ClientEarth v EIB. The General Court annuls the EIB’s refusal for internal review of a renewable energy financing decision.

Update 20 December 2022 Advocate General Kokott has opined that the appeal against the General Court judgment must be considered unfounded.

The General Court in Case T-9/19 ClientEarth v EIB has annulled the decision by the European Investment Bank EIB, in which it had informed Client Earth that it refused the request for an internal review of one of its resolutions as inadmissible.

In the Resolution, the EIB approved the financing of a biomass power generation plant in Galicia. The EIB argued that the request did not relate to an act amenable to internal review, namely an ‘administrative act’ within the meaning of Article 2(1)(g) of the EU Aarhus Regulation 1367/2006 (the Regulation which is meant to implement the Aarhus Convention vis-à-vis the European Institutions).

The General Court insisted [125] that all acts of public authorities which run counter to the provisions of environmental law should be open to challenge. Access to justice in environmental matters should not be limited solely to acts of public authorities that have as their formal legal basis a provision of environmental law.

The GC also held that the resolution at issue was indeed a measure of ‘individual scope’, seeing as it inevitably discussed the environmental merits of the financed project and not just the overall energy-related environmental objectives of the Member State concerned. Both the European Commission (in this case clearly on a mission to limit its own exposure to internal reviews) and the EIB argued that the resolution at issue is not an ‘administrative act’, since it relates to the EIB’s financial activities, in the context of which the EIB must be able to act with complete independence. The GC however [167] found that it was clear from the content and context in which the resolution at issue was adopted that it reflected a definitive position adopted by the EIB, following the vote of its Board of Directors, on the eligibility of the project for the grant of financing by the EIB in the light of its environmental and social aspects, which met the objectives of the various EIB’s environmental criteria. While the project was still to pass a number of technical-financial loops, the environmental assessment was effectively over. The decision was annulled therefore.



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