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ClientEarth v. European Investment Bank

Jurisdiction: General Court

Side A: ClientEarth (Ngo)

Side B: European Investment Bank (Government)

Core objectives: Whether finance decisions by the European Investment Bank may be subject to requests for internal review under the Aarhus Convention over their potential environmental harm.

On January 8, 2019, environmental NGO ClientEearth filed suit in the EU General Court against the European Investment Bank (EIB), alleging that the bank had improperly rejected ClientEarth's petition for an internal review of the Bank's decision to finance a biomass power plant. ClientEarth argued that in rejecting its petition for internal review, the EIB misapplied the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.

The EIB agreed to provide a 60 million euro loan to build a 50 megawatt biomass power plant in Spain in 2018. On August 9, 2018, ClientEarth submitted a request to the EIB for internal review of that decision. ClientEarth disputed that the project would contribute to renewable energy objectives because, in part, it overestimated environmental advantages associated with biomass and underestimated logging and forest fire emission risks. On October 30, 2018, EIB rejected the request as inadmissible on the grounds that its financing decision was not an "administrative act" nor was the decision taken "under environmental law" as defined in the Aarhus Convention and therefore was not subject to internal review. 

The EU General Court issued a decision on January 27, 2021, issuing an order that the EIB must accept ClientEarth's petition for internal review. The Court found that the financing decision was taken "under environmental law" because all acts of public authorities which may violate environmental law, regardless of whether the institution is formed by environmental law, should be subject to internal review. Here the EIB's decision was based on an assessment of whether it met renewable energy goals and therefore impacted environmental law. Further, the Court found that the decision was an "administrative act" despite the terms and conditions of the loan not yet being set because it produced definitive legally binding effects on third parties by enabling others to take steps to formalise the loan.

On April 2, 2021, the EIB appealed the decision with the European Court of Justice. The EIB alleges that the General Court, under the Aarhus Convention, misconstrued the notion of an ‘administrative act’, that the EIB decision to approve the loan does not have ‘legally binding and external effect’, and that the General Court was wrong when it classified the EIB’s decision as ‘adopted under environmental law’. The case is now pending before the Court of Justice.
Case documents

from the Grantham Research Institute
from the Grantham Research Institute
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