Action brought on 15 February 2022 — Associazione ‘Terra Mia Amici No Tap’ v EIB

(Case T-86/22)

(2022/C 165/45)

Language of the case: Italian

Parties

Applicant: Associazione ‘Terra Mia Amici No Tap’ (Melendugno, Italy) (represented by: A. Calò, lawyer)

Defendant: European Investment Bank

Form of order sought

The applicant claims that the Court should:

—	find and declare that the European Investment Bank wrongfully declared inadmissible and out of time the request for review submitted by the applicant association;

—	order the European Investment Bank to issue a decision withdrawing the financing granted to TAP AG;

—	order the European Investment Bank to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

First plea, concerning the alleged inadmissibility of the request for review.

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In that regard, the applicant alleges an infringement of the Aarhus Convention, of Regulation (EC) No 1367/2006 of 6 September 2006, (1) of Regulation (EU) 2021/1767, (2) and of points 1, 6 and 9 of the preamble to the EIB’s Statement of Environmental and Social Principles and Standards. In that specific instance, the EIB should have withdrawn the financing granted, given that the request for review focussed on the administrative measure within the meaning of environmental law.

Second plea, concerning the allegation that the request is inadmissible as it was submitted out of time.

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In that regard, the applicant alleges an infringement of the Aarhus Convention, of Regulation (EC) No 1367/2006 of 6 September 2006, of Regulation (EU) 2021/1767, and of points 1, 6 and 9 of the preamble to the EIB’s Statement of Environmental and Social Principles and Standards. In that specific instance, the EIB failed to withdraw the financing through a new, independent measure separate from the one under which the financing was granted previously, and therefore the deadline of six weeks for the submission of a request for review must be calculated from the beginning of the works, given that the party in receipt of financing had agreed contractually to meet the EIB’s standards by that date.

Third plea, alleging infringement of point 36 of the EIB’s Statement of Environmental and Social Principles and Standards of 2009.

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In that regard, the applicant claims specifically that point 36 provides that the EIB requires that all projects that it finances comply at least with:

—	Applicable national environmental law;

—	Applicable EU environmental law, notably the EIA Directive and the nature conservation directives, as well as sector-specific directives and ‘cross-cutting’ directives;

—	The principles and standards of relevant international environmental conventions incorporated into EU law. In the present case, none of those subpoints was complied with. The applicant claims that the following infringements are clear:

EU environmental legislation, more specifically:

a.I	recital 36 of Regulation (EU) No 347/2013, read in conjunction with Articles 4 and 14 thereof (failure to carry out a cost-benefit analysis);

a.II	recital 31 of Regulation No 347/2013, read in conjunction with Article 5(1) of Directive 2011/92/EU and Note 1 of Annex IV to that directive (external cumulative effect);

a.III

recital 31 of Regulation No 347/2013, read in conjunction with Article 5(1) of Directive 2011/92/EU and Note 1 of Annex IV to that directive (internal cumulative effect) — prohibition of ‘salami slicing’;

a.IV	Article 2(1) of Directive 2011/92/EU, Article 6(3) and (4) of the Habitats Directive;

a.V	Article 4(4) of Directive 2009/147/EC, (5) the Birds Directive;

a.VI	recital 30 of Regulation No 1367/2006, read in conjunction with Article 9 thereof and Article 6 of the EIA Directive (transparency and participation);

a.VII

recital 28 of Regulation No 347/2013, read in conjunction with Article 7 thereof (Habitat rules);

a.VIII

Infringement of Article 191(1) TFEU together with the infringement of the Statement of Environmental and Social Principles and Standards of the European Investment Bank, approved by the Board of Directors on 3 February 2009.

Italian legislation, more specifically:

b.I	Legislative Decree 42/2004 transposing Article 26 of the Landscape Convention;

b.II	Legislative Decree 42/2004 transposing Article 146 of the Landscape Convention;

b.III

Article 14b of the Law of 7 August 1990 No 241, Interdepartmental conference;

b.IV	Rule A57 of Ministerial Decree relating to environmental compatibility 223/14;

b.V	Legislative Decree 152/06, failure to impose sanctions;

b.VI	Article 452c of the Criminal Code (environmental disaster).

Fourth plea, alleging infringement of Regulation No 347/2013 of the European Parliament and of the Council of 17 April 2013.

—	The applicant claims in that regard that an appropriate cost-benefit analysis was never carried out.

(1) 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 Community institutions and bodies (OJ 2006 L 264, p. 13).

(2) Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation (EC) No 1367/2006 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 Community institutions and bodies (OJ 2021 L 356, p. 1).