On Wednesday 27 January, the General Court of the European Union annulled the decision of the European Investment Bank (EIB), which had found the request by the ClientEarth organisation for internal review of the deliberation of its Board of Directors that had approved in 2018 a financing proposal for the Curtis project for a biomass power generation in Spain (Case T-9/19), to be inadmissible.
The General Court first of all verifies whether the disputed act of the EIB has been sufficiently reasoned. It finds that the grounds set out in that act were sufficient to enable ClientEarth to know the reasons why the EU Bank had considered the request for internal review of the disputed deliberation inadmissible and to enable it to challenge the merits of those grounds.
As regards a possible error of assessment in the application of the ‘Aarhus’ Regulation (1367/2006) on public access to justice in environmental matters, the Court is of the opinion that the concept of “measure of individual scope” adopted “under environmental law”, contained in the ‘Aarhus’ Regulation, must be interpreted broadly, in the sense that it refers to any measure of individual scope subject to requirements of EU secondary legislation which, irrespective of their legal basis, are directly aimed at achieving the objectives of European environmental policy.
And, according to the Court, the disputed decision of the EIB does indeed constitute a measure of individual scope adopted “under environmental law”, within the meaning of the ‘Aarhus’ Regulation.
The Court adds that the disputed deliberation produced certain definitive legal effects with respect to third parties, such as the project promoter Curtis, which was thus able to take the necessary steps to formalise the loan it was to receive. And, with regard to the environmental and social aspects of the project, the subsequent decision of the EIB Board of Directors to grant the loan, taken after having audited other aspects of the project, constitutes a simple implementation decision.
The review procedure set up by the ‘Aarhus’ Regulation should focus precisely on the environmental aspects. Similarly, ClientEarth’s request for an internal review put into question the EU Bank’s assessment of the sustainability of the Curtis project. Thus, the request related, at least partially, to the final legal effects produced with regard to third parties by the disputed deliberation.
Therefore, contrary to the EIB’s position, the Court considers that the legislative decision constitutes “an administrative act” within the meaning of the ‘Aarhus’ Regulation which is subject to appeal.
See the judgment: http://bit.ly/39mwz6b (Original version in French by Mathieu Bion)