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Court of Justice affirms application of the Aarhus Regulation internal review procedure to European Investment Bank


Court of Justice affirms application of the Aarhus Regulation internal review procedure to European Investment Bank

In Joined Cases C-212/21 P and C-223/21 P, the Court of Justice has dismissed appeals brought by the European Investment Bank (the ‘EIB’) and the European Commission against the judgment of the General Court in Case T-9/19, ClientEarth v European Investment Bank.

In 2018, the EIB’s Board of Directors agreed to provide financing to the construction of a biomass power generation plant in Spain.  ClientEarth, an NGO meeting the criteria for standing under the Aarhus Regulation, which is a measure intended to improve decision-making on environmental matters, submitted a request for internal review of that decision. 

The EIB rejected the request for internal review, stating that it was inadmissible because the internal review procedure did not apply to its financing decisions.  ClientEarth brought an action for annulment of this decision, arguing that, as an EU institution obliged to contribute to achieving the EU’s objectives, the EIB was bound in full by the Aarhus Regulation.  ClientEarth’s application for annulment was granted by the General Court (see the news item).

The EIB (and the Commission, which had intervened in support of the EIB) appealed, contending that the General Court had misconstrued the Aarhus Regulation and that its ruling was incompatible with the EIB’s independence, and with Article 271 TFEU. 

The Court of Justice rejected these arguments and dismissed the appeals.  The judgment therefore affirms that the EIB is subject to a duty to conduct an internal review of its financing decisions, where such a review is sought by an environmental NGO.

The Court of Justice’s judgment is available here

James Flynn KC, Sarah Abram KC and Hugo Leith (acting pro bono) were instructed directly by ClientEarth.  Hugo Leith represented ClientEarth at the oral hearing before the Court of Justice.