11 - CJEU rejects appeal by the Commission and…

On 6 July, the Court of Justice of the European Union (“the CJEU”) rejected two appeals brought by the EU Commission and the European Investment Bank (“EIB”) - see Cases C-212/21 P and C-223/21P EIB v ClientEarth and Commission v ClientEarth.

The background

By a resolution adopted on 12 April 2018, published on the EIB’s website on 28 June 2018, the EIB’s Board of Directors approved the financing proposal of a construction project, in the municipality of Curtis (Teixeiro), located in the province of Coruña, 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’), in the form of a loan, which was to be granted to an ad hoc entity, of a maximum amount of EUR 60 million.

The General Court annulled the decision of the EIB, communicated to ClientEarth by letter of 30 October 2018, which had rejected as inadmissible the request for an internal review of the resolution of the EIB’s Board of Directors of 12 April 2018 approving the financing and which ClientEarth had submitted on 9 August 2018 on the basis of Article 10(1) of Council Regulation (EC) No 1367/2006 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 and of Commission Decision 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation (EC) No 1367/2006 Council on the Aarhus Convention as regards requests for the internal review of administrative acts.

Article 10(1) of Regulation No 1367/2006 provides that “[a]ny 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 …”.

The findings relevant to the Aarhus Convention

(i) Alleged errors in the interpretation and application of the Aarhus Convention (paras 65 – 75)

The EIB and the Commission submitted that the General Court made several errors of law in the interpretation and application of the Aarhus Convention.

The CJEU found:

EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union as was the case with Regulation No 1367/2006, which is intended to implement, as regards the institutions of the European Union, the provisions of Article 9(3) of the Aarhus Convention.
While Article 9(3) of the Aarhus Convention cannot be relied on in order to assess the legality of Article 10(1) of Regulation No 1367/2006 nonetheless the provisions of that regulation can be interpreted, so far as possible, in a manner that is consistent with the Aarhus Convention.
Such an approach to interpretation is an essential means of ensuring, in accordance with the intention of the EU legislature as expressed in recital 3 of that regulation, that provisions of EU law remain consistent with those of the Convention.
The argument of the EIB and the Commission that, in adopting the resolution of 12 April 2018, the EIB’s Board of Directors did not act as a ‘public authority’ within the meaning of Article 2(2) of the Aarhus Convention was rejected:
1. “under Article 2(2)(d)of that convention, the institutions of any regional economic integration organisation which, like the European Union, is a party to that convention must be regarded as public authorities for the purposes of that convention, except when acting in a judicial or legislative capacity.”
2. “under Article 2(1)(c) of Regulation No 1367/2006, the concept of ‘[EU] institutions and bodies’, to which that regulation applies in accordance with Article 1(1) thereof, covers ‘any public institution, body, office or agency established by, or on the basis of, the Treaty except when acting in a judicial or legislative capacity’. In that regard, recital 7 of that regulation states that that concept is defined in a ‘broad and functional way’, because of the ‘broad way’ in which the Aarhus Convention defines the public authorities to which it applies, in order to guarantee the rights of persons and their organisations where public authority is exercised. In addition, recital 11 of that regulation states that‘ other inquiry procedures where the [EU] institution or body acts as an administrative review body under provisions of the Treaty’ should also be excluded.”
3. Accordingly, activities of EU institutions and bodies can be excluded from the scope of Regulation No 1367/2006 and the Aarhus Convention only where those institutions and bodies exercise judicial or legislative powers or act as administrative review bodies under provisions of the Treaty. And, “[t]hat is not so in the present case. The resolution of 12 April 2018 approving the financing proposal for the Curtis project, on the basis of Article 9(1) and Article 19(3) of the Statute of the EIB, is not the result of the exercise of judicial or legislative powers by the EIB’s Board of Directors, which also did not act as an ‘administrative review body under provisions of the Treaty’ within the meaning of Article 2(1)(c) of Regulation No 1367/2006, read in the light of recital 11 thereof.”
4. “ … the EIB has a dual nature as regards the exercise of its powers in the context of contractually agreed financing. In that context, it does admittedly act as a private partner to the beneficiary, but it also performs general interest functions. Therefore, the interpretation of Article 2(1)(c) of that regulation as meaning that, where the EIB carries out its financing activities, it must be classified as an ‘[EU] body’ ensures implementation of that regulation that is consistent with Article 2(2)(d) of the Aarhus Convention.”

(ii) The concept of environmental law in Article 2(1)(f) of Regulation No 1367/2006

Of less direct relevance but still of some interest is the rejection of the arguments of the EIB and the Commission that the General Court wrongly regarded in the same way the environmental criteria relating to the eligibility of projects for EIB financing, which arise from the Statement of 2009 and the climate strategy, with EU legislation in the field of environmental law, within the meaning of Article 2(1)(f) of Regulation No 1367/2006, and, accordingly, for taking the view that the resolution of 12 April 2018 was adopted ‘under environmental law’ within the meaning of Article 2(1)(g) of that regulation.

Authors:
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.