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People Over Wind
Cullenagh, County Laois
Ireland
Save the South Leinster Way
Castlebanny, County Kilkenny
Ireland
C/O - By email to:
P. Byrne -
xxxxxxxx@xxxxx.xxx
T. Heavey -
xxxxxxxxxx@xxxxx.xxx
EIB Corporate
Luxembourg, 1 April 2022
JU/CORP/CL/2022-4884/GF/KC/LM/av
Subject: Request for Internal Review pursuant to Regulation No 1367/2006
Dear Ms Byrne, dear Ms Heavey,
Reference is made to your requests, submit ed to the European Investment Bank (EIB), on 13
and 15 December 2021, pursuant to Article 10 of 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 (hereinafter “the Aarhus
Regulation”)
1, on behalf of ‘People Over Wind’ and ‘Save the South Leinster Way’
2. By your requests, you have asked the EIB to:
i)
conduct an internal review of the EIB’s funding of the National Energy and Climate
Plan (NECP) and associated projects in Ireland in light of what you refer to as
“the
ongoing non-compliance with international and EU law, and in particular [Decision]
VII/8f [of the Meeting of the Parties to the Aarhus Convention, concerning
compliance by the EU with its obligations under said Convention]”;
ii)
“
remedy the situation by taking all appropriate action in order to bring the EIB’s
funding activities into full compliance with international and EU law”.
1 As amended by Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021
(OJ L 356, 8.10.2021, p. 1-7), which entered into effect on 28 October 2021.
2 Requests submitted separately as follows: request of ‘People Over Wind’ submitted by email of 13 December
2021; request of ‘Save the South Leinster Way’ submitted by email of 15 December 2021.
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The competent services of the EIB have reviewed your requests in detail. Due to their identical
nature, the EIB has combined them in accordance with Article 10 (2) of the Aarhus Regulation.
This letter constitutes the EIB’s joint response to your requests for internal review, which, for
the reasons set out below, the EIB deems inadmissible.
Firstly, pursuant to Article 10 of the Aarhus Regulation, a request for an internal review may
be made with respect to an administrative act
3 (or omission), on the grounds that such act (or
omission) contravenes environmental law, within the meaning of Article 2(1)(f) of the Aarhus
Regulation
4. Furthermore, pursuant to the same Article 10, the request for internal review shall
be made within eight weeks after the administrative act at issue was adopted, notified or
published, whichever is the latest. The EIB also takes note of the fact that, pursuant to Article
1 of Commission Decision 2008/50/EC
5, any non-governmental organisation (NGO) which
submits a request for internal review of an administrative act or omission, within the meaning
of the Aarhus Regulation, shall specify that act or omission in its request.
It must be observed that your requests for internal review have not referred to a specific act of
the EIB, with respect to which an internal review is sought. Your requests do not, therefore,
satisfy the requirements of Article 10 of the Aarhus Regulation, nor can they be considered as
being suf iciently clear and precise. Incidentally, your failure to identify a specific act as the
subject-matter of your internal review requests leads to the impossibility for the EIB to confirm
compliance with the time-limits specified in Article 10 of the Aarhus Regulation for lodging
such requests. Hence, your requests must be deemed inadmissible.
Secondly, it is noted that your requests refer in general to a review of the EIB’s funding of
Ireland’s NECP and associated projects. This can be understood as, in essence, concerning
any potential financing approval granted by the EIB Board of Directors related to Ireland’s
NECP, which would have consequently led to the negotiation and conclusion of a finance
agreement.
In this regard, the EIB notes that the application of the internal review procedure under Article
10 of the Aarhus Regulation to the EIB is incompatible with the functional independence of the
EIB in the sphere of its financial operations as set out in the Treaties. That functional
independence is derived from various provisions of EU primary law, most notably:
Article 15(3) of the Treaty on the Functioning of the EU (TFEU) which clearly
demonstrates that the EIB carries out, on the one hand, administrative tasks and, on
the other, non-administrative tasks;
Article 271(c) TFEU which provides that only the Commission and Member States can
challenge financing approvals of the EIB Board of Directors and only for procedural
grounds;
3 Pursuant to Article 2(1)(g) of the Aarhus Regulation, as amended in October 2021,
“‘administrative act’ means
any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains
provisions that may contravene environmental law within the meaning of point (f) of Article 2(1) [of the Aarhus
Regulation]”.
4 Pursuant to Article 2(1)(f) of the Aarhus Regulation,
“‘environmental law’ means Union legislation which,
irrespective of its legal basis, contributes to the pursuit of the objectives of Union policy on the environment as set
out in the TFEU : preserving, protecting and improving the quality of the environment, protecting human health, the
prudent and rational utilisation of natural resources, and promoting measures at international level to deal with
regional or worldwide environmental problems”.
5 Commission Decision of 13 December 2007, laying down detailed rules for the application of Regulation (EC)
No 1367/2006 of the European Parliament and of the Council on the Aarhus Convention as regards requests for
the internal review of administrative acts, OJ L 13, 16.1.2008.
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Articles 308 and 309 TFEU which provide for the EIB’s legal, institutional and financial
autonomy within the EU system.
It is clear from these provisions of EU primary law that the EIB has a dual function which
results in it carrying out administrative and non-administrative tasks and rendering, by way of
consequence, administrative and non-administrative acts. When acting within the realm of the
latter, its functional independence must be preserved so that it can exercise its commercial
discretion as accorded to it by the Treaties and enshrined in the EIB Statute
6. Financing
approvals by the EIB Board of Directors fall undoubtedly within the scope of the EIB’s
non-
administrative tasks which, in turn, undoubtedly fall outside the scope of internal review of
administrative acts in accordance with the Aarhus Regulation.
Furthermore, Article 271(c) TFEU clearly shows that EIB Board of Directors approvals of
finance projects cannot be subject to judicial scrutiny by way of internal review requests
submit ed by those NGOs that meet the criteria set down in the Aarhus Regulation. Such
scrutiny is limited to very specific conditions that serve to protect the EIB’s commercial
discretion as accorded to it by the Treaties and enshrined in the EIB Statute.
In addition to the above and in view of its nature, a Board of Directors approval cannot be
considered to constitute a non-legislative act of general scope
7 within the meaning of the
Aarhus Regulation. Such approvals merely constitute internal non-administrative acts that, in
accordance with Articles 9 and 19 of the EIB Statute, are required prior to the commencement
of contract negotiations and consequent potential signature of a corresponding finance
agreement. They have no general application, their approval in no way automatically leads to
the signature of a finance agreement, nor does it create any right for the counterparty to
demand such signature. As such, a Board of Directors approval does not have any legal and
external effects, as required by the Aarhus Regulation
8, since an approval alone cannot create
any rights or obligations for a third party. Finally, and in light of the above, a Board of Directors
approval, which is a purely internal act paving the way for contract negotiations which may or
may not lead to an agreement, does not contain provisions capable of contravening
environmental law. A Board of Directors approval triggers contract negotiation but does not
contain provisions, the latter being reserved for the potential contract that follows. In view of
the foregoing, an approval by the Board of Directors to finance a project does not fall under
the definition of ‘administrative act’ set out in Article 2(1)(g) of the Aarhus Regulation.
For the sake of completeness, and in the absence of your identification of a specific act of the
EIB for which you request an internal review, the EIB notes that an internal review request of
a financing agreement would equally be inadmissible. Finance agreements concluded
between the EIB and its counterparties are agreements concluded on the basis of principles
6 https://www.eib.org/en/publications/statute-2020
7 As mentioned in Recital 8 of Regulation (EU) 2021/1767.
8 Reference is made in this regard to Recital 11 of Regulation (EU) 2021/1767, which clearly states that “
an act is
considered to have external effects, and thus to be capable of being subject to a request for review, if it is intended
to produce legal effects vis-à-vis third parties. Preparatory acts, recommendations, opinions and other non-binding
acts that do not produce legal effects vis-à-vis third parties and cannot therefore be considered to have external
effects, in accordance with the case law of the CJEU, should, therefore, not be considered to constitute
administrative acts under Regulation (EC) No 1367/2006”. Furthermore, Recital 12 of the same Regulation states
that
“[i]n order to ensure legal consistency, an act is considered to have legal effects, and thus to be capable of
being subject to a request for review, in accordance with Article 263 TFEU, as interpreted by the CJEU […].
Considering an act to have legal effects implies that an act can be subject to a request for review, regardless of its
form, as its nature is considered with regard to its effects, objective and its content.”
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of private law, and in no way can be considered as administrative acts amenable to internal
review in accordance with the Aarhus Regulation.
In light of the foregoing, even if your requests had been sufficiently precise and had specified
which act constituted their subject matter, they would have, been in any event considered
inadmissible for the reasons outlined above.
Furthermore, from your requests, it cannot be concluded in a definitive manner that the entities
your represent fully meet the eligibility criteria of Article 11 of the Aarhus Regulation
9 in order
to be entitled to make a request for internal review. Indeed, it does not unequivocally follow
from your requests that the entities have as their ‘primary’ and explicitly ‘stated’ objective the
promotion of environmental protection and whether this is carried out ‘in the context of
environmental law’. In addition, it has not been demonstrated that the entities have been
registered, are in existence, and have pursued their activities, for a period of at least two years
prior to submit ing the internal review request.
Considering that your requests are inadmissible on the grounds set out above, the EIB wil not
herein further elaborate on the eligibility of each entity. However, the present letter should in
no way be understood as an acknowledgement by the EIB that the entities you represent
satisfy the eligibility requirements of the Aarhus Regulation.
Please allow us to underline that the EIB firmly believes that stakeholders’ feedback and
constructive engagement can contribute to the quality of EIB activities. The EIB recalls that
several channels and accountability mechanisms are available for NGOs and other
stakeholders to constructively address their concerns and help us constantly improve our
financing in supporting EU policies
10.
Yours sincerely,
EUROPEAN INVESTMENT BANK
Marjut FALKSTEDT
Barbara BALKE
Secretary General
General Counsel
9 Pursuant to Article 11(1) of the Aarhus Regulation, an NGO is entitled to make a request for internal review,
provided inter alia that it has the primary stated objective of promoting environmental protection in the context of
environmental law and has existed as an independent non-profit-making legal person for more than two years,
actively pursuing this objective.
10 Contacts can be found on the EIB website: https://www.eib.org/en/index.htm
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