NLVOW v Commission (Environment - Netherlands Integrated National Energy and Climate Plan 2021-2030 - Judgment) [2024] EUECJ T-331/22 (17 April 2024)

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(Environment – Netherlands Integrated National Energy and Climate Plan 2021-2030 – Request for internal review – Article 10(1) of Regulation (EC) No 1367/2006 – Rejection of the request – Application for annulment – Error of assessment – Action for failure to act – No invitation to act – Inadmissibility)

Nederlandse Vereniging Omwonenden Windturbines (NLVOW), established in Annerveenschekanaal (Netherlands), represented by G. Byrne, Barrister-at-Law,

Fédération environnement durable, established in Paris (France), represented by G. Byrne,

People Over Wind (POW), established in Ballyroan (Ireland), represented by G. Byrne,

European Commission, represented by B. De Meester and G. Gattinara, acting as Agents,

European Parliament, represented by O. Denkov and J. Etienne, acting as Agents,

Council of the European Union, represented by L. Vétillard and J. Himmanen, acting as Agents,

composed of F. Schalin, President, P. Škvařilová-Pelzl (Rapporteur) and G. Steinfatt, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By its action, the applicant, Nederlandse Vereniging Omwonenden Windturbines (NLVOW), seeks, first and principally, on the basis of Article 263 TFEU, annulment of the decision of the European Commission notified by letter of 1 April 2022 rejecting the request for internal review which it submitted on 15 December 2021 (‘the contested decision’) and, secondly, in the alternative, on the basis of Article 265 TFEU, a finding that the Commission unlawfully failed to act in accordance with the purpose of its request of 10 December 2021 concerning the integrated national energy and climate plan (‘NECP’) of the Kingdom of the Netherlands covering the period 2021-2030 (‘the disputed NECP’).

2 On 25 June 1998, the European Union signed, in Aarhus, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’), which was subsequently approved on its behalf by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1). The Aarhus Convention entered into force on 18 May 2005.

3 Under Article 3(1) of the Aarhus Convention, each party is to take appropriate measures in order to establish and maintain a clear, transparent and consistent framework to implement that convention.

4 Article 7 of the Aarhus Convention requires each party to make appropriate provisions for the public to participate in the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public, in accordance with Article 6(3), (4) and (8) of that convention.

5 Under Article 6(3), (4) and (8) of the Aarhus Convention, the public participation procedures are to include reasonable time frames for the different phases, allowing sufficient time for informing the public and for the public to prepare and participate effectively during the environmental decision-making. Public participation must take place at an early stage, when all options are open and effective public participation can take place. When taking the decision, each party is to ensure that due account is taken of the outcome of the public participation procedure.

6 Pursuant to Article 15 of the Aarhus Convention, which provides for the establishment of optional arrangements of a non-confrontational, non-judicial and consultative nature for the review of compliance with the provisions of that convention, the Meeting of the Parties to the Aarhus Convention (‘the Meeting of the Parties’) established a Compliance Committee (‘the Aarhus Committee’) to assist it in that review.

7 As part of EU environmental policy, a minimum framework for environmental assessment has been laid down in order to establish the main principles governing the environmental assessment system, while leaving it up to the Member States to define the details, in accordance with the principle of subsidiarity. In particular, Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) provided, inter alia, in Article 3(2) thereof, that an environmental assessment is to be carried out for plans and programmes which require preparation and adoption by the authorities of the Member States or which are subject to a legislative procedure. In accordance with Article 4(1) of that directive, that environmental assessment was to be carried out during the preparation of the plan or programme in question and before its adoption or submission to the legislative procedure. Furthermore, under Article 13(1) of that directive, Member States were to bring into force the rules necessary to comply with the directive before 21 July 2004.

8 For the purpose of implementing the Aarhus Convention in EU law, the European Parliament and the Council of the European Union adopted 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 [EU] institutions and bodies (OJ 2006 L 264, p. 13). Pursuant to Article 14 of that regulation, the latter entered into force on 28 June 2007.

9 Article 9 of Regulation No 1367/2006 provides that EU institutions and bodies are to provide early and effective opportunities for the public to participate during the preparation, modification or review of plans or programmes relating to the environment when all options are still open. In that context, they must, inter alia, provide the public with the environmental information or assessment relevant to the plan or programme under preparation, where available. The public must be given a reasonable period of time to be informed, to prepare and to participate effectively in the environmental decision-making process. In taking a decision on a plan or programme relating to the environment, EU institutions and bodies are to take due account of the outcome of the public participation.

10 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), which entered into force on 25 June 2009, set out, for each Member State, the overall target to be achieved for the share of renewable energy in the gross final consumption of energy in 2020. Each Member State was to adopt and submit to the Commission a national renewable energy action plan (‘NREAP’). Although recital 90 of Directive 2009/28 stated that the implementation of that directive should reflect, where relevant, the provisions of the Aarhus Convention, that directive did not establish a specific procedural framework for public participation with respect to NREAPs.

11 On 2 July 2014, the Secretariat of the United Nations Economic Commission for Europe (UNECE) published Decision V/9g on compliance by the European Union with its obligations under the [Aarhus] Convention (‘Decision V/9g’), which the Meeting of the Parties had adopted at its fifth session in Maastricht (Netherlands).

12 In paragraph 1 of Decision V/9g, the Meeting of the Parties approved the findings and recommendations of the Aarhus Committee in its communication on case ACCC/C/2010/54 of 2 October 2012 concerning a lack of public involvement in the adoption of the Republic of Ireland’s NREAP, due to the fact that, in general, the European Union had not complied with Article 3(1) and Article 7 of the Aarhus Convention in that it failed to put in place a proper regulatory framework or give clear instructions for the application of Article 7 in relation to the adoption of NREAPs by Member States on the basis of Directive 2009/28.

13 In paragraph 3 of Decision V/9g, the Meeting of the Parties noted that with the adoption of a proper regulatory framework or preparation of clear instructions for the application of Article 7 of the Aarhus Convention with respect to the adoption of NREAPs, the arrangements made would be transparent and fair and, within those arrangements, the necessary information would be provided to the public. That regulatory framework or clear instructions also had to ensure that the requirements set out in Article 6(3), (4) and (8) of that convention were met. The European Union had to adapt the manner in which it evaluated NREAPs accordingly.

14 In paragraph 6 of Decision V/9g, the Meeting of the Parties also undertook to review the situation. To that end, the European Union was asked to provide the Aarhus Committee with detailed information on the progress made in implementing the Aarhus Committee’s recommendations. That request was registered by the UNECE Secretariat under reference ACCC/M/2017/3.

15 In its conclusions of 23 and 24 October 2014, the European Council endorsed a 2030 climate and energy framework based on four key objectives at EU level. One of those objectives was to reach a level of at least 27% of renewable energy in EU energy consumption. That target is binding at EU level and achieved through the contributions of the Member States, guided by the need to reach the target collectively.

16 On 11 December 2018, the Parliament and the Council adopted Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU, Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 (OJ 2018 L 328, p. 1). In addition, they adopted Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82), which was a recast of Directive 2009/28. Those texts established a common framework for the promotion of energy from renewable sources and set a binding target for the Union in that area up to 2030. The Member States set national contributions to meet, collectively, that overall target as part of their NECPs, the successors to the NREAPs.

17 In accordance with Article 9 of Regulation 2018/1999, the Commission had to assess those NECPs, including the level of ambition of objectives, targets and contributions with a view to collectively achieving the Energy Union objectives. It was entitled to issue recommendations on the NECPs, of which the Member States concerned were required to take due account, under Article 34(2)(a) and (b) of that regulation, in a spirit of solidarity, it being observed that, if they decided not to address a recommendation or a substantial part thereof, they had to provide their reasoning in that regard.

18 Article 10 of Regulation 2018/1999, entitled ‘Public consultation’, established a specific procedural framework for public participation in the preparation of NECPs. Each Member State was required to ensure that the public was given early and effective opportunities to participate in the preparation of the draft NECPs and, as regards the NECPs covering the period 2021-2030, in the preparation of the final plan well before its adoption. Article 10 of that regulation also specified that, in so far as Directive 2001/42 was applicable, consultations undertaken in accordance with that directive were to be deemed to satisfy the obligations to consult the public under that regulation. In addition, each Member State was required to ensure that the public was informed and set reasonable time frames allowing sufficient time for the public to be informed, to participate and to express its views.

19 In the context of such a consultation, Article 9(4) of Regulation 2018/1999 required each Member State to make its draft NECP available to the public.

20 Pursuant to Regulation 2018/1999, Member States were required to submit their draft NECPs for the period 2021-2030 to the Commission by 31 December 2018.

21 On 20 December 2018, the Netherlands authorities submitted to the Commission their draft NECPs for the period 2021-2030. That draft, which the Commission published on its website, included, for the period at issue, new wind power production capacity and the installation of high voltage lines and the supporting measures to do so.

22 The Commission assessed the draft NECP covering the period 2021-2030 submitted by the Netherlands authorities and, on 18 June 2019, issued a recommendation on that draft NECP (OJ 2019 C 297, p. 72).

23 In August 2019, a public consultation was launched, over a total period of six weeks, on the draft NECP covering the period 2021-2030 submitted by the Netherlands authorities. A report on the public’s reactions and how they were incorporated into the draft in question has been published on the ‘www.internetconsultatie.nl’ website.

24 In view of the recommendation issued by the Commission, the Kingdom of the Netherlands was required to submit the disputed NECP by 31 December 2019 at the latest. The NECP also had to include the results of the public consultation which had been launched.

25 On 18 December 2019, the Kingdom of the Netherlands notified the Commission of the disputed NECP, which it had definitively adopted in November 2019.

26 On 14 September 2020, the Commission published a detailed assessment of the disputed NECP. The Commission stated that it had not received the summary of the results of the public consultation launched by the Kingdom of the Netherlands on that NECP, but that the feedback from the public and the way in which it had been incorporated into that NECP was available online. It also noted that there was no indication that a strategic environmental assessment of the same NECP had been initiated under Directive 2001/42. However, it noted that it was stated in the disputed NECP that the figures therein were based on the 2019 Climate and Energy Report published by the Planbureau voor de Leefomgeving (Environmental Assessment Agency, Netherlands).

27 On 17 September 2020, the Commission published a detailed EU-wide assessment of all NECPs definitively adopted by the Member States, covering the period 2021-2030.

28 On 21 October 2021, the UNECE Secretariat published an amended draft of Decision VII/8f concerning compliance by the European Union with its obligations under the [Aarhus] Convention which, as is apparent from the report of the seventh session of the Meeting of the Parties in Geneva (Switzerland) of 17 February 2022, was adopted by the Secretariat at that session (‘Decision VII/8f’).

29 In paragraph 1 of Decision VII/8f, the Meeting of the Parties endorsed the findings on the implementation of request ACCC/M/2017/3 made by the Aarhus Committee in its report of 31 August 2021 on the compliance by the European Union with its obligations under the Aarhus Convention. According to those conclusions, the European Union had established an NECP regulatory framework that met the requirements of Article 6(3) of that convention, but had not yet demonstrated that it had adopted either a proper regulatory framework or clear instructions to ensure that the other requirements of Article 7 of that convention were met in the adoption of the NECPs, as required by paragraph 3 of Decision V/9g. Furthermore, the Meeting of the Parties considered that, although the European Union had carried out an assessment of public participation on each Member State’s NECP, albeit in brief, it had not yet adapted the manner in which it evaluated those NECPs, as had been stated in paragraph 3 of Decision V/9g.

30 In paragraph 2 of Decision VII/8f, the Meeting of the Parties reiterated that the European Union should, as a matter of urgency, provide the Aarhus Committee with evidence that it had adopted a proper regulatory framework or clear instructions for implementing Article 7 of the Aarhus Convention with respect to the adoption of NECPs. In particular, it considered that the European Union should have taken the necessary legislative, regulatory or practical measures to ensure that, first, the arrangements for public participation in the Member States were transparent and fair and that, within those arrangements, the necessary information was provided to the public and, secondly, the regulatory framework or clear instructions adopted ensure that the conditions set out in Article 6(4) and (8) of that convention are met, in particular by allowing the public to participate at the start of the procedure, where all options and solutions were still possible, and by ensuring that due account is taken of the outcome of the procedure. The European Union was also required, as a matter of urgency, to adapt the manner in which it evaluated NECPs accordingly.

31 Lastly, in paragraph 11 of Decision VII/8f, the Meeting of the Parties asked the European Union, inter alia, to submit to the Aarhus Committee an action plan for the implementation of the recommendations referred to in paragraph 2 of that decision, including time frames, by 1 July 2022 at the latest, and to provide that committee, before 1 October 2023 and 1 October 2024, with detailed progress reports on the measures taken for the implementation of the action plan and recommendations referred to above and on the results achieved.

32 On 28 October 2021, namely the twentieth day following its publication in the Official Journal of the European Union, Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation No 1367/2006 (OJ 2021 L 356, p. 1) entered into force and became applicable, in accordance with Article 2 thereof.

33 Article 10(1) of Regulation No 1367/2006, as amended, provides that any non-governmental organisation (NGO) which fulfils the criteria set out in Article 11 of that regulation is entitled to submit a reasoned request, and trigger an internal review, to the EU institution or body that has adopted an administrative act under environmental law.

34 The applicant is an NGO established as a non-profit association in 2013 under Netherlands law. Its primary objective, in accordance with Article 2 of its statutes, is to combat the negative environmental impact associated with wind power in the Netherlands. By letter of 10 December 2021, it submitted a request for internal review, pursuant to Article 10 of Regulation No 1367/2006, as amended (‘the request for internal review of 10 December 2021’), concerning an alleged administrative omission on the part of the European Union, within the meaning of Article 2(1)(h) of that regulation, to act in the manner indicated in Decision VII/8f, in order to ensure that the NECPs were adopted in accordance with the provisions of the Aarhus Convention, which it asked the Commission to remedy.

35 By letter of 1 April 2022, the Commission notified the applicant of the contested decision. By that decision, it rejected as inadmissible the request for internal review of 10 December 2021, on the ground that, in that request, the applicant had not identified the administrative omission, within the meaning of Article 2(1)(h) of Regulation No 1367/2006, as amended, which it was specifically contesting in the present case. According to the Commission, in order for that request for internal review to be admissible, the applicant should have identified the administrative act, within the meaning of Article 2(1)(g) of that regulation, which the European Union should have adopted under environmental law and the date from which it was supposed to have adopted it, in accordance with Article 10(1) of that regulation.

36 The applicant, supported by the Fédération environnement durable and by People Over Wind (POW), claims, in essence, that the Court should:

– in the alternative, declare that the Commission failed to take the measures necessary to ensure that the NECPs and, in particular, the disputed NECP, complied with the Aarhus Convention, in accordance with the request for internal review of 10 December 2021;

– declare that the disputed NECP does not comply with that convention and therefore is in breach of EU and international law, and is therefore unlawful;

– declare that the Commission failed to comply with its obligations under EU and international law to take the measures necessary to ensure the compliance of the disputed NECP with that convention;

– declare that Regulation 2018/1999 does not comply with the convention in question, in particular Article 7 thereof, and as such is in breach of EU and international environmental law, and is therefore unlawful;

– declare that the Commission’s failure to fulfil its obligations concerning the NECPs and, in particular, the disputed NECP, constitutes an infringement of Regulation 2018/1999, of the Convention concerned and of the Treaties;

– order the applicant to pay the costs and the Fédération environnement durable and POW each to bear their own costs.

38 In their statements of intervention in support of the form of order sought by the Commission, the Council and the Parliament contend that the applicant’s claims that Regulation 2018/1999 is unlawful should be rejected.

39 The application does not formally structure the pleas in support of the application for annulment and does not conform to the broad categories of pleas provided for in Article 263(2) TFEU. After eight preliminary parts setting out in turn ‘the parties’ to the action, the ‘subject matter’, the summary of the ‘pleas in law’, the ‘form of order sought’ in the action, the ‘introduction [and] summary’ of the action, the ‘form of order sought’ in the action again, the ‘factual background’ and the ‘legal background’ of the action, the applicant formally set out, in the ninth part, what were to be the ‘pleas in law’, set out in turn under the headings ‘plea 1’, ‘plea 2’, ‘plea 3’ and ‘plea 4’, before restating the ‘forms of order sought’ in the action.

40 However, it is apparent from the content of the ninth part of the application that, in practice, the ‘pleas’ submitted therein do no more than repeat the form of order sought by the applicant. Thus, ‘plea 1’ corresponds to the first head of claim by which the applicant seeks, principally, the annulment of the contested decision, ‘plea 2’ corresponds to the second, fourth and sixth heads of claim by which the applicant seeks, in the alternative and in essence, a declaration from the Court that there has been a failure to act. Lastly, ‘plea 3’ and ‘plea 4’ of the action correspond, respectively, to the third and fifth ‘heads of claim’ by which the applicant seeks declarations from the Court or, as stated in paragraph 51 below, puts forward pleas of illegality in support of the first head of claim.

41 For the purpose of examining the six heads of claim put forward by the applicant, principally or in the alternative, as set out in paragraph 36 above, account will be taken of the particular structure of the application, as described in paragraphs 39 and 40 above.

The interpretation of the applicant’s second, fourth and sixth heads of claim

42 Without formally raising a plea of illegality by separate document, the Commission, supported by the Council and the Parliament, argues, in essence, in the defence, that the Court does not have jurisdiction to hear the applicant’s fourth and sixth heads of claim, since, according to the case-law, in the context of an action for annulment brought under Article 263 TFEU, it is for the Court only to make declarations. Moreover, those claims are not developed in the application.

43 In response to a measure of organisation of procedure, adopted on the basis of Article 89(2)(c) of the Rules of Procedure of the General Court, inviting the parties to state their position on whether the second, fourth and sixth heads of claim sought by the applicant had the same subject matter, the applicant, supported on that point by the Fédération environnement durable and POW, confirmed that they had the same subject matter. By contrast, the Commission denied that they had the same subject matter and contended that, by those fourth and sixth heads of claim, the applicant did not seek, as in the second head of claim, a judgment declaring that it had unlawfully failed to act within the meaning of Article 265 TFEU. The Parliament expressly refused to define its position on that issue, whereas the Council did not express a view within the prescribed period.

44 Notwithstanding the Commission’s objections, it must be held that, as the applicant itself acknowledges, the applicant’s fourth and sixth heads of claim have the same subject matter as its second head of claim, raised in the alternative, namely the finding that the Commission failed to take the measures necessary to ensure the compliance of the disputed NECP with the Aarhus Convention.

45 Accordingly, it must be held that the applicant’s fourth and sixth heads of claim have no independent scope in relation to the applicant’s second head of claim, with which they are indissociable, and must therefore be examined together with that head of claim.

46 Accordingly, there is no need to rule on the admissibility of the pleas of inadmissibility put forward by the Commission in respect of the applicant’s fourth and sixth heads of claim, in so far as they were not put forward by separate document as prescribed by Article 130(1) of the Rules of Procedure, or to rule on the merits of those pleas.

47 According to settled case-law, questions of jurisdiction constitute an absolute bar to proceeding which the Courts of the European Union may consider of their own motion (see, to that effect, order of 8 January 2008, Commission v Lior and Others, T‑245/04, not published, EU:T:2008:4, paragraphs 68 and 69 and the case-law cited).

48 In the present case, the Court must examine of its own motion whether it has jurisdiction to hear and determine the applicant’s third and fifth heads of claim.

49 According to the case-law, in the context of an action for annulment under Article 263 TFEU, the Court can only review the legality of acts of the EU institutions and, if necessary, annul the contested act, but in the context of that review of legality, it does not have jurisdiction to make statements of law or declarations (see judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 67 and the case-law cited). Thus, the Court does not have jurisdiction to deliver declaratory judgments on actions brought under Article 263 TFEU by an NGO which has lodged a request for internal review under Article 10 of Regulation No 1367/2006, as amended. It is not apparent from Article 12 of that regulation, which expressly refers to the possibility of referral, even when interpreted in the light of Article 9 of the Aarhus Convention, that the access to justice afforded by that convention and, in particular, the requirement laid down by that convention to ‘provide adequate and effective remedies, including injunctive relief as appropriate’, would mean that the court of law or another independent and impartial body designated under that convention to ensure access to justice would also be able to deliver such judgments.

50 The Court therefore has no jurisdiction, in the context of the present action, to hear and determine the applicant’s third and fifth heads of claim in so far as, by those heads of claim, it seeks declarations from the Court.

51 The question arises, however, whether, in the circumstances of the present case, the applicant’s third and fifth heads of claim could be reclassified as pleas of illegality and therefore, in essence, as pleas alleging a lack of legal basis which were relied on in support of the head of claim by which the applicant seeks, primarily, the annulment of the contested decision. As has been pointed out on numerous occasions by the Courts of the European Union, a plea of illegality cannot in itself be regarded as a head of claim but as a plea in support of a head of claim seeking annulment (see, to that effect, judgment of 10 March 1992, NMB v Commission, C‑188/88, EU:C:1992:114, paragraph 25; order of 16 November 2000, Schiocchet v Commission, C‑289/99 P, EU:C:2000:641, paragraph 25; and judgment of 29 November 2006, Campoli v Commission, T‑135/05, EU:T:2006:366, paragraph 132).

52 In that regard, it must be observed that, in the application, the applicant itself summarises the subject matter of its action to the effect that it contains an ‘objection of illegality pursuant to Article 277 TFEU in respect of Regulation … 2018/1999’ and an ‘objection of illegality pursuant to [that article] in respect of the Commission’s … adoption … of the [disputed NECP]’. In addition, it relies on that article as one of the ‘bases’ of its action. Lastly, it expressly states that it ‘raises an objection of illegality pursuant to [that article] in respect of the … [disputed] NECP’ and it implicitly raises such a plea with regard to that regulation, observing that ‘[that regulation] ought to be declared illegal’.

53 Furthermore, account must also be taken of the fact that the Commission itself submits in the defence that the third and fourth pleas and, consequently, the third and fifth heads of claim of the applicant (see paragraph 40 above) concern pleas of illegality, under Article 277 TFEU, which should be rejected as inadmissible or, in any event, unfounded. Furthermore, in its statement in intervention in support of the form of order sought by the Commission, the Parliament expressly argues that, in the context of ‘plea 4’, the applicant raised a plea of illegality in respect of Regulation 2018/1999, under that article.

54 Nevertheless, even if the applicant’s third and fifth heads of claim must therefore be interpreted as pleas of illegality raised in support of its first head of claim, they must be rejected as inadmissible for the reasons put forward by the Commission and the Parliament.

55 Under Article 277 TFEU any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.

56 According to settled case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to that party, the validity of an act of general application which constitutes the basis of that decision or which has a direct legal connection with such a decision (see, to that effect, judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraphs 44 and 46 and the case-law cited).

57 The Courts of the European Union have held, inter alia, that an objection of illegality covering an act of general application in respect of which the individual decision being challenged did not constitute an implementing measure was inadmissible (see judgment of 16 March 2023, Commission v Calhau Correia de Paiva, C‑511/21 P, EU:C:2023:208, paragraph 47 and the case-law cited).

58 As is apparent from paragraph 35 above, the contested decision which the applicant seeks to have set aside in its first head of claim, namely the Commission’s response to the request for internal review of 10 December 2021 sent to it by the applicant, implements only the provisions of Regulation No 1367/2006, as amended, by virtue of which it may thus be considered to be an implementing measure. By contrast, the contested decision cannot be regarded as a measure implementing Regulation 2018/1999 or the disputed NECP, which the applicant claims is unlawful.

59 In the absence of a direct legal link between the contested decision and the acts of general application covered by the pleas of illegality raised by the applicant, those pleas should therefore, in any event, be rejected as inadmissible.

60 Since ‘plea 1’ in the application is indissociable from the applicant’s first head of claim by which it seeks, primarily, the annulment of the contested decision (see paragraph 40 above), it is necessary, in order to identify the pleas or allegations made in support of that application for annulment, to refer to the content of the application.

61 First, it may be inferred from the content of the application that, in support of its first head of claim, the applicant alleges, in essence, an error of assessment of the request for internal review of 10 December 2021. According to the applicant, the Commission wrongly failed to take account, in the contested decision, of the fact that the administrative omissions underlying that application were detailed in Decision VII/8f and did not take the appropriate administrative or enforcement measures in accordance with Article 3(1) of the Aarhus Convention to ensure that the disputed NECP complies with the requirements of Article 7 and, by reference, Article 6(3), (4) and (8) of that convention and Article 9 of Regulation No 1367/2006, as amended, on public participation in respect of plans and programmes relating to the environment. It maintains that compliance with those requirements meant, in practice, that the Commission required the Kingdom of the Netherlands to conduct the strategic environmental assessment provided for in Article 3(2) and Article 4 of Directive 2001/42.

62 Secondly, it may be inferred from the content of the application that, in support of its first head of claim, the applicant also alleges a breach by the Commission, in the contested decision, of its obligation under Article 10(3) of Regulation No 1367/2006, as amended, to examine diligently the requests for internal review submitted to it, which meant that the Commission sought to obtain clarification of the subject matter of the request for internal review of 10 December 2021 before rejecting it as inadmissible for lack of clarity as to the administrative omissions underlying it.

63 The Commission, supported by the Council and the Parliament, disputes the applicant’s arguments and those put forward by the Fédération environnement durable and POW. It notes in particular that it is for the Court to determine whether the disorderly line of argument put forward by the applicant is compatible with the requirement of precision laid down in Article 76(d) of the Rules of Procedure. In addition, it points out, incidentally, that it did not follow either from the request for internal review of 10 December 2021 or from Decision VII/8f, to which that decision referred, that the applicant had asked it to adopt a specific administrative measure under environmental law, namely a measure which would have consisted in remedying what it considered to be the unlawfulness of the disputed NECP by requiring the Kingdom of the Netherlands to conduct the strategic environmental assessment provided for in Article 3(2) and Article 4 of Directive 2001/42.

64 In that regard, it should be recalled, first, that pursuant to Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the General Court by virtue of Article 53 of that statute, and pursuant to Article 76(d) of the Rules of Procedure, all applications initiating proceedings must state the subject matter of the dispute, the pleas and arguments put forward and a brief statement of those pleas and, secondly, that those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the application. The essential points of law and fact on which an action relies must be stated coherently and intelligibly in the application and the heads of claim must be set out unambiguously so that the Courts of the European Union do not rule ultra petita or fail to rule on a plea. The application must, accordingly, specify the nature of the grounds on which the action is based, with the result that a mere abstract statement of the grounds does not meet the requirements set out by that regulation. Similar requirements are called for where a submission is made in support of a plea (see judgment of 8 March 2023, Assaad v Council, T‑426/21, EU:T:2023:114, paragraph 181 and the case-law cited).

65 It follows that an applicant is required to set out in a sufficiently systematic manner the arguments relating to each plea which it puts forward, and the Court cannot be obliged, as a result of a lack of structure in the application or of rigour on the part of the applicant, to reconstruct the legal structure intended to support a plea by bringing together various diffuse elements of the application, at the risk of reconstructing that plea by giving it a scope which it did not have in the mind of that party. To decide otherwise would be contrary both to the principle of the sound administration of justice and to the principle that the subject matter of an action is delimited by the parties and to the defendant’s rights of defence (see, respectively, judgments of 16 March 2023, GABO:mi v Commission, C‑696/21 P, not published, EU:C:2023:217, paragraph 49, and of 2 April 2019, Fleig v EEAS, T‑492/17, EU:T:2019:211, paragraph 44).

66 In the present case, on account of the manifest procedural defects in the application which have been set out in paragraph 39 above, only the two pleas in support of the applicant’s first head of claim, which have been identified in paragraphs 61 and 62 above, may be regarded as meeting the requirement of precision in Article 76(d) of the Rules of Procedure, as interpreted by the case-law cited in paragraphs 64 and 65 above.

67 As regards, first, the first plea, alleging an error of assessment of the request for internal review of 10 December 2021, it should be recalled that, under Article 10(1) of Regulation No 1367/2006, as amended, any NGO which fulfils the criteria set out in Article 11 of that regulation is entitled to make a reasoned request for internal review to the EU institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act. A request for internal review of an administrative act is therefore intended to establish that, as alleged, the act or omission in question is unlawful or unfounded, bearing in mind that such an omission is defined in Article 2(1)(h) of that regulation as ‘any failure of a Union institution or body to adopt a non-legislative act which has legal and external effects, where such failure may contravene environmental law within the meaning of point (f) of Article 2(1) [of that regulation]’.

68 It is inherent in the system of review that the party requesting the review provides concrete and precise grounds which might be able to call into question the legality of the administrative act or omission concerned (see, to that effect and by analogy, judgment of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 68). In order to state the grounds for the internal review of that act or omission under environmental law for review in the manner required, the applicant is required to put forward the facts or legal arguments of sufficient substance to give rise to serious doubts as to the lawfulness of the administrative act or omission at issue (see, to that effect and by analogy, judgment of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 69).

69 The party requesting internal review under Article 10 of Regulation No 1367/2006, as amended, may, in accordance with Article 12 of Regulation No 1367/2006, as amended, read in conjunction with Article 10 of that regulation, then bring an action before the EU judicature in accordance with Article 263 TFEU by instituting proceedings – on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers – against the decision rejecting the request as unfounded.

70 Such proceedings cannot be founded on new grounds or on evidence not appearing in the request for review, as otherwise the requirement, in Article 10(1) of Regulation No 1367/2006, as amended, relating to the statement of grounds for such a request would be made redundant and the object of the procedure initiated by the request would be altered (judgment of 12 September 2019, TestBio Tech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 39).

71 In the present case, it is apparent from the section of the request for internal review of 10 December 2021 entitled ‘Administrative omission’ that, in that section, the applicant complained of ‘the European Union’s non-compliance and failure to act as set out in Decision VII/8f’.

72 It is apparent from paragraphs 1, 2 and 11 of Decision VII/8f, as summarised in paragraphs 29 to 31 above, that in that decision the Meeting of the Parties endorsed the Aarhus Committee’s findings that the European Union had not yet succeeded in demonstrating that it had put in place the proper regulatory framework or drawn up clear instructions for the application of Article 7 of the Aarhus Convention, read in conjunction with Article 6(4) and (8) of that convention, as regards the adoption of the NECP. In particular, the Meeting of the Parties took the view that the European Union should have taken the necessary legislative, regulatory or practical measures to ensure that, first, the arrangements for public participation in the Member States were transparent, fair and provide the public with all necessary information and, secondly, compliance with the conditions set out in Article 6(4) and (8) of that convention is ensured, inter alia, by allowing the public to participate at the start of the procedure, where all options and solutions were still possible, and by ensuring that due account is taken of the outcome of the procedure. In addition, it considered that the European Union should, as a result, adapt the manner in which it evaluated the NECPs and submit to that committee an action plan for the implementation of those recommendations, including time frames, by 1 July 2022 at the latest, and to provide that committee, before 1 October 2023 and 1 October 2024, with detailed progress reports on the measures taken for the implementation of the action plan and those recommendations and on the results achieved.

73 Therefore, it does not follow from Decision VII/8f that the Meeting of the Parties required the European Union, more specifically the Commission, to adopt a non-legislative act which has legal and external effects for the purposes of Article 2(1)(h) of Regulation No 1367/2006, as amended, precisely determined, since it left the European Union a margin of discretion to apply, within a certain period, the recommendations set out in that decision. In particular, it is not apparent from that decision that the Meeting of the Parties required the European Union to adopt, without delay, a specific administrative act requiring the Kingdom of the Netherlands to conduct the strategic environmental assessment provided for in Article 3(2) and Article 4 of Directive 2001/42 concerning the disputed NECP.

74 Moreover, such an interpretation of Decision VII/8f is inconsistent with both the letter and the spirit of the procedure for reviewing compliance with the provisions of the Aarhus Convention provided for in Article 15 of that convention, which, as the Commission rightly points out, stipulates that, in the context of that procedure, the Meeting of the Parties is to establish, on a consensus basis, only optional arrangements of a non-confrontational, non-judicial and consultative nature.

75 Furthermore, that interpretation of Decision VII/8f is inconsistent with the finding of the Aarhus Committee, in paragraphs 55 to 59 of the second progress report on the developments relating to request ACCC/M/2017/3 on the compliance by the European Union with its obligations under the Aarhus Convention, dated 26 February 2020, as noted by the applicant. According to that finding, the recommendations which the Commission could make to the Member States under Article 9(2) and Article 34 of Regulation 2018/1999 did not allow it clearly to order them to create arrangements for the adoption of their NECP covering the period 2021-2030 to fulfil each of the elements of Article 7 of that convention set out in paragraph 3 of Decision V/9g. Thus, as the applicant itself stated, the omission alleged by the Aarhus Committee, in the first progress report on the developments relating to that request, dated 26 February 2019, as in the second progress report referred to above, was the failure to adopt the necessary legislative, regulatory or practical measures to bring Regulation 2018/1999 into line with certain requirements of that convention, which it did not meet, namely, in particular, those arising from Article 6(4) and (8) of that convention.

76 Accordingly, the applicant, the Fédération environnement durable and POW are not justified in claiming that the reference made in the request for internal review of 10 December 2021 to Decision VII/8f enabled the Commission to understand that the applicant was criticising it, in the present case, for failing to adopt a specific administrative act, which consisted of requiring the Kingdom of the Netherlands to conduct the strategic environmental assessment provided for in Article 3(2) and Article 4 of Directive 2001/42 concerning the disputed NECP.

77 Furthermore, in accordance with the case-law cited in paragraph 70 above, it is not open to the applicant, supported by the Fédération environnement durable and POW, to criticise, for the first time in the present action, the Commission for not requiring the Kingdom of the Netherlands to conduct a strategic environmental assessment concerning the disputed NECP.

78 Accordingly, as the Commission correctly observes, the applicant failed to fulfil its obligation, in accordance with the case-law cited in paragraph 68 above, to identify, from the stage of the request for internal review of 10 December 2021, the non-legislative act which has legal and external effects for the purposes of Article 2(1)(h) of Regulation No 1367/2006, as amended, which, in its view, the European Union had failed to adopt, even though that act was required by Decision VII/8f.

79 The Commission rightly submits that that obligation constitutes an essential procedural requirement. In the absence of compliance with that obligation, it is impossible, in particular, to verify that the request for internal review in question was made within the eight-week time limit set out in the second subparagraph of Article 10(1) of Regulation No 1367/2006, as amended. Since that period runs from the date on which the omitted administrative act was supposed to have been adopted, the party requesting review must identify precisely the administrative act which, in its view, had been unlawfully omitted, failing which its application will be declared inadmissible.

80 In the light of the foregoing considerations, it must be held that, in the contested decision, the Commission was fully entitled to reject as inadmissible the request for internal review of 10 December 2021, on the ground that, in that decision, the applicant had not specifically identified the administrative omission within the meaning of Article 2(1)(h) of Regulation No 1367/2006, as amended, of which it was accused in the present case.

82 As regards, secondly, the second plea, alleging infringement of the obligation to conduct a diligent examination of requests for internal review under Article 10(3) of Regulation No 1367/2006, as amended, it must be borne in mind that, in accordance with the case-law cited in paragraph 68 above, it is for the party requesting review to identify, in its request, the non-legislative act which has legal and external effects for the purposes of Article 2(1)(h) of that regulation, which the EU institution or body to which that request was addressed had failed, in its view, to adopt.

83 The party requesting internal review under Article 10 of Regulation No 1367/2006, as amended, cannot remedy a failure to comply with its obligation in that regard by accusing the EU institution or body to which that request was addressed of having failed to fulfil its obligation to conduct a diligent examination of requests for internal review, arising from paragraph 3 of that article, in that it failed to give that party the opportunity to clarify the subject matter of its request before rejecting it as inadmissible.

84 In so far as, as stated in paragraph 79 above, the identification by the party requesting review of the administrative act unlawfully omitted under environmental law is an essential procedural requirement determining the period within which the request could lawfully have been made under the second subparagraph of Article 10(1) of Regulation No 1367/2006, as amended, the EU institution or body to which that request is addressed cannot derogate from it by granting that requesting party a new period in which to regularise its request after it was lodged.

85 The Commission was therefore entitled, in the contested decision, to reject as inadmissible the request for internal review of 10 December 2021, without offering the applicant the opportunity to clarify the subject matter of its request.

87 Since all the admissible pleas relied on in support of the applicant’s first head of claim have been rejected, the applicant’s principal application for annulment of the contested decision must be rejected.

88 Since ‘plea 2’ in the application is indissociable from the applicant’s second, fourth and sixth heads of claim, put forward in the alternative to the applicant’s first head of claim (see paragraph 40 above), it is necessary, in order to identify the arguments in support of the claim for failure to act, to refer to the content of the application.

89 It may, in particular, be inferred from the content of the application that, in support of its second, fourth and sixth heads of claim, the applicant essentially complains that the Commission failed – in the light of Decision VII/8f and the request for internal review of 10 December 2021, and in accordance with Article 3(1) of the Aarhus Convention – to take the appropriate administrative or enforcement measures to ensure that the disputed NECP complies with the requirements relating to public participation provided for in Article 7 of that convention and, by reference, in Article 6(3), (4) and (8) of that convention and Article 9 of Regulation No 1367/2006, as amended. Furthermore, it may be inferred from that content that, according to the applicant, compliance with those requirements had meant, in the present case, that the Commission required the Kingdom of the Netherlands to conduct the strategic environmental assessment provided for in Article 3(2) and Article 4 of Directive 2001/42.

90 The Commission, supported by the Council and the Parliament, contends that the applicant’s second, fourth and sixth heads of claim should be rejected as inadmissible, on the ground that they do not meet the requirement of precision in Article 76(d) of the Rules of Procedure, in so far as the applicant has not explained how, in the context of the present action, it could criticise the Commission, primarily, for the administrative act which it had adopted and, in the alternative, for failing to adopt such an act. Moreover, those heads of claim should be rejected as inadmissible for lack of a sufficiently clear and precise invitation to act for the purposes of Article 265 TFEU. In any event, those heads of claim are unfounded because, by the contested decision, the Commission responded, inter alia, to the request for internal review of 10 December 2021 by rejecting it as inadmissible.

91 As regards the plea of inadmissibility based on the absence of an invitation to act, it should be noted first of all that, under the second paragraph of Article 265 TFEU, an action for failure to act is admissible only if the institution concerned has first been invited to bring proceedings. Giving formal notice to the EU institution in question is an essential procedural requirement the effects of which are, first, to cause the two-month period within which the institution is required to define its position to begin to run and, secondly, to define the contours of any action that might be brought should the institution fail to define its position. Although there is no particular requirement as to form, the notice must be sufficiently clear and precise to enable the institution in question to ascertain in specific terms the content of the decision which it is being asked to adopt and must make clear that its purpose is to compel the institution in question to state its position (see order of 13 April 2022, Alauzun and Others v Commission, T‑695/21, not published, EU:T:2022:233, paragraph 25 and the case-law cited).

92 In the present case, for the reasons set out in paragraphs 71 to 76 above, the applicant, the Fédération environnement durable and POW are not justified in claiming that the reference made in the request for internal review of 10 December 2021 to Decision VII/8f enabled the Commission to understand that the applicant was criticising it, in the present case, for failing to adopt a specific administrative act, which consisted of requiring the Kingdom of the Netherlands to conduct the strategic environmental assessment provided for in Article 3(2) and Article 4 of Directive 2001/42 concerning the disputed NECP.

93 Consequently, the Commission rightly submits that the request for internal review of 10 December 2021 did not constitute an invitation to act for the purposes of the second paragraph of Article 265 TFEU, which gave it formal notice to adopt the act which the applicant, supported by the Fédération environnement durable and POW, criticises it for not having adopted in the context of the claim for failure to act.

94 In any event, even if the request for internal review of 10 December 2021 could be regarded as an invitation to act for the purposes of the second paragraph of Article 265 TFEU, it should be recalled that the conditions governing the admissibility of an action for failure to act laid down in that article are not, in principle, satisfied where the institution called upon to act has defined its position on that invitation before the action is brought (see order of 13 April 2022, Alauzun and Others v Commission, T‑695/21, not published, EU:T:2022:233, paragraph 28 and the case-law cited).

95 As the Commission rightly submits, it defined its position on the request for internal review of 10 December 2021 in the contested decision by rejecting that request as inadmissible, on the ground that, in that request, the applicant had not identified precisely the administrative omission within the meaning of Article 2(1)(h) of Regulation No 1367/2006, as amended, which it was specifically contesting in the present case.

96 In that regard, it is irrelevant that the definition of that position does not satisfy the applicant. Article 265 TFEU refers to failure to act in the sense of failure of an institution to take a decision or to define a position, not to its adoption of a measure different from that desired or considered necessary by the persons concerned (see order of 13 April 2022, Alauzun and Others v Commission, T‑695/21, not published, EU:T:2022:233, paragraph 30 and the case-law cited).

97 In those circumstances, it must be held that the Commission duly defined its position on the request for internal review of 10 December 2021 before the present action was brought on 9 June 2022. Moreover, it follows from the examination of the first head of claim in the action that the definition of that position was well founded (see paragraph 80 above).

98 In the light of the foregoing considerations, the claim for failure to act must be rejected as inadmissible.

100 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

101 Furthermore, in accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Council and the Parliament, which have intervened in the present action in support of the form of order sought by the Commission, must therefore each bear their own costs.

102 Finally, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, the Fédération environnement durable and POW, which intervened in support of the form of order sought by the applicant, must each bear their own costs.

2. Orders Nederlandse Vereniging Omwonenden Windturbines (NLVOW) to bear, in addition to its own costs, the costs incurred by the European Commission;

3. Orders the European Parliament, the Council of the European Union, the Fédération environnement durable and People over Wind (POW) to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> NLVOW v Commission (Environment - Netherlands Integrated National Energy and Climate Plan 2021-2030 - Judgment) [2024] EUECJ T-331/22 (17 April 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T33122.html Cite as: ECLI:EU:T:2024:243, [2024] EUECJ T-331/22, EU:T:2024:243

Court of Justice of the European Communities (including Court of First Instance Decisions)