Case T-535/23: Action brought on 23 August 2023 — CEE Bankwatch Network and Ökobüro v Council
Date: 2023-08-23
Institutions: General Court
Subjects: EU energy policy, EU environmental policy, admissibility, energy production, environmental law, legal basis, principle of proportionality, protocol to an agreement, renewable energy, transparency in decision-making








C_202300221EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/221


23.10.2023





Action brought on 23 August 2023 — CEE Bankwatch Network and Ökobüro v Council
(Case T-535/23)
(C/2023/221)
Language of the case: English

Parties


Applicants: CEE Bankwatch Network z.s. (Prague, Czech Republic), Ökobüro — Allianz der Umweltbewegung (Vienna, Austria) (represented by: M. Metzler, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:






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annul the decision of the Council (SGS 23/00027), conveyed to the applicants on 13 June 2023, by which the Council considers that the applicants’ request for internal review dated 20 February 2023, brought pursuant to Article 10 of Regulation (EC) No 1367/2006 of the European Parliament and of the Council (1) in relation to Council Regulation (EU) 2022/2577 (2) is inadmissible and, in the alternative, that it is not necessary to review Regulation 2022/2577 in view of the applicable environmental law (‘the contested decision’); and










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order the defendant to meet the applicants’ costs of these proceedings.





Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.






1.


First plea in law, alleging an error of law regarding the admissibility of the request for internal review, in that, in the contested decision, the Council considers that Regulation 2022/2577 is not an administrative act within the meaning of Article 2(1)(g) of Regulation No 1367/2006 and therefore considered the applicants’ request under Article 10 of Regulation No 1367/2006 as inadmissible. In their first plea, the applicants submit that the contested decision is ill-founded and that Regulation 2022/2577 constitutes an administrative act subject to Article 10 of Regulation No 1367/2006.










2.


Second plea in law, alleging errors of law in considering that Article 122 TFEU was the correct legal basis for Regulation 2022/2577. In their request for internal review under Article 10 of Regulation No 1367/2006, the applicants demonstrated that Article 122 TFEU did not serve as a sufficient legal basis for Regulation 2022/2577 and was also not complied with by the Council (also with regard to the proportionality principle under Article 296 TFUE), and that the adoption of Regulation 2022/2577 also breached Article 8 of the Aarhus Convention. In their second plea, the applicants submit that the contested decision is legally flawed, in that it fails to acknowledge the abovementioned legal defects of Regulation 2022/2577.










3.


Third plea in law, alleging a manifest error of assessment with regard to the contravention of environmental law:






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a manifest error of assessment with regard to the contravention of primary European Union law. In their request for internal review under Article 10 of Regulation No 1367/2006, the applicants demonstrated that Articles 3, 5 and 6 of Regulation 2022/2577 contravened Articles 191 and 194 TFEU. In their third plea, the applicants submit that the Council committed a manifest error of assessment in the contested decision, by implausibly considering that Articles 3, 5 and 6 of Regulation 2022/2577 do not contravene Articles 191 and 194 TFEU and that Regulation 2022/2577 therefore did not need to be reviewed.










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a manifest error of assessment with regard to the contravention of international obligations of the Union. In their request for internal review under Article 10 of Regulation No 1367/2006 the applicants demonstrated that Regulation 2022/2577 (in particular Articles 3, 5 and 6 thereof) contravened Article 6 of Aarhus Convention, Articles 2, 3, 6, 7, 10, 12 and, thus, Article 17 (Implementation) of the Protocol on the implementation of the Convention on the protection of the Alps of 1991 (‘the Alpine Convention’) in the field of energy and Articles 3, 7 and 9 of the Protocol on the implementation of the Alpine Convention in the field of soil conservation. In their third plea, the applicants submit that the Council committed a manifest error of assessment in the contested decision, by implausibly considering that Regulation 2022/2577 (in particular Articles 3, 5 and 6 thereof) does not contravene the abovementioned provisions laid down in international agreements and that Regulation 2022/2577 therefore did not need to be reviewed.










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a manifest error of assessment with regard to the contravention of secondary European Union law. In their request under Article 10 of Regulation No 1367/2006, the applicants demonstrated that Articles 3, 5 and 6 of Regulation 2022/2577 contravened Articles 1, 2, 3, 4, 6, 8, 8a, 10a and 11 of Directive 2011/92/EU of the European Parliament and of the Council (3), Articles 6(4) and 16(1)(c) of Council Directive 92/43/EEC (4), Article 4(7) of Directive 2000/60/EC of the European Parliament and of the Council (5) and Article 9(1)(a) of Directive 2009/147/EC of the European Parliament and of the Council. (6) In their third plea, the applicants submit that the Council committed a manifest error of assessment in the contested decision, by implausibly considering that Articles 3, 5 and 6 of Regulation 2022/2577 do not contravene the aforementioned secondary European Union law provisions and that Regulation 2022/2577 therefore did not need to be reviewed.










(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).

(2)  Council Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy (OJ 2022 L 335, p. 36).

(3)  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).

(4)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

(5)  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1).

(6)  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).


ELI: http://data.europa.eu/eli/C/2023/221/oj
ISSN 1977-091X (electronic edition)