market and utilising its own resources, to the balanced and steady development of the internal market in the interest of the Union. For this purpose the [EIB] shall, operating on a non-profit-making basis, grant loans and give guarantees which facilitate the financing of the following projects in all sectors of the economy:

(a) projects for developing less-developed regions;

(b) projects for modernising or converting undertakings or for developing fresh activities called for by the establishment or functioning of the internal market, where these projects are of such a size or nature that they cannot be entirely financed by the various means available in the individual Member States;

(c) projects of common interest to several Member States which are of such a size or nature that they cannot be entirely financed by the various means available in the individual Member States.

In carrying out its task, the [EIB] shall facilitate the financing of investment programmes in conjunction with assistance from the Structural Funds and other Union Financial Instruments.’

15. The Statute of the EIB is laid down in Protocol No 5 to the TEU and TFEU.

16. Under Article 9(1) of the Statute of the EIB, the Board of Directors is to see that the EIB is properly run and ensure that the EIB is managed in accordance with the provisions of the Treaties and of the Statute and with the general directives laid down by the Board of Governors. It is to take decisions in respect of granting finance and is to fix the interest rates on loans granted.

17. Article 19 of the Statute of the EIB contains various procedural requirements:

‘…

2. Applications made through the Commission shall be submitted for an opinion to the Member State in whose territory the investment will be carried out. Applications made through a Member State shall be submitted to the Commission for an opinion. Applications made direct by an undertaking shall be submitted to the Member State concerned and to the Commission.

The Member State concerned and the Commission shall deliver their opinions within two months. If no reply is received within this period, the [EIB] may assume that there is no objection to the investment in question.

3. The Board of Directors shall rule on financing operations submitted to it by the Management Committee.

…

5. Where the Management Committee delivers an unfavourable opinion, the Board of Directors may not grant the finance concerned unless its decision is unanimous.

6. Where the Commission delivers an unfavourable opinion, the Board of Directors may not grant the finance concerned unless its decision is unanimous, the director nominated by the Commission abstaining.

7. Where both the Management Committee and the Commission deliver an unfavourable opinion, the Board of Directors may not grant the finance.

…’

18. Article 27(1) of the Statute of the EIB governs jurisdiction:

‘Disputes between the [EIB] on the one hand, and its creditors, debtors or any other person on the other, shall be decided by...