JUDGMENT OF THE COURT (Third Chamber)
6 July 2023 (*)
(Appeal – Environment – Aarhus Convention – Regulation (EC) No 1367/2006 – Article 2(1)(f) – Concept of ‘environmental law’ – Article 2(1)(g) – Concept of ‘administrative act’ – Article 10(1) – Internal review of administrative acts – Resolution of the Board of Directors of the European Investment Bank (EIB) approving the financing of a biomass power generation plant – Rejection of the request for internal review of that resolution as inadmissible – Independence of the EIB in the sphere of its financial operations – Article 271(c) TFEU – Scope)
In Joined Cases C‑212/21 P and C‑223/21 P,
TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 April 2021,
European Investment Bank (EIB), represented by K. Carr, G. Faedo and T. Gilliams, acting as Agents, and by J. Bouckaert and G. Schaiko, avocats,
appellant in Case C‑212/21 P,
the other parties to the proceedings being:
ClientEarth, established in London (United Kingdom), represented by S. Abram KC and J. Flynn KC, and H. Leith, Barrister,
applicant at first instance,
European Commission, represented by F. Blanc and G. Gattinara, acting as Agents,
intervener at first instance,
and
European Commission, represented by F. Blanc and G. Gattinara, acting as Agents,
appellant in Case C‑223/21 P,
the other parties to the proceedings being:
ClientEarth, established in London, represented by S. Abram KC and J. Flynn KC, and H. Leith, Barrister,
applicant at first instance,
European Investment Bank (EIB), represented by K. Carr, G. Faedo and T. Gilliams, acting as Agents, and by J. Bouckaert and G. Schaiko, avocats,
defendant at first instance,
THE COURT (Third Chamber),
composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra (Rapporteur), N. Jääskinen and M. Gavalec, Judges,
Advocate General: J. Kokott,
Registrar: R. Stefanova-Kamisheva, Administrator,
having regard to the written procedure and further to the hearing on 20 October 2022,
after hearing the Opinion of the Advocate General at the sitting on 15 December 2022,
gives the following
Judgment
1        By their respective appeals, the European Investment Bank (EIB) (Case C‑212/21 P) and the European Commission (Case C‑223/21 P) seek to have set aside the judgment of the General Court of the European Union of 27 January 2021, ClientEarth v EIB (T‑9/19, EU:T:2021:42; ‘the judgment under appeal’). By that judgment, 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 of a biomass power generation plant in Galicia (Spain) (‘the decision at issue’) which ClientEarth had submitted on 9 August 2018 on the basis of Article 10(1) of Council 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) and of Commission Decision 2008/50/EC of 13 December 2007 laying down detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament of the Council on the Aarhus Convention as regards requests for the internal review of administrative acts (OJ 2008 L 13, p. 24).
Legal context
International law
2        Article 2(2) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed at Aarhus (Denmark) on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1) (‘the Aarhus Convention’), provides that, for the purposes of that convention:
‘“Public authority” means:
…
(d)      The institutions of any regional economic integration organisation referred to in article 17 which is a Party to this Convention.
This definition does not include bodies or institutions acting in a judicial or legislative capacity.’
3        Article 9 of the Aarhus Convention, entitled ‘Access to justice’, provides, in paragraphs 3 and 4 thereof, that 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, and that such procedures must provide adequate and effective remedies and be fair, equitable, timely and not prohibitively expensive.
European Union law
4        Recitals 3, 7, 10, 11, 18 and 20 of Regulation No 1367/2006 state:
‘(3) … Provisions of [EU] law should be consistent with [the Aarhus] Convention.
…
(7)      The Aarhus Convention defines public authorities in a broad way, the basic concept being that wherever public authority is exercised, there should be rights for individuals and their organisations. It is therefore necessary that the [EU] institutions and bodies covered by this Regulation be defined in the same broad and functional way. Under the Aarhus Convention, [EU] institutions and bodies can be excluded from the scope of application of the Convention when acting in a judicial or legislative capacity. …
…
(10)      In view of the fact that environmental law is constantly evolving, the definition of environmental law should refer to the objectives of [EU] policy on the environment as set out in the Treaty.
(11)      Administrative acts of individual scope should be open to possible internal review where they have legally binding and external effects. … Given that acts adopted by [an EU] institution or body acting in a judicial or legislative capacity can be excluded, the same should apply to other inquiry procedures where the [EU] institution or body acts as an administrative review body under provisions of the Treaty.
…
(18)      Article 9(3) of the Aarhus Convention provides for access to judicial or other review procedures for challenging acts and omissions by private persons and public authorities which contravene provisions of law relating to the environment. Provisions on access to justice should be consistent with the Treaty. It is appropriate in this context that this Regulation address only acts and omissions by public authorities.
…
(20)      Non-governmental organisations active in the field of environmental protection which meet certain criteria, in particular in order to ensure that they are independent and accountable organisations that have demonstrated that their primary objective is to promote environmental protection, 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.’
5        Article 1(1) of that regulation defines its objective as follows:
‘The objective of this Regulation is to contribute to the implementation of the obligations arising under the [Aarhus Convention], by laying down rules to apply the provisions of [that] Convention to [EU] institutions and bodies, in particular by:
…
(d)      granting access to justice in environmental matters at [EU] level under the conditions laid down by this Regulation.’
6        Under Article 2 of that regulation:
‘1.      For the purpose of this Regulation:
…
(c)      “[EU] institution or body” means 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 …
…
(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 …
(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;
…’
7        Article 10 of that regulation, entitled ‘Request for internal review of administrative acts’, provides in paragraph 1 thereof:
‘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 …’
8        Article 12 of Regulation No 1367/2006, entitled ‘Proceedings before the Court of Justice’, provides in paragraph 1 thereof:
‘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.’
Background to the dispute
9        The background to the dispute, as described in paragraphs 37 to 62 of the judgment under appeal, may be summarised as follows.
10      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 resolution of 12 April 2018’).
11      By letter of 13 April 2018, the EIB informed the promoter of the Curtis project about the resolution of 12 April 2018, pointing out that the preliminary approval of the financing of that project did not create any legal obligation for the EIB to grant the loan, but allowed that promoter to take the steps needed to formalise that loan.
12      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 documentation was signed on 25 July 2018. The first disbursement of the EIB financing took place on 29 August 2018.
13      On 9 August 2018, ClientEarth, a non-governmental organisation dedicated to the protection of the environment, submitted to the EIB, on the basis of Article 10(1) of Regulation No 1367/2006, a request for an internal review of the resolution of 12 April 2018.
14      By the decision at issue, communicated to ClientEarth by letter of 30 October 2018 signed by the Secretary General and by the Deputy General Counsel of the EIB, that request was rejected as inadmissible on the ground that the resolution of 12 April 2018 did not constitute an ‘administrative act’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006 and could not therefore be the subject of an internal review conducted by the EIB.
The proceedings before the General Court and the judgment under appeal
15      By application lodged at the General Court Registry on 8 January 2019, ClientEarth brought an action for annulment of the decision at issue, in support of which it put forward two pleas in law. The first alleged errors of assessment in the application of two conditions which the resolution of 12 April 2018 had to satisfy in order to be classified as an ‘administrative act’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006, namely, first, that the act be adopted ‘under environmental law’ and, second, that that act has ‘legally binding and external effects’. The second plea alleged breach of the EIB’s obligation to state reasons.
16      The EIB, supported by the Commission, contended that the Court should dismiss that action. As a preliminary point, the EIB claimed that ClientEarth’s request for an internal review of the resolution of 12 April 2018 was incompatible with the EIB’s independence in the sphere of its financial operations and, therefore, inadmissible.
17      The General Court, first of all, in paragraphs 86 to 92 of the judgment under appeal, rejected the EIB’s defence plea as inadmissible. It pointed out that the decision at issue merely considered that the resolution of 12 April 2018 was not an ‘administrative act’, within the meaning of Article 2(1)(g) of Regulation No 1367/2006, on the ground that it had not been adopted ‘under environmental law’ and did not produce any ‘legally binding and external effects’. According to the General Court, the EIB had referred, ‘only in the context of examining those two sub-grounds, and not an independent ground … in a vague and general manner, to the commercial and policy discretion accorded to it by the Treaties and its Statutes, its institutional role and the mission incumbent on it by virtue of those statutes’. The General Court thus held, in paragraph 91 of that judgment, that the assessment of the alleged incompatibility of the request for an internal review of the resolution of 12 April 2018 with the EIB’s independence in the sphere of its financial operations amounts to substituting its own reasoning for that adopted by the EIB in support of the decision at issue.
18      In addition, the General Court referred to paragraph 92 of the judgment under appeal in order to reject as inadmissible, in paragraph 151 of that judgment, a line of argument alleging that, in the light of Article 271(c) TFEU and the EIB’s independence in the sphere of its financial operations, the resolution of 12 April 2018 could not be classified as an ‘administrative act’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006.
19      Next, in paragraphs 102 to 104 of the judgment under appeal, the General Court examined the second plea relied on by ClientEarth in support of its action and held that the decision at issue enabled ClientEarth to understand the reasons why the EIB had rejected, as inadmissible, its request for an internal review of the resolution of 12 April 2018, and to challenge the merits of those reasons. Since that decision also allowed the General Court to exercise its power of judicial review, it therefore rejected the second plea as unfounded.
20      Lastly, as regards the first plea relied on by ClientEarth in support of its action, which the General Court examined last, the General Court stated in paragraph 107 of the judgment under appeal, as a preliminary point, that the two conditions referred to in paragraph 15 of the present judgment and set out in Article 2(1)(g) of Regulation No 1367/2006 had to be interpreted, in so far as possible, ‘in the light of Articles 9(3) and (4) of the Aarhus Convention … and, therefore, in the light of the requirement to ensure effective access to justice [for ClientEarth]’.
21      As regards, in the first place, the second part of that plea, alleging misapplication of the condition that the act be adopted ‘under environmental law’, the General Court recalled, in paragraph 118 of the judgment under appeal, that the EU legislature intended to give the concept of ‘environmental law’, within the meaning of Article 2(1)(f) of Regulation No 1367/2006, a ‘broad meaning, not limited to matters relating to the protection of the natural environment in the strict sense’.
22      In paragraph 121 of the judgment under appeal, the General Court held that the reference to ‘[EU] legislation’ in Article 2(1)(f) had to be understood as referring to ‘any provision of secondary EU legislation of general application’, unlike an ‘administrative act’ within the meaning of Article 2(1)(g) of that regulation. In that regard, the General Court noted that, since, at the time when that regulation was adopted, the distinction between legislative acts, adopted under the ordinary or special legislative procedure, and regulatory acts, adopted in accordance with another procedure, was not established at the level of the EU Treaties, the concept of ‘legislation’, within the meaning of Article 2(1)(f) of that regulation, could not be interpreted as precluding taking into account, as ‘environmental law’, the provisions of a ‘regulatory act’ adopted in that field.
23      In paragraphs 122 to 124 of the judgment under appeal, the General Court held that the rules of general application governing the EIB’s activity in relation to the granting of loans for the purpose of attaining the objectives of the FEU Treaty as regards environmental matters, in particular those arising, first, from the Statement of Environmental and Social Principles and Standards, approved by the EIB’s Board of Directors on 3 February 2009 (‘the Statement of 2009’), and, second, 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’), must be regarded in the same way as legislation in the field of ‘environmental law’, within the meaning of Article 2(1)(f) of Regulation No 1367/2006.
24      In paragraph 126 of the judgment under appeal, the General Court held that the concept of ‘administrative act’, laid down in Article 2(1)(g) of Regulation No 1367/2006, had to be interpreted as encompassing ‘any measure of individual scope subject to requirements under secondary EU law which, regardless of their legal basis, are directly aimed at achieving the objectives of EU policy on the environment’.
25      In paragraphs 138 to 140 of the judgment under appeal, the General Court held that the resolution of 12 April 2018, in so far as it considered that the Curtis project met the objectives of the EIB’s lending activity and the environmental criteria relating to the eligibility of projects for EIB financing, established by the Statement of 2009 and by the climate strategy, was a measure of individual scope adopted ‘under environmental law’ within the meaning of Article 2(1)(g) of that regulation. Accordingly, it upheld the second part of the first plea in law in that action.
26      As regards, in the second place, the first part of the first plea, alleging misapplication of the condition that the act must produce ‘legally binding and external effects’, the General Court found, in paragraphs 167 to 170 of the judgment under appeal, that the resolution of 12 April 2018 reflected a definitive position adopted by the EIB’s Board of Directors with regard to the eligibility of the Curtis project for EIB financing in the light of its environmental and social aspects, so that ‘the subsequent decision of the Management Committee to grant the loan, having carried out the appraisal of the Curtis project as regards the other aspects that remained to be examined, can at most be regarded as a purely implementing measure’.
27      After finding that ClientEarth’s request for an internal review related, ‘at least in part, to the definitive legally binding effects vis-à-vis third parties produced by the resolution [of 12 April 2018]’, the General Court, in paragraphs 171 and 172 of the judgment under appeal, upheld the first part of the first plea in law in the action and, accordingly, annulled the decision at issue.
Forms of order sought by the parties and the procedure before the Court
28      By its appeal in Case C‑212/21 P, the EIB claims that the Court should:
–        set aside the judgment under appeal;
–        dismiss the action at first instance; and
–        order ClientEarth to pay the costs of the proceedings at first instance and on appeal.
29      By its appeal in Case C‑223/21 P, the Commission claims that the Court should:
–        set aside the judgment under appeal;
–        dismiss the action at first instance as unfounded; and
–        order ClientEarth to pay the costs.
30      In its response to both appeals, ClientEarth claims that the Court should:
–        dismiss the appeals, and
–        order the Commission and EIB to pay the costs.
31      By decision of the President of the Court of 30 April 2021, Cases C‑212/21 P and C‑223/21 P were joined for the purposes of the written and the oral procedure and the judgment.
The appeals
32      In support of their respective appeals, the Commission and the EIB each rely on three grounds of appeal, by which they claim that the General Court erred in law in the assessment of the functional independence relied on by the EIB in the sphere of its financial operations and in the interpretation and application of the Aarhus Convention and of the concept of ‘administrative act’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006.
The first ground of appeal and the second part of the second ground of appeal in Case C‑212/21 P as well as the third ground of appeal in Case C‑223/21 P, alleging errors of law in the assessment of the EIB’s independence in the sphere of its financial operations
Arguments of the parties
33      The EIB, by the first ground of appeal and by the second part of the second ground of appeal in Case C‑212/21 P, and the Commission, by the third ground of appeal in Case C‑223/21 P, claim that the General Court erred in law, in particular in paragraphs 89 to 92 and 151 of the judgment under appeal, in that it rejected as inadmissible the defence plea drawn from the EIB’s independence in the sphere of its financial operations. According to them, the General Court was wrong to hold that the decision at issue was not based on that independence as ‘an independent ground’ in order to reject as inadmissible the request for an internal review of the resolution of 12 April 2018. In any event, according to the EIB, the question whether the request for an internal review of that resolution undermined that independence, since it stems from primary EU law, was a matter of public policy and the General Court should have examined it of its own motion.
34      In that regard, the EIB complains, in the first place, that the General Court, in paragraph 90 of the judgment under appeal, manifestly distorted the content of the decision at issue, in so far as the argument based on the EIB’s independence in the sphere of its financial operations was expressly mentioned in the statement of reasons of that decision. Contrary to the finding made in paragraph 91 of that judgment, examination of that argument would not therefore have led the General Court to substitute its own reasoning for that of the EIB, or to an ‘imbalance between the parties’ within the meaning of the judgment of 11 June 2020, Commission v Di Bernardo (C‑114/19 P, EU:C:2020:457, paragraph 59), as ClientEarth is an experienced organisation which is familiar with EU law.
35      In the second place, the EIB and the Commission submit that a request for an internal review of the resolutions of the EIB’s Board of Directors, submitted under Article 10(1) of Regulation No 1367/2006, would undermine the independence which that body enjoys on the financial markets, which is essential for the performance of the general interest mission conferred on it by Article 309 TFEU. Such a request is also liable to damage the EIB’s reputation and credibility on those markets. During the period in which that request can be made and during the entire duration of the review process itself and any subsequent court proceedings, it would be impossible in practice for the EIB to negotiate and sign contractual documentation relating to the financing of projects already approved by its Board of Directors. The resulting uncertainty is exacerbated by the unpredictable number of requests for internal review that might be made.
36      The General Court should have examined of its own motion the admissibility of the request for an internal review of the resolution of 12 April 2018, submitted under Article 10(1) of Regulation No 1367/2006, in the light of Article 15(3), Article 271(c) and Articles 308 and 309 TFEU, and the relevant provisions of the Statute of the EIB. Moreover, the General Court should have relied of its own motion on Article 271(c) TFEU in order to dismiss the action brought by ClientEarth, since that provision, read in conjunction with Article 19 of the Statute of the EIB, excludes resolutions of the EIB’s Board of Directors from any form of substantive judicial review.
37      In that context, both the EIB and the Commission submit, first, that the internal review of an administrative act, pursuant to Article 10(1) of Regulation No 1367/2006, is inseparable from the legal proceedings referred to in Article 12 of that regulation and, second, that Article 271(c) TFEU is one of the ‘relevant provisions of the Treaty’ which, under Article 12, must be taken into account when assessing the capacity to be a party to legal proceedings which the latter provision confers on non-governmental organisations for environmental protection. Article 271(c) would be infringed if a resolution of the EIB’s Board of Directors referred to in a request for internal review were the subject of an action brought on the basis of Article 12 of Regulation No 1367/2006, in the light of the environmental concerns raised by the non-governmental organisation which made that request.
38      ClientEarth disputes the merits of all those arguments.
Findings of the Court
39      By their arguments, the EIB and the Commission complain that, in paragraphs 89 to 92 and 151 of the judgment under appeal, the General Court erred in law in rejecting as inadmissible the argument alleging that the EIB’s independence in the sphere of its financial operations, guaranteed by primary EU law, was undermined, since that argument was not relied on as an independent ground for the decision at issue. They argue that that argument should, in any event, have been examined as a matter of public policy liable to lead to the dismissal of the action brought by ClientEarth.
40      As regards, in the first place, the alleged manifest distortion of the content of the decision at issue, in paragraphs 89 to 91 of the judgment under appeal, as regards the EIB’s independence in the sphere of its financial operations, it is apparent from the fourth, fifth and seventh paragraphs of that decision that the request for an internal review of the resolution of 12 April 2018 was rejected as inadmissible on the ground that that resolution was not an ‘administrative act’ within the meaning of Article 2(1)(g), of Regulation No 1367/2006, since it was not adopted ‘under environmental law’ and it did not have ‘legally binding and external effects’, and not on the ground that that request for internal review undermined the EIB’s independence in the sphere of its financial operations.
41      The sixth paragraph of the decision at issue states that ‘any decision by the EIB whether to support a potential eligible project or not, and if so in which form, is subject to [EIB]’s commercial and policy discretion accorded to [EIB] under the Treaties and the Statute’ and, in its eighth paragraph, that the interpretation of the concept of ‘environmental law’, within the meaning of Article 2(1)(f) of that regulation, supported by ClientEarth, ‘would no longer be compatible with either the EIB’s institutional role or its Statute-based mission’.
42      The General Court was thus able to hold, without erring in law, in paragraphs 89 and 90 of the judgment under appeal, that in the decision at issue the EIB referred only ‘in a vague and general manner, to the commercial and policy discretion accorded to it by the Treaties and its [Statute], its institutional role and the mission incumbent on it by virtue of [that statute]’ not as an independent ground of inadmissibility of the request for an internal review of the resolution of 12 April 2018 but only in the context of examining the two sub-grounds referred to in paragraph 40 of the present judgment. In those circumstances, the General Court cannot be criticised for having manifestly distorted the content of that decision.
43      In that regard, it should be added that the Courts of the European Union are not required to take into account additional explanations provided by the author of the measure in question only during the proceedings in order to assess whether the obligation to state reasons has been satisfied, since otherwise the division of powers between the administration and the Courts of the European Union would be undermined and the review of the legality of acts of the administration would be weakened (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 58).
44      As regards, in the second place, the General Court’s obligation to examine of its own motion the alleged adverse effect of the request for an internal review of the resolution of 12 April 2018 on the EIB’s independence in the sphere of its financial operations, which that body bases, inter alia, on Article 15(3), Article 271(c), Articles 308 and 309 TFEU and on certain provisions of the Statute of the EIB, it should be noted at the outset that an alleged infringement of EU primary law is not sufficient to give rise to an obligation on the part of the EU judicature to examine the matter of its own motion.
45      While certain pleas may, and indeed must, be raised by the courts of their own motion, such as the question whether a statement of reasons for the decision at issue is lacking or is inadequate, a plea going to the substantive legality of that decision, which falls within the scope of infringement of the Treaties or of any rule of law relating to their application, within the meaning of Article 263 TFEU, can, by contrast, be examined by the Courts of the European Union only if it is raised by the applicant (see, to that effect, judgment of 25 October 2017, Commission v Italy, C‑467/15 P, EU:C:2017:799, paragraphs 14 and 15 and the case-law cited).
46      The General Court therefore did not err in law in refraining from examining the merits of the EIB’s argument alleging that its independence in the sphere of its financial operations, which stems from Article 15(3) and Articles 308 and 309 TFEU and certain provisions of the Statute of the EIB, was undermined.
47      Nevertheless, the EIB’s reliance on the preservation of its independence in the sphere of its financial operations, in connection with Article 271(c) TFEU, as is apparent from paragraph 110 of the defence which it lodged before the General Court, could be regarded as calling into question the jurisdiction of the Court of Justice of the European Union to review, albeit indirectly, a resolution of the EIB’s Board of Directors, in an action for annulment directed against the EIB’s refusal to conduct an internal review of that resolution. In addition, the EIB, supported on this point by the Commission, claimed, in particular at the hearing held before the Court of Justice, that there is an inseparable link between the right to submit a request for an internal review of a resolution of the EIB’s Board of Directors and the right to bring an action for annulment against the decision taken by the EIB following that review. Accordingly, maintaining the EIB’s independence requires, in their view, non-governmental environmental protection organisations, such as ClientEarth, to be deprived of both the right to request an internal review of such a resolution and the right to bring an action for annulment against a rejection decision, if any.
48      In that context, it was for the General Court to verify, of its own motion, whether the EU judicature had jurisdiction to rule on an action for annulment brought against a decision ruling on a request for an internal review of a resolution of the EIB’s Board of Directors. The question of the Court of Justice of the European Union’s jurisdiction over an action is a matter of public policy; that question may be considered by the EU Courts at any stage in the proceedings, even of their own motion (see, to that effect, judgment of 6 October 2020, Bank Refah Kargaran v Council, C‑134/19 P, EU:C:2020:793, paragraph 25 and the case-law cited).
49      In accordance with Article 271(c) TFEU, proceedings against resolutions of the EIB’s Board of Directors 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]’.
50      It is apparent from the very wording of Article 271(c) TFEU that that provision makes the possibility of bringing an action for annulment against resolutions adopted by the EIB’s Board of Directors subject to stricter conditions than those imposed by Article 263 TFEU. Accordingly, Article 271(c) TFEU entails a limitation on the general jurisdiction conferred by that treaty on the Court of Justice of the European Union to review the legality of acts of the EU institutions and must, therefore, be interpreted narrowly (see, by analogy, judgment of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 31). As the Advocate General observed in points 63 and 64 of her Opinion, that limitation concerns, first, the group of possible applicants and, second, the powers of substantive review of the EU judicature.
51      It follows that Article 271(c) TFEU does not directly govern the situation where an action is brought under Article 12(1) of Regulation No 1367/2006 against a decision of the EIB ruling on a request for an internal review of a resolution of its Board of Directors. The fact remains that Article 271(c) TFEU is a relevant provision of the Treaty, within the meaning of Article 12(1) of Regulation No 1367/2006, which must be taken into account in determining whether it is possible to bring an action before the Courts of the European Union.
52      As the Advocate General observed, in essence, in point 68 of her Opinion, Article 271(c) TFEU would be rendered redundant if, in the context of an action against a decision of the EIB ruling on a request for an internal review of a resolution of its Board of Directors, the Courts of the European Union were indirectly to review the merits of that resolution.
53      By contrast, in the light of paragraph 50 of the present judgment and contrary to the claims of the EIB and the Commission, Article 271(c) TFEU does not preclude, as a matter of principle, a non-governmental organisation from requesting, in accordance with Article 10(1) of Regulation No 1367/2006, an internal review of a resolution of the EIB’s Board of Directors or from bringing an action for annulment before the Courts of the European Union, on the basis of Article 12(1) of that regulation, against a decision declaring inadmissible a request for an internal review of a resolution of the EIB’s Board of Directors.
54      In the latter case, the purpose of the action is to have the Courts of the European Union examine not the legality or the merits of a resolution of the EIB’s Board of Directors, but only whether the EIB was justified in rejecting as inadmissible a request for an internal review of that resolution. As the Advocate General observed in point 73 of her Opinion, if such an action were upheld, the only consequence would be to lead the EIB to review itself that resolution internally.
55      In the present case, the action brought by ClientEarth before the General Court sought annulment of the decision at issue, based on the combined provisions of Article 2(1)(g) and Article 10(1) of Regulation No 1367/2006, communicated to ClientEarth by letter of 30 October 2018, signed by the Secretary General and Deputy General Counsel of the EIB, by which the request for an internal review of the resolution of 12 April 2018 was rejected as inadmissible.
56      Since that action, brought on the basis of Article 12(1) of Regulation No 1367/2006, had sought the annulment of the decision at issue on the basis of the allegedly incorrect legal classification by the EIB of the resolution of 12 April 2018 in the light of Article 2(1)(g) of that regulation, in the context of its assessment of the admissibility of the request for an internal review of that resolution, and not the merits of that resolution, Article 271(c) TFEU cannot preclude the bringing of such an action.
57      The General Court therefore did not err in law in finding that it had jurisdiction to hear the action brought by ClientEarth against the decision at issue. In those circumstances, the fact that it did not expressly examine the arguments based on Article 271(c) TFEU is not such as to justify setting aside the judgment under appeal.
58      In the light of the foregoing, the EIB’s first ground of appeal and the second part of its second ground of appeal in Case C‑212/21 P as well as the Commission’s third ground of appeal in Case C‑223/21 P must be rejected as unfounded.
The third part of the third ground of appeal and the first part of the second ground of appeal in Case C‑212/21 P as well as the first ground of appeal in Case C‑223/21 P, alleging errors of law in the interpretation and application of the Aarhus Convention
Arguments of the parties
59      The EIB, by the third part of the third ground of appeal in Case C‑212/21 P, and the Commission, by the first part of the first ground of appeal in Case C‑223/21 P, complain that the General Court, in paragraphs 107, 125 and 126 of the judgment under appeal, wrongly held that the conditions laid down in Article 2(1)(g) of Regulation No 1367/2006 must be interpreted in the light of Article 9 of the Aarhus Convention.
60      First, the case-law of the Court, in particular the judgments of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe (C‑404/12 P and C‑405/12 P, EU:C:2015:5), and of 3 September 2020, Mellifera v Commission (C‑784/18 P, not published, EU:C:2020:630), rules out the obligation to interpret Regulation No 1367/2006 in conformity with the provisions of that convention.
61      Second, it is apparent from paragraph 40 of the judgment of 16 July 2015, ClientEarth v Commission (C‑612/13 P, EU:C:2015:486), that, since the Aarhus Convention was designed with the national legal orders in mind, and not the specific legal features of institutions of regional economic integration, such as the European Union, no analogy can be drawn between the implementation of that convention by the Member States and its implementation at EU level. The General Court could not therefore rely, in paragraph 107 of the judgment under appeal, on ‘similar reasons’, which, moreover, were not explained, in order to interpret Article 2(1)(g) of Regulation No 1367/2006 in the light of Article 9(3) and (4) of that convention.
62      Third, the General Court wrongly relied, in paragraphs 125 and 126 of the judgment under appeal, on the principle of interpretation in conformity with the Aarhus Convention in order to assess whether the resolution of 12 April 2018 constituted a ‘measure of individual scope’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006, whereas that concept should be interpreted solely on the basis of the criteria arising from Articles 263 and 288 TFEU. In that regard, it is apparent from paragraph 25 of the judgment of 3 December 2020, Région de Bruxelles-Capitale v Commission (C‑352/19 P, EU:C:2020:978) that the Aarhus Convention cannot dictate the interpretation of primary EU law.
63      By the first part of the second ground of appeal in Case C‑212/21 P and by the second part of the first ground of appeal in Case C‑223/21 P, the EIB and the Commission, respectively, claim that the General Court also erred in law, in paragraph 107 of the judgment under appeal, in its interpretation of Articles 2 and 9 of the Aarhus Convention. 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 that convention, with the result that Article 9(3) thereof is not applicable. On the contrary, the adoption of that resolution forms part of the EIB’s financial activity as a bank.
64      ClientEarth disputes the merits of all those arguments.
Findings of the Court
65      By their arguments, the EIB and the Commission submit that, in paragraphs 107, 125 and 126 of the judgment under appeal, the General Court made several errors of law in the interpretation and application of the Aarhus Convention.
66      In that regard, in the first place, it should be recalled that, 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 (see to that effect, judgments of 14 July 1998, Safety Hi-Tech, C‑284/95, EU:C:1998:352, paragraph 22; and of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, EU:C:2019:1111, paragraph 38).
67      That is 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 (see, to that effect, judgment of 8 March 2011,
Lesoochranárske zoskupenie, C‑240/09, EU:C:2011:125, paragraph 41).
68      While Article 9(3) cannot be relied on in order to assess the legality of Article 10(1) of Regulation No 1367/2006 (see to that effect, judgments of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 61, and of 13 January 2015, Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, C‑404/12 P and C‑405/12 P, EU:C:2015:5, paragraph 53), such a finding, in accordance with the case-law referred to in paragraph 66 of the present judgment, does not preclude the provisions of that regulation from being interpreted, so far as possible, in a manner that is consistent with the Aarhus Convention (see, to that effect, judgment of 3 September 2020, Mellifera v Commission, C‑784/18 P, not published, EU:C:2020:630, paragraph 77).
69      Such an 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 that convention.
70      As regards, in the second place, 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, it must be recalled, first, that, 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.
71      Second, 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.
72      It follows that the 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.
73      That 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.
74      As the Advocate General observed, in essence, in points 92 to 94 of her Opinion, 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.
75      In the light of the foregoing, the first part of the second ground of appeal and the third part of the third ground of appeal in Case C‑212/21 P as well as the first ground of appeal in Case C‑223/21 P must be rejected as unfounded.
The second and third parts of the second ground of appeal and the first and second parts of the third ground of appeal in Case C‑212/21 P as well as the second ground of appeal in Case C‑223/21 P, alleging infringement of Article 2(1)(f) and (g) of Regulation No 1367/2006
The concept of ‘environmental law’ within the meaning of Article 2(1)(f) of Regulation No 1367/2006
–       Arguments of the parties
76      The EIB, by the first and second parts of the third ground of appeal in Case C‑212/21 P, and the Commission, by the first part of the second ground of appeal in Case C‑223/21 P, criticise the General Court for having, in paragraphs 120 to 124 and 138 to 140 of the judgment under appeal, 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.
77      In that regard, the EIB and the Commission submit, first, that the concept of ‘legislation’ in Article 2(1)(f) of that regulation is a formal concept, defined by the procedure for adopting the act concerned. Thus, in accordance with Article 289 TFEU, only a provision contained in an EU act adopted on the basis of a provision of the Treaties providing for the adoption of that act either by the ordinary legislative procedure or by the special legislative procedure can be classified as ‘legislation’. Therefore, the General Court, in paragraphs 120 to 124 of the judgment under appeal, disregarded the requirements arising from Article 289 TFEU and gave an interpretation which goes beyond the concepts of ‘law’ and ‘legislation’ referred to in Article 2(1)(f) and (g) of Regulation No 1367/2006. They argue, in particular, that paragraph 121 of the judgment under appeal is vitiated by an error of law in that the General Court held therein that the distinction, introduced by the Treaty of Lisbon, between legislative acts and regulatory acts is irrelevant to the interpretation of Article 2(1)(f) of that regulation.
78      Next, the EIB and the Commission criticise the General Court for holding that the Statement of 2009 and the climate strategy are binding. In their view, those two instruments merely guide the EIB’s activity at the various stages of project evaluation, without limiting the exercise of the discretion enjoyed by that body. They argue that the fact that a project meets the eligibility criteria for financing under those instruments does not give rise to any right to receive EIB financing, any obligation for its Board of Directors to approve that financing, or any obligation for the EIB to sign a loan agreement, including after approval by the Board of Directors.
79      In their view, even assuming that the Statement of 2009 and the climate strategy limit the exercise of the EIB’s discretion, that limitation cannot be regarded as being imposed by a rule of law. Moreover, an internal directive whose sole effect is to compel an institution which departs from it to give reasons for its decision does not constitute a source of law. The concept of ‘legislation’, referred to in Article 2(1)(f) of Regulation No 1367/2006, therefore covers only rules which have an immediate binding legal effect on the citizen. That is not the case, however, with the guidelines under which an institution limits the exercise of its discretion for the future.
80      Lastly, the EIB and the Commission dispute the analogy drawn, in paragraph 123 of the judgment under appeal, between the EIB’s environmental lending policies and its internal staff rules. They claim that, in the latter area, the EIB acts as an administrative authority, since its decisions are amenable to judicial review, whereas the EIB’s environmental lending policy falls within the scope of its financial role and does not result in administrative decisions amenable to judicial review on the substance.
81      ClientEarth disputes the merits of all those arguments.
–       Findings of the Court
82      By their arguments, the EIB and the Commission take issue with the General Court for having wrongly held, in paragraphs 120 to 124 and 138 to 140 of the judgment under appeal, that both the Statement of 2009 and the climate strategy fall within the concept of ‘environmental law’ within the meaning of Article 2(1)(f) of Regulation No 1367/2006 and, therefore, that the resolution of 12 April 2018 was adopted ‘under environmental law’ within the meaning of Article 2(1)(g) of that regulation.
83      The concept of ‘environmental law’ is defined in Article 2(1)(f) of Regulation No 1367/2006 as covering ‘[EU] legislation, which, irrespective of its legal basis, contributes to the pursuit of the objectives of [EU] policy on the environment’, referred to in Article 191(1) TFEU. As is apparent from recital 10 of that regulation, the reference to those objectives is justified in so far as ‘environmental law is constantly evolving’.
84      It follows from the very wording of Article 2(1)(f) of Regulation No 1367/2006, read in conjunction with recital 10 of that regulation, that the EU legislature intended to give the concept of ‘environmental law’ a broad scope.
85      In that context, the fact that, in certain language versions, such as the Spanish, English, French or Portuguese versions, Article 2(1)(f) of Regulation No 1367/2006 refers to ‘legislation’ or ‘any legislative provision’ does not mean, contrary to the position taken by the EIB and the Commission, that the concept of ‘environmental law’ is, for the purposes of the application of that regulation, limited to legislative acts, within the meaning of Article 289(3) TFEU. As the Advocate General observed in point 118 of her Opinion, in other language versions, in particular the German language version, Article 2(1)(f) of Regulation No 1367/2006 uses the broader concept of ‘legal rules’, which may include any legally binding measure of general application.
86      In those circumstances, in accordance with the case-law of the Court, that provision must be interpreted by reference to the purpose and general scheme of the legislation of which it forms part (see, to that effect, judgment of 24 February 2022, Tiketa, C‑536/20, EU:C:2022:112, paragraph 27 and the case-law cited).
87      Having regard to paragraph 84 of the present judgment and to the objectives of EU policy on the environment, a broad interpretation of the concept of ‘environmental law’ is required, in the sense that it covers any EU act which, irrespective of its legal basis, contributes to the achievement of the objectives of that policy, as set out in Article 191(1) TFEU (see, to that effect, judgment of 8 November 2022, Deutsche Umwelthilfe (Approval of motor vehicles), C‑873/19, EU:C:2022:857, paragraph 53). The fact that, according to the very wording of Article 2(1)(f) of Regulation No 1367/2006, the legal basis on which an act is adopted is not a relevant criterion for the purposes of its classification as ‘environmental law’ permits the inference that the procedure for the adoption of that act, which determines, in accordance with Article 289 TFEU, whether or not it is legislative in nature, is not a relevant criterion either for the purposes of that classification.
88      In the present case, the EIB’s Board of Directors, when deciding to grant financing on the basis of Article 9(1) and Article 19(3) of the Statute of the EIB, cannot, without justification, depart from the environmental criteria relating to the eligibility of projects for financing which flow from the Statement of 2009 and the climate strategy, which the EIB has imposed on itself to follow in its lending activity under pain of being found, as the case may be, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see, by analogy, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 and 211).
89      The General Court therefore did not err in law in finding, in paragraphs 122 to 124 of the judgment under appeal, that the Statement of 2009 and the climate strategy fall within the concept of ‘environmental law’, within the meaning of Article 2(1)(f) of Regulation No 1367/2006, since they define the environmental criteria relating to the eligibility of projects for EIB financing and, therefore, circumscribe the EIB’s activity in relation to the granting of loans for the purpose of achieving the objectives of the FEU Treaty in environmental matters.
90      Nor did the General Court err in law, in paragraphs 138 to 140 of the judgment under appeal, in holding that, in so far as it found that the Curtis project satisfied the environmental criteria relating to the eligibility of projects for EIB financing arising from those two acts, the resolution of 12 April 2018 had been adopted ‘under environmental law’, within the meaning of Article 2(1)(g) of Regulation No 1367/2006.
91      In the light of the foregoing, the first and second parts of the third ground of appeal in Case C‑212/21 P, and the first part of the second ground of appeal in Case C‑223/21 P, must be rejected as unfounded.
The concept of a ‘measure of individual scope’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006
–       Arguments of the parties
92      By the second part of the second ground of appeal in Case C‑223/21 P, the Commission criticises the General Court for having, in paragraphs 126 to 142 of the judgment under appeal, disregarded the case-law according to which the concept of a ‘measure of individual scope’, within the meaning of Article 2(1)(g) of Regulation No 1367/2006, must be interpreted in accordance with the criteria arising from Articles 263 and 288 TFEU. The General Court allegedly held, in breach of the principles set out in paragraphs 65 to 67 and 84 to 86 of the judgment of 3 September 2020, Mellifera v Commission (C‑784/18 P, not published, EU:C:2020:630), that, in order to classify the resolution of 12 April 2018 as a ‘measure of individual scope’, it was sufficient that, by that resolution, the EIB’s Board of Directors expressed a final view on the attainment of certain environmental objectives. That approach thus implies that non-binding acts, such as recommendations and opinions, may become the subject matter of a request for internal review, on the basis of Article 10(1) of that regulation, and then of an action under Article 12(1) of that regulation.
93      In support of the Commission, the EIB submits that the resolution of 12 April 2018 constitutes an internal act, the only effect of which is to enable the departments of that body to continue the contractual negotiations for the financing approved, with the result that it is not of individual concern to external persons.
94      ClientEarth contends that the argument that the act which is the subject of a request for internal review must be regarded as a ‘measure of individual scope’, within the meaning of Article 2(1)(g) of Regulation No 1367/2006, was not raised by either the EIB or the Commission before the General Court, with the result that the Commission is not entitled to rely on that argument at the appeal stage, in view of the fact that it is new. In any event, according to ClientEarth, the resolution of 12 April 2018 is a ‘measure of individual scope’, since it applies to a specific request concerning the financing of the Curtis project.
–       Findings of the Court
95      By its line of argument, the Commission complains that, in paragraphs 126 to 142 of the judgment under appeal, the General Court erred in law in the interpretation and application of the concept of a ‘measure of individual scope’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006, by attributing such a scope to the resolution of 12 April 2018.
96      As regards, in the first place, the question, raised by ClientEarth, of whether the Commission is entitled to challenge, at the appeal stage, the judgment under appeal in so far as it allegedly wrongly classified the resolution of 12 April 2018 as a ‘measure of individual scope’, it must be recalled that an appellant is entitled to bring an appeal relying, before the Court of Justice, on pleas and arguments arising from the judgment under appeal itself which seek to criticise its merits in law (see, to that effect, judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, not published, EU:C:2007:730, paragraph 17, and of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraph 47 and the case-law cited).
97      The Commission is therefore entitled to challenge, at the appeal stage, the classification of the resolution of 12 April 2018 as a ‘measure of individual scope’ by the General Court in paragraphs 140 and 142 of the judgment under appeal.
98      In the second place, as regards the merits of that classification, it should be borne in mind that, in order to determine whether a measure is of general or individual application, the Courts of the European Union must take account, in the first place, of its purpose and content. An act is of general application within the meaning of Article 288 TFEU if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract. As regards the second criterion, the general application of a measure is not called into question by the fact that it is possible to determine more or less exactly the number or even the identity of the persons to whom it applies at any given time, as long as it applies to them by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose (see, to that effect, judgment of 3 September 2020, Mellifera v Commission, C‑784/18 P, not published, EU:C:2020:630, paragraphs 65 to 67 and the case-law cited).
99      In the present case, the resolution of 12 April 2018, in so far as it approves the financing proposal for the Curtis project in the light of its environmental and social aspects, concerns a specific situation, namely the financing of that project, and produces legal effects vis-à-vis the promoter of that project, by enabling the promoter to take the steps needed to formalise the loan.
100    The General Court therefore did not err in law in holding, in paragraphs 140 and 142 of the judgment under appeal, that that resolution constitutes a ‘measure of individual scope’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006.
101    Accordingly, the second part of the second ground of appeal in Case C‑223/21 P must be rejected as unfounded.
The concept of ‘legally binding and external effects’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006
–       Arguments of the parties
102    The EIB, by the second and third parts of the second ground of appeal in Case C‑212/21 P, and the Commission, by the third part of the second ground of appeal in Case C‑223/21 P, criticise the General Court for having wrongly held that the resolution of 12 April 2018 produces legally binding and external effects, within the meaning of Article 2(1)(g) of Regulation No 1367/2006, in that it reflects a definitive position adopted by the EIB’s Board of Directors concerning the eligibility of the Curtis project for EIB financing in the light of its environmental and social aspects. It claims that that resolution does not grant an individual right to receive financing from the EIB, since the relationship between that body and the potential borrower would become legally binding only upon signature of the relevant contract. No legally binding effect can therefore be linked to that resolution.
103    The judgment under appeal is, moreover, vitiated by contradictory reasoning, in so far as the General Court allegedly found, at the same time, that the resolution of 12 April 2018 produces legal effects with regard to the promoter of the Curtis project and, in paragraphs 167 to 170 of that judgment, that that resolution did not amount to a ‘legal undertaking to grant the … loan’ and that the procedure continued following its adoption.
104    In that regard, the EIB submits that a resolution of its Board of Directors, adopted on the basis of Article 19(3) of the Statute of the EIB, constitutes a single decision to finance a project, without it being possible to distinguish a ‘financial part’ that is not final and does not have binding and external effects from an ‘environmental part’ that is final and legally binding vis-à-vis third parties.
105    In any event, the existence of legally binding and external effects, within the meaning of Article 2(1)(g) of Regulation No 1367/2006, should have been established with regard to ClientEarth’s legal situation. The General Court, after examining, in paragraph 170 of the judgment under appeal, the legal situation of the promoter of the Curtis project, allegedly confirmed that no effect of that type had occurred vis-à-vis ClientEarth.
106    ClientEarth disputes the merits of all those arguments.
–       Findings of the Court
107    By their arguments, the EIB and the Commission complain that the General Court erred in law in holding, in paragraphs 167 to 171 of the judgment under appeal, that the resolution of 12 April 2018 is an act with ‘legally binding and external effects’ within the meaning of Article 2(1)(g) of Regulation No 1367/2006.
108    In that regard, it is apparent from paragraph 149 of the judgment under appeal that the General Court, ‘in the interests of general consistency’, interpreted that concept in accordance with the concept of ‘acts … intended to produce legal effects vis-à-vis third parties’, referred to in the first paragraph of Article 263 TFEU, which excludes, in principle, acts which produce effects only within the internal sphere of the EU institution, body, office or agency which adopted them, without creating any rights or obligations vis-à-vis third parties (see, to that effect, judgments of 25 February 1988, Les Verts v Parliament, 190/84, EU:C:1988:94, paragraph 8, and of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 73 and the case-law cited).
109    In paragraphs 167 to 171 of the judgment under appeal, the General Court found, in accordance with that case-law, that the resolution of 12 April 2018 fixes definitively the position adopted by the EIB’s Board of Directors concerning the eligibility of the Curtis project for EIB financing in the light of the environmental and social aspects of that project and, therefore, that that resolution produces legal effects vis-à-vis third parties, in particular the promoter of that project, in so far as it found that that project was eligible for EIB financing in the light of its environmental and social aspects, thus enabling that promoter to take the steps needed to formalise the loan.
110    No contradiction can be identified between, on the one hand, the finding that the environmental aspects of the Curtis project had been the subject of a final determination and, on the other hand, the circumstances, also noted in those paragraphs of the judgment under appeal, that the resolution of 12 April 2018 did not constitute a ‘legal undertaking to grant the … loan’ and that the procedure for granting that financing continued, since other technical, economic and financial aspects of that project remained to be audited.
111    Furthermore, the EIB’s argument that the General Court erred in law in holding, in paragraphs 167 to 170 of the judgment under appeal, that the resolution of 12 April 2018 contained a ‘financial part’ distinguishable from an ‘environmental part’ and that only the latter was definitive and legally binding vis-à-vis third parties, is based on a misreading of those paragraphs. The General Court merely noted in those paragraphs that that resolution establishes definitively the eligibility of the Curtis project for EIB financing, in the light of the environmental and social aspects of that project, but it did not in any way hold that that resolution was based on a formal separation between those aspects and the financial or other aspects concerning that project.
112    Furthermore, the argument that the General Court, in paragraph 170 of the judgment under appeal, should have assessed whether the resolution of 12 April 2018 has ‘legally binding and external effects’, within the meaning of Article 2(1)(g) of Regulation No 1367/2006, vis-à-vis ClientEarth has no basis in that regulation. Neither that provision nor Article 10(1) of that regulation requires the administrative act which is the subject of a request for internal review to have legally binding and external effects vis-à-vis the non-governmental organisation which makes that request.
113    In the light of the foregoing, the second and third parts of the second ground of appeal in Case C‑212/21 P, and the third part of the second ground of appeal in Case C‑223/21 P, must be rejected as unfounded.
114    Having regard to all of the foregoing considerations, the appeals must be dismissed in their entirety.
Costs
115    In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. In accordance with Article 138(1) of those rules of procedure, which applies to the procedure on appeal 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.
116    Since ClientEarth has applied for costs against the EIB and the Commission and the latter have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by ClientEarth in each of the two appeals.
On those grounds, the Court (Third Chamber) hereby:
1.      Dismisses the appeals;
2.      Orders the European Investment Bank (EIB) and the European Commission to bear their own costs and to pay the costs incurred by ClientEarth.
Jürimäe
Safjan
Piçarra
Jääskinen
Gavalec
Delivered in open court in Luxembourg on 6 July 2023.
A. Calot Escobar
K. Jürimäe
Registrar
President of the Chamber
*      Language of the case: English.