Action brought on 9 June 2022 — Stichting Nationaal Kritisch Platform Windenergie v Commission

(Case T-344/22)

(2022/C 311/17)

Language of the case: English

Parties

Applicant: Stichting Nationaal Kritisch Platform Windenergie (Schettens, Netherlands) (represented by: G. Byrne, Barrister-at-Law)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— Order the annulment of the Commission’s decision rejecting as inadmissible the applicant’s request to conduct an internal review, notified to the applicant by letter dated 1 April 2022, on grounds that it infringes the Treaties;

— Further/or in the alternative, declare that the Commission has unlawfully failed to act under Article 265 TFEU;

— 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 Regulation (EU) 2018/1999 of the European Parliament and of the Council (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 Regulation (EU) 2018/1999 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 as it constitutes an infringement of the Treaties and environmental law. In December 2021, the applicant submitted a request to the Commission asking it to conduct an internal review in respect of the matters set out therein concerning environmental law. In response to the applicant’s request for internal review the Commission deemed the applicant’s request inadmissible. 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 and negative 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 Regulation (EC) No 1367/2006 of the European Parliament and of the Council (2), and/or its obligations under Regulation (EU) 2018/1999. The applicant further claims that the Commission’s decision violates the applicant’s right of access to justice under the Aarhus Convention and Aarhus Regulation (as amended).

2. Second plea in law, alleging that the Commission has failed to act within the meaning of Article 265 TFEU in relation to the NECPs assessed, adopted and published by the Commission including, in particular, the impugned Dutch NECP. In failing to act, the Commission is in breach of its obligations under the Treaties and international law, including Articles 3, 6 and 7 of the Aarhus Convention. The applicant further claims that the Commission’s omission has infringed secondary EU legislation including, inter alia, Articles 9 and 10 of Regulation (EC) No 1367/2006 (as amended).

3. Third plea in law, alleging that the Commission’s failure to ensure the Dutch NECP’s full compliance with the Aarhus Convention means that the said NECP is, and has been at all material times, assessed, adopted and published in manifest breach of EU and international law and is therefore illegal. In that regard, the applicant further contends that the Commission’s failure to adopt and/or take appropriate measures to address and remedy the foregoing constitutes an omission on the part of the Commission in breach of Article 265 TFEU.

4. Fourth plea in law, alleging Regulation (EU) 2018/1999 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. Further or in the alternative, the applicant contends that Regulation (EU) 2018/1999 infringes the Treaties. Accordingly, the applicant contends that Regulation (EU) 2018/1999 ought to be declared illegal.

(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).