HAVET & VANHUFFEL – Association d’avocats
By their action brought pursuant to Article 263 TFEU, the applicants, Global Legal Action Network and Climate Action Network Europe (CAN-Europe), seek the annulment of European Commission Decision Ares(2023) 8595389 of 14 December 2023, by which the Commission rejected their request for internal review of Commission Implementing Decision (EU) 2023/1319 of 28 June 2023 amending Implementing Decision (EU) 2020/2126 in order to revise the Member States’ annual emission allocations for the period 2023–2030 (OJ 2023 L 163, p. 9) (the “contested decision”).
In support of their action, the applicants rely, in essence, on two pleas in law. The first alleges errors of law in relation to Article 9(2) and (3) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (OJ 2005 L 124, p. 1; the “Aarhus Convention”), Article 2(1)(f) and (g) and Article 10 of the Aarhus Regulation, as well as an error of assessment, in so far as the Commission declared inadmissible the grounds set out in Section IV of their request for internal review. The second plea concerns, in substance, the Commission’s alleged failure to comply with the EU’s obligations relating to the reduction of greenhouse gas emissions.
As regards the first plea, the applicants had requested the Commission to carry out an internal review, pursuant to the Aarhus Regulation, of Implementing Decision (EU) 2023/1319 establishing the Member States’ annual emission allocations for 2023–2030. In particular, they challenged the “second 2030/1990 target” for the reduction of greenhouse gas emissions, laid down by the European Climate Law, as well as the impact assessment of 17 September 2020 which had led to that target. The Commission had rejected those arguments as inadmissible, considering, in particular, that the implementing decision left it no scope for political choice and that it could not call into question the targets established by the EU legislature.
The General Court recalls that the Aarhus Regulation allows qualified organisations to request the internal review of an administrative act where they submit evidence capable of giving rise to substantial doubts as to its legality under environmental law. Where the institution concerned has misunderstood the grounds of the request, the General Court exercises full judicial review over that issue, although its review remains limited to manifest error where complex technical or scientific assessments are involved. In the present case, however, the General Court finds that the Commission had correctly understood the applicants’ arguments: those arguments were indeed aimed, directly or indirectly, at calling into question the second 2030/1990 target, the second 2030/2005 target and the impact assessment of 17 September 2020. The complaint alleging that the Commission had distorted the substance of their request must therefore be rejected.
The General Court then recalls that Decision 2023/1319 constitutes an implementing act adopted on the basis of Regulation 2018/842 and Article 291 TFEU. The Commission was therefore required to confine itself to implementing uniformly the objectives established by the legislature, without being entitled to amend or supplement them. The 2030 emission reduction targets had been established by legislative acts adopted under the ordinary legislative procedure. Consequently, in the context of an internal review, the Commission could not consider those targets insufficient in light of other environmental standards and replace them with more ambitious targets. Such an approach would have exceeded its implementing powers and infringed the principles of institutional balance, conferral of powers, sincere cooperation and legal certainty.
The General Court nevertheless finds that the Commission made certain errors of law. First, it could not reject the arguments relating to the impact assessment of 17 September 2020 solely on the ground that that assessment had no binding legal effect or external effect: an illegality affecting a preparatory act may be relied upon in support of an action challenging the final act resulting from it. Second, the Commission had adopted an overly restrictive definition of “environmental law” by considering that only Regulation 2018/842 was relevant. The applicants could, in particular, rely on certain provisions of the regulations concerning emission inventories and the comitology procedure, provided that those arguments concerned the legality of the implementing decision itself and did not seek to amend the basic legislation.
Despite those errors, the General Court considers that the Commission’s decision remains legally justified on another ground: the impact assessment of 17 September 2020 was closely linked to the exercise of the Commission’s legislative powers, since it had been carried out in preparation for its legislative initiative which ultimately led to the European Climate Law and the amendment of Regulation 2018/842.
Acts and activities falling within the exercise of legislative powers are, however, excluded from the scope of the Aarhus Regulation. The Commission could therefore declare inadmissible the arguments challenging that impact assessment.
Accordingly, since the errors of law identified had no bearing on the final outcome, the General Court rejects the applicants’ first plea in its entirety: the Commission’s decision rejecting their request for internal review remains valid.
The second plea is based on several criticisms directed at the Commission. The applicants argue that the Commission failed to comply with the EU’s obligations concerning the reduction of greenhouse gas emissions, in particular in light of the Paris Agreement, Article 191 TFEU, the principles of prevention and precaution, and the Charter of Fundamental Rights. In particular, they submit that the reduction targets set for 2030 do not reflect the fair share of the global effort required to limit global warming to 1.5°C, that those targets are insufficient, and that the impact assessment of 17 September 2020 did not adequately assess their consequences, particularly with regard to fundamental rights.
The General Court finds, however, that those arguments do not genuinely concern defects specific to Implementing Decision 2023/1319. They in fact challenge the legislative provisions establishing the 2030 reduction targets and the 2020 impact assessment. As already established in the examination of the first plea, the Commission was entitled to consider those challenges inadmissible in the context of the internal review. The grounds on which it subsequently found those arguments unfounded were merely additional grounds: a plea directed against an additional ground is ineffective. The General Court therefore rejects the second plea without even having to examine the plea of inadmissibility raised by the Commission.
Accordingly, the action is dismissed in its entirety. As regards costs, the applicants, having been unsuccessful, must in principle bear their own costs. However, the General Court notes that the Commission had in fact made certain errors of law in the reasoning of its decision, which could legitimately have prompted the applicants to bring proceedings before the General Court. On grounds of equity, the General Court therefore orders the applicants to bear their own costs and one third of the Commission’s costs.
To consult the judgment, follow the link: https://infocuria.curia.europa.eu/tabs/document/T/2024/T-0120-24-00000000RD-01-P-01/ARRET/325902-FR-1-html.