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;
(h) …’
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 …
3. …’
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:
(a) …
(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];
(d) …’
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.
4. …
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.
8. …’
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 the competent national courts, save where jurisdiction has been conferred on the Court of Justice of the European Union. …’
19. The Statement of Environmental and Social Principles and Standards of the EIB, approved by the Board of Directors on 3 February 2009 (‘the Statement of 2009’), and the climate strategy aimed at mobilising finance for the transition to a low-carbon and climate-resilient economy, adopted by the EIB on 22 September 2015 (‘the climate strategy’), define the objectives of lending activity and the eligibility criteria for projects relating to the environment. They include, inter alia, ensuring the compliance of the projects financed with EU environmental law.
III. Facts
20. The financing at issue concerns a project for the construction, in the municipality of Curtis (Teixeiro), in the province of A Coruña, in 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’).
21. Following various procedural steps, the Board of Directors of the EIB, by the resolution in question of 12 April 2018, approved the financing proposal, in the form of a loan.
22. By letter of 13 April 2018, the EIB informed the promoter about the resolution in question, pointing out that the preliminary approval of the financing of the Curtis project did not create any legal obligation for the EIB to grant the loan, but allowed the promoter to take the steps needed to formalise the loan.
23. The resolution in question was published on the EIB’s website on 28 June 2018.
24. The detailed terms and conditions of the financing of the Curtis project were negotiated between the promoter and the different lenders, which included, in addition to the EIB, a commercial bank, an export credit agency, a national promotional bank and a mezzanine lender. Once the final terms had been agreed among all the parties and the different due diligence reports had been finalised, the outcome of the negotiations and of the due diligence process was presented to the EIB Management Committee in a final note, which was approved by that committee on 16 July 2018.
25. On 23 July 2018, the EIB’s services signed an internal agreement on the terms of the finance contract for the Curtis project. The associated contract documentation was signed on 25 July 2018.
26. The first disbursement of the EIB financing took place on 29 August 2018. It was envisaged that the construction of the Curtis project would be completed before the end of 2019. As the EIB stated at the hearing before the General Court, in response to a question, the implementation of the Curtis project has been proceeding normally since then.
27. On 9 August 2018, ClientEarth submitted to the EIB a request for internal review of the resolution in question, in accordance with Article 10 of the Aarhus Regulation.
28. By the letter at issue of 30 October 2018, signed by its Secretary General and its Deputy General Counsel, the EIB informed ClientEarth that it was refusing the request as inadmissible, on the ground that it did not relate to an act amenable to an internal review, namely an ‘administrative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation.
29. In the letter at issue, the EIB claimed, first, that the resolution in question did not have any legally binding external effects and could not create any rights for a third party. It was merely an internal act, for the purposes of Articles 9 and 19 of the Statute of the EIB, that was required for signature of the corresponding finance contract. However, it did not necessarily lead to such signature, nor did it create any right for the counterparty to demand such signature. The resolution in question was not equivalent to a decision awarding a contract in the context of public procurement, since it did not form part of a procedure governed by public procurement law nor was it comparable to such a procedure. Rather, it resulted from the EIB’s commercial and policy discretion accorded to it under the Treaties and the EIB’s Statute.
30. Second, the EIB maintained that the resolution in question had not been taken ‘under environmental law’ within the meaning of Article 2(1)(f) of the Aarhus Regulation.
31. Third, the letter at issue addresses the argument that the EIB had committed to the furthering of environmental objectives in the deployment of its own resources. According to the EIB, such commitment was not sufficient to support the conclusion that the financing of the Curtis project or any other project financing were ipso facto approved on the basis of EU environmental legislation. Such an argument would artificially stretch the limits of ‘EU legislation’ beyond the scope of the Aarhus Regulation, in a way that would be incompatible with the EIB’s institutional role and its mission as defined in the Statute.
IV. Judicial proceedings
32. ClientEarth brought an action against the letter at issue before the General Court. The EIB, supported by the Commission, disputed that action.
33. In the judgment under appeal of 27 January 2021, ClientEarth v EIB (T‑9/19, EU:T:2021:42), the General Court annulled the letter at issue.
34. In so doing, the General Court first rejected as inadmissible the argument in defence 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. According to the General Court, that argument was put forward only ‘in a vague and general manner’ in the letter at issue as part of the reasoning as to why the resolution in question was not an administrative act (in particular paragraphs 90 to 92 of the judgment under appeal).
35. The General Court then held that the EIB had erred in finding that the resolution in question was not environmental in nature (paragraph 117 et seq. of the judgment under appeal) and did not have legally binding and external effects (paragraph 149 et seq. of the judgment under appeal).
36. The EIB (Case C‑212/21 P) and the Commission (Case C‑223/21 P) each brought an appeal against that judgment.
37. The EIB claims that the Court should:
(1) declare the appeal admissible and well founded;
(2) set aside in its entirety the judgment under appeal as set out in its operative part;
(3) if the Court considers that the state of the proceedings so permits, dismiss the action at first instance;
(4) order ClientEarth to pay the costs of both parties incurred as a result of both the appeal proceedings and those of the proceedings at first instance.
38. The Commission claims that the Court should:
(1) set aside the judgment under appeal;
(2) order ClientEarth to bear the costs.
39. ClientEarth contends that the Court should:
(1) dismiss both appeals; and
(2) order the European Investment Bank and the European Commission to pay the costs incurred by ClientEarth.
40. The parties submitted written observations and participated in the hearing held on 20 October 2022.
V. Legal assessment
41. First, it is necessary to examine the EIB’s and the Commission’s argument that a review of decisions of the EIB’s Board of Directors on the granting of loans is almost entirely beyond judicial review, with the result that, in the present case, the Court of Justice does not have jurisdiction (see Section A). I will then examine whether the General Court was entitled to find that the resolution in question adopted by the EIB’s Board of Directors is an administrative act under environmental law (see Section B).
A. Jurisdiction of the Court of Justice
42. The EIB and the Commission strongly object to the General Court’s rejection, in paragraphs 86 to 92 of the judgment under appeal, of their arguments concerning the EIB’s function and role under primary law as an inadmissible extension of the statement of reasons in the letter at issue.
43. In that respect, the General Court correctly stated in paragraphs 89 and 90 of the judgment under appeal that the statement of reasons contained in the letter at issue does not independently raise those arguments. Rather, the EIB referred to that consideration only in passing, in order to demonstrate that the resolution in question is not an administrative act under environmental law. Therefore, the General Court was entitled to state in paragraph 91 that, if that argument were to be taken into account as independent reasoning in the letter at issue, it would constitute an impermissible (4) subsequent substitution of the statement of reasons.
44. This does not mean, however, that that argument of the EIB and the Commission is irrelevant in the present proceedings. It is true that, contrary to the view taken by the EIB, the Courts of the European Union are not empowered to address every infringement of primary law of their own motion. (5) However, the argument concerning the function of the EIB casts doubt on the power of the Courts of the European Union to rule on the present dispute at all. These courts may or even must consider such doubts of their own motion in accordance with Article 150 of the Rules of Procedure of the Court of Justice and Article 129 of the Rules of Procedure of the General Court. (6)
45. In the present case, the General Court did not express a view on that question and therefore possibly assumes that its jurisdiction derives from the fourth paragraph of Article 263 TFEU, (7) since ClientEarth is the addressee of the letter at issue.
46. The examination as to whether the Courts of the European Union have jurisdiction is necessary in the present case, however, because Article 271 TFEU contains specific rules on their jurisdiction in respect of certain proceedings to which the EIB is a party. Therefore, it must first be examined whether the letter at issue would be a challengeable act in the light of the regulatory context of the Aarhus Regulation, and then whether the outcome of that examination is altered by the abovementioned specific rules relating to the EIB. That question must be distinguished from that as to whether the resolution in question is an administrative act under environmental law, which I will consider in Section B below.
1. Whether the letter at issue may be challenged
47. The action for annulment provided for in Article 263 TFEU is available in the case of all acts adopted by the institutions and bodies of the EU, whatever their form, which are intended to have binding legal effects (8) and affect the interests of the applicant by bringing about a distinct change in his or her legal position. (9) For that purpose, the effects of the act in question must be assessed according to objective criteria such as its content, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act. (10)
48. The letter at issue refused a request for review under Article 10(1) of the Aarhus Regulation. Under that provision, certain NGOs are entitled to submit a reasoned request and trigger an internal review of an administrative act by the EU institution or body that has adopted that act under environmental law.
49. It follows from recital 19 of the Aarhus Regulation that the purpose of such a review is to ensure adequate and effective remedies, including those available before the Court of Justice. According to recital 20 and Article 10(1) of the Aarhus Regulation, certain NGOs are entitled to a review. According to recital 21 and Article 12, if the request is unsuccessful, the NGO concerned should be able to institute proceedings before the Court of Justice in accordance with the relevant provisions of the TFEU.
50. Accordingly, the review procedure under Articles 10 and 12 of the Aarhus Regulation makes it possible to overcome the obstacles for an organisation to bring an action against the reviewed act under environmental law which arise from the fourth paragraph of Article 263 TFEU.
51. This is because, under the fourth paragraph of Article 263 TFEU, any natural or legal persons may institute proceedings only against an act addressed to those persons or which is of direct and individual concern to them and against a regulatory act which is of direct concern to them and which does not entail implementing measures. However, an environmental organisation is usually not directly and individually concerned by the act in respect of which it requests a review, and it would therefore not be able to meet the requirements of the fourth paragraph of Article 263 TFEU.
52. On the basis of the request for review, however, the competent EU entity addresses a decision to the applicant environmental organisation, which that organisation may subsequently challenge before the Courts of the European Union. The review procedure under Articles 10 to 12 of the Aarhus Regulation thus establishes the procedural conditions under which environmental organisations may indirectly challenge administrative acts under environmental law before the Courts.
53. The Court of Justice has expressly confirmed this operation of the review procedure, without expressing any doubts as to the compatibility of such operation with the requirements of Article 263 TFEU. (11) The legislature has since even considerably extended the application of that procedure, referring to that case-law. (12)
54. The European Union implements Article 9(3) of the Aarhus Convention by means of that procedure of internal review and the option of subsequently bringing an action. According to that provision, 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.
55. By the letter at issue, the EIB refused a request by ClientEarth for review of the resolution in question adopted by the EIB’s Board of Directors. It is true that the EIB did not consider the request to be unfounded, but rather inadmissible, on the ground that the resolution in question is not an administrative act under environmental law, within the meaning of Article 10 of the Aarhus Regulation. However, such a refusal of the request as inadmissible must in principle be challengeable in the same way as a refusal as unfounded.
56. This is because, if the institution or body concerned erred in refusing to carry out the review, the NGO’s right to review established by Article 10 of the Aarhus Regulation would be undermined. Its interests would be seriously harmed by a change in its legal position within the meaning of the case-law on challengeable acts, specifically by the refusal of its right to an internal review.
57. Therefore, the letter at issue of the EIB is in principle a challengeable act under Article 263 TFEU.
2. Limitation of the powers of the Courts of the European Union by Article 271 TFEU
58. However, Article 271(c) TFEU modifies the system of judicial protection against measures adopted by the EIB’s Board of Directors. Under that provision, proceedings against such measures may be instituted only by Member States or by the Commission, under the conditions laid down in Article 263 TFEU, 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)
59. In what follows, I will show that that limitation precludes judicial review of an action under Article 12 of the Aarhus Regulation seeking a review of the substance of a resolution adopted by the EIB’s Board of Directors (see Section (a)). However, the subject matter of the present action is merely the legal categorisation of the resolution in question, with the aim of having it internally reviewed by the EIB. Article 271(c) TFEU does not preclude an internal review (see Section (b)).
(a) No review of the substance of the resolution in question by the Courts of the European Union
60. Although the action is not formally directed against a measure of the Board of Directors within the meaning of Article 271(c) TFEU, it nevertheless indirectly affects such a measure, since the letter at issue refuses ClientEarth’s request for review of the resolution in question adopted by the Board of Directors. The subject matter of the request for review relates, in accordance with Article 10 of the Aarhus Regulation, to the reassessment of the act in respect of which the review is requested. (14) The request is thus – in the words of the Court of Justice – intended to establish that, as alleged, the act in question is unlawful or that it is not well founded. (15)
61. Therefore, if the EIB had based the refusal of the request by way of the letter at issue on the ground that the resolution in question was lawful and well-founded, the present action would be indirectly seeking judicial review of those findings and thus of the lawfulness or well-foundedness of the resolution in question.
62. Such an indirect review by the Courts of the European Union of the substance of resolutions adopted by the EIB’s Board of Directors would be incompatible with Article 271(c) TFEU, (16) because, in the cases covered by that provision, the powers of those courts are clearly limited compared with Article 263 TFEU.
63. Those limitations concern, in the first place, the group of possible applicants. Whereas the fourth paragraph of Article 263 TFEU allows actions by any natural or legal person who fulfils the conditions, proceedings against measures adopted by the EIB’s Board of Directors may, in accordance with Article 271(c) TFEU, be instituted only by Member States or by the Commission. The possibility for other persons to bring an action is thereby excluded.
64. Moreover, Article 271(c) TFEU also limits the powers of substantive review that the Courts of the European Union have in the case of actions brought by Member States and the Commission.
65. The second paragraph of Article 263 TFEU allows actions brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
66. By contrast, under Article 271(c) TFEU, proceedings against measures adopted by the EIB’s Board of Directors may be instituted 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. Under those provisions, the EIB must inform the Member States and the Commission of applications for financing. Where the Commission or the EIB’s Management Committee delivers an unfavourable opinion, the Board of Directors may not grant the finance concerned unless its decision is unanimous; if both opinions are unfavourable, the finance concerned is not permissible. Since the procedural rights of the Commission and the Member States represented in the Management Committee are at issue, it is also logical to allow only them to bring an action.
67. According to the submissions of the EIB and the Commission, the restriction of judicial review of the EIB’s financing operations is explained by the fact that the EIB acts in the same way as other banks on the market as regards financing operations. (17) According to the EIB and the Commission, those other banks are also not subject to judicial review with regard to their decisions on financing operations.
68. The restrictions on judicial review must also cover the right to institute proceedings provided for in Article 12 of the Aarhus Regulation. That provision allows proceedings under the relevant provisions of the Treaty, that is to say, in particular an action for annulment under Article 263 TFEU. However, the EIB correctly submits that Article 271(c) is also a relevant provision. Since the latter precludes judicial review of measures of the Board of Directors at the instigation of environmental organisations and, moreover, also prohibits a review of the substance of those resolutions by the Courts of the European Union, Article 12 of the Aarhus Regulation cannot indirectly enable such review either.
69. Nor can that interpretation of Article 12 of the Aarhus Regulation be precluded by Article 9(3) of the Aarhus Convention, which the former provision is intended to implement. (18) It is true that Article 9(3) does not provide for an exception in respect of the EIB. Moreover, contrary to the view taken by the Commission, that obligation incumbent on the European Union under international law must in principle be taken into account in the interpretation of secondary legislation and, in particular, in the interpretation of a provision which – like Article 12 of the Aarhus Regulation – is intended to implement such an obligation. (19) However, the requirements of Article 271(c) TFEU are part of primary law and therefore take precedence over the European Union’s obligations under international law, (20) as the EIB correctly submits.
70. Therefore, if the EIB had refused the request for review because it considered that the resolution in question was lawful and well-founded, the Courts of the European Union would not have jurisdiction to rule on an action brought by ClientEarth against that resolution.
(b) Review of the legal classification of the resolution in question by the Courts of the European Union
71. However, the jurisdiction of the Courts of the European Union to hear the present action is not precluded by Article 271(c) TFEU.
72. This is because the action is not in fact indirectly directed against the resolution in question, since it is not necessary to decide whether that resolution was lawful or well-founded. Rather, the subject matter of the action is solely the legal classification of the resolution in question by the EIB, that is to say, the finding that it is not an administrative act under environmental law, within the meaning of the Aarhus Regulation.
73. The fact that this does not constitute an indirect challenge to the resolution in question is shown by the fact that the resolution continues to stand irrespective of the outcome of the present action and is not called into question in the present proceedings, even indirectly. Success in the present action could lead only to the EIB being required to review the resolution in question internally. This is without prejudice to the question as to whether the outcome of that review may be challenged before the Courts.
74. Moreover, exclusion of the present action from the scope of Article 271(c) TFEU is in compliance with the fundamental right to an effective remedy under the first paragraph of Article 47 of the Charter. This is because the right to an internal review under Article 10 of the Aarhus Regulation is a right guaranteed by EU law, with the result that the present action comes within the scope of protection afforded by that fundamental right. It is true that Article 47 of the Charter cannot confer jurisdiction on the Court of Justice, where the Treaties exclude it. (21) However, on the basis of Article 47 of the Charter, a restriction of judicial protection, such as that contained in Article 271(c) TFEU, must be interpreted strictly. (22)
75. In addition, such an internal review is consistent with the EIB’s function and role.
76. Against the EIB’s assertion that the risk of a review and the associated delays would unduly hinder its lending activities or perhaps even render them impossible, ClientEarth correctly contends that the EIB does not provide sufficient evidence in support of that assertion. Rather, it is already apparent from the course of the procedure between the resolution in question and the financing contract (23) that, had the resolution been published in a timely manner, there would have been approximately two months available for internal review.
77. That assertion also contradicts the EIB’s practice, as it in fact already reviews its financing operations on the basis of complaints – including with regard to environmental aspects. The EIB declared this to the European Ombudsman in 2008. (24) Even environmental objections to the financing at issue have already been the subject of such a review. (25) The application of that procedure may, moreover, be reviewed by the Ombudsman. (26) Furthermore, the Aarhus Convention Compliance Committee (27) may also review the EIB’s lending activities. (28)
78. Contrary to the view taken by the EIB, internal review has value in its own right even without subsequent judicial review. This is because, according to recital 19 of the Aarhus Regulation, the institution or body should be given the opportunity to reconsider its former decision. Additionally, recital 20 recognises that environmental organisations are entitled to an internal review.
79. The right to internal review is, moreover, a particular form of the principle of public participation underlying the Aarhus Convention (29) and EU environmental law. This is because that procedure allows sections of the public, namely environmental organisations, to raise objections to the measure in question by means of the grounds for the request and thereby to contribute to the improvement of that measure. Accordingly, an internal review could even be beneficial for the EIB, as environmental problems of financing operations will normally also affect the economic aspects of a project.
80. Furthermore, it can be assumed that awareness of the risk of a later review will contribute to the environmental aspects of the project concerned being examined even more carefully before the decision on financing is taken. A more in-depth prior examination of that kind could in turn reduce the risk of being surprised by objections made in the context of a request for review and facilitate the swift processing of requests for review.
81. Lastly, such an interpretation of Article 271(c) TFEU would at the very least bring review on the part of the EIB more into line with the requirements of Article 9(3) of the Aarhus Convention. It is true that it seems doubtful that an internal review of financing reaches the level of effective judicial protection required by Article 9(4) of the Convention and can thus be recognised as an administrative challenge procedure for the purposes of Article 9(3). (30) However, an internal review is better than no review at all.
82. Therefore, Article 271(c) TFEU does not preclude the Courts of the European Union from enforcing a possible right under Article 10 of the Aarhus Regulation to an internal review of resolutions of the EIB’s Board of Directors.
83. It follows that, to that extent, the present action is admissible and the General Court was entitled to find that it has jurisdiction. It is therefore necessary to decide whether or not the EIB was entitled to refuse the request for review as inadmissible.
B. The appeals
84. The appeals brought by the EIB and the Commission concern not only whether resolutions of the EIB’s Board of Directors may be reviewed, but also whether the resolution in question is an administrative act under environmental law, within the meaning of Article 10 of the Aarhus Regulation. If it is deemed to be an administrative act, then, according to the considerations so far, the procedure of internal review under Article 10 would be applicable, although, under Article 271(c) TFEU, the outcome of that review could not be challenged before the Courts in accordance with Article 12 of the Aarhus Regulation.
85. According to Article 2(1)(g) of the Aarhus Regulation, an administrative act is any measure of individual scope under environmental law (see Section 2), taken by an EU institution or body (see Section 1), and having legally binding and external effects (see Section 3).
1. Does the EIB act as a public authority?
86. The EIB and the Commission first dispute that the resolution in question is an administrative act, since, in their submission, the EIB acted as a bank and not as a public authority.
87. In so far as that argument seeks to assert, once again, that the specific role and function of the EIB precludes review by the Courts of the European Union, reference should be made to the statements regarding the jurisdiction of the Courts of the European Union.
88. Moreover, that line of argument is surprising, because, under Article 9(3) of the Aarhus Convention, it is not only acts and omissions by public authorities which contravene environmental provisions of the Parties’ national law relating to the environment that are open to challenge, but also acts and omissions by private persons.
89. However, the EIB’s and the Commission’s argument becomes somewhat more plausible in the light of recital 18 of the Aarhus Regulation. According to that recital, it is appropriate in the context of the implementation of Article 9(3) of the Aarhus Convention that the regulation address only acts and omissions by public authorities.
90. That thinking is also found in the definition of the entities whose acts may be subject to internal review. According to Article 2(1)(g) and Article 10(1) of the Aarhus Regulation, these are the institutions and bodies of the European Union, which would undoubtedly include the EIB. (31) However, Article 2(1)(c) defines those entities as any public institution, body, office or agency established by, or on the basis of, the Treaty. The classification of the entities covered as ‘public’ was addressed by the legislature in recital 7 of the Aarhus Regulation. According to that recital, the Aarhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority (öffentliche Autorität, autorité publique) is exercised, there should be rights for individuals and their organisations.
91. In that respect, the EIB and the Commission correctly claim that the EIB does not exercise public authority in the sense of sovereign powers of coercion when undertaking financing within the framework of contracts.
92. However, as is the case in other contexts, (32) the EIB has a dual nature: it acts as a private party, but performs public functions in doing so. This is because, according to Article 309 TFEU, it is to contribute to the balanced and steady development of the internal market in the interest of the European Union. This also constitutes the exercise of public authority.
93. Given that the EIB therefore performs public tasks and exercises public authority in the context of its lending activities, it is a public body within the meaning of Article 2(1)(c) of the Aarhus Regulation.
94. That interpretation of Article 2(1)(c) of the Aarhus Regulation ensures that that article correctly implements Article 2(2)(d) of the Aarhus Convention, since, as ClientEarth correctly submits, that provision stipulates that the institutions of regional economic integration organisations which – like the European Union – are Parties to that Convention are to be regarded as public authorities.
95. Accordingly, the EIB has not disputed, vis-à-vis the Aarhus Convention Compliance Committee, that the Convention applies to it, (33) and it has stated, in a publication about its own complaints procedure, that its conduct may be challenged before that committee. (34)
96. The EIB’s and the Commission’s argument that the EIB was not acting as a public authority when adopting the resolution in question must therefore be rejected.
2. Measure under environmental law
97. The EIB and the Commission also dispute that the resolution in question is a measure under environmental law.
98. According to Article 2(1)(g) of the Aarhus Regulation, only measures under environmental law can be administrative acts. Moreover, Article 10 allows requests for internal review only in respect of administrative acts under environmental law.
99. Article 2(1)(f) of the Aarhus Regulation defines environmental law as EU legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of EU policy on the environment under primary law: 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.
100. The EIB’s Board of Directors adopted the resolution in question on the basis of Articles 9(1) and 19(3) of the EIB’s Statute, which make no reference to contributing to the pursuit of the objectives of EU policy on the environment.
101. However, the General Court stated, in paragraphs 122 to 124 of the judgment under appeal, that the Statement of 2009 and the climate strategy (35) must be regarded in the same way as EU legislation in the field of environmental law, within the meaning of Article 2(1)(f) of the Aarhus Regulation. This is because, by means of those criteria, the EIB ensures that its lending activities contribute to achieving the environmental objectives of the European Union.
102. The General Court therefore summarises, in paragraph 140 of the judgment under appeal, its assessment of the resolution in question in that regard by stating that the finding therein that the Curtis project satisfied certain eligibility criteria of an environmental nature laid down by the EIB must be regarded as a measure under environmental law.
103. Against that, the EIB and the Commission contend that, from a formal perspective alone, those criteria are not legislation within the meaning of Article 2(1)(f) of the Aarhus Regulation (see Section (b)); at the very least, however, those criteria do not have legally binding effects (see Section (c)).
104. In my view, however, it is not necessary to decide on these difficult questions in the present case, because, in the light of the environmental policy objectives of EU law and of Article 9(3) of the Aarhus Convention, the concept of ‘measure under environmental law’ must be interpreted as covering any measure which could be contrary to environmental law (see Section (a)).
(a) Infringement of environmental law
105. According to its literal meaning, the concept of ‘measure under environmental law’ would appear to cover only acts which are based on, or implement, principles of environmental law. Understood in that way, it implies that there are measures from other areas of law which are not measures under environmental law. According to that understanding, the decisive factor would in fact be whether the decision-making criteria on which the resolution in question is based are environmental in nature.
106. However, that interpretation would lead to the paradoxical outcome that measures which pursue objectives of environmental law would be subject to stricter control as regards compliance with environmental law than measures which do not pursue such objectives. In that respect, there is reason to fear that the latter measures can have a significantly greater impact on the environment than the former, since the protection of the environment is likely to attract greater attention if there is an environmental objective than if there is no such objective.
107. Therefore, at the very least, acts on the part of the European Union which can infringe environmental law must also be regarded as measures under environmental law within the meaning of the definition in Article 2(1)(f) of the Aarhus Regulation, namely, as measures which, irrespective of their legal basis, contribute to the pursuit of the objectives of EU policy on the environment.
108. If the concept of ‘measures under environmental law’ is interpreted in that way, the review procedure of the Aarhus Regulation comes closer to its objective of implementing Article 9(3) of the Aarhus Convention. As recognised also in recital 18 of the Aarhus Regulation, that provision requires not only that measures contributing to environmental objectives are subject to review, but, rather, that it is possible to subject acts that can contravene environmental law to review. (36)
109. Moreover, according to recital 9 of Regulation No 2021/1767, (37) the legislature clarified, by means of Article 1(1) of that regulation, that the concept of ‘measure under environmental law’ is to be understood in that way – but only after the judgment under appeal had been delivered.
110. That interpretation is, moreover, in line with the importance that primary law attaches to environmental protection. Although Article 191(2) TFEU obliges the European Union to ensure a high level of protection when exercising powers under environmental law, Article 11 TFEU further requires that environmental protection requirements be integrated into the definition and implementation of the EU policies. Furthermore, Article 37 of the Charter of Fundamental Rights, with which the European Union must always comply, requires that a high level of environmental protection and the improvement of the quality of the environment be integrated into the policies of the European Union. Therefore, compliance with EU environmental law is incumbent on all its institutions and bodies, irrespective of whether powers under environmental law are exercised.
111. It is true that the EIB is correct to submit that EU environmental law does not generally establish obligations that banks must observe when financing projects. Such obligations are in fact usually incumbent on the project managers.
112. Nevertheless, the EIB, as an EU body, is subject to more extensive obligations than other banks with regard to compliance with EU law. (38) It would be incompatible with its mission to contribute to the objectives of the European Union (39) if its lending activities undermined those objectives, for example as a result of it financing projects which infringe EU environmental law. It is not necessary in the present case to decide whether the EIB has a margin of discretion in that respect or must refuse financing only in the case of manifest infringements. This is because the resolution in question is already a measure under environmental law if there is a possibility that it infringes EU environmental law.
113. By contrast, the EIB’s submission that the NGO in question should directly oppose the project objected to, for example by bringing an action against the project approval, is not convincing. This is because, despite the relevant case-law of the Court of Justice, (40) it is not guaranteed that such an action before the competent national courts would even be possible and effective.
114. The extent to which the objections specifically raised by ClientEarth relate to compliance with EU environmental law or to other aspects is not the subject of the present proceedings, since the letter at issue does not contain any information in that regard. Therefore, it is also not necessary to decide whether such other aspects are the subject of ‘legislation’ within the meaning of Article 2(1)(f) of the Aarhus Regulation.
115. In my view, it would therefore be appropriate for the Court of Justice to substitute the General Court’s reasoning concerning whether the decision-making criteria of the Statement of 2009 and the climate strategy are to be regarded as environmental law with the considerations set out above.
116. Only for the event that the Court of Justice does not follow that approach, I will address below the objections raised by the EIB and the Commission to the abovementioned considerations of the General Court.
(b) Environmental law only in the form of legislation
117. The Commission and the EIB submit that only legislative acts within the meaning of Article 289(3) TFEU, that is to say rules adopted in a legislative procedure, may be regarded as environmental law.
118. The view of the EIB and the Commission appears to be justifiable on the basis of certain language versions of the Aarhus Regulation, since the English version of Article 2(1)(f) of the Aarhus Regulation uses the term ‘legislation’ for the German term ‘Rechtsvorschriften’, and the French version also refers to ‘disposition législative’. By contrast, the term ‘Rechtsvorschriften’ used in the German version is not limited to formal laws. Rather, it encompasses all legally binding rules and may therefore also include criteria of the EIB that have not been enacted as formal laws.
119. In view of those differences between the English, French and German versions of Article 2(1)(g) of the Aarhus Regulation, it should be borne in mind that the different language versions of the provisions of EU law must be interpreted uniformly, (41) with no language version taking precedence over the other language versions. (42) Where there is divergence between the various language versions of an EU legislative text, the provision must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (43)
120. The purpose of the internal review procedure is – as already stated (44) – to implement Article 9(3) of the Aarhus Convention. In accordance with Article 22 of that convention, the English, French and Russian texts are authentic. Unlike in the Aarhus Regulation, the first two of those languages, which are official languages of the European Union, do not refer to formal laws, but only to legal provisions, (45) whereas the Russian version seems to refer, rather, to formal legislative provisions. (46)
121. The decisive factor, however, is that Article 9(3) of the Aarhus Convention, in the overall context of the Convention, is intended to contribute to the effective protection of the environment. It is irrelevant for the purposes of that objective whether environmental law requirements are laid down in formal laws or in other legal provisions. Accordingly, the English and French versions of recital 18 of the Aarhus Regulation also refer generally to provisions of law relating to the environment. (47)
122. Therefore, the decisive factor is not the form in which the ecological criteria applied by the Board of Directors in the resolution in question are laid down, but rather their binding legal effects.
(c) Binding legal effects of the eligibility criteria
123. The EIB and the Commission also dispute the binding legal effects of the eligibility criteria.
124. In paragraphs 124 and 140 of the judgment under appeal, the General Court equates the criteria of the EIB that were applied with EU legislation in the field of environmental law, within the meaning of Article 2(1)(f) of the Aarhus Regulation, since they govern the EIB’s activity in relation to the granting of loans for the purpose of attaining the objectives of EU law as regards environmental matters.
125. The EIB’s environmental and social principles and standards set out in the Statement of 2009 contain very far-reaching objectives. According to that statement, the EIB requires that ‘all the projects it is financing are acceptable in environmental and social terms by applying appropriate safeguards to all its operations.’ (48) The EIB will also not finance ‘projects that do not meet its environmental and social requirements as described in the Statement. This includes projects that do not comply with appropriate national and EU environmental and social legislation in force at the time.’ (49)
126. Although the EIB does not refer to the Statement of 2009 as a legal act but as a ‘statement’, (50) it has itself limited its discretion in financing by reason of the binding wording of the criteria stated. By virtue of the principles of equal treatment and the protection of legitimate expectations, it must accept that it is bound by a self-imposed commitment at least until it expressly changes or abandons those criteria. (51)
127. It follows that at least the eligibility criteria, which contain sufficiently clear obligations, are binding and therefore constitute, vis-à-vis the EIB, legislation within the meaning of Article 2(1)(f) of the Aarhus Regulation.
128. Therefore, the EIB’s and the Commission’s argument that the eligibility criteria are not binding is also unfounded and must therefore be rejected.
3. Resolution in question has legally binding and external effects
129. Lastly, the EIB and the Commission dispute that the resolution in question has legally binding and external effects.
130. In that regard, the General Court stated in paragraph 170 of the judgment under appeal that, even if the resolution in question was not a legal commitment to grant a loan, in so far as other technical, economic and financial aspects of the project were still to be appraised, it nevertheless produced certain definitive legally binding effects vis-à-vis third parties, in particular as regards the promoter of that project, in that it stated the eligibility of that project for EIB financing with regard to its environmental and social aspects. It thus enabled the promoter to take the next steps needed to formalise the loan.
131. Having legally binding and external effects is part of the definition of an administrative act according to Article 2(1)(g) of the Aarhus Regulation. By those two elements the legislature followed the demarcation between definitive and preparatory measures in the application of Article 263 TFEU. Thus, it is in principle those measures which definitively determine the position of an institution upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, that constitute acts open to challenge, and not intermediate measures in a multi-stage procedure, whose purpose is to prepare for the final decision, which do not have those effects. (52)
132. Since the resolution in question only prepared the financing agreement and did not yet establish an entitlement to the granting of financing, the EIB and the Commission submit that it is an intermediate measure that cannot be challenged.
133. However, such a reading of the resolution in question is overly superficial.
134. The reason for the distinction between final decisions and intermediate measures is that an action for annulment against measures expressing a provisional opinion might make it necessary for the EU judicature to arrive at a decision on questions on which the entity concerned has not yet had an opportunity to state its position. Such actions would anticipate the arguments on the substance of the case, confusing different procedural stages both administrative and judicial. To allow such an action would thus be incompatible with the system of the division of powers between the administration and the EU judicature and of the remedies laid down by the TFEU, as well as with the requirements of the sound administration of justice and the proper course of administrative procedure. (53)
135. However, that risk of confusing the different procedural stages would not exist in the case where the resolution in question is challenged. This is because the resolution in question definitively fixed the position of the Board of Directors. Therefore, it was binding within the EIB in such a way that it bound the EIB’s entities in further decisions regarding the financing. Deviation therefrom would have required the Board of Directors to take up the matter again and take a different decision.
136. Moreover, contrary to first appearances, the resolution in question was at least capable of affecting the interests of the promoter of the project. This is because it obliged that promoter to certain terms of project implementation with regard to the environmental and social aspects of the project, thereby limiting its freedom in configuring the project.
137. Lastly, the challengeability of the resolution in question also cannot be disputed on the ground that the financing agreement could be challenged instead. It is true that, in certain cases, an action brought against the decision terminating the procedure will provide sufficient judicial protection. (54) However, it is unclear whether the internal review procedure under Article 10 of the Aarhus Regulation would enable the EIB to call into question the financing agreement which it concluded with the promoter, that is to say, a contract. It is therefore more expedient for the review to be conducted prior to the conclusion of that agreement.
138. For the sake of completeness, it should be noted that, contrary to the view taken by the EIB and the Commission, Article 271(c) TFEU is irrelevant to the question as to the legally binding and external effects of the resolution in question. Indeed, as ClientEarth correctly submits, those questions are to be separated from that as to the extent to which a measure is subject to judicial review.
139. The General Court was therefore entitled to find that the resolution in question has legally binding and external effects, within the meaning of Article 2(1)(g) of the Aarhus Regulation. The objections raised by the EIB and the Commission in that regard must therefore be rejected.
4. Conclusion
140. In summary, the appeals brought by the EIB and the Commission are unfounded and must therefore be dismissed.
VI. Costs
141. Where the appeal is unfounded, the Court is to make a decision as to the costs (Article 184(2) of the Rules of Procedure of the Court of Justice).
142. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
143. Since ClientEarth has applied for costs and the appellants have been unsuccessful, the appellants are to be ordered to pay, in addition to their own costs, those incurred by ClientEarth in connection with the appeals.
VII. Conclusion
144. I therefore propose that the Court should:
(1) Dismiss the appeals;
(2) Order the European Investment Bank and the European Commission to bear their own costs and to pay those incurred by ClientEarth in connection with the appeals.