The President
Werner Hoyer
European Investment Bank
98-100, boulevard Konrad Adenauer
L-2950 Luxembourg
Luxembourg
Date December 10th 2021
REQUEST FOR INTERNAL REVIEW
NLVOW Nederlandse Vereniging Omwonenden Windturbines
Greveling 8
9654 PT Annerveenschekanaal
Nederland
Dear President, Mr Hoyer,
I am writing to you on behalf of
Nederlandse Vereniging Omwonenden Windturbines
(NLVOW) in order to submit a formal request for an internal review pursuant to Article 10 of
Regulation (EC) 1367/2006, as amended by Regulation (EU) 2021/1767, 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 (hereafter the “Aarhus Regulation (as amended)”).
It is has come to the attention of NLVOW, that the European Investment Bank is engaged in
funding the National Energy and Climate Plans (NECPs) and the associated Projects of
Common Interest in circumstances wherein, we are given to understand, that the European
Union has failed to comply with its legal obligations, including those set out in the Aarhus
Convention. In that regard, we are of the view that the EIB’s aforesaid engagement constitutes
an ‘administrative act(s)’ as defined in Article 1 of the Aarhus Regulation (as amended)”)
which defines an administrative act as follows:
Request Letter from NLVOW to EU EIB December 10th 2021
1
‘
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);
The Union’s failure to comply with its legal obligations, including the provisions of the Aarhus
Convention relative to the NECPs and associated projects (as decided by the United Nations
Economic Commission for Europe (UNECE) in October 2021), is ongoing.
We are sure you will appreciate from the foregoing that implications of a legal nature clearly
arise for the EIB which undoubtedly have a significant bearing upon the European Investment
Bank’s funding of the NECPs and associated projects in our jurisdiction. It is the opinion of
NLVOW
that this matter warrants your immediate attention. We therefore call upon the EIB
to conduct an internal review and to take all necessary action to address this matter forthwith
so as to ensure compliance with the law and/or environmental law, and in particular, in relation
to the Netherlands NECP (“Integraal Nationaal Energie- en Klimaatplan 2021-2030”, INEK,
November 25th of 2019) .
LEGAL BASIS FOR REQUEST
NLVOW is entitled to submit this request for internal review on the grounds that our
organisation fulfils the criteria set out in Article 11 of Regulation (EC) 1367/2006 (as amended
by Regulation (EU) 2021/1767), (hereafter referred to as the “Aarhus Regulation”). NLVOW
is an independent non-profit making legal entity registered in accordance with [Insert Member
State] law. Please see NLVOW’s Memorandum and Articles of Association enclosed herewith
(see Annex 1). NLVOW was founded in 2013 with the aim of of (see article 2 of the attachment
1 (Statutes) of Annex 1):
1. The purpose of the association is: to look after and defend the interests of local residents
with respect to (plans for) wind energy projects in their environment
2. The association endeavors to achieve this aim, inter alia, by:
preparing and offering information to local residents about opportunities to defend their
interests in wind energy projects in their environment;
preparing and offering information to politicians and administrators about the
advantages and disadvantages for residents living near wind energy projects;
the dissemination of knowledge and fact-based information on wind energy projects to
the general public through website(s), publications and social media;
Request Letter from NLVOW to EU EIB December 10th 2021
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the making of agreements with experts, in particular legal service providers, to assist
local residents in proceedings and other activities;
organizing conferences and workshops on the social, medical, economic and technical
aspects of wind energy;
and the conducting legal proceedings and carrying out actions required in the in the
broadest sense promotes the aims of the association
The subject matter of this request for an internal review is covered by the objective and
activities of our organisation.
GROUNDS FOR SEEKING INTERNAL REVIEW
The primary ground for making the within request relates to the EU’s ongoing non-compliance
with international law which thereby affects, directly and/or indirectly, the acts of the EIB
relative to both its aforesaid funding activities and its legal obligations.
In 2010, the UNECE, through its Aarhus Convention Compliance Committee (the “ACCC”),
initiated a compliance investigation against the EU concerning the implementation of Directive
(2009/28/EC) in the Republic of Ireland and the National Renewable Energy Action Plans
(NREAPs). As a result of its findings during the foregoing investigation, the ACCC declared
the EU to be non-compliant with international law. This resulted in the UNECE engaging in
compliance proceedings against the EU over the course of the following decade. This
investigation was entitled
Communication ACCC/C/2010/54 and its findings and
recommendations were adopted on 2nd October 2012 1.
In June 2014, a Meeting of the Parties (MoP) took place in Maastricht, Belgium (this was the
5th Meeting of the Parties of the Aarhus Convention). The Parties adopted decision V/9g in
relation to ACCC’s findings and recommendations noted in ACCC/C/2010/54 (
cf.
https://unece.org/env/pp/cc/european-union-decision-v9g). Pursuant to the ACCC’s decision
V/9g of Non-Compliance in International Law, the MoP found the EU to be in breach of
international law and declared that the EU was obliged to demonstrate the following [Emphasis
added]:
1 cf. https://unece.org/env/pp/cc/accc.c.2010.54_european-union
Request Letter from NLVOW to EU EIB December 10th 2021
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(a) That it had adopted a proper regulatory framework and/or clear instructions
for implementing Article 7 of the Convention with respect to the adoption of
National Renewable Energy Action Plans (NREAPs);
(b) It would ensure that the arrangements for public participation in its Member
States are
transparent and fair and that within those arrangements the
necessary information is provided to the public;
(c) It would ensure that the requirements of Article 6, paragraphs 3, 4 and 8, of
the Convention are met, including
reasonable time frames, allowing sufficient
time for informing the public and for the public to prepare and participate
effectively, allowing for
early public participation when all options are
open, and ensuring that
due account is taken of the outcome of the public
participation;
(d) It had adapted the manner in which it evaluates NREAPs accordingly.
In the interim between the 5th ACCC Meeting of the Parties (MoP) in 2014 and the 6th MoP in
September 2017, the
ACCC continued to investigate the EU over its ongoing failure to comply
with its decision V/9g as referred to above.
Thereafter, the ACCC engaged in further investigations between September 2017 and October
2021, when the 7th MoP took place in Geneva. During that period, the ACCC focused on the
adoption of the
National Energy and Climate Plans (NECPs) for the period 2021 – 2030.
Following a detailed analysis during the 7th MoP between 18th to 21st October 2021, the ACCC
concluded that the NECPs have been unlawfully adopted by the EU, constituting a repeat of
the same failures in respect of compliance with the provisions of the Aarhus Convention which
were inherent in the EU’s adoption of the NREAPs in the past.
During the 7th MoP, the ACCC observed that the EU had failed to comply with all of the
requirements set out in the Committee’s decision V/9g as adopted by the parties in 2014. In
that regard, VII/8f (as amended) was adopted on 21st October 2021 concerning the EU’s said
non-compliance.
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Accordingly, the NECPs were declared unlawful in international law (and hence EU law). In
this regard, the ACCC concluded that:
“
(a) The Party concerned has put in place a regulatory framework that meets the
requirements of article 6 (3) of the Convention with respect to NECPs but has not yet
demonstrated that it has adopted either a proper regulatory framework or clear
instructions to ensure that the other requirements of article 7 are met in the adoption
of NECPs, as required by the first three sentences of paragraph 3 of decision V/9g;
(b) While welcoming the fact that the Party concerned has carried out an assessment
of public participation on each member State’s NECP, albeit in brief, the Party
concerned has not yet met the requirements of the final sentence of paragraph 3 of
decision V/9g.”2
The ACCC further stated:
“
The Committee recommends to the Meeting of the Parties that it reaffirm its decision
V/9g and, in particular, request the Party concerned, as a matter of urgency:
(a) To provide the Committee with evidence that it has adopted a proper regulatory
framework and/or clear instructions for implementing article 7 of the Convention with
respect to the adoption of NECPs, and, in particular, to take the necessary legislative,
regulatory or practical measures to:
(i) Ensure that the arrangements for public participation in its member States are
transparent and fair and that, within those arrangements, the necessary information
is provided to the public;
(ii) Ensure that the adopted regulatory framework and/or clear instructions ensure
that the requirements of article 6 (4) and (8) of the Convention are met, including
allowing for early public participation when all options are open, and ensuring that
due account is taken of the outcome of the public participation;
2 https://unece.org/sites/default/files/2021-09/ECE.MP_.PP_.2021.51_ac.pdf, para 144.
Request Letter from NLVOW to EU EIB December 10th 2021
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(b) To adapt the manner in which it evaluates NECPs accordingly.” 3
In light of the foregoing, it is evident that the EU’s acts and omissions are very much at odds
with the requirement of strict observance with international law as enshrined in Art 3 (5) TEU
(
ex Article 2 TEU) and, therefore, constitute a breach of both international and EU law which
the EU has to date failed to address and rectify.
Funding by the European Investment Bank (EIB)
The NECPs define renewable capacity, interconnectors, and similar infrastructure to be
delivered between 2021 and 2030 in the European Union. Furthermore, NLVOW understands
that the EIB intends to leverage a trillion Euro in climate related investments over the
forthcoming decade. From various publications NLVOW
deduces that about 4 billion Euro’s
will be funded each year by the EIB to projects in the Netherlands, of which a larger part will
be spent on supporting the targets of the Netherlands NECP 2021-2030.
NLVOW has also taken note of the conclusions of the EU Ombudsman, case 1251/2020/PB of
June 8th 2021, that, in short, the EIB is not sufficiently transparent to determine how much
funding above or under 25 million Euro’s is provided by the EIB to energy projects related to
the Netherlands NECP 2021-2030. However, the Netherlands NECP 2021-2030 refers to the
European Fund for Strategic Investment (EFSI) of the EIB as a potential source for financing
projects and other activities that will contribute to achieving the goals of the NECP.
It is common case that as a matter of EU law the NECPs must undergo Strategic Environmental
Assessment (SEA) before adoption, which incorporates the requirements of Article 7 of the
Aarhus Convention. NLVOW
understands that no such assessments have taken place in the
instant matter in relation to the Netherlands NECP 2021-2030. In view of the above
observations on the Aarhus Convention, the NLVOW finds it remarkable that in its first
paragraph the Netherlands NECP states quite openly that only a small and selected group of
stakeholders had been was participating in drafting the plan, while clearly there was no citizen
participation at the moment when all options were open. On the contrary: after finishing a first
draft of the plan just a limited set of questions were submitted to the public in the form of an
internet consultation.
3 Ibid, para 145.
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Moreover, the NLVOW also draws the attention of the EIB to the fact that in a decision of June
30, 2021 in case 201504506/1/R6 the Council of State ruled that national norms on windturbine
noise and shadow flicker could no longer be used in granting permits for wind farms as these
norms were in violation of EU law on the ground they had been adopted in 2010 without a
proper SEA. Since then there has been a great deal of legal uncertainty on the procedures to
approve new wind farm projects and even on the validity of permits granted in the past.
So far the NLVOW has not seen any information on the EIB’s website that suggests the EIB
is aware of this situation and the legal issues and uncertainties that arise from it.
These observations lend strength to the view of the NLVOW that the EIB has failed to comply
with the provisions of the Aarhus Convention, namely, Article 7 thereof. Therefore, the EIB is
in breach of both international and EU law. Accordingly, this is of significant import regarding
the EIB’s aforesaid NECP funding activities in our jurisdiction.
As you will no doubt be aware, Article 1 of the Statute of the EIB states:
“The European Investment Bank established by Article 308 of the Treaty on the
Functioning of the European Union (hereinafter called the ‘Bank’) is hereby
constituted; it shall perform its functions and carry on its activities in
accordance with the provisions of the Treaties and of this Statute.”
In light of the forgoing, it is the respectful opinion of NLVOW that the EIB’s NECP funding
activities in our jurisdiction must be addressed as a matter of urgency in order to ensure full
compliance with EU law and/or environmental law.
The following documents are enclosed herewith (see
Annex 1):
The Applicant’s statutes of the organisation;
The Applicant’s Annual reports for two years prior to this request;
Evidence of the Applicant’s registration as a non-profit organisation in The Netherlands
The Applicant’s technical background for making this request;
Request Letter from NLVOW to EU EIB December 10th 2021
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CONCLUSION
In light of the foregoing,
NLVOW respectfully asks the EIB to do the following:
Conduct an internal review of the EIB’s funding of the Netherlands NCEP in light of
the ongoing non-compliance with international and EU law, and in particular VII/8f (as
amended), adopted on 21st October 2021;
More specifically, the NLVOW requests the EIB in its internal review to address the
following questions: (1) has the EIB provided EFSI funding to projects and other
activities that are associated with the NL NECP 2021-2030; (2) has the EIB received
applications for EFSI funding for projects and other activities that are associated with
the NL NECP 2021-2030; and (3) has the EIB provided EFSI funding to projects and
other activities that are associated with the NL NECP 2011-2020 ?
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;
Inform the applicant herein about its decision in relation to the foregoing.
Thank you in advance for your kind consideration.
Yours sincerely,
For and on behalf of
Nederlandse Vereniging Omwonenden Windturbines (NLVOW)
Hendrik R.A.L. Kranenburg, Chairman of the Board
Commissioned
Jan J. Tiemersma, Board member
Annex 1 added in 4 attachments
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Annex 1
To Letter “REQUEST FOR INTERNAL REVIEW” of December 10th 2021,
Att. of the President of the European Investment Bank
In 4 attachments:
1. The Applicant’s statutes of the organisation;
Please see attached Statutes registered at Notariat mr. Martine Wouters at Veendam (NL) and
registered at Dutch National Chamber of Commerce nr KVK 58814965
2. The Applicant’s Annual reports for two years prior to this request;
Please see attached official notes of members yearly meetings over the years 2019 and 2020,
together with financial reports over these years, accorded in said yearly meetings,
And,
Please see also list of activities reported in those yearly meetings, acknowledged in the open society
and several governmental institutes, as presented in attachment 4
3. Evidence of the Applicant’s registration as a non‐profit organisation in The Netherlands
Please see attached official copy of registration at the Dutch National Chamber of Commerce under
number KVK 58814965
4. The Applicant’s technical background for making this request;
Please see attached quotes on national relevance and lists of yearly activities