Action brought on 21 August 2021 – Associazione ‘Terra Mia Amici No Tap’ v EIB

(Case T-514/21)

Language of the case: Italian

Parties

Applicant: Associazione ‘Terra Mia Amici No Tap’ (Melendugno, Italy) (represented by: A. Calò, lawyer)

Defendant: European Investment Bank

Form of order sought

The applicant claims that the Court should:

find and declare that the European Investment Bank (EIB) wrongfully failed to reply to the request for review submitted by the applicant association;

order the European Investment Bank to issue a decision withdrawing the financing granted to TAP AG;

order the European Investment Bank to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging infringement of the Aarhus Convention ¹ and of Regulation (EC) No 1367/2006 of 6 September 2006 ² (‘the Aarhus Regulation’).

The applicant claims in that regard that, under Article 10(1) of the Aarhus Regulation, ‘any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community 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.’ In the present case, the EIB should have replied within the time limits provided for in Article 10 of that regulation, which it did not intend to do.

Second plea in law, alleging infringement of point 36 of the EIB Statement of Environmental and Social Principles and Standards of 2009.

The applicant claims in that regard that, in the present case, point 36 states that the EIB requires that all projects that it finances comply at least with:

• Applicable national environmental law;

• Applicable EU environmental law, notably the EU Environmental Impact Assessment (EIA) Directive and the nature conservation directives, as well as sector-specific directives and ‘cross-cutting’ directives;

• The principles and standards of relevant international environmental conventions incorporated into EU law.

In the present case, none of those subpoints was complied with.

The applicant claims that the following infringements are clear:

EU environmental legislation, more specifically:

a.I    recital 36 of Regulation (EU) No 347/2013, ¹ read in conjunction with Articles 4 and 14 thereof (failure to carry out a cost-benefit analysis);

a.II    recital 31 of Regulation No 347/2013, read in conjunction with Article 5(1) of Directive 2011/92/EU ¹ and Note 1 of Annex IV to that directive (external cumulative effect);

a.III    recital 31 of Regulation No 347/2013, read in conjunction with Article 5(1) of Directive 2011/92/EU and Note 1 of Annex IV to that directive (internal cumulative effect) – prohibition of ‘salami slicing’;

a.IV    Article 2(1) of Directive 2011/92/EU, Article 6(3) and (4) of the Habitats Directive;

a.V    Article 4(4) of Directive 2009/147/EC, ¹ the Birds Directive;

a.VI    recital 30 of Regulation No 1367/2006, read in conjunction with Article 9 thereof and Article 6 of the EIA Directive (transparency and participation);

a.VII    recital 28 of Regulation No 347/2013, read in conjunction with Article 7 thereof (Habitat rules);

a.VIII    Infringement of Article 191(1) TFEU together with the infringement of the Statement of Environmental and Social Principles and Standards of the European Investment Bank, approved by the Board of Directors on 3 February 2009.

Italian legislation, more specifically:

b.I    Legislative Decree 42/2004 transposing Article 26 of the Landscape Convention;

b.II    Legislative Decree 42/2004 transposing Article 146 of the Landscape Convention;

b.III    Article 14b of the Law of 7 August 1990 No 241, Interdepartmental conference;

b.IV    Rule A57 of Ministerial Decree relating to environmental compatibility 223/14;

b.V    Legislative Decree 152/06, failure to impose sanctions;

b.VI    Article 452c of the Criminal Code (environmental disaster).

Third plea in law, alleging infringement of Regulation No 347/2013 of the Parliament and of the Council of 17 April 2013.

The applicant claims in that regard that an appropriate cost-benefit analysis was never carried out.

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¹ Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (OJ 2005 L 124, p. 4).

¹ 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).

¹ Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 (OJ 2013 L 115, p. 39).

¹ Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1).

¹ Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).