Action brought on 31 May 2022 — NLVOW v Commission

(Case T-331/22)

(2022/C 311/16)

Language of the case: English

Parties

Applicant: Nederlandse Vereniging Omwonenden Windturbines (NLVOW) (Annerveenschekanaal, Netherlands) (represented by: G. Byrne, Barrister-at-law)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul the decision of the Commission notified to the applicant by way of letter dated 1 April 2022 deeming inadmissible the applicant’s request for internal review dated 10 December 2021;

— further/or in the alternative, declare that the Commission has unlawfully failed to act when called upon to do so in accordance with the procedure specified in Article 265 TFEU by way of the applicant’s letter dated 10 December 2021 and/or failed to define its position regarding the applicant’s complaint therein;

— declare that, in circumstances wherein the Dutch NECP is non-compliant with the Aarhus Convention, it has been unlawfully assessed and/or adopted and/or published by the Commission, and is therefore in breach of EU and international law and/or is illegal;

— declare that the Commission failed in its positive obligations under EU and international law to take such measures as were necessary and appropriate in order to address and/or remedy the Dutch NECP’s non-compliance with the Aarhus Convention;

— declare that the ‘Governance Regulation’ (Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action), (1) does not give effect to the provisions of the Aarhus Convention, including Article 7 thereof, and as such is non-compliant with EU and international environmental law, and is therefore illegal;

— having regard to the NCEPs’ and, in particular, the Dutch NECP’s non-compliance with the Aarhus Convention, declare that the Commission’s failure to fulfil its obligations pursuant to the Governance Regulation constitutes a breach of the said Regulation, a violation of the Convention and, moreover, constitutes an infringement of the Treaties;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that the Commission’s decision communicated to the applicant by way of letter dated 1 April 2022 should be annulled. — The applicant submitted a request to the Commission by way of letter dated 10 December 2021. In response to the applicant’s said request letter, the Commission deemed the applicant’s request inadmissible. It is submitted that the Commission’s decision constitutes an administrative act as defined in the Aarhus Regulation (as amended). (2) The applicant contends that the Commission’s decision in that regard is fundamentally flawed, amounts to a breach of EU and international environmental law, and constitutes an infringement of the Treaties. The applicant contends that the Commission is in breach of its positive obligations under the Treaties and international law, including Articles 3, 6 and 7 of the Convention on Access to information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). — The applicant further claims that the Commission’s impugned decision has infringed secondary EU legislation including Articles 9 and 10 of the Aarhus Regulation (as amended). The applicant claims that the Commission’s decision violates the applicant’s right of access to justice in environmental matters under the Aarhus Convention and Aarhus Regulation (as amended). The applicant further contends that the Commission’s administrative act as defined in the Aarhus Regulation as amended constitutes an infringement of the Treaties.

2. Second plea in law, alleging further, or in the alternative to the first plea, that the Commission has failed to act within the meaning of Article 265 TFEU in relation to the NECPs assessed, adopted and publicised by the Commission including, in particular, the Dutch NECP. — In failing to act on foot of the applicant’s request for internal review submitted in accordance with Article 265 TFEU, the Commission breached its positive obligations under the Treaties, including in particular Article 3 TEU and Article 191 TFEU. This infringement also reflects a flagrant breach of the international and European customary and treaty law, including Articles 3, 6 and 7 of the Aarhus Convention, Articles 9 and 10 of the Aarhus Regulation (as amended), and Decision VII/8f (as amended), adopted on 21 October 2021.

3. Third plea in law, alleging an objection of illegality pursuant to Article 277 TFEU in respect of the Commission’s assessment and/or adoption and/or publication of the Dutch NECP, and the Commission’s failure to ensure its compliance with the Aarhus Convention.

4. Fourth plea in law, alleging an objection of illegality pursuant to Article 277 TFEU in respect of the Governance Regulation. (3)

(1) Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council (OJ 2018 L 328, p. 1).

(2) 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), as amended by Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 (OJ 2021 L 356, p. 1).

(3) See footnote 1 above for reference.