Contents
Judgment of the General Court (Sixth Chamber, Extended Composition)10 September 2025note(Environment — Aarhus Convention — Rejection of a request for internal review — Article 10 of Regulation (EC) No 1367/2006 — Delegated Regulation (EU) 2021/2139 — Bioenergy activities — Forest biomass — Manufacture of organic base chemicals — Manufacture of plastics in primary form — Taxonomy — Requirements for technical screening criteria — Article 19 of Regulation (EU) 2020/852 — Substantial contribution to climate change mitigation — Article 10 of Regulation 2020/852 — Transitional activities — Quantitative threshold — Conclusive scientific evidence — Life cycle — Precautionary principle — Principle of do no significant harm to environmental objectives — Article 17 of Regulation 2020/852 — Circular economy — Water and marine resources — Pollution)In Case T‑579/22,ClientEarth AISBL, established in Ixelles (Belgium), represented by T. Johnston, Barrister,vEuropean Commission, represented by G. von Rintelen, C. Auvret, G. Gattinara, R. Lindenthal and B. De Meester, acting as Agents,supported byFrench Republic, represented by T. Stéhelin and B. Fodda, acting as Agents,THE GENERAL COURT (Sixth Chamber, Extended Composition),composed of M.J. Costeira (Rapporteur), President, M. Kancheva, U. Öberg, P. Zilgalvis and E. Tichy-Fisslberger, Judges,Registrar: S. Spyropoulos, Administrator,having regard to the written part of the procedure,further to the hearing on 21 November 2024,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, ClientEarth AISBL, seeks the annulment of Decision Ares(2022) 4942150 of 6 July 2022, by which the European Commission rejected the request for internal review of its Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation (EU) 2020/852 of the European Parliament and of the Council by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation or climate change adaptation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives (OJ 2021 L 442, p. 1; ‘the Delegated Regulation’), as regards certain aspects relating to economic activities related to bioenergy, the manufacture of organic base chemicals and the manufacture of plastics in primary form (‘the contested decision’).
Background to the dispute
2The applicant is a non-profit organisation, governed by Belgian law, the objective of which is, in particular, the protection of the environment.
3The Delegated Regulation was adopted by the Commission on the basis, inter alia, of Article 10(3) and Article 11(3) of Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 (OJ 2020 L 198, p. 13; ‘the Taxonomy Regulation’).
4With a view to helping it develop technical screening criteria in order to determine whether an economic activity is environmentally sustainable, the Commission set up, from 2018, a technical expert group on sustainable finance. With regard to the Delegated Regulation, that expert group developed its recommendations concerning, inter alia, the technical screening criteria for economic activities which would make a substantial contribution to the two environmental objectives set out in Article 9(a) and (b) of the Taxonomy Regulation. That group’s final report was published in March 2020, together with a technical annex.
5The draft Delegated Regulation was accompanied, first, by Commission document SWD(2021) 2800 final of 4 June 2021, containing the explanatory memorandum to that draft and, second, by Commission document SWD(2021) 152 final of 4 June 2021, prepared by the Directorate-General for Financial Stability, Financial Services and Capital Markets Union, in collaboration inter alia with the Directorate-General for Climate Action, containing the impact assessment report, accompanied by 11 annexes (‘the impact assessment accompanying the draft Delegated Regulation’).
6On 3 February 2022, the applicant submitted to the Commission a request for internal review of the Delegated Regulation, pursuant to Article 10(1) of 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), as amended by Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 (‘the Aarhus Regulation’). It challenged, in essence, the legality of the Delegated Regulation as regards (i) the interpretation and application of certain of the requirements set out in Article 19 of the Taxonomy Regulation, (ii) certain economic activities related to bioenergy, (iii) the manufacture of organic base chemicals, and (iv) the manufacture of plastics in primary form.
7By letter of 6 July 2022, the Commission communicated to the applicant the contested decision, by which it rejected the request for internal review.
Forms of order sought
8The applicant claims that the Court should:– annul the contested decision;– order the Commission to pay the costs.
9The Commission, supported by the French Republic, contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
10In support of the action, the applicant raises four pleas in law, the first alleging errors of law relating to the requirements applicable to the technical screening criteria established in Article 19 of the Taxonomy Regulation, the second alleging manifest errors of assessment as regards bioenergy activities, the third alleging manifest errors of assessment as regards the manufacture of organic base chemicals, and the fourth alleging manifest errors of assessment as regards the manufacture of plastics in primary form.
Preliminary considerations on the Taxonomy Regulation and the Delegated Regulation
11According to Article 1(1) thereof, the Taxonomy Regulation establishes the criteria for determining whether an economic activity qualifies as environmentally sustainable for the purposes of establishing the degree to which an investment is environmentally sustainable. According to recital 3 thereof, that regulation represents a key step towards directing financial flows towards sustainable activities in order to achieve a climate-neutral European Union by 2050.
12To that end, the Taxonomy Regulation establishes, as is apparent from recitals 6 and 12 thereof, a unified classification system for sustainable activities (called ‘taxonomy’), in order to harmonise at EU level the criteria for determining whether an economic activity qualifies as environmentally sustainable, thereby giving investors and other economic operators a holistic understanding of economic activities that are environmentally sustainable.
13According to Article 3 of the Taxonomy Regulation, ‘for the purposes of establishing the degree to which an investment is environmentally sustainable, an economic activity shall qualify as environmentally sustainable where that economic activity:(a) contributes substantially to one or more of the environmental objectives set out in Article 9 in accordance with Articles 10 to 16;(b) does not significantly harm any of the environmental objectives set out in Article 9 in accordance with Article 17;(c) …; and(d) complies with technical screening criteria that have been established by the Commission in accordance with Article 10(3) [and] 11(3) …’
14The six environmental objectives listed in Article 9 of the Taxonomy Regulation are the following:‘(a) climate change mitigation;(b) climate change adaptation;(c) the sustainable use and protection of water and marine resources;(d) the transition to a circular economy;(e) pollution prevention and control;(f) the protection and restoration of biodiversity and ecosystems.’
15Article 4 of the Taxonomy Regulation provides that the Member States and the European Union are to apply the criteria set out in Article 3 thereof to determine whether an economic activity qualifies as environmentally sustainable for the purposes of any measure setting out requirements for financial market participants or issuers in respect of financial products or corporate bonds that are made available as environmentally sustainable.
16Article 10(1) of the Taxonomy Regulation lays down the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation.
17‘Climate change mitigation’ is defined in Article 2(5) of the Taxonomy Regulation as ‘the process of holding the increase in the global average temperature to well below 2 °C and pursuing efforts to limit it to 1,5 °C above pre-industrial levels, as laid down in the Paris Agreement [on Climate Change, approved on 12 December 2015]’.
18Article 10(2) of the Taxonomy Regulation lays down the conditions applicable to economic activities for which there is no technologically and economically feasible low-carbon alternative, that is to say, ‘transitional’ activities, according to Article 19(1)(h)(ii) of that regulation.
19Article 10(3) of the Taxonomy Regulation provides that the Commission is to adopt a delegated act in accordance with Article 23 of the said regulation to:(a) supplement paragraphs 1 and 2 of this Article by establishing technical screening criteria for determining the conditions under which a specific economic activity qualifies as contributing substantially to climate change mitigation; and(b) supplement Article 17 by establishing, for each relevant environmental objective, technical screening criteria, for determining whether an economic activity in respect of which technical screening criteria have been established pursuant to point (a) of this paragraph causes significant harm to one or more of those objectives.’
20Article 11(1) of the Taxonomy Regulation provides that an economic activity is to qualify as contributing substantially to climate change adaptation where that activity:(a) includes adaptation solutions that either substantially reduce the risk of the adverse impact of the current climate and the expected future climate on that economic activity or substantially reduce that adverse impact, without increasing the risk of an adverse impact on people, nature or assets; or(b) provides adaptation solutions that, in addition to satisfying the conditions set out in Article 16, contribute substantially to preventing or reducing the risk of the adverse impact of the current climate and the expected future climate on people, nature or assets, without increasing the risk of an adverse impact on other people, nature or assets.’
21Article 11(3) of the Taxonomy Regulation provides that the Commission is to adopt a delegated act in accordance with Article 23 thereof to:(a) supplement paragraphs 1 and 2 of this Article by establishing technical screening criteria for determining the conditions under which a specific economic activity qualifies as contributing substantially to climate change adaptation; and(b) supplement Article 17 by establishing, for each relevant environmental objective, technical screening criteria for determining whether an economic activity in respect of which technical screening criteria have been established pursuant to point (a) of this paragraph causes significant harm to one or more of those objectives.’
22Article 17(1) of the Taxonomy Regulation reads as follows:‘For the purposes of point (b) of Article 3, taking into account the life cycle of the products and services provided by an economic activity, including evidence from existing life-cycle assessments, that economic activity shall be considered to significantly harm:(a) climate change mitigation, where that activity leads to significant greenhouse gas emissions;(b) climate change adaptation, where that activity leads to an increased adverse impact of the current climate and the expected future climate, on the activity itself or on people, nature or assets;(c) the sustainable use and protection of water and marine resources, where that activity is detrimental:(i) to the good status or the good ecological potential of bodies of water, including surface water and groundwater; or(ii) to the good environmental status of marine waters;(d) the circular economy, including waste prevention and recycling, where:(i) that activity leads to significant inefficiencies in the use of materials or in the direct or indirect use of natural resources such as non-renewable energy sources, raw materials, water and land at one or more stages of the life cycle of products, including in terms of durability, reparability, upgradability, reusability or recyclability of products;(ii) that activity leads to a significant increase in the generation, incineration or disposal of waste, with the exception of the incineration of non-recyclable hazardous waste; or(iii) the long-term disposal of waste may cause significant and long-term harm to the environment;(e) pollution prevention and control, where that activity leads to a significant increase in the emissions of pollutants into air, water or land, as compared with the situation before the activity started; or(f) the protection and restoration of biodiversity and ecosystems, where that activity is:(i) significantly detrimental to the good condition and resilience of ecosystems; or(ii) detrimental to the conservation status of habitats and species, including those of Union interest.’
23Article 19(1) of the Taxonomy Regulation provides that the technical screening criteria established pursuant to, inter alia, Article 10(3) of the Taxonomy Regulation:(a) identify the most relevant potential contributions to the given environmental objective while respecting the principle of technological neutrality, considering both the short- and long-term impact of a given economic activity;(b) specify the minimum requirements that need to be met to avoid significant harm to any of the relevant environmental objectives, considering both the short- and long-term impact of a given economic activity;(c) be quantitative and contain thresholds to the extent possible, and otherwise be qualitative;(d) where appropriate, build upon Union labelling and certification schemes, Union methodologies for assessing environmental footprint, and Union statistical classification systems, and take into account any relevant existing Union legislation;(e) where feasible, use sustainability indicators as referred to in Article 4(6) of Regulation (EU) 2019/2088;(f) be based on conclusive scientific evidence and the precautionary principle enshrined in Article 191 TFEU;(g) take into account the life cycle, including evidence from existing life-cycle assessments, by considering both the environmental impact of the economic activity itself and the environmental impact of the products and services provided by that economic activity, in particular by considering the production, use and end of life of those products and services;(h) take into account the nature and the scale of the economic activity, including:(i) whether it is an enabling activity as referred to in Article 16; or(ii) whether it is a transitional activity as referred to in Article 10(2);(i) take into account the potential market impact of the transition to a more sustainable economy, including the risk of certain assets becoming stranded as a result of such transition, as well as the risk of creating inconsistent incentives for investing sustainably;(j) cover all relevant economic activities within a specific sector and ensure that those activities are treated equally if they contribute equally towards the environmental objectives set out in Article 9 of this Regulation, to avoid distorting competition in the market; and(k) be easy to use and be set in a manner that facilitates the verification of their compliance.…’
24The Delegated Regulation was adopted on the basis of, inter alia, Article 10(3) and Article 11(3) of the Taxonomy Regulation (see paragraph 3 above).
25Article 1 of the Delegated Regulation provides that the technical screening criteria for determining the conditions under which an economic activity may qualify as contributing substantially to climate change mitigation and for determining whether that activity causes no significant harm to any of the other environmental objectives are laid down in Annex I to that regulation. Under Article 2 of the Delegated Regulation, the technical screening criteria for determining the conditions under which an economic activity may qualify as contributing substantially to climate change adaptation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives are laid down in Annex II to the same regulation.
26Annexes I and II to the Delegated Regulation specify technical screening criteria for each economic activity covered by that regulation, in particular in point 3.14 for the manufacture of organic base chemicals and in point 3.17 for the manufacture of plastics in primary form.
Preliminary considerations on the request for internal review and the scope of the Court’s review
27By virtue of Article 10(1) of the Aarhus Regulation, any non-governmental organisation (NGO) which meets the criteria set out in Article 11 of that regulation is entitled to make a request for internal review to the EU institution or body which has adopted an administrative act under environmental law.
28It is inherent in the system of internal review that the party requesting a review provides concrete and precise grounds which might be able to call into question the assessments on which the administrative act is based (see, to that effect, judgment of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 68). Accordingly, such a party requesting a review is required to put forward the facts or legal arguments of sufficient substance to give rise to serious doubts as to the assessment made in that act by the EU institution or body (see, to that effect, judgments of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 69, and of 6 October 2021, ClientEarth v Commission, C‑458/19 P, EU:C:2021:802, paragraph 60).
29A request for internal review of an administrative act is thus intended to establish that, as alleged, the act in question is unlawful or that it is not well founded. The party making the request may then, in accordance with Article 12 of the Aarhus Regulation, read in conjunction with Article 10 thereof, bring the matter before the EU judicature 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 for internal review as unfounded (judgment of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 38).
30In principle, the scope of the judicial review of a decision rejecting a request for internal review is no different from the scope of judicial review of the administrative act which was the subject of that request if that act were to be challenged before the courts (see, to that effect, judgment of 15 December 2016, TestBioTech and Others v Commission, T‑177/13, not published, EU:T:2016:736, paragraphs 76 and 81).
31According to the case-law, where an EU institution is called upon to make complex assessments, such as those underlying the development of technical screening criteria in order to determine whether an economic activity is environmentally sustainable, it has broad discretion (see, to that effect and by analogy, judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 53 and the case-law cited). In that case, the judicial review which the Courts of the European Union must carry out of the merits of the grounds of a decision such as the contested decision must not lead them to substitute their assessment for that of the Commission, but is intended to ascertain that that decision is not based on materially incorrect facts and is not vitiated by a manifest error of assessment or misuse of powers (see, to that effect and by analogy, judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 55 and the case-law cited).
32In that regard, it is settled case-law that the Courts of the European Union must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 56 and the case-law cited). Where an institution enjoys broad discretion, observance of procedural guarantees is of fundamental importance, including the obligation for that institution to examine carefully and impartially all the relevant aspects of the situation in question (see judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 57 and the case-law cited).
33In order to establish that an institution committed a manifest error in assessing complex facts so as to justify the annulment of the measure which it adopted, the evidence in support of such a claim must be sufficient to render the factual assessments adopted in that measure implausible (see, to that effect, judgments of 14 June 2018, Lubrizol France v Council, C‑223/17 P, not published, EU:C:2018:442, paragraph 39, and of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission, C‑148/19 P, EU:C:2020:354, paragraph 74).
34It is in the light of those considerations that the pleas raised by the applicant must be examined.
First plea: errors of law as regards the requirements applicable to the technical screening criteria established in Article 19 of the Taxonomy Regulation
35The applicant formally submits that ‘the Commission lacked competence to adopt the Delegated Regulation because it disregarded essential elements of the [Taxonomy Regulation]’. However, as is apparent from the application and from its reply to a question put by the Court at the hearing, its arguments are based not on a lack of competence as such, but on errors of law committed by the Commission in interpreting the requirements applicable to the technical screening criteria referred to in Article 19 of the Taxonomy Regulation.
36It is therefore appropriate to interpret the present plea as alleging errors of law as regards the requirements applicable to the technical screening criteria established in Article 19 of the Taxonomy Regulation.
37The present plea is divided into four limbs:– the first relates to the concept of ‘conclusive scientific evidence’ in Article 19(1)(f) of the Taxonomy Regulation;– the second relates to the balancing of the requirements applicable to the technical screening criteria referred to in Article 19(1) of that regulation;– the third relates to the erroneous presumption that existing EU legislation satisfies the taxonomy requirements; and– the fourth relates to the obligation to take into account the life cycle with regard to the manufacture of organic base chemicals and the manufacture of plastics in primary form.
First limb of the first plea: concept of conclusive scientific evidence referred to in Article 19(1)(f) of the Taxonomy Regulation and the application of the precautionary principle
38The applicant submits that, in points 1 and 2.1(a) and (b) of Annex II to the contested decision, the Commission (i) misinterpreted the concept of ‘conclusive scientific evidence’, referred to in Article 19(1)(f) of the Taxonomy Regulation, as corresponding to ‘scientific evidence that allows … conclusions [to be reached]’, rather than equating it with the ‘best available evidence’ or the ‘most up-to-date and reliable scientific evidence’, thereby reducing the requirement of that criterion, (ii) failed to recognise the risk of ‘lock in’ in relation to activities which ultimately do not make a substantial contribution to climate change mitigation, (iii) wrongly advocated, on the one hand, for the right to ignore the best and most up-to-date scientific evidence because the Delegated Regulation was updated on an ongoing basis and, on the other hand, to be able to consider that the applicant’s interpretation required ‘epistemic certainty’, and (iv) misapplied the precautionary principle.
39The Commission disputes the applicant’s arguments.
40Under Article 19(1)(f) of the Taxonomy Regulation, the technical screening criteria ‘shall … be based on conclusive scientific evidence and the precautionary principle enshrined in Article 191 TFEU’.
41In the case at hand, the Commission considered, in point 1 of Annex II to the contested decision, that the applicant had not raised a question on the scope of the concept of ‘conclusive scientific evidence’ as a self-standing ground in support of the request for internal review, but merely as a preliminary observation. In addition, it considered, in essence, that the literal meaning of the expression ‘conclusive scientific evidence’ referred to scientific evidence which was not ‘inconclusive’, that is to say, scientific evidence that ‘allow[ed] … conclusions [to be reached]’. In addition, it considered that the interpretation advocated by the applicant seemed to require scientific evidence which was accepted, beyond any doubt, by the entire scientific community, which would be contrary to the very nature of scientific knowledge.
42In so far as, by the present limb, the applicant criticises the Commission’s interpretation of the concept of ‘conclusive scientific evidence’ and, in particular, claims that the Commission failed to take into account the ‘best available evidence’ or the ‘most up-to-date and reliable scientific evidence’, it does not explain how that interpretation would result in the contested decision being unlawful. It does not mention any scientific evidence on which that decision relied which would have enabled a conclusion to be drawn without being up to date or reliable. Moreover, it does not identify any ‘most up-to-date’ or ‘most … reliable’ scientific evidence which was ignored in the said decision. Last, it does not explain why it considers that, in the present case, the ‘scientific evidence that allows … conclusions [to be reached]’ does not correspond to the ‘best available evidence’ or to the ‘most up-to-date and reliable scientific evidence’.
43It follows that, even if it were well founded, the applicant’s complaint alleging an error of law in the interpretation of the term ‘conclusive scientific evidence’ in Article 19(1)(f) of the Taxonomy Regulation is not such as to lead to the annulment of the contested decision.
44The applicant’s other arguments cannot succeed, either. First, its argument that the interpretation of the expression ‘conclusive scientific evidence’ adopted by the Commission leads to a risk of ‘lock in’ and ‘stranded assets’ is in no way substantiated, the applicant merely alleging, in very general terms, a hypothetical risk stemming from such an interpretation.
45Second, the applicant’s argument that the Commission considered that it could ignore the best and most up-to-date scientific evidence on the ground that the Delegated Regulation was updated on an ongoing basis is based on a misreading of the contested decision. It is apparent from point 1 of Annex II to that decision that the Commission relies on Article 19(5) of the Taxonomy Regulation only in order to argue that an overly strict interpretation of the requirement laid down in Article 19(1)(f) of that regulation would undermine the objectives of that regulation and, in particular, deprive of all effectiveness Article 19(5) of the same regulation, in that the latter provision obliges the Commission to review regularly the technical screening criteria in line with scientific and technological developments.
46Third, so far as concerns the applicant’s argument based on the precautionary principle, it should be recalled that Article 19(1)(f) of the Taxonomy Regulation provides that the technical screening criteria are to be based on conclusive scientific evidence and the precautionary principle enshrined in Article 191 TFEU. Moreover, as is apparent from recital 40 of that regulation, that principle applies ‘where scientific evaluation does not allow for a risk to be determined with sufficient certainty’.
47The applicant, however, does not explain how the interpretation of Article 19(1)(f) of the Taxonomy Regulation adopted in the contested decision infringes the precautionary principle. It merely maintains, without putting forward the slightest specific element in that regard, that, in cases where conclusive scientific evidence does not exist, the Commission is prevented from classifying a given activity under that regulation.
48Fourth, in so far as the applicant submits that the taking into account of scientific evidence allowing a conclusion to be drawn is incompatible with the assessment of its quality or currency, it does not provide any example of unreliable or non-current scientific evidence used by the Commission.
49The first limb of the first plea must therefore be rejected.
Second limb of the first plea: balancing of the requirements applicable to the technical screening criteria referred to in Article 19(1) of the Taxonomy Regulation
50The applicant submits that, in points 1 and 2.1(a)(i) and (b)(i) of Annex II to the contested decision, the Commission erred in law in its interpretation of Article 19(1) of the Taxonomy Regulation, in that it considered that the various requirements laid down therein had to be balanced against one other in order to strike the right balance. In its view, each of those requirements, however, is mandatory and the Commission is obliged to comply with all of them.
51The Commission disputes the applicant’s arguments.
52Under Article 10(5) and Article 11(5) of the Taxonomy Regulation, the Commission is to establish the technical screening criteria referred to, respectively, in paragraph 3 of that Article 10 and in paragraph 3 of that Article 11 in one delegated act, taking into account the requirements of Article 19 of that regulation, namely those referred to in paragraph 23 above.
53In the case at hand, in the contested decision, the Commission considered that the requirement of conclusive scientific evidence, referred to in Article 19(1)(f) of the Taxonomy Regulation, had to be put in balance with the other criteria established in that article, in particular with the precautionary principle (point 1 of Annex II). In addition, as regards economic activities related to bioenergy, it took the view in that decision that the simultaneous and cumulative application of all of the requirements referred to in the said Article 19(1) when establishing the technical screening criteria empowered it to calibrate the level of substantial contribution of a given economic activity to climate change mitigation, in the light of, inter alia, available conclusive scientific evidence, consistency with EU legislation and technological and market feasibility (point 2.1(b) of that annex).
54It is worth highlighting at the outset that the applicant is criticising the fact that, in the contested decision, the Commission considered itself entitled to put in balance the requirements set out in Article 19(1) of the Taxonomy Regulation, but it does not put forward any specific argument to the effect that such a balancing led to a result incompatible with one of the criteria established in that provision.
55In addition, it should be noted that Article 19(1) of the Taxonomy Regulation, the wording of which has been recalled in paragraph 23 above, sets out a series of requirements which concern both the content of the technical screening criteria (see, in particular, paragraph 1(a) and (b) thereof) and the form that those are to take (see, in particular, paragraph 1(c) thereof). Moreover, those technical screening criteria must take into account a number of factors, pursuing different objectives, including environmental, scientific, economic, financial and feasibility objectives (see, in particular, paragraph 1(g) to (i) and (k) thereof). In the same sense, it should be pointed out that the potential costs and benefits of applying the technical screening criteria, as well as their usability, are also among the elements that the Platform on Sustainable Finance must take into account when it advises the Commission on those technical screening criteria (see Article 20(2)(b) and (g) of that regulation).
56Furthermore, the fact that the establishment of the technical screening criteria depends on a weighing up of different interests and objectives still underlies recitals 44 to 46 of the Taxonomy Regulation, which state that the Commission must take into account ‘environmental, social and economic externalities within a cost-benefit analysis’, the ‘relevant Union law’ or any ‘adverse impact on financial markets’.
57Thus, when establishing the technical screening criteria, the Commission must take into account all of the requirements provided for in Article 19(1) of the Taxonomy Regulation, striking, where appropriate, the appropriate balance or a practical concordance between them, having regard to the diversity of their objectives and natures and to the fact that they do not necessarily converge.
58The second limb of the first plea must therefore be rejected.
Third limb of the first plea: erroneous presumption that existing EU legislation satisfies the taxonomy requirements
59The applicant submits that, in point 2.1(b)(i) of Annex II to the contested decision, the Commission erred in law by relying solely on the EU legislation in force, in particular Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ 2018 L 328, p. 82; ‘the RED II Directive’) and Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU (OJ 2018 L 156, p. 1; ‘the LULUCF Regulation’). It submits that that legislation performs functions different from those of the Taxonomy Regulation and is based on outdated scientific evidence which does not meet the requirements of Article 19(1) of that regulation. The inadequacy of such legislation has been acknowledged by the Commission itself, in that it has proposed a series of amendments to that legislation.
60The Commission disputes the applicant’s arguments.
61In the case at hand, it should be noted that, in point 2.1(b)(i) of Annex II to the contested decision, the Commission states that, in order to establish the technical screening criteria for bioenergy activities, it took into account the provisions of the RED II Directive and the LULUCF Regulation. According to the Commission, those acts included rules on the sustainability of bioenergy and carbon accounting which captured all emissions from bioenergy and which aimed to ensure that those emissions were accounted for at national level. For that reason, recital 30 of the Delegated Regulation indicated that ‘the technical screening criteria for the production of heating, cooling and power from bioenergy and the production of biofuels and biogas for transport should be consistent with the comprehensive sustainability framework for those sectors laid down under [the RED II Directive]’.
62In the first place, it should be noted that Article 19(1)(d) of the Taxonomy Regulation requires the Commission, during the establishment of the technical screening criteria, to take into account ‘any relevant existing Union legislation’. That obligation is also mentioned in recitals 43 and 44 of that regulation. Thus, when the Commission analyses the elements on which the adoption of the technical screening criteria must be based, it must take into account any relevant existing EU legislation, as expressly provided for in Article 19(1)(d) of the said regulation and in accordance with its task of overseeing the application of EU law, provided for in Article 17(1) TEU.
63As a result, the Commission cannot be criticised for having taken existing EU legislation into account when establishing the technical screening criteria. The Commission is therefore right to mention, in the contested decision, that it took into account the provisions of the RED II Directive and the LULUCF Regulation.
64In the second place, the applicant’s line of argument seeking to demonstrate that the criteria established in the RED II Directive and the LULUCF Regulation are obsolete and insufficient to meet the requirements of the Taxonomy Regulation cannot succeed.
65First, the applicant’s argument based on an alleged outdatedness of the RED II Directive and the LULUCF Regulation must be rejected. On the one hand, the date of adoption of the legislation is not capable in itself of demonstrating non-compliance with the requirements established by the Taxonomy Regulation. On the other hand, as the Commission submits, references to other legislative instruments in the technical screening criteria should be interpreted as referring to their most recent version in force.
66Second, it is apparent from Article 1 of the RED II Directive that that directive establishes a common framework for the promotion of energy from renewable sources. It sets a binding EU target for the overall share of energy from renewable sources in the European Union’s gross final consumption of energy in 2030. In particular, it lays down rules on financial support for electricity from renewable sources, on self-consumption of such electricity and on the use of energy from renewable sources in certain sectors. It also establishes sustainability and greenhouse gas emissions saving criteria for, inter alia, biomass fuels. Moreover, it follows from Article 1 of the LULUCF Regulation that that regulation sets out the commitments of Member States for the land use, land use change and forestry (LULUCF) sector that contribute to achieving the objectives of the Paris Agreement on Climate Change approved on 12 December 2015 and meeting the greenhouse gas emission reduction target of the European Union for the period from 2021 to 2030. That regulation also lays down the rules for the accounting of emissions and removals from LULUCF and for checking the compliance of Member States with those commitments.
67Furthermore, it is worth pointing out that the Taxonomy Regulation refers expressly to the RED II Directive and indirectly to the LULUCF Regulation. Thus, Article 10(1)(a) of the Taxonomy Regulation provides that an economic activity is to qualify as contributing substantially to climate change mitigation where that activity contributes substantially to the stabilisation of greenhouse gas concentrations in the atmosphere, inter alia by generating, transmitting, storing, distributing or using renewable energy in line with the said directive. In addition, it follows from recital 32 of the Taxonomy Regulation that the expression ‘sustainable forest management’ must be construed by taking into account, inter alia, that directive and the LULUCF Regulation.
68What is more, it should be noted that, as regards biofuels, bioliquids and biomass fuels produced from forest biomass, the LULUCF criteria provided for in Article 29(7) of the RED II Directive and the LULUCF Regulation are intrinsically linked, since the accounting for emissions and removals resulting from LULUCF activities is carried out on the basis of that regulation.
69Therefore, the RED II Directive and the LULUCF Regulation cannot be deemed irrelevant for the purpose of the establishment of the technical screening criteria for bioenergy activities.
70Third, it is not apparent from the contested decision that the technical screening criteria established by the Delegated Regulation for bioenergy activities are based solely on the requirements set, inter alia, by the RED II Directive. However, as the Commission contends, those technical screening criteria set requirements other than those currently provided for in existing legislation, as is demonstrated by the examples put forward in point 3.1.1(b) of Annex II to the said decision, which are not disputed on that specific point by the applicant, concerning, inter alia, the introduction of a higher saving threshold of greenhouse gas emissions due to the use of biomass.
71Fourth, contrary to what the applicant claims, the Commission’s proposals for the revision of the RED II Directive and the LULUCF Regulation cannot amount to an acknowledgement by the Commission of the inadequacy of their provisions, in the versions in force at the date of the contested decision, for the purposes of being taken into account in the setting of the technical screening criteria for bioenergy activities.
72The third limb of the first plea must therefore be rejected.
Fourth limb of the first plea: obligation to take into account the life cycle with regard to the activities of manufacture of organic base chemicals and the manufacture of plastics in primary form
73The applicant submits that, in point 2.1(a)(i) and (ii) of Annex II to the contested decision, the Commission disregarded the requirement referred to in Article 19(1)(g) of the Taxonomy Regulation as regards the technical screening criteria established for the activities of manufacture of organic base chemicals and the manufacture of plastics in primary form. The Commission discharged its obligation to take the life cycle into account by noting that it was difficult to do so and by considering that the life cycle could be taken into account in the future when those criteria were amended. However, the said Article 19(1)(g) lays down an obligation ‘of result’, according to which the technical screening criteria cannot be adopted without incorporating life-cycle requirements. That obligation to take into account life-cycle evidence lies with the Commission and not with the operators. Moreover, the technical screening criteria cannot be retrospectively rendered lawful by means of amendments which include life-cycle considerations.
74The Commission disputes the applicant’s arguments.
75Under Article 19(1)(g) of the Taxonomy Regulation, the technical screening criteria are to ‘take into account the life cycle, including evidence from existing life-cycle assessments, by considering both the environmental impact of the economic activity itself and the environmental impact of the products and services provided by that economic activity, in particular by considering the production, use and end of life of those products and services’. That finding follows also from recital 34 of the same regulation.
76In addition, recital 40 of the Taxonomy Regulation provides that, ‘when establishing and updating the technical screening criteria, the Commission should ensure that those criteria are based on available scientific evidence, are developed by taking into account life-cycle considerations, including existing life-cycle assessments, and are updated regularly.’ Furthermore, recital 47 of that regulation states that ‘technical screening criteria could require carrying out a life-cycle assessment where sufficiently practicable and where necessary.’
77In the case at hand, in point 2.1(a)(i) of Annex II to the contested decision, the Commission referred to the impact assessment accompanying the draft Delegated Regulation, considered the obligation to take the life cycle into account to be an obligation of means and took the view that it fulfilled that obligation by taking into account the life-cycle assessment of greenhouse gas emissions in general and emissions from manufacturing activities in particular, including the manufacture of organic base chemicals.
78In that regard, it is apparent from the impact assessment accompanying the draft Delegated Regulation, partially transcribed in the contested decision, that the Commission took the view that, despite extensive consideration, the integration of life-cycle considerations universally into the technical screening criteria proved difficult for the lack of usable and comparable data.
79In particular, in terms of the manufacture of organic base chemicals, the impact assessment accompanying the draft Delegated Regulation stated that, given the lack of sufficient data to define technical screening criteria for the full life cycle, direct greenhouse gas emissions resulting from the manufacturing process ought to be taken into consideration. To that end, the Commission considered that the most performant industries in the sector should be taken into account, using benchmarks from the greenhouse gas emissions trading scheme provided for in EU legislation. In its view, that approach ensured that the technical screening criteria were easy to use, in accordance with Article 19(1)(k) of the Taxonomy Regulation.
80So far as concerns the manufacture of plastics in primary form, given that it is not covered by benchmarks from the greenhouse gas emissions trading scheme, the Commission considered that the definition of the technical screening criteria relied on experts’ judgment, life-cycle assessment and literature review of best performing industries within those sectors. In particular, it was stipulated that the greenhouse gas emissions generated throughout the life cycle of the manufacture of plastics using renewable raw materials had to be lower than those of the equivalent plastics in primary form manufactured from fossil fuels and raw materials.
81As regards both the manufacture of organic base chemicals and the manufacture of plastics in primary form, life-cycle greenhouse gas emissions should be calculated in accordance with the Commission’s recommendations or the standards of the International Organization for Standardization (ISO) and verified by an independent third party.
82In addition, the Commission considered that it would update the technical screening criteria on the basis of technological and scientific progress in order to integrate new elements related to the life cycle of activities. In accordance with Article 19(5) of the Taxonomy Regulation, that update should take place every three years for transitional activities, such as the manufacture of organic base chemicals and of plastics in primary form.
83Moreover, the Commission took the view, in point 2.1(a)(ii) of Annex II to the contested decision, that Article 19(1)(g) of the Taxonomy Regulation gave it a certain margin of discretion to take into account the life cycle in conjunction with the other requirements laid down in the said Article 19(1). That discretion did not oblige it to set, in the technical screening criteria, a life-cycle greenhouse gas emissions threshold for all activities falling within the scope of the Delegated Regulation. In accordance with recital 47 of the said regulation, a life-cycle assessment was to be carried out where sufficiently practicable and where necessary. As regards manufacturing activities, the impact assessment accompanying the draft Delegated Regulation showed that there were no viable and usable alternatives to the one adopted, which takes into account the best performing industries in terms of direct greenhouse gas emissions from the manufacturing process.
84In the first place, it is true that it follows from paragraphs 78 to 83 above that the Commission maintained, in the contested decision, that the integration of life-cycle considerations universally into the technical screening criteria proved difficult for the lack of usable and comparable data. However, it also follows from that decision that, as regards the technical screening criteria relating to the manufacture of organic base chemicals, the Commission took into consideration direct greenhouse gas emissions in the manufacturing process and, in particular, benchmarks from the greenhouse gas emissions trading scheme, in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32). Moreover, as regards the manufacture of plastics in primary form, the technical screening criteria relied on experts’ judgment, life-cycle assessment and literature review of the best performing industries in those sectors.
85In the second place, it should be noted that, as the Commission argued, Article 19(1)(g), read in conjunction with recitals 34, 40 and 47 of the Taxonomy Regulation (see paragraphs 75 and 76 above), does not require providing for technical screening criteria relating specifically to the life cycle or oblige the Commission to carry out a life-cycle assessment in all cases. What is required is that, when adopting the technical screening criteria, the Commission take into account the life cycle, particularly existing assessments of that life cycle.
86Therefore, in the case at hand, it has not been shown that the Commission erred in law in its interpretation of Article 19(1)(g) of the Taxonomy Regulation, set out in paragraphs 77 to 83 above.
87In the third place, it should be observed that the applicant’s arguments are not capable of demonstrating that the Commission committed a manifest error of assessment as regards its assessments as referred to in paragraphs 77 to 83 above. After all, the applicant merely submits, in general terms, that the Commission did not duly discharge its obligation to take the life cycle into consideration, but does not put forward any specific element capable of calling into question the plausibility of the Commission’s assessments.
88In the light of the foregoing, the fourth limb of the first plea must be rejected, as must, consequently, that plea as a whole.
Second plea: manifest errors of assessment as regards bioenergy activities
89The present plea is divided into two limbs, the first alleging a manifest error of assessment relating to the substantial contribution to climate change mitigation, and the second, put forward in the alternative, alleging misapplication of the principle of ‘do no significant harm’ to the objective of the transition to a circular economy as regards the principle of cascading forest biomass use.
First limb of the second plea: manifest error of assessment relating to the substantial contribution to climate change mitigation
90The applicant submits, in essence, that, in point 3.1 of Annex II to the contested decision, the Commission committed a manifest error of assessment in concluding that the combustion of forest biomass contributes substantially to climate change mitigation and causes no significant harm to the environmental objectives.
91The Commission disputes the applicant’s arguments.
92It is appropriate to examine in turn the various arguments put forward by the applicant. In the first place, the applicant submits that the Commission was wrong to adopt a ‘political’ decision in order to balance the requirements laid down in Article 19(1)(d) and (f) of the Taxonomy Regulation. It adds that the Commission unduly based the technical screening criteria for bioenergy activities on the RED II Directive and the LULUCF Regulation.
93It is worth pointing out that that line of argument of the applicant overlaps to a large extent with the arguments developed in the context of the second and third limbs of the first plea.
94On the one hand, however, in so far as the applicant disputes that the Commission may balance the various requirements set out in Article 19(1) of the Taxonomy Regulation for the purpose of establishing the technical screening criteria, it does not put forward any specific argument capable of demonstrating that the Commission misapplied that balancing. What is more, as is apparent from paragraphs 55 to 57 above, it is for the Commission, when establishing the technical screening criteria, to take into account all of the requirements provided for in that provision, striking, where appropriate, the appropriate balance or a practical concordance between them, having regard to the diversity of their objectives and natures and to the fact that they do not necessarily converge.
95On the other hand, it should be noted that, as has been concluded in paragraphs 63 and 69 above, the technical screening criteria cannot be established by the Commission without taking existing EU legislation into account and, in particular, the RED II Directive and the LULUCF Regulation.
96In that regard, it should be recalled that, as is apparent from paragraph 67 above, the Taxonomy Regulation refers expressly to the RED II Directive and indirectly to the LULUCF Regulation. Thus, Article 10(1)(a) of the Taxonomy Regulation provides that an economic activity is to qualify as contributing substantially to climate change mitigation where that activity contributes substantially to the stabilisation of greenhouse gas concentrations in the atmosphere, inter alia by generating, transmitting, storing, distributing or using renewable energy in line with the said directive. Moreover, it follows from recital 32 of the same regulation that the expression ‘sustainable forest management’ must be construed by taking into account, inter alia, that directive and the LULUCF Regulation.
97In particular, it follows from paragraph 68 above that the LULUCF criteria provided for in Article 29(7) of the RED II Directive and the LULUCF Regulation are intrinsically linked, since the accounting for emissions and removals resulting from LULUCF activities is carried out on the basis of that regulation.
98In addition, it follows from the impact assessment accompanying the draft Delegated Regulation that the LULUCF Regulation provides for the most complete estimate of biomass emissions, as it directly and immediately attributes all the carbon stock change in forests (including, for example, to soils) as emissions in the year of harvest – balanced by the sequestration in the forest system.
99Furthermore, as has been noted in paragraph 70 above, it follows from the specific examples put forward in point 3.1.1(b) of Annex II to the contested decision that the technical screening criteria established for bioenergy activities provide for requirements other than those currently provided for in existing legislation, concerning, inter alia, the introduction of a higher greenhouse gas emission saving threshold or the prohibition of the use of food and feed crops for the production of biogas or biofuels.
100It follows that the Commission cannot be criticised for having taken into account the RED II Directive and the LULUCF Regulation when establishing the technical screening criteria. The applicant’s vague argument that the technical expert group on sustainable finance found that that legislation did not fully comply with the requirements of the Taxonomy Regulation is not such as to call that conclusion into question, especially since it has been shown that the technical screening criteria at issue in the present case provide for requirements other than those currently provided for in the said legislation.
101In the second place, the applicant criticises the Commission for having treated all forest feedstocks in a uniform manner without following the recommendations of the technical expert group on sustainable finance which recommended limiting the list of biomass, biogas and sustainable biofuels to the feedstock listed in Part A of Annex IX to the RED II Directive.
102In that regard, the Commission indicated in point 3.1.1(b) of Annex II to the contested decision that, admittedly, it had not followed the recommendations of the technical expert group on sustainable finance. However, on the one hand, those recommendations failed to take account of the fact that the feedstock listed in Part A of Annex IX to the RED II Directive, even if they had a high potential for decarbonisation, were not yet commercially competitive. On the other hand, they advocate a certification scheme which would have led to an increase in the administrative burden and costs for forest owners, which would run counter to the objective expressed in recital 47 of the Taxonomy Regulation, according to which the Commission should establish technical screening criteria that provide for sufficient legal clarity, that are practicable and easy to apply, and for which compliance can be verified within reasonable cost-of-compliance boundaries, thereby avoiding unnecessary administrative burden.
103In those circumstances, the Commission concluded, in point 3.1.1(b) of Annex II to the contested decision, that the definition of the technical screening criteria had entailed a necessary balancing in which account had also been taken of the risk of implementation problems, as regards, in particular, usability among those operators familiar with the parameters of the RED II Directive, and of the potential loss of market interest which could result if business activities considered sustainable under that directive lost that label under the European taxonomy.
104The Commission’s assessments, mentioned in paragraphs 102 and 103 above, are not called into question by the applicant’s line of argument, regard being had, inter alia, to the reasons given by the Commission for not following the recommendations of the technical expert group on sustainable finance concerning the raw materials listed in Part A of Annex IX to the RED II Directive. It has not been demonstrated that those reasons, namely the fact that those materials were not yet commercially competitive and that those recommendations advocated a certification scheme which would have led to an increase in the administrative burden and costs for forest owners, are vitiated by a manifest error of assessment capable of calling into question their plausibility, in accordance with the case-law recalled in paragraph 32 above.
105In the third place, the applicant submits that the Commission erred in relying on differences of opinion between the interested parties in order to dismiss, wrongly, the scientific evidence produced before it. According to the applicant, the Commission inter alia disregarded scientific evidence set out in the request for internal review, which evidence shows that the combustion of forest biomass increases greenhouse gas emissions, results in prolonged carbon payback time, harms biodiversity and makes achieving carbon neutrality impossible, especially since the existing legal framework does not account for the carbon costs of imported forest biomass.
106It must be held that those arguments of the applicant have not been demonstrated to the requisite legal standard. First, it follows from point 3.1.1(b) of Annex II to the contested decision that the Commission responded to the arguments set out by the applicant in the request for internal review, including those relating to scientific evidence. Those responses are moreover summarised in the application. It has therefore by no means been demonstrated that, in the said decision, the Commission failed to take into consideration the scientific evidence set out by the applicant.
107Second, it is clear from the contested decision that the scientific evidence set out by the applicant was not the only existing evidence. In point 3.1.1(b) of Annex II to that decision, after all, the Commission mentions several other items of evidence that it took into account, namely the recommendations of the technical expert group on sustainable finance, the impact assessment accompanying the draft Delegated Regulation, the impact assessment accompanying the RED II Directive, the guidelines of the Intergovernmental Panel on Climate Change (IPCC) and the scientific studies developed within its Joint Research Centre (JRC).
108Third and in any event, it should be observed that the applicant merely reproduces, in the application, the arguments that it put forward at the stage of the request for internal review and the Commission’s responses to those arguments, without however indicating any specific item of evidence capable of calling into question the plausibility of those responses. The mere fact that, in the context of the assessment of that complex, scientific evidence, the Commission had favoured certain elements to the detriment of those put forward by the applicant does not permit the conclusion that the Commission was wrong to dismiss that evidence or to call into question such an assessment, for which it has a wide margin of discretion, as has been recalled in paragraph 31 above.
109Furthermore, in terms of the applicant’s argument that imported timber was not taken into account, it should be pointed out that, admittedly, the LULUCF Regulation does not apply to that type of wood. However, the conditions of Article 29(6) and (7) of the RED II Directive apply both to wood originating in the European Union and to imported wood, as the Commission submits. Indeed, it follows from paragraph 6 of that article that the sustainability and greenhouse gas emissions saving criteria for fuels must take into account, inter alia, whether the country in which forest biomass was harvested has national or subnational laws applicable in the area of harvest as well as monitoring systems in place. In addition, pursuant to paragraph 7(a)(i) and (iii) of that article, account must also be taken of whether the country or regional economic integration organisation of origin of the forest biomass is a party to the Paris Agreement on Climate Change and has laws applicable in the area of harvest, to conserve and enhance carbon stocks and sinks, and providing evidence that reported LULUCF-sector emissions do not exceed removals (paragraph 7(a)(i) and (iii)).
110It follows that the applicant is wrong to claim that imported timber was not considered for the purposes of establishing the technical screening criteria for economic activities related to bioenergy.
111The first limb of the second plea must therefore be rejected.
Second limb of the second plea: misapplication of the principle of do no significant harm to the objective of transition to a circular economy as regards the principle of cascading forest biomass use
112The applicant claims that point 3.1.2(b) of Annex II to the contested decision is vitiated by a manifest error of assessment. According to it, the Commission was wrong to consider that there was insufficient scientific evidence to define technical screening criteria relating to the principle of ‘do no significant harm’ to the objective of transition to a circular economy as regards the use of forest biomass in bioenergy activities. However, the scientific evidence was largely sufficient and the technical expert group on sustainable finance recommended imposing such criteria in order to take account of the principle of cascading biomass use, that principle being recognised also in the proposal for a directive amending the RED II Directive. In the alternative, the applicant submits that, if the scientific evidence proved insufficient, the precautionary principle required that the combustion of forest biomass not be included in the taxonomy. Moreover, the applicant argues that the Commission was wrong to rely on the prospect of future legislation to justify a failure to act, at present, in accordance with the requirements of the Taxonomy Regulation.
113The Commission disputes the applicant’s arguments.
114First of all, it should be noted that, in point 3.1.2(b) of Annex II to the contested decision, first, the Commission contended that the relationship between the principle of cascading use and biomass was highly complex and that sufficient scientific evidence was paramount in order to define appropriate criteria and to ensure the proper implementation of that principle. Such complexity was acknowledged in the 2018 Commission document entitled ‘Guidance on cascading use of biomass with selected good practice examples on woody biomass’ and in Report No 8/2018 of the European Environment Agency, entitled ‘The circular economy and the bioeconomy’.
115Second, the Commission considered that, in that context, it was entitled to have recourse to a step-by-step approach and to proceed in the light of the experience gained, in accordance with Article 19(5) of the Taxonomy Regulation.
116Third, the Commission considered that the RED II Directive already contained provisions on waste hierarchy and on the circular economy, which operators had to respect. In particular, recital 21 of that directive provided that Member States were to ‘take due account of the principles of the circular economy’. Article 3(3) of that directive provided that ‘Member States shall ensure that their national policies …, and their support schemes, are designed with due regard to the waste hierarchy as set out in Article 4 of Directive 2008/98/EC to aim to avoid undue distortive effects on the raw material markets.’ Article 28(6) of the RED II Directive provided that the Commission was to review the list of feedstock, including biomass, and to base its analysis on the principles of the circular economy.
117Fourth, the Commission indicated that the proposal for a directive amending the RED II Directive provided, inter alia, that Member States were to take measures to ensure that energy from biomass was produced in a way that took into account the waste hierarchy and the principle of cascading use. In addition, that proposal for a directive mandated the Commission to adopt a delegated act on how to apply the principle of cascading use to biomass.
118That step-by-step approach set out by the Commission in the contested decision follows also from recital 31 of the Delegated Regulation, according to which ‘technical screening criteria for bioenergy activities should be complemented, reviewed and where necessary revised to take into account the latest evidence base … and taking into account relevant Union law, including [the RED II Directive] and its future revisions’.
119Next, it should be observed that the technical expert group on sustainable finance recommended that the Commission include criteria for bioenergy activities in relation to the transition to a circular economy.
120Last, it should be noted that the principle of cascading use is aimed at the efficient use of resources by prioritising the use of product materials according to their highest economic and environmental added value in a given order of priority.
121The applicant submits that the Commission was wrong to consider that there was insufficient scientific evidence to define technical screening criteria relating to the principle of ‘do no significant harm’ to the objective of transition to a circular economy in order to take into account the principle of cascading use of forest biomass.
122However, the applicant does not put forward any specific arguments capable of contradicting the Commission’s conclusion that there was insufficient scientific evidence. On the other hand, it must be stated that it is clear from the studies mentioned in the part of the contested decision transcribed in paragraph 114 above that the question of the relationship between the principle of cascading use and biomass was complex. In addition, the fact that the applicant reaches a conclusion on the sufficiency of scientific evidence which is different from that of the Commission does not suffice to demonstrate that the said decision is vitiated by a manifest error of assessment in that regard.
123Furthermore, it is appropriate to reject the applicant’s argument based on the precautionary principle. The mere invocation of that principle cannot suffice to call into question the plausibility of the Commission’s assessments, referred to in paragraphs 114 to 117 above, which led it to include, in the Delegated Regulation, the use of forest biomass in bioenergy activities, taking the view that it was entitled to have recourse to a step-by-step approach and to proceed in the light of the experience gained.
124As for the applicant’s argument that the Commission relied on the prospect of future legislation to justify a failure to act, at present, in accordance with the requirements of the Taxonomy Regulation, it is based on a misreading of the contested decision. It follows from point 3.1.2(b) of Annex II to that decision, in the part mentioned in paragraph 114 above, that the Commission relied on Article 19(5) of the Taxonomy Regulation in order to argue that it could use a step-by-step approach and proceed in the light of the experience gained, since it was obliged to review the technical screening criteria regularly and, where appropriate, to amend the delegated acts adopted in line with scientific and technological progress, in accordance with that Article 19(5).
125In addition, the Commission relied on the proposal for a directive amending the RED II Directive in order to highlight the future commitments that it had already made in that regard, in view of the circumstances identified at the date of the contested decision, relating to the complexity of the relationship between the principle of cascading use and biomass and to the lack of sufficient scientific evidence to define appropriate criteria in order to ensure the proper application of the principle of cascading use.
126Therefore, contrary to what the applicant claims, the Commission did not rely on Article 19(5) of the Taxonomy Regulation in order to justify any failure to act.
127Moreover, it should be noted that the applicant does not specify the legal provisions on which it bases its line of argument. Nevertheless, in so far as the applicant’s arguments may be interpreted as alleging infringement of Article 17(1)(d) of the Taxonomy Regulation, they must be rejected.
128On the one hand, it is true that it follows from Article 10(3)(b) of the Taxonomy Regulation, read in conjunction with Article 17(1)(d) thereof, that the Commission must establish technical screening criteria for determining whether the economic activity concerned causes significant harm to the objective of the transition to a circular economy. However, in the light of the circumstances set out in paragraphs 114 to 120 above, the step-by-step approach adopted by the Commission as regards, in particular, the taking into account of the principle of cascading use of forest biomass cannot, in itself and without further details, amount to an infringement, by the Commission, of the abovementioned provisions. The applicant’s line of argument is not capable of demonstrating that the Commission committed a manifest error of assessment in its analysis of the principle of ‘do no significant harm’ to the objective of transition to a circular economy as regards bioenergy activities. On the other hand, the applicant does not even specify which specific activities are covered by its line of argument.
129In the light of the foregoing, the second limb of the second plea must be rejected, as must, consequently, that plea as a whole.
Third plea: manifest errors of assessment as regards the manufacture of organic base chemicals
130The present plea is divided into four limbs, alleging manifest errors of assessment relating to:– (i) the classification of the manufacture of organic base chemicals as a transitional activity;– (ii) the criteria for applying the principle of ‘do no significant harm’ to the objective of transition to a circular economy;– (iii) the criteria for applying the principle of ‘do no significant harm’ to the objective of sustainable use and protection of water and marine resources; and– (iv) the criteria for applying the principle of ‘do no significant harm’ to the objective of pollution prevention and control.
131As a preliminary point, it should be noted that, first of all, it follows from the contested decision, read in conjunction with point 3.14 of Annex I to the Delegated Regulation, that the activity of manufacturing organic base chemicals referred to in that delegated regulation includes seven types of chemicals, namely high value chemicals, aromatics, vinyl chloride, styrene, ethylene oxide, monoethylene glycol and adipic acid.
132Next, it follows from point 3.14 of Annex I to the Delegated Regulation that an economic activity in that point constitutes a transitional activity as referred to in Article 10(2) of the Taxonomy Regulation where it complies with the technical screening criteria set out in the said point, namely criteria relating, first, to substantial contribution to climate change mitigation and, second, to the ‘do no significant harm’ principle, including the criteria established in Appendices A to D to that Annex I.
133Last, it is apparent from the file, and from the parties’ replies to questions put to them by the Court at the hearing, that certain organic base chemicals resulting from the activity referred to in point 3.14 of Annex II to the Delegated Regulation are subsequently used in several other activities, for which they are sometimes essential, such as the manufacture of nylon, household products, plastics or pharmaceutical products.
First limb of the third plea: manifest error of assessment as regards the classification of the manufacture of organic base chemicals as a transitional activity
134The applicant submits that, in point 3.2.1 of Annex II to the contested decision, the Commission committed a manifest error of assessment and infringed Article 19(1)(g) of the Taxonomy Regulation by considering that the manufacture of organic base chemicals could be classified as a transitional activity for the purposes of Article 10(2) of that regulation. On the one hand, the Commission did not take account of the impact of the life cycle of products and, on the other hand, it did not base the classification of that activity as a transitional activity on conclusive scientific evidence. The scientific evidence set out in the request for internal review reveals the absence of any adequate basis for concluding that the technical screening criteria applicable to the manufacture of organic base chemicals would make a substantial contribution to climate change mitigation and would not cause significant harm. Moreover, the Commission could not rely on the precautionary principle to dilute the obligation to ensure that the technical screening criteria take account of the full life cycle of the product. In this case, the precautionary principle requires that that activity not be included in the taxonomy.
135The Commission disputes the applicant’s arguments.
136As a preliminary point, it should be noted that, as has been observed in paragraphs 16 and 18 above, Article 10(1) of the Taxonomy Regulation lays down the conditions under which an economic activity is considered to make a substantial contribution to climate change mitigation. Article 10(2) of the said regulation lays down those conditions for economic activities for which there is no low-carbon alternative which is technologically and economically feasible, that is to say, ‘transitional’ activities, according to Article 19(1)(h)(ii) of that regulation.
137Recital 41 of the Taxonomy Regulation mentions that ‘the [ongoing] transition [to a climate-neutral economy] requires substantial reductions in greenhouse gas emissions in other economic activities and sectors for which there are no technologically and economically feasible low-carbon alternatives’, that ‘those transitional economic activities should qualify as contributing substantially to climate change mitigation if their greenhouse gas emissions are substantially lower than the sector or industry average, they do not hamper the development and deployment of low-carbon alternatives and they do not lead to a lock-in of assets incompatible with the objective of climate-neutrality, considering the economic lifetime of those assets’ and that ‘the technical screening criteria for such transitional economic activities should ensure that those transitional activities have a credible path towards climate-neutrality, and should be adjusted accordingly at regular intervals.’
138The first and final subparagraphs of Article 19(5) of the Taxonomy Regulation provide that the technical screening criteria established for transitional activities must be reviewed at least every three years in line with scientific and technological developments.
139As has been observed in paragraphs 75, 76 and 85 above, it follows, in essence, from Article 19(1)(g) of the Taxonomy Regulation, read in conjunction with recitals 34, 40 and 47 thereof, that the technical screening criteria must take into account the life cycle of the products and services provided by the economic activity in question, by considering both the environmental impact of the economic activity itself and the environmental impact of those products and services. However, that provision does not require the establishment of technical screening criteria relating specifically to the life cycle or oblige the Commission to carry out a life-cycle assessment in all cases. What is required is that, when adopting the technical screening criteria, the life cycle be taken into consideration by the Commission, taking into account, inter alia, existing life-cycle assessments.
140First of all, the applicant submits that the Commission failed to take into account the impact of the life cycle of the products. That argument is similar to the one put forward in support of the fourth limb of the first plea and must therefore be rejected for the same reasons as those referred to in paragraphs 77 to 86 above.
141As has been stated in paragraph 84 above, the Commission maintained, in the contested decision, that the integration of life-cycle considerations universally into the technical screening criteria proved difficult for the lack of usable and comparable data. However, it also follows from that decision that, as regards the technical screening criteria relating to the manufacture of organic base chemicals, the Commission took into consideration direct greenhouse gas emissions in the manufacturing process and, in particular, benchmarks from the greenhouse gas emissions trading scheme.
142What is more, as has been noted in paragraph 85 above, Article 19(1)(g) of the Taxonomy Regulation, read in conjunction with recitals 34, 40 and 47 thereof, does not require the provision of technical screening criteria relating specifically to the life cycle or oblige the Commission to carry out a life-cycle assessment in all cases. What is required is that, when adopting the technical screening criteria, the life cycle be taken into consideration by the Commission, taking into account, inter alia, existing life-cycle assessments.
143In the present limb of the third plea, just like in the fourth limb of the first plea (see paragraph 87 above), however, the applicant merely submits, in general terms, that the Commission did not duly discharge its obligation to take the life cycle into consideration, but does not put forward any specific element capable of calling into question the plausibility of the Commission’s assessments, mentioned in paragraphs 141 and 142 above.
144Next, the applicant submits that the Commission did not base the classification of the activity of manufacturing organic base chemicals as a transitional activity on conclusive scientific evidence.
145However, that argument is not substantiated, as the Commission contends. The applicant is limited to claiming that classifying the manufacture of organic base chemicals as a transitional activity runs counter to available scientific evidence, ‘not only as to lifecycle impacts but [also] more generally’, without, however, specifying the scientific evidence to which it is referring or the provisions allegedly infringed by the contested decision. Moreover, the mere reference, without further details, to the elements set out in the request for internal review cannot suffice to make good that inadequacy of claim.
146Last, the applicant submits that the precautionary principle requires that the activity of manufacturing organic base chemicals not be included within the taxonomy. However, it does not explain how classifying the manufacture of organic base chemicals as a transitional activity runs counter to that principle.
147Furthermore, it should be noted, as the Commission does, that the applicant has not put forward any argument to show that that institution exceeded the limits of its discretion in deciding to classify the manufacture of organic base chemicals as a transitional activity for the purposes of Article 10(2) of the Taxonomy Regulation.
148The first limb of the third plea must therefore be rejected.
Second limb of the third plea: manifest error of assessment as regards the criteria for applying the principle of do no significant harm to the objective of transition to a circular economy
149The applicant submits, in essence, that, for the reasons already set out in the first limb of the third plea, the Commission committed a manifest error of assessment in point 3.2.2(a) of Annex II to the contested decision in failing to take into account the life-cycle impacts of organic base chemicals and, therefore, in failing to propose criteria relating to the principle of ‘do no significant harm’ to the objective of transition to a circular economy.
150The Commission disputes the applicant’s arguments.
151It should be pointed out at the outset that, in the present limb, the applicant is limited to referring to the arguments that it has put forward in the first limb of the present plea. Those arguments must therefore be rejected for the same reasons as those mentioned in paragraphs 143, 145 and 146 above.
152The fact that the present limb appears to allege infringement of Article 17(1)(d) of the Taxonomy Regulation, whereas the first limb of the third plea alleges infringement of Article 19(1)(g) of that regulation, in no way alters that conclusion. The applicant does not put forward any detailed argument such as to show that a manifest error of assessment was committed by the Commission in its analysis of the principle of ‘do no significant harm’ to the objective of transition to a circular economy as regards the activity of manufacturing organic base chemicals.
153Accordingly, the second limb of the third plea must be rejected.
Third limb of the third plea: manifest error of assessment as regards the criteria for applying the principle of do no significant harm to the objective of sustainable use and protection of water and marine resources
154The applicant submits that, in point 3.2.2(b) of Annex II to the contested decision, the Commission committed a manifest error of assessment in relation to the requirement to establish criteria relating to the principle of ‘do no significant harm’ to the sustainable use and protection of water and marine resources. The technical screening criteria established by the Commission took into account only the bodies of water covered by Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1; ‘the Water Framework Directive’). However, Appendix B to Annex I to the Delegated Regulation makes no reference to the marine environment or to Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for [Community] action in the field of marine environmental policy (OJ 2008 L 164, p. 19; ‘the Marine Strategy Framework Directive’). The applicant adds that, in the request for internal review, it nevertheless set out a body of scientific evidence demonstrating that organic base chemicals were used in the production of plastics and that they presented a considerable risk to marine ecosystems, in particular because of microplastic and nanoplastic pollution.
155The Commission disputes the applicant’s arguments.
156As a preliminary point, it should be noted that Article 10(3)(b) of the Taxonomy Regulation provides that the delegated act adopted by the Commission must establish, for each relevant environmental objective, technical screening criteria for determining whether the economic activity concerned causes significant harm to one or more of those objectives (see paragraph 19 above).
157Article 9(c) of the Taxonomy Regulation sets as an environmental objective ‘the sustainable use and protection of water and marine resources’ (see paragraph 14 above).
158Article 17(1)(c)(i) and (ii) of the Taxonomy Regulation provides that, for the purposes of point (b) of Article 3 of that regulation, taking into account the life cycle of the products and services provided by an economic activity, including evidence from existing life-cycle assessments, that economic activity is to be considered significantly to harm the sustainable use and protection of water and marine resources, where that activity is detrimental to the good status or the good ecological potential of bodies of water, including surface water and groundwater, or to the good environmental status of marine waters (see paragraphs 13 and 22 above).
159Furthermore, according to the first paragraph of Article 1 thereof, the purpose of the Water Framework Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater.
160According to Article 1(1) thereof, the Marine Strategy Framework Directive establishes a framework within which Member States are to take the necessary measures to achieve or maintain good environmental status in the marine environment by the year 2020 at the latest. That directive obliges each Member State, in respect of each marine region or subregion concerned, inter alia, to develop a marine strategy for its marine waters in accordance with Article 5(1) and recital 11 thereof. To that end, under Article 9(1) of that directive, Member States must, in respect of each marine region or subregion concerned, determine, for the marine waters, a set of characteristics for good environmental status, on the basis of the qualitative descriptors listed in Annex I. In addition, under Article 10(1) of the same directive, Member States must, in respect of each marine region or subregion, establish a comprehensive set of environmental targets and associated indicators for their marine waters so as to guide progress towards achieving good environmental status in the marine environment.
161In the case at hand, it follows from point 3.2.2(b) of Annex II to the contested decision that, as regards the technical screening criteria, the Commission considered that the Taxonomy Regulation operated at the level of economic activities and that, as regards the activity of manufacturing organic base chemicals, Appendix B to Annex I to the Delegated Regulation provided sufficient criteria to satisfy the principle of ‘do no significant harm’ to the sustainable use and protection of water and marine resources. Those criteria referred to the river basin management plans under Article 13 of, and Annex VII to, the Water Framework Directive. Those management plans applied also to coastal and transitional waters, namely those waters situated within one territorial mile for most of the quality elements defining good water status and those situated within 12 miles for chemical status. In addition, Annexes II and VIII to that framework directive required Member States to include plastics and microplastics under the pollutant category of ‘materials in suspension’ in water. According to the Commission, the downstream impacts of the activity in question were complex and were linked to numerous economic activities, given the wide variety of uses of organic base chemicals. As regards the potential downstream impact of microplastic and nanoplastic pollution, it would be better covered by more specific activities downstream, including activities related to waste prevention and management, which could be captured in the taxonomy as it expands.
162In terms of the Marine Strategy Framework Directive, the Commission considered, in point 3.2.2(b) of Annex II to the contested decision, that that framework directive did not establish the maximum concentration of certain contaminants, including of organic base chemicals. Member States were responsible for defining maximum concentrations within the framework of regional or subregional cooperation, as was apparent from Article 9 and from the qualitative descriptors provided for in points 8 and 9 of Annex I to that framework directive, which serve to define good environmental status.
163The applicant submits that the Commission committed a manifest error of assessment in that it failed to take into account the marine environment and the Marine Strategy Framework Directive in the technical screening criteria established for the activity of manufacturing organic base chemicals, even though scientific evidence showed that those chemicals were used in the production of plastics and that those chemicals posed a considerable risk to marine ecosystems due to pollution by microplastics and nanoplastics.
164The applicant’s line of argument appears to stem from an interpretation of certain unspecified provisions of the Taxonomy Regulation, according to which, when establishing the technical screening criteria for the purposes of applying the ‘do no significant harm’ principle, the Commission must take into account the impact on water and marine resources not only of the activity of manufacturing organic base chemicals, but also of the economic activities carried out downstream of that activity and, in particular, of the manufacture of plastics.
165In that regard, it should be noted that, as is apparent from paragraph 133 above, organic base chemicals are subsequently used in several other activities, including in the manufacture of plastics. However, the economic activity at issue in point 3.2.2(b) of Annex II to the contested decision was not the manufacture of plastics, but the manufacture of organic base chemicals.
166It does not follow from the provisions of the Taxonomy Regulation, however, that the technical screening criteria set having regard to the principle of ‘do no significant harm’ to the environmental objectives and, in particular, to the sustainable use and protection of water and marine resources must take into account the economic activities downstream of the activity covered by those criteria.
167The Taxonomy Regulation aims to establish a unified classification system for economic activities considered environmentally sustainable (see paragraph 12 above). That classification or taxonomy therefore relates to specific economic activities.
168What is more, in accordance with Article 19(1)(g) of the Taxonomy Regulation, the technical screening criteria are to take into account the life cycle, including evidence from existing life-cycle assessments, by considering both the environmental impact of the economic activity itself and the environmental impact of the products and services provided by that economic activity, in particular by considering the production, use and end of life of those products and services.
169Moreover, it follows from a combined reading of Article 10(3)(b), Article 17(1)(c) and (2) and Article 19(1)(g) of the Taxonomy Regulation that the establishment of the technical screening criteria, by the Commission, including for determining whether an economic activity causes significant harm to the objective of sustainable use and protection of water and marine resources, must be done in relation to a specific economic activity and to the products or services provided by that activity.
170Accordingly, the establishment by the Commission of the technical screening criteria for determining whether an activity may be regarded as permanent is aimed, on a case-by-case basis, at a specific economic activity and therefore does not directly concern products or services resulting from other downstream activities of the economic activity in question.
171The applicant’s arguments must therefore be rejected in so far as they are based on the absence of technical screening criteria relating to the environmental impact of the manufacture of plastics or other activities downstream of the manufacture of organic base chemicals, which is the only activity at issue in the context of the present plea.
172Consequently, the applicant’s argument that the technical screening criteria established by the Commission did not take into account the Marine Strategy Framework Directive must also be rejected. The applicant relied on that framework directive in support of its line of argument based on the environmental impact not of the activity at issue in the context of the present plea, but of the downstream activity of manufacturing plastics and microplastics and nanoplastics provided by that activity.
173The third limb of the third plea must therefore be rejected.
Fourth limb of the third plea: manifest error of assessment as regards the criteria for applying the principle of do no significant harm to the objective of pollution prevention and control
174The applicant submits that, in point 3.2.2(d) of Annex II to the contested decision, the Commission committed a manifest error of assessment in classifying the activity of manufacturing organic base chemicals as a transitional activity, where it is intended exclusively for uses which are essential for society. The Commission accepts that at least four substances included in those products have been classified as substances of very high concern which cause significant harm to the environment and that it did not have sufficient information to know what their essential uses for society are. Contrary to what the Commission claims, the harm caused by the use of those substances cannot be offset by a less-carbon-intensive manufacturing process.
175Moreover, the applicant submits that the Commission was wrong to rely on the provisions of Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1; ‘the CLP Regulation’) and of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1; ‘the REACH Regulation’). Those provisions were not relevant, since they define the conditions for the lawful use of those substances but do not define the criteria for classifying an activity as environmentally sustainable.
176The Commission disputes the applicant’s arguments.
177As a preliminary point, it follows from a combined reading of Article 9(e), Article 10(3)(b) and Article 17(1)(e) of the Taxonomy Regulation that the delegated act adopted by the Commission must establish technical screening criteria for determining whether the economic activity concerned causes significant harm to the objective of pollution prevention and control.
178It follows from point 3.2.2(d) of Annex II to the contested decision that, first of all, the Commission considered that the applicant’s criticism had stemmed from an unrealistic interpretation of the taxonomy, as regards the requirement for the Commission to ensure easy verification of the downstream use of organic base chemicals. According to that decision, those were high production volume chemicals which were ‘basic’ chemicals, that is to say, chemicals necessary for the manufacture of numerous other chemicals used in society.
179In addition, the Commission mentioned that organic base chemicals included hazardous substances, namely substances which had harmonised classification and labelling under the CLP Regulation, substances which might be identified as substances of very high concern under the REACH Regulation and substances the use of which could fall within the restrictions on manufacture, placing on the market and use provided for in Annex XVII to the latter regulation (together, ‘hazardous substances’). However, it stated that the manufacture of organic base chemicals, referred to in point 3.14 of Annex I to the Delegated Regulation, had to comply with the conditions of Appendix C to that annex, from which it followed that the said manufacture could not lead to the manufacture, placing on the market or use of hazardous substances, such as those mentioned above, unless their use had been proved to be essential for society. The concept of ‘essential use’ for society followed from the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled ‘Chemicals Strategy for Sustainability’, dated 14 October 2020 (COM(2020) 667 final) (‘the Communication from the Commission on the Chemicals Strategy for Sustainability’).
180Thus, it follows from the contested decision, read in conjunction with the Delegated Regulation, that the activity of manufacturing organic base chemicals is classified as a transitional activity, for the purposes of the Taxonomy Regulation, only if it is carried out using a less-carbon-intensive process, that is to say, where the greenhouse gas emissions from its production process are below the thresholds set in point 3.14 of Annex I to that regulation.
181In addition, as is mentioned in the contested decision, Appendix C to Annex I to the Delegated Regulation provides that classification as a transitional activity does not apply to the manufacture of organic base chemicals, provided that it concerns the manufacture of substances (or mixtures containing them) which meet the criteria set out in Article 57 and Article 59(1) of the REACH Regulation, namely, in particular, substances (or mixtures containing them) which may be classified under the CLP Regulation, for certain hazards and hazard categories, ‘except where their use has been proven to be essential for the society’.
182It follows from the foregoing that the applicant’s complaint that the Commission did not put forward sufficient evidence on the downstream use of hazardous substances and on their uses which are essential for society cannot be accepted.
183On the one hand, the applicant’s line of argument does not take account of the Communication from the Commission on the Chemicals Strategy for Sustainability, referred to in the contested decision (see paragraph 179 above). As the Commission pointed out at the hearing, however, without being contradicted in that regard by the applicant, it follows from that communication that the hazardous substances the use of which is essential are those which are important for safety and human health or which are critical to the functioning of society.
184The Communication from the Commission on the Chemicals Strategy for Sustainability refers to the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer, to which the European Union became a party by Council Decision 88/540/EEC of 14 October 1988 concerning the conclusion of the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer (OJ 1988 L 297, p. 8). The obligations arising under that convention and that protocol are currently implemented in the EU legal order by Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer (OJ 2009 L 286, p. 1, last amended by Commission Regulation (EU) 2017/605 of 29 March 2017 amending Annex VI to Regulation No 1005/2009 (OJ 2017 L 84, p. 3)). Regulation No 1005/2009 contains several provisions concerning, inter alia, ‘essential laboratory and analytical uses’ of ‘controlled substances’, which are listed in Annex I thereto.
185In those circumstances, it has not been shown that the Commission did not have information on the hazardous substances the use of which is essential for society.
186On the other hand, the applicant is wrong to claim that the REACH and CLP Regulations, to which the contested decision refers, are irrelevant in that regard.
187It should be recalled that the REACH Regulation, which provides the legislative framework for the manufacture, placing on the market or use of chemicals, ‘is based on the principle that it is for manufacturers, importers and downstream users to ensure that they manufacture, place on the market or use such substances that do not adversely affect human health or the environment’ (Article 1(3)). Thus, that regulation lays down duties and obligations on manufacturers, importers and downstream users of substances (see recital 16) concerning, in essence, the registration of substances (Title II), data sharing (Title III) and the duty to provide information within the supply chain (Title IV).
188In addition, the CLP Regulation, which sets harmonised requirements for the classification, packaging and labelling of chemicals and hazardous mixtures, imposes on manufacturers, importers and downstream users obligations consisting, inter alia, in the classification, labelling and packaging (Article 4), the identification and examination of available information on substances (Articles 5 and 6), the evaluation of that information and, where appropriate, the self-classification of substances, by applying the classification criteria for each hazard class (Articles 5, 9 and 13), as well as the submission of proposals for harmonised classification and labelling (Article 37(1) and (2)).
189Thus, it follows from the legal requirements relating to chemical safety, provided for inter alia in the REACH and CLP Regulations, that downstream uses of organic base chemicals are regulated and that the manufacturers of those products, as well as other actors in the supply chain, are subject to a range of obligations as regards, inter alia, registration, information and data sharing.
190The applicant, however, provides no explanation as to why the legal framework mentioned in the contested decision, and recalled in paragraphs 184 and 187 to 189 above, and the obligations arising therefrom are insufficient to provide evidence on the downstream uses of hazardous substances.
191Furthermore, the applicant’s assertion that the harm caused by the use of hazardous substances cannot be offset for by the fact that those substances could be manufactured in a less-carbon-intensive process must be rejected. That assertion, which is moreover vague, is not capable of demonstrating that the Commission committed a manifest error of assessment.
192It follows from the foregoing that it has not been shown that, in point 3.2.2(d) of Annex II to the contested decision, the Commission committed a manifest error of assessment as regards the criteria for applying the principle of ‘do no significant harm’ to the objective of pollution prevention and control, so far as concerns the activity of manufacturing organic base chemicals.
193In the light of the foregoing, the fourth limb of the third plea must be rejected, as must, consequently, that plea as a whole.
Fourth plea: manifest errors of assessment as regards the manufacture of plastics in primary form
194The present plea is divided into three limbs, alleging manifest errors of assessment relating to:– (i) the absence of a quantitative threshold;– (ii) the objective of the transition to a circular economy; and– (iii) the objective of sustainable use and protection of water and marine resources.
195As a preliminary point, it should be noted, first of all, that it follows from the contested decision, read in conjunction with point 3.17 of Annex I to the Delegated Regulation, that the activity of manufacturing plastics in primary form referred to in that regulation includes the ‘manufacture [of] resins, plastics materials and non-vulcanisable thermoplastic elastomers, the mixing and blending of resins on a custom basis, as well as the manufacture of non-customised synthetic resins’.
196Next, it follows from point 3.17 of Annex I to the Delegated Regulation that an economic activity in that point constitutes a transitional activity as referred to in Article 10(2) of the Taxonomy Regulation where it complies with the technical screening criteria set out in the said point, namely criteria relating, first, to substantial contribution to climate change mitigation and, second, to the ‘do no significant harm’ principle.
197Last, it follows from point 3.17 of Annex I to the Delegated Regulation that, in addition to the technical screening criteria which are provided for therein, the activity of manufacturing plastics in primary form must comply with the criteria established in Appendices A to D to Annex I to that regulation.
First limb of the fourth plea: manifest error of assessment as regards the absence of a quantitative threshold
198The applicant argues that, in point 3.3 of Annex II to the contested decision, the Commission committed a manifest error of assessment, given that the technical screening criteria relating to the manufacture of plastics in primary form lack any quantitative threshold as regards the proportion of renewable feedstock necessary for that manufacture to qualify as an activity contributing substantially to climate change mitigation. This entails a risk of ‘greenwashing’, since a product could qualify as a bioplastic when it contains only a very small proportion of ‘bio-based’ plastic. By way of example, the applicant suggests that the percentage of renewable plastic needed to classify the activity as sustainable could have been specified. In addition, the Commission acknowledged, in the said decision, that the technical screening criteria were not based on studies or expert opinions, merely noting the possibility of a future revision of those criteria. However, neither the subsequent amendments to the legal framework referred to in that decision nor the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 30 November 2022 (COM(2022) 682 final) (‘the Communication from the Commission on Plastics’) can remedy those shortcomings in the establishment of the technical screening criteria.
199The Commission disputes the applicant’s arguments.
200In the first place, the applicant criticises the Commission for failing to set quantitative thresholds as regards the quantity of renewable raw materials used in the manufacture of plastics in primary form. That creates a risk of greenwashing, allowing plastics with a very small part of bio-based plastic to qualify as bioplastics.
201In that regard, it follows from point 3.3 of Annex II to the contested decision, read in conjunction with point 3.17(a) to (c) of the Delegated Regulation, that the manufacture of plastics in primary form may be regarded as contributing substantially to climate change mitigation, provided that it meets one of the following three technical screening criteria: (i) ‘the plastic in primary form is fully manufactured by mechanical recycling of plastic waste’; (ii) ‘where mechanical recycling is not technically feasible or economically viable, the plastic in primary form is fully manufactured by chemical recycling of plastic waste’; and (iii) it is ‘derived wholly or partially from renewable feedstock’. In addition, under the second and third criteria, thresholds are set for life-cycle greenhouse gas emissions, those emissions having to be calculated on the basis of the recommendation and ISO standards which are identified and verified by an independent third party.
202It follows that, as regards the manufacture of plastics in ordinary form, the Commission established, on the one hand, a qualitative criterion which requires the use of renewable raw materials in undetermined quantities and, on the other hand, a quantitative criterion which requires greenhouse gas emissions not to exceed established thresholds.
203What is more, in point 3.3 of Annex II to the contested decision, the Commission submits, in essence, that the setting of a quantitative threshold linked to the proportion of renewable raw materials and an absolute threshold for life-cycle greenhouse gas emissions for plastics was made difficult – if not impossible – by factors such as the lack of sufficient data to assess the potential life-cycle impacts of plastics from different raw materials.
204The applicant’s line of argument is not such as to cast doubt on the plausibility, within the meaning of the case-law cited in paragraph 32 above, of the Commission’s choices concerning the technical screening criteria established for the activity of manufacturing plastics in primary form.
205It is true that the applicant submits that the Commission should have set a quantitative criterion establishing a minimum proportion of renewable raw materials for the manufacture of plastics in primary form. However, the inclusion of quantitative criteria or thresholds in the technical screening criteria is not mandatory in all situations.
206Article 19(1)(c) of the Taxonomy Regulation provides that those criteria are to ‘be quantitative and contain thresholds to the extent possible, and otherwise be qualitative’ (see paragraph 23 above). In addition, Article 19(1)(k) of that regulation provides that the technical screening criteria are to ‘be easy to use and be set in a manner that facilitates the verification of their compliance’.
207Thus, the Commission’s decision to set a qualitative criterion without setting a quantitative threshold for the use of renewable raw materials is not, in itself, contrary to Article 19 of the Taxonomy Regulation. Moreover, the general hypothesis put forward by the applicant, according to which the existence of a purely qualitative criterion entails the risk of ‘greenwashing’, is not sufficient to cast doubt on the plausibility of that assessment, or on the reasons relied on by the Commission, based on the lack of sufficient evidence allowing such a threshold to be set and to set it in such a way that it would be easy to use and to verify, in accordance with Article 19(1)(k) of that regulation.
208In the second place, the applicant submits that the Commission concedes in the contested decision that the technical screening criteria are not based on studies or expert opinions. Moreover, neither the subsequent amendments to the legal framework nor the Communication from the Commission on Plastics relied on in that decision can remedy those deficiencies.
209It should be noted at the outset that that line of argument is in no way substantiated and appears to be based on a misreading of the contested decision. In any event, it is not borne out by the documents in the file.
210It should be pointed out that the Commission does not concede, in the contested decision, that the technical screening criteria are not based on scientific evidence. On the contrary, point 3.3 of Annex II to that decision makes reference to point 2.1(a)(i) of that annex and thus to the impact assessment accompanying the draft Delegated Regulation (see paragraph 5 above) and to the studies mentioned therein. In addition, several studies and expert opinions are mentioned throughout that decision as well as in the recitals of the Delegated Regulation.
211The applicant does not allege any manifest error of assessment concerning the studies or opinions referred to in the contested decision, however, nor does it even claim that the Commission disregarded any relevant study for the purposes of the setting of technical screening criteria relating to the activity of manufacturing plastics in primary form.
212It follows that the applicant’s argument alleging a lack of scientific evidence has not been demonstrated.
213Consequently, it is necessary to reject also the applicant’s argument based on an alleged inadequate taking into account of the subsequent amendments to the legal framework and the Communication from the Commission on Plastics, in so far as that argument is based on an alleged lack of scientific evidence.
214Moreover, the applicant does not explain how the reference in the contested decision to the draft Communication from the Commission on Plastics could render that decision unlawful.
215Furthermore, in terms of the reference in the contested decision to future revisions of the technical screening criteria, it should be borne in mind that, under the first and last subparagraphs of Article 19(5) of the Taxonomy Regulation, the technical screening criteria established for transitional activities must be reviewed at least every three years in line with scientific and technological developments.
216As the manufacture of plastics in primary form is classified as a transitional activity (see paragraphs 26, 195 and 196 above), the Commission cannot be criticised for having recalled, in the contested decision, its obligation to conduct a periodic review of the technical screening criteria. Underlying that obligation is the transitional or provisional nature of the classification of the activity as environmentally sustainable, given that it is an activity for which there is no technologically and economically feasible low-carbon alternative, in accordance with Article 10(2) of the Taxonomy Regulation.
217The first limb of the fourth plea must therefore be rejected.
Second limb of the fourth plea: manifest error of assessment as regards the objective of transition to a circular economy
218The applicant argues that, in point 3.3.1 of Annex II to the contested decision, the Commission committed a manifest error of assessment in that the Delegated Regulation does not contain criteria relating to the principle of ‘do no significant harm’ to the objective of transition to a circular economy in the field of plastics in primary form. On the one hand, the Commission did not follow the recommendation of the technical expert group on sustainable finance to consider the manufacture of plastics in primary form as transitional only in so far as it fulfilled additional criteria according to which at least 90% of the plastics were not used for single-use consumer products or were derived from recycled plastics. If it was not possible to follow that recommendation, the Commission should not have classified that activity as a transitional activity, especially since, at the date of the said decision, it was working on studies in that field. Bio-based plastics are mainly subject to single-use applications and producing them contributes to an increase in the production of plastics. Accordingly, in the absence of any requirement linked to the transition to a circular economy, the production of plastics does not make a substantial contribution to climate change mitigation. On the other hand, the Commission did not take into account technologies which play an important role in determining recycling levels, such as identifiers or track and tracing, or alternative solutions which could have been adopted on the basis of scientific evidence, including those put forward by way of example by the applicant.
219The Commission disputes the applicant’s arguments.
220As a preliminary point, it is to be recalled that it follows from a combined reading of Article 9(d), Article 10(3)(b) and Article 17(1)(d) of the Taxonomy Regulation that the delegated act adopted by the Commission must establish technical screening criteria for determining whether the economic activity concerned causes significant harm to the objective of transition to a circular economy.
221In the case at hand, in point 3.3.1 of Annex II to the contested decision, the Commission considered, first of all, that the downstream impacts of bio-based plastics were highly complex, multifaceted and linked to numerous economic activities given the multiple uses of those plastics. When designing the technical screening criteria applicable to the manufacture of plastics in primary form, the Commission had ensured, as far as possible, that both the environmental impacts of the activity itself and the environmental impacts of the products and services provided by that activity were taken into account throughout their life cycle, in accordance with Article 19(1)(g) of the Taxonomy Regulation.
222Next, the Commission considered that the integration of life-cycle elements universally into the technical screening criteria had proved difficult for the lack of usable and comparable data and the multiplicity of applications of bio-based plastics. In its view, those elements had been mentioned in the impact assessment accompanying the draft Delegated Regulation. Therefore, given that the most recent scientific evidence was not sufficiently operational to be used, in accordance with Article 19(1)(k) of the Taxonomy Regulation, it decided not to include a criterion relating to the principle of ‘do no significant harm’ in relation to the objective of transition to a circular economy for the activity of manufacturing plastics in primary form.
223Last, the Commission mentioned that it would consider relevant additional scientific evidence and take it into account in the review of the delegated act, in accordance with Article 19(5) of the Taxonomy Regulation. It indicated that it was already working on a policy in that area, including a draft communication on plastics, which would provide guidance on how to manufacture, use and treat bio-based plastics.
224As regards the applicant’s argument that the Commission did not follow a recommendation of the technical expert group on sustainable finance, it should be observed that that group’s recommendations are not binding on the Commission, which the applicant moreover does not dispute. What is more, the applicant has not adduced any evidence to show that the reasons given by the Commission in support of its decision not to follow such a recommendation are vitiated by a manifest error of assessment.
225Under Article 19(1)(g) and (k) of the Taxonomy Regulation, after all, the technical screening criteria must take into account the life cycle of the activity in question, but must also be easy to use and to verify. The Commission found, in the contested decision, that the integration of life-cycle elements universally into the criteria had proved difficult for the lack of usable and comparable data and the multiplicity of applications of bio-based plastics.
226It should be noted, however, that the Court cannot substitute itself for the Commission in its assessment of the operational nature or the sufficiency of scientific and complex evidence for the purposes of determining whether it was possible to set such a technical screening criterion and whether that criterion would be easy to use and to verify.
227In addition, the applicant’s line of argument based on the existence of other relevant factors or alternatives is not capable of demonstrating a manifest error of assessment on the part of the Commission when it found that the integration of life-cycle elements universally into the criteria had proved difficult for the lack of usable and comparable data and the multiplicity of applications of bio-based plastics. In particular, that error cannot be demonstrated by the fact, invoked by the applicant, that certain technologies allow products to be identified and tracked, given the general nature of that assertion.
228Similarly, the few elements relied on by the applicant, mentioned below, are neither detailed nor demonstrated in the present case, and therefore do not suffice to call into question the Commission’s assessment that the manufacture of plastics in primary form had to be classified as a transitional activity, contributing substantially to climate change mitigation.
229First of all, the alleged lack of recycling of bio-based plastics derived from polylactic acid cannot have an impact on all plastics in primary form, the applicant invoking it merely as an example.
230Next, even accepting that the percentage of bio-based plastics used in packaging might be a relevant and sufficient factor to demonstrate a manifest error of assessment, the fact remains that that percentage has not been established in the present case and that, contrary to what the applicant claims, the Commission submits that only around half of the production of plastics in primary form is used for packaging.
231Last, as regards the quantity of land which, according to the applicant, is necessary to replace petrochemical plastics with bio-based plastics, the applicant does not develop any reasoning enabling a link to be established between that argument and the issues in question.
232The second limb of the fourth plea must therefore be rejected.
Third limb of the fourth plea: manifest error of assessment as regards the objective of sustainable use and protection of water and marine resources
233The applicant argues that, in point 3.3.2 of Annex II to the contested decision, the Commission committed a manifest error of assessment for the reasons put forward in the third limb of the third plea, concerning the manufacture of plastics in primary form.
234The Commission disputes the applicant’s arguments.
235It should be pointed out at the outset that the applicant merely refers to the arguments that it has put forward under the third limb of the third plea and that have been rejected in that context (see paragraphs 156 to 173 above).
236In the light of all of the foregoing, the third limb of the fourth plea must be rejected, as must, consequently, the present plea as a whole, such that the action must be dismissed in its entirety.
Costs
237Under Article 134(1) of the Rules of Procedure of the General Court, 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 pay, in addition to its own costs, the costs incurred by the Commission, in accordance with the form of order sought by that institution.
238Under Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. Accordingly, the French Republic, which has intervened in support of the form of order sought by the Commission, must be ordered to bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Sixth Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders ClientEarth AISBL to bear its own costs and to pay those incurred by the European Commission;
3.Orders the French Republic to bear its own costs.
Delivered in open court in Luxembourg on 10 September 2025.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.