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 — Electricity generation from wind power — Taxonomy — Requirements for technical screening criteria — Article 19 of Regulation (EU) 2020/852 — Substantial contribution to climate change mitigation — Substantial contribution to climate change adaptation — No significant harm to other environmental objectives)In Case T‑583/22,Fédération environnement durable, established in Paris (France),Bundesinitiative Vernunftkraft eV, established in Berlin (Germany),Vent de Colère ! – Fédération nationale, established in Peyraud (France),Vent de Raison – Wind met Redelijkheid (VdR-WmR), established in Petit-Rœulx (Belgium),represented by M. Le Berre, lawyer,vEuropean Commission, represented by G. von Rintelen, G. Gattinara, C. Auvret and B. De Meester, acting as Agents,THE GENERAL COURT (Sixth Chamber, Extended Composition),composed of M. J. Costeira, President, M. Kancheva, U. Öberg, P. Zilgalvis and E. Tichy-Fisslberger (Rapporteur), Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure,having regard to the applicants’ letter lodged at the Registry of the General Court on 6 December 2023,having regard to the Court’s question to the parties,further to the hearing on 28 November 2024,gives the following
Judgment
1By their action based on Article 263 TFEU, the applicants, Fédération environnement durable, Bundesinitiative Vernunftkraft eV, Vent de Colère ! – Fédération nationale and Vent de Raison – Wind met Redelijkheid (VdR-WmR), seek the annulment of Decision Ares(2022) 4952619 of 7 July 2022, by which the European Commission rejected as unfounded the request for internal review of Commission 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 related to the economic activity of ‘electricity generation from wind power’ (‘the contested decision’).
Background to the dispute
2The 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), namely the act referred to as the ‘Taxonomy Regulation’.
3It was published in the Official Journal of the European Union on 9 December 2021.
4On 3 February 2022, the applicants 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 (OJ 2021 L 356, p. 1). They claimed, in essence, that the Delegated Regulation did not demonstrate that the economic activity of ‘electricity generation from wind power’ contributes substantially to the environmental objectives pursued by that delegated regulation.
5On 7 July 2022, the Commission communicated the contested decision to the applicants. By that decision, it rejected as unfounded the request for internal review, on the ground that the Delegated Regulation was in compliance with the relevant EU law.
Forms of order sought
6The applicants claim, in essence, that the Court should:– annul the contested decision;– order the Commission to pay the costs.
7The Commission contends that the Court should:– dismiss the action;– order the applicants to pay the costs.
Law
8In support of the action, the applicants put forward five pleas in law organised, in essence, around a number of subjects. The first plea concerns the preparation of the Delegated Regulation and is composed of three limbs, by which the applicants allege the infringement of provisions of EU law. In the second plea, they refer in the context of four limbs to the objective of climate change mitigation and allege infringements of various provisions of EU law. The third plea concerns the objective of climate change adaptation. In the context of the four limbs of the fourth plea, the applicants address the principle of ‘do no significant harm’ to the other environmental objectives. They claim, last, by the fifth plea, that the Commission failed to fulfil its duty to state reasons.
9In the reply, the applicants raise, in addition, an alternative plea alleging the illegality, within the meaning of Article 277 TFEU, of the Delegated Regulation.
Preliminary considerations on Regulation 2020/852 and the Delegated Regulation
10According to Article 1(1) thereof, Regulation 2020/852 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.
11To that end, Regulation 2020/852 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.
12According to Article 3 of Regulation 2020/852, ‘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;…(d) complies with technical screening criteria that have been established by the Commission in accordance with Article 10(3) [and] 11(3) …’.
13The six environmental objectives listed in Article 9 of Regulation 2020/852 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.’
14Article 4 of Regulation 2020/852 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.
15Article 10(1) of Regulation 2020/852 provides that ‘an economic activity shall qualify as contributing substantially to climate change mitigation where that activity contributes substantially to the stabilisation of greenhouse gas concentrations in the atmosphere at a level which prevents dangerous anthropogenic interference with the climate system consistent with the long-term temperature goal of the Paris Agreement [on Climate Change, approved on 12 December 2015,] through the avoidance or reduction of greenhouse gas emissions or the increase of greenhouse gas removals … by:(a) generating … renewable energy in line with 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)] …’
16‘Climate change mitigation’ is defined in Article 2(5) of Regulation 2020/852 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]’.
17Article 10(3) of Regulation 2020/852 provides that the Commission is to adopt a delegated act in accordance with Article 23 of that 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.’
18Article 11(1) of Regulation 2020/852 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.’
19Article 11(3) of Regulation 2020/852 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.’
20Article 17(1) of Regulation 2020/852 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.’
21Article 19(1) of Regulation 2020/852 provides that the technical screening criteria established pursuant to, inter alia, Article 10(3) and Article 11(3) of that 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;…(c) be quantitative and contain thresholds to the extent possible, and otherwise be qualitative;…(f) be based on conclusive scientific evidence and the precautionary principle enshrined in Article 191 TFEU;…(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.…’
22The Delegated Regulation was adopted on the basis of, inter alia, Article 10(3) and Article 11(3) of Regulation 2020/852 (see paragraph 2 above).
23Article 1 of the Delegated Regulation provides that the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives are set out in Annex I to that delegated regulation. Under Article 2 of the Delegated Regulation, the technical screening criteria for determining the conditions under which an economic activity qualifies 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 set out in Annex II to that delegated regulation.
24Annexes I and II to the Delegated Regulation specify technical screening criteria for each economic activity covered by that delegated regulation, inter alia in point 4.3 of Annex I and point 4.3 of Annex II as regards the generation of electricity from wind power.
Preliminary considerations on the request for internal review and the scope of the Court’s review
25Under Article 10(1) of Regulation No 1367/2006, any non-governmental organisation which meets the criteria set out in Article 11 of that regulation is entitled to initiate, by means of a reasoned request, an internal review of an administrative act by the EU institution or body which adopted it on the ground that it is contrary to environmental law within the meaning of Article 2(1)(f) of that regulation.
26It 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, that party 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).
27A 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 Regulation No 1367/2006, 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).
28Such proceedings cannot be founded on new grounds or on evidence not appearing in the request for review, as otherwise the requirement, in Article 10(1) of Regulation No 1367/2006, relating to the statement of grounds for such a request would be made redundant and the object of the procedure initiated by the request would be altered (judgment of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 39). The EU institution or body which is the author of the administrative act whose internal review is requested is not required to examine grounds other than those put forward in the request for internal review by the party making the request (judgment of 12 September 2019, TestBioTech and Others v Commission, C‑82/17 P, EU:C:2019:719, paragraph 40).
29However, an applicant bringing an action before the General Court against a decision rejecting its request for internal review cannot be required to confine itself to reproducing verbatim the arguments which it had relied on in its request for internal review. First, such an applicant must be able to raise arguments intended to challenge, in law, the merits of the decision adopted in response to its request for internal review. Such arguments may not, however, alter the object of the procedure initiated by that request, as otherwise it would be made redundant. In particular, they cannot include new arguments or evidence which could have been put forward at the time of the request for review. Second, an argument which was not raised at the stage of the request for review cannot be regarded as a new argument that is inadmissible at the stage of the action before the General Court if it is simply an amplification of an argument already developed in the context of that request. To be regarded as an amplification of a plea or complaint previously advanced, a new line of argumentation must present a sufficiently close connection with the pleas or complaints initially set out in order to be considered as forming part of the normal evolution of debate in judicial proceedings. In view of the particular nature of the review procedure established by Regulation No 1367/2006, such a possibility must nevertheless be reconciled with the need to preserve the effectiveness of that procedure, with the result that it cannot allow an applicant to alter the object of that procedure by putting forward new grounds or evidence not presenting a sufficiently close connection with the complaints raised at the stage of the request for review. Accordingly, such an applicant cannot rely on new ‘contextual’ arguments to which the rationale of that rule of correspondence does not apply, otherwise than by acknowledging that such arguments are, in any event, ineffective (see judgment of 21 February 2024, PAN Europe v Commission, T‑536/22, under appeal, EU:T:2024:98, paragraphs 44 to 47 and the case-law cited).
30In the context of an action brought against a decision rejecting as unfounded a request for an internal review, only pleas seeking to demonstrate that that decision was vitiated by errors of law or errors of assessment, and not pleas concerning the administrative act whose internal review had been requested, are admissible (judgment of 6 October 2021, ClientEarth v Commission, C‑458/19 P, EU:C:2021:802, paragraph 49).
31In 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).
32According 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 decision at issue 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).
33In 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).
34In 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).
First plea: preparation of the Delegated Regulation
35The applicants challenge the responses given by the Commission, in the contested decision, to their request for internal review concerning certain aspects of the preparation of the Delegated Regulation. They argue, in three separate limbs of the present plea, that those responses infringe a number of provisions.
First limb: infringement of Articles 6 to 8 of the Aarhus Convention and of Article 9 of Regulation No 1367/2006
36The applicants claim that the Commission’s response in the contested decision to the request for internal review concerning certain aspects of the preparation of the Delegated Regulation does not meet the standard of information and of consultation of the public provided for by Articles 6 to 8 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 4; ‘the Aarhus Convention’), approved by Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1) and by Article 9 of Regulation No 1367/2006. First, according to the applicants, the information and consultation process started even before the adoption of Regulation 2020/852. Second, the applicants submit that, even though they fall within the definition of ‘public concerned’, within the meaning of the Aarhus Convention, they were not considered to be ‘stakeholders’ that the Commission consulted. Third, in the second half of 2020 and throughout 2021, the notion of ‘public information and of public participation’ took on a different meaning which should have been reflected in the consultation process. Fourth, the contested decision contains new information which is not clearly expressed in the Delegated Regulation and which was not taken into account in its preparation, whereas the public should have been informed and consulted in that respect prior to the adoption of the Delegated Regulation.
37In the reply, the applicants argue that the Commission does not show that it communicated in particular on the topic of technical screening criteria for the purpose of the taxonomy and in preparation of the Delegated Regulation, with a view to obtaining contributions on that specific point. Nor, in their view, does the Commission indicate the content of such contributions and how it took them into account as far as possible. The applicants maintain that the Delegated Regulation does fall under the definition of ‘plans or programmes’ within the meaning of Article 9 of Regulation No 1367/2006.
38The Commission disputes the applicants’ arguments.
39In paragraph 48 of the application, the applicants state that ‘the legality of the preparation of the Delegated Regulation was contested by the [request for internal review] (Annex A.1, pages 13 to 14)’. In that regard, it should be noted that that request contains a section entitled ‘Review of the preparation of the Delegated [R]egulation’ which begins on page 13, with a paragraph which reads as follows: ‘[the applicants] request that the provisions of the Delegated [R]egulation regarding the [economic] activity [of] electricity generation from wind power be reviewed using the steps provided under the relevant provisions of [R]egulation 2020/852.’ Subsequently, the applicants divided their arguments into four sets. The present limb refers to the third set of arguments set out in the two paragraphs which read as follows:‘Third, the review of the relevant technical screening criteria should provide for both the prior information of the public and for the consultation of the public as required under the Aarhus convention.In particular, information and consultation of the public on the relevant technical screening criteria should be based on a draft of the reviewed Delegated regulation.’
40It does not follow from the wording of the paragraphs at issue, read in conjunction with the introductory paragraph, however, that the applicants consider that the Delegated Regulation was adopted by the Commission contrary to the specific aspects of the Aarhus Convention relied on therein.
41On the contrary, the wording of the paragraphs at issue indicates rather that, according to the applicants, the Commission had to take procedural aspects into account in a future internal review of the Delegated Regulation which the Commission had to carry out.
42It follows that, contrary to what is required by the case-law cited in paragraph 26 above, by the paragraphs at issue, the applicants did not put forward, in the request for internal review, concrete and precise grounds which might be able to call into question the assessments on which the Delegated Regulation, as an administrative act, is based, nor indicated the facts or legal arguments of sufficient substance to give rise to serious doubts as to the assessment made by the Commission in that delegated regulation as the act covered by the request for internal review.
43In accordance with the case-law cited in paragraph 28 above, the Commission was not required to examine grounds other than those put forward by the applicants in the request for internal review. In particular, it was not obliged to examine, on its own initiative, possible grounds relating to public information and public consultation, in the preparation and adoption of the Delegated Regulation, which were not put forward by the applicants.
44The present limb cannot therefore succeed.
Second limb: infringement of Article 10(2) of Regulation No 1367/2006
45The applicants claim that, in the contested decision, the Commission failed to respond to a number of points put forward in the request for internal review, thereby infringing Article 10(2) of Regulation No 1367/2006. Those points are (i) the Commission’s obligation to gather all necessary expertise prior to the adoption of the Delegated Regulation, (ii) the fact that the Platform on Sustainable Finance’s advice concerning the technical screening criteria was issued after the adoption of the Delegated Regulation, and (iii) the fact that the Delegated Regulation and Commission Delegated Regulation (EU) 2023/2486 of 27 June 2023 supplementing Regulation 2020/852 by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to the sustainable use and protection of water and marine resources, to the transition to a circular economy, to pollution prevention and control, or to the protection and restoration of biodiversity and ecosystems and for determining whether that economic activity causes no significant harm to any of the other environmental objectives and amending Commission Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities (OJ L, 2023/2486) concerning the other environmental objectives were not adopted according to the timetable provided for by Regulation 2020/852, with the result that the second Delegated Regulation was not available when the first Delegated Regulation was being prepared.
46The Commission disputes the applicants’ arguments.
47It is apparent from the file that the first two points put forward by the applicants (see paragraph 45 above) concern the first two sets of arguments set out in the section entitled ‘Review of the preparation of the Delegated [R]egulation’ in four paragraphs which are worded as follows:‘First, such review of the relevant technical screening criteria should include the advice of the Platform on Sustainable Finance … as provided under [Article 20(2)] of [R]egulation 2020/852.At present, it is clear from the [Platform on Sustainable Finance’s] own report that “the Platform has been mandated to focus on and deliver a recommendation to the Commission on [the technical screening criteria] for the second draft delegated act on sustainable activities for the environmental objectives 3-6.”The review should therefore include specific advice of the [Platform on Sustainable Finance] regarding technical screening criteria of a substantial contribution of electricity generation of wind power to the first two environmental objectives, i.e. climate change mitigation and climate change adaptation.Second, [it] follows from the preceding point that the Delegated [R]egulation does not satisfy the requirement to “gather all necessary expertise[,] prior to the adoption” as provided under [Article 23(4)] of [R]egulation 2020/852.’
48The first three paragraphs at issue do not put forward any concrete reasons concerning the lawfulness of the adoption of the Delegated Regulation. The fact that the applicants consider that that process did not take place properly follows only from the fourth paragraph at issue.
49It is thus apparent from the four paragraphs at issue that the only specific and concrete ground put forward by the applicants in the request for internal review was that the Commission had acted contrary to Article 23(4) of Regulation 2020/852 by failing to gather all necessary expertise prior to the adoption and during the preparation of the Delegated Regulation, since the Platform on Sustainable Finance had not provided any opinion on the technical screening criteria concerning the environmental objectives of climate change mitigation and adaptation.
50However, in point 3 of Annex I to the contested decision, the Commission indicates the following:‘Article 20(2), point (a) and recital (38) of [Regulation 2020/852] provides that the Platform shall advise the Commission on the technical screening criteria while Article 10(4) and 11(4) and recital (54) of [Regulation 2020/852] require the Commission to consult the Platform prior to the adoption of the Delegated Acts containing the technical screening criteria on climate change mitigation and climate change adaptation. These provisions do not specify the modalities and timing of the Platform’s consultation with only one clarification that this consultation should take place prior to adopting the Delegated Acts.…Based on Articles 10(4), 11(4) and 20 of [Regulation 2020/852], on 19 November 2020 the Commission invited the Platform to provide its views on the draft Delegated Act prior to its adoption. The draft Delegated Act was published by the Commission on 20 November 2020 for public consultation until 18 December 2020. On 18 December 2020, the Platform submitted its feedback on the draft Delegated Act [(document now available at https://finance.ec.europa.eu/system/files/2020-12/201218-eu-platform-on-sustainable-finance-opinion-taxonomy-delegated-act_en.pdf)] in the context of the public consultation. Therefore, the Platform was duly consulted in the preparation of the Delegated Act and prior to its adoption. The Commission adopted the final draft only on 4 June 2021 …’
51In the light of those clear explanations, the applicants are mistaken in so far as they argue that ‘the [contested decision] does not contest the fact that the advice of the Platform regarding specifically the technical screening criteria of the future Delegated Regulation was issued on 31 August 2021, i.e. after the [adoption] of the Delegated Regulation on 4 June 2021’.
52The Commission did explain in the contested decision that the Platform on Sustainable Finance had been consulted and had submitted its comments on 18 December 2020, that is to say, before the adoption of the Delegated Regulation, with the result that the applicants’ claims to the contrary are unfounded.
53As for the third point raised by the applicants (see paragraph 45 above), it concerns the fourth set of arguments set out in the section entitled ‘Review of the preparation of the Delegated [R]egulation’ in the three paragraphs which read as follows:‘Fourth, the review of the relevant technical screening criteria should proceed with regard to all of the environmental objectives of [A]rticle 9 of [R]egulation 2020/852[, taken] contemporaneously, as provided under [A]rticle 10 to 15 and [A]rticle 19 of [R]egulation 2020/852 read together.In practical terms, a first delegated act (now the Delegated [R]egulation) regarding technical screening criteria regarding the first two environmental objectives (and the principle of [“do no significant harm”] with respect to the other environmental objectives) was due to be adopted “by 31 December 2020, with a view to ensuring its application from 1 January 2022” (point 6. of [A]rticle 10 and 11 of [R]egulation 2020/852) while the second delegated act on technical screening criteria regarding the other environmental objectives should have been adopted “by 31 December 2021, with a view to ensuring its application from 1 January 2023” (point 5. of [A]rticle 12 to 15 of [R]egulation 2020/852).In other words, both above mentioned delegated acts should have [been] prepared and adopted before the time the first of them (the Delegated [R]egulation) became applicable. The review of the Delegated [R]egulation should therefore proceed in the knowledge of the second delegated act as initially foreseen in [R]egulation 2020/852.’
54As the applicants correctly observe, the Commission did not address that point in the contested decision. It contends, however, that, since it was not substantiated, that point was inadmissible, in accordance with the case-law cited in paragraph 26 above, with the result that the Commission could not have responded to it.
55First of all, it should be noted that paragraph 6 of Articles 10 and 11 of Regulation 2020/852 does indeed provide that the Commission is to adopt delegated acts establishing the technical screening criteria for the two environmental objectives of climate change mitigation and adaptation ‘by 31 December 2020, with a view to ensuring [their] application from 1 January 2022’. By contrast, paragraph 5 of Articles 12 to 15 of Regulation 2020/852 provides that the Commission is to adopt delegated acts establishing the technical screening criteria for the other four environmental objectives listed in Article 9 of Regulation 2020/852 ‘by 31 December 2021, with a view to ensuring [their] application from 1 January 2023’.
56In reality, the Delegated Regulation was not adopted by the Commission until 4 June 2021, but it has indeed been applicable since 1 January 2022 (second paragraph of Article 3 of that delegated regulation). As regards Delegated Regulation 2023/2486 for the other four environmental objectives, it was adopted by the Commission on 27 June 2023. It has been applicable since 1 January 2024 (second paragraph of Article 6 of that delegated regulation).
57It is therefore apparent that the timetables for adoption provided for, first, by paragraph 6 of Articles 10 and 11 of Regulation 2020/852 and, second, by paragraph 5 of Articles 12 to 15 of that regulation were not complied with.
58However, in the present case, the applicants claim that the Delegated Regulation should have been prepared in full knowledge of the content of Delegated Regulation 2023/2486 for the other four environmental objectives. Thus, they submit that the lack of availability of Delegated Regulation 2023/2486 during the preparation of the Delegated Regulation vitiates the latter.
59The fact that Delegated Regulation 2023/2486 for the other four environmental objectives was adopted after the Delegated Regulation, however, corresponds to the timetables provided for, first, by paragraph 6 of Articles 10 and 11 of Regulation 2020/852 and, second, by paragraph 5 of Articles 12 to 15 of that regulation. Even if those timetables had been complied with, the Delegated Regulation would have been adopted ‘by 31 December 2020’, whereas Delegated Regulation 2023/2486, for the other four environmental objectives, would have followed only ‘by 31 December 2021’. It is therefore clear that the sequence of the two delegated regulations advocated by those provisions of Regulation 2020/852 was fully respected, even if those delegated regulations were adopted late.
60In those circumstances, even accepting that that argument of the applicants is admissible, whether at the stage of the request for internal review or at the stage of the present action, it cannot, in any event, give rise to serious doubts as to the assessments made by the Commission in the Delegated Regulation.
61It follows that the present limb must be rejected in its entirety.
Third limb: infringement of Article 10(4), Article 11(4) and Article 20(2) of Regulation 2020/852
62The applicants submit, in essence, that the Platform on Sustainable Finance, provided for by Article 20 of Regulation 2020/852, was not properly consulted prior to the adoption of the Delegated Regulation, thereby infringing Article 10(4), Article 11(4) and Article 20(2) of Regulation 2020/852. In their view, the contested decision does not challenge the assertion in the request for internal review according to which that platform itself stated that it had been mandated, in essence, to focus on the preparation of the Delegated Regulation concerning the other environmental objectives. In addition, the consultation of that platform did not relate specifically to the precise technical screening criteria as they appeared in the Delegated Regulation. The Platform’s advice in that regard was issued only after the adoption of the Delegated Regulation. According to the applicants, the fact that the contested decision does not contain any commitment on the part of the Commission to remedy those infringements must also be considered to be an infringement of Article 10(2) and (3) of Regulation No 1367/2006.
63The Commission disputes the applicants’ arguments.
64The claims put forward by the applicants in the context of the present limb concern the first set of arguments set out in the section entitled ‘Review of the preparation of the Delegated [R]egulation’.
65As has been noted in paragraphs 50 and 52 above, the contested decision does explain that the Commission invited the Platform on Sustainable Finance to give its opinion on the draft delegated act before its adoption, that the Commission published the draft delegated act on 20 November 2020, for a public consultation until 18 December 2020, and that, on 18 December 2020, the Platform submitted its comments on the draft delegated act.
66In the application, the applicants refer to another document, allegedly dated 31 August 2021, in order to raise two points. First, according to the applicants, it is apparent from that document that the Platform on Sustainable Finance considered that it was mandated only to deal with the second draft delegated act relating to the other four environmental objectives. Second, it was only in the context of that document that that platform gave its opinion specifically concerning the technical screening criteria of the ‘future Delegated Regulation’.
67As the Commission rightly points out, however, the document in question, to which the applicants refer, is irrelevant in the present case. It is apparent from the website of the Platform on Sustainable Finance that, on 3 August 2021, that platform published a draft report on the technical screening criteria for the other four environmental objectives in order to obtain feedback, the final report having been published on 30 March 2022.
68By definition, the reports referred to in paragraph 67 above do not in any way concern the first two environmental objectives for which the Delegated Regulation established technical screening criteria. They are therefore entirely irrelevant in the present case.
69As to the remainder, the applicants submit, in essence, that the Platform on Sustainable Finance’s opinion of 18 December 2020 was not complete since that platform merely examined general questions without discussing the specific technical screening criteria. The applicants infer from this that the annexes to the Delegated Regulation containing those criteria were not attached to the draft Delegated Regulation sent by the Commission to that platform for an opinion.
70In that regard, the Commission submits that both the draft Delegated Regulation and its annexes were submitted to the Platform on Sustainable Finance for an opinion on 19 November 2020.
71In the present case, it is apparent from the data available on the Commission’s ‘Better Regulation’ website that the draft Delegated Regulation and its two annexes were published on 20 November 2020 for public consultation until 18 December 2020. Thus, even if the Commission had not submitted those annexes on 19 November 2020 when it invited the Platform on Sustainable Finance to give its opinion on the project, that platform had access to those annexes no later than the day after the invitation was sent to it and was able to take them into account in order to give its opinion.
72Thus, given that the applicants have not been able to rebut the Commission’s assertion that the Platform on Sustainable Finance was consulted on the draft Delegated Regulation and its annexes detailing the technical screening criteria, it is, moreover, irrelevant that that platform did not comment in detail on those technical screening criteria and merely made comments of a general nature.
73Although paragraph 4 of Articles 10 and 11 of Regulation 2020/852 provides that, ‘prior to adopting the delegated act referred to in paragraph 3 of this Article, the Commission shall consult the Platform referred to in Article 20 regarding the technical screening criteria referred to in paragraph 3 of this Article’, those provisions cannot be interpreted as precluding the adoption of those delegated acts where, as in the present case, that platform has not explicitly adopted a position on all aspects of the draft delegated acts submitted to it for an opinion.
74Accordingly, the present limb must be rejected, such that the first plea must be rejected in its entirety.
Second plea: climate change mitigation
75The second plea is divided into four limbs, alleging (i) infringement of Article 37 of the Charter of Fundamental Rights of the European Union, Article 191 TFEU and Article 19(1)(f) of Regulation 2020/852; (ii) infringement of Article 10(3)(a) of Regulation 2020/852; (iii) infringement of Article 19(1)(a) and (j) of Regulation 2020/852; and (iv) infringement of Article 19(3) of Regulation 2020/852.
76The applicants call into question, in essence, two approaches used, in their view, by the Commission in the establishment of the technical screening criteria for the generation of electricity from wind power. They submit, in essence, that, in having defended, in the contested decision, those two approaches despite the arguments that they had put forward in the request for internal review, the Commission infringed various provisions of EU law.
77The Court considers it useful briefly to summarise those two criticisms made by the applicants before beginning its analysis of the four limbs of their second plea.
78First, the applicants criticise the fact that the technical screening criteria for electricity generation from wind power do not provide that the CO2 emissions per kilowatt hour (kWh) of electricity generated from wind power must actually be measured and must comply with a specific threshold. Point 4.3 of Annex I to the Delegated Regulation merely provides, as a technical screening criterion for the substantial contribution to climate change mitigation, that ‘the activity generates electricity from wind power’. It is not disputed by the parties that this means in practice that the exercise of that economic activity is regarded in that delegated regulation as always contributing substantially to climate change mitigation, irrespective of the specific circumstances.
79The applicants describe that situation as establishing an ‘exemption’ from the obligation to carry out an actual quantitative measurement of CO2 emissions per kWh of electricity generated from wind power and a ‘presumption’ that that activity always contributes substantially to climate change mitigation.
80Second, the applicants consider it imperative to take account of the ‘intermittency’ of the generation of electricity from wind power. According to the applicants, the amount of electricity produced using renewable energy sources, including wind power, depends on weather conditions, especially wind speed in the case of wind power. Consequently, an installation generating electricity from wind power does not always make the same amount of electrical power available to the electricity grid and thus, ultimately, to electricity consumers. The power made available varies depending on weather conditions. It is therefore possible that, in order to meet the demand for electricity at all times, other power plants may have to be called upon in order to ‘compensate’ for the ‘under-production’ of a wind power plant.
81According to the applicants, in order to measure correctly the CO2 emissions resulting from electricity generation from wind power, account must be taken of the emissions of those other power plants ‘compensating’ for the ‘under-production’ of a wind power plant. The Delegated Regulation, however, does not establish an obligation to take these emissions into account, which the applicants again classify as an ‘exemption’.
82Before examining the four limbs of the present plea, it is appropriate to rule on the admissibility of the arguments put forward by the applicants in the letter that they lodged at the Registry of the General Court on 6 December 2023.
Admissibility of the arguments put forward by the applicants in the letter that they lodged at the Registry on 6 December 2023
83On 6 December 2023, the applicants lodged at the Registry a letter accompanied by an annex, namely the Commission Notice entitled ‘Technical guidance on the application of “do no significant harm” under the Recovery and Resilience Facility Regulation’ (OJ C, C/2023/111). According to the applicants, that letter and the annex thereto are admissible, under Article 85(3) of the Rules of Procedure of the General Court, as new evidence, given that that notice became available only after the action had been brought and after the written part of the procedure had been closed. They consider, in essence, that that notice confirms their arguments in support of the second plea, according to which account must be taken of the intermittency of electricity generation from wind power, and the arguments by which they claim that the Commission did not respect technological neutrality.
84On 12 December 2023, the Registry informed the parties, inter alia, that the Commission had been invited to comment, at the hearing, on the admissibility and the merits of the letter lodged at the Registry by the applicants on 6 December 2023 and the annex thereto.
85In that regard, in its oral submissions, the Commission submitted its observations, formal note of which was taken in the minutes of the hearing. It contends that the notice annexed to the letter lodged at the Registry by the applicants on 6 December 2023 is inadmissible and, in any event, irrelevant.
86Under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
87According to the case-law, Article 84(1) of the Rules of Procedure is also applicable to complaints or arguments (see judgment of 14 July 2021, AQ v eu-LISA, T‑164/19, not published, EU:T:2021:456, paragraph 59 and the case-law cited).
88As has been noted in paragraph 83 above, in the letter that they lodged at the Registry on 6 December 2023, the applicants submit, in essence, that the notice annexed to that letter confirms their arguments in support of the second plea, according to which it is necessary to take into account the intermittency of electricity generation from wind power, and those by which they claim that the Commission did not respect technological neutrality. Since the applicants base the arguments contained in that letter on the notice annexed to it, they therefore introduce new arguments for the purposes of Article 84(1) of the Rules of Procedure.
89As has also been noted in paragraph 83 above, the applicants submit that the letter that they lodged at the Registry on 6 December 2023 and the annex thereto are admissible, since the notice which is the subject of that annex and on which the new arguments put forward in that letter are based became available only after the action had been brought and after the written part of the procedure in the present case had been closed. Accordingly, they claim, in essence, that the publication of that notice constitutes a matter of law or of fact which came to light in the course of the procedure, within the meaning of Article 84(1) of the Rules of Procedure, and which therefore justifies the submission of the new arguments contained in that letter.
90While it is true that the notice in question was not published in the Official Journal until 11 October 2023 and therefore only after the closure of the written part of the procedure in the present case, notified to the applicants by letter from the Registry dated 4 May 2023, it must be pointed out that the two specific passages of that notice to which the applicants refer, namely the first and third paragraphs in point 2.4, entitled ‘Guiding principles for the [assessment of the principle of “do no significant harm”]’, were already contained, in identical form, in an earlier version of that notice which had already been published in the Official Journal on 18 February 2021 (OJ 2021 C 58, p. 1), and therefore before the action was brought.
91The passages in question having thus already been published before the action was brought, they cannot be regarded as matters of law or of fact which came to light in the course of the procedure, within the meaning of Article 84(1) of the Rules of Procedure. Their mere republication after the close of the written part of the procedure cannot alter that finding.
92It follows that the arguments contained in the letter lodged by the applicants at the Registry on 6 December 2023 must be rejected as inadmissible, without there being any need to analyse the admissibility of that letter as such or that of the notice annexed to it.
First limb: infringement of Article 37 of the Charter of Fundamental Rights, Article 191 TFEU and Article 19(1)(f) of Regulation 2020/852
93The applicants submit that, as regards electricity generation from wind power, the Delegated Regulation does not establish an obligation to carry out an actual quantitative measurement of CO2 emissions per kWh of electricity generated from wind power or to measure the impact of the intermittency of electricity generation from wind power on CO2 emissions per kWh of electricity generated, all energy sources combined. That delegated regulation is based, on the contrary, on a presumption that electricity generation from wind power is consistent with the requirements of Regulation 2020/852.
94According to the applicants, such an approach avoids seeking and examining conclusive scientific evidence relating to that activity, which is not consistent with the precautionary principle, and does not entail taking into account available scientific and technical data, which is contrary to Article 19(1)(f) of Regulation 2020/852 and Article 191(1) TFEU. Moreover, that approach does not constitute a prudent and rational utilisation of natural resources and should not be regarded as establishing that the activity contributes to combating climate change, within the meaning of Article 191 TFEU. Thus, a high level of protection of the environment and the improvement of the quality of the environment are not ensured in accordance with the principle of sustainable development, contrary to Article 37 of the Charter of Fundamental Rights.
95The applicants submit that the study by the Intergovernmental Panel on Climate Change (IPCC) cannot be regarded as presenting scientific data capable of giving rise to technical screening criteria within the meaning of Article 19 of Regulation 2020/852. According to the applicants, Article 19(1)(f) of that regulation refers to a system-wide analysis (in this case of the electricity sector) and to the need to compare the performance of activities within one sector as to their respective contribution to the environmental objectives. They submit that the level of CO2 emissions for the generation of a kWh of electricity by source and in real time is readily available.
96The Commission disputes the applicants’ arguments.
97It is apparent from the file that, in the part of the request for internal review entitled ‘Electricity generation from wind power regarding climate change mitigation’, the applicants submitted the following:‘First, the above quoted statement does not constitute “technical screening criteria” in the meaning of [R]egulation 2020/852 and therefore fails to fulfill the requirement of [R]egulation 2020/852 with regard to climate change mitigation.In particular [A]rticle 10[(1)] of [R]egulation 2020/852 requires that each activity “contributes substantially to the stabilisation of greenhouse gas concentrations in the atmosphere at a level which prevents dangerous anthropogenic interference with the climate system consistent with the long-term temperature goal of the Paris Agreement through the avoidance or reduction of greenhouse gas emissions or the increase of greenhouse gas removals”.The Delegated [R]egulation does not contain, nor refer to, a demonstration that the activity of electricity generation from wind power contributes significantly, and to what extent, to the stabilization, the avoidance or the reduction of greenhouse gas emission or to the increase of greenhouse gas removal.This lack of demonstration is material given the purpose of [R]egulation 2020/852 and the “technical screening criteria” it is bound to contain.On the one hand, [R]egulation 2021/1119 (the European Climate Law law) which introduces binding targets of greenhouse gas emission reductions and expressly refers to [R]egulation 2020/852 for the purpose of evaluating the progress towards that objective.On the other hand, [R]egulation 2018/1999 on the Governance of the Energy Union and Climate Action also entails that renewable energy sources be evaluated as to their respective contributions to greenhouse gas emissions, and not be presumed to be doing so.Second, even it were to be held that the said statement constitutes a technical screening criterion, it is effectively an assumption and not a criterion. This reading is confirmed by the wording of the [technical annex] to the TEG Report which indicates that “Wind Power is currently derogated from performing a [product carbon footprint] or [greenhouse gas] lifecycle assessment, subject to regular review in accordance with the declining threshold. Wind power is currently deemed to be taxonomy eligible, which is subject to regular review” (page 218).Third, the reasoning proposed in the [technical annex] to the TEG Report under the heading “Rationale” … does not take into account the greenhouse gas emissions induced by the activity intermittency (dependence on wind availability and the emissions resulting from the stand-by electricity generation capacity).In other words, the nature of intermittency of electricity generation from wind power means that the question of whether or not it qualifies as environmentally sustainable needs to take into account both the level of projected intermittency as this will vary depending on the patterns of wind generally available and the alternative electricity generation sources (in the relevant Member State) and their emission performance which is also going to affect the greenhouse gas emission content of the electricity made available to consumption.Fourth, the statement that “[t]he activity generates electricity from wind power” is based solely on the perspective of electricity production as opposed to electricity consumption.Whereas the actual measurement of whether a given electricity production provides a [substantial] contribution to climate change mitigation, i.e. to the reduction of emission in greenhouse gases, in the context of the gross final consumption of energy as defined in [A]rticle 2(4) of [D]irective 2018/2001 on the promotion of the use of energy from renewable sources.In practical terms, the Delegated [R]egulation only addresses the investment in capacity for electricity generation from wind power, i.e. the production of electricity from that source. By contrast, the effective reduction in greenhouse gases and therefore the existence of a substantial contribution to the objective of climate change adaptation cannot only [be] measured from the point of view of the level [of] greenhouse gases in energy – here electricity – consumption.This discrepancy between electricity production and consumption should have been remedied in the Delegated [R]egulation and should be addressed in the requested internal review.Fifth, and in any event, the statement of the Delegat[ed] [R]egulation is not supported by a demonstration or evidence.’
98It should first of all be pointed out, as the Commission does, that the applicants make no mention of Article 37 of the Charter of Fundamental Rights or of Article 19(1)(f) of Regulation 2020/852 in the part of the request for internal review entitled ‘Electricity generation from wind power regarding climate change mitigation’. It follows that the arguments presented in the application based on those provisions are new and therefore inadmissible, in accordance with the case-law cited in paragraph 28 above. Nor is there any reference to Article 191 TFEU in the said request, such that the arguments based on that provision are also new and therefore inadmissible.
99In any event, while the applicants argue in the context of the present limb, in essence, that the Delegated Regulation is not based on conclusive scientific evidence, as regards the determination of the technical screening criteria, it is clear from paragraph 77 of the application, contrary to what the Commission claims, that the applicants are disputing the legality of the contested decision and not that of that delegated regulation.
100In point 1.1 of Annex IV to the contested decision, the Commission responded to the applicants’ claims concerning the climate change mitigation criterion as follows:‘The Delegated Act defines technical screening criteria for substantial contribution and [the principle of “do no significant harm”] with respect to the environmental objectives specific to individual economic activities. Substantial contribution to environmental objectives is defined in Articles 10 to 15 of [Regulation 2020/852] while significant harm to environmental objectives is defined in Article 17 of th[at regulation]. The exact scope of economic activities is defined in the Delegated Act. Given the narrow focus on economic activities in th[at regulation], it was not possible to extend the scope of assessment to a system-wide analysis. Each activity has been assessed for its substantial contribution to the climate objectives and [the principle of “do no significant harm”] to the other environmental objectives without assessing other activities linked to them. Under this approach, it is not possible to factor-in the activities’ intermittency.The Climate DA Impact Assessment explains the rationale behind applying a technology-neutral, life cycle-based, quantitative threshold of [100 g CO2 e/kWh] to all electricity generation activities. It also presents a rationale for creating a derogation from having to perform a life-cycle emission calculation and a de facto exemption from having to comply with the technology-neutral threshold. Based on conclusive scientific evidence, notably presented by the IPCC … and based on global data concerning the lifecycle emissions of electricity supply technologies, the Commission – following the approach of the [technical expert group (TEG)] – has decided to exempt certain activities from that threshold. These cases are limited to the ones, where the global median of lifecycle emissions was below [100 g CO2 e/kWh]. According to the IPCC data, the life-cycle [greenhouse gas] emissions of wind energy (both onshore and offshore) are far below the set threshold (maximum emissions at [56 g CO2 e/kWh]). The threshold would therefore always be complied with by the activity of electricity generation from wind power and the remaining applicable requirement would be limited to the life-cycle calculation according to any of the three alternative technologies. Given the findings of the IPCC research on life-cycle emissions, the recognition that the criteria would in certain low-emission activities be reduced to an administrative procedure and the direction of European energy policy – which has been promoting the rapid deployment of renewable energy and taking into account the requirement of Article 19(1)[(k)] of [Regulation 2020/852] for the criteria to be easy to use –, the Commission has decided to exempt wind energy from having to comply with the quantitative technical screening criteria for electricity generation activities.’
101Thus, the Commission clearly indicated in the contested decision the reasons why it had chosen to draft the technical screening criteria for the generation of electricity from wind power, as regards the criterion of substantial contribution to climate change mitigation, as it did in the Delegated Regulation. It made reference to the impact assessment which accompanied that delegated regulation and from which it was apparent that it had relied on conclusive scientific evidence, submitted in particular by the IPCC.
102In paragraph 77 of the reply, the applicants claim that ‘the studies quoted [by the Commission] are supporting evidence for the two exemptions and the presumption but do not constitute scientific data capable of leading to technical screening criteria in the meaning of Article 19 [of Regulation 2020/852]’. They submit that this is a ‘contradiction’ (paragraph 78 of the reply) and that a specific provision of Regulation 2020/852 required the Commission to carry out a ‘sector-wide analysis – here the electricity sector – but also to … compar[e] the performance of activities within one sector as to their respective contribution to the environmental objectives’ (paragraph 80 of the reply), which ‘the two exemptions and … presumptions’ render impossible (paragraph 81 of the reply).
103In that regard, it should be noted, first, that the text cited by the applicants in paragraph 79 of the reply is actually taken from Article 19(1)(j) of Regulation 2020/852 and not from Article 19(1)(f) as they indicate. That first provision, however, was never mentioned in the request for internal review, nor in the application concerning the present limb. The arguments based on that provision are therefore inadmissible.
104Second, the applicants explicitly acknowledge, in paragraph 77 of the reply, that the contested decision shows that the Commission did indeed rely on scientific data. Thus, they contradict their argument that the Commission did not rely on conclusive scientific data. Furthermore, the other arguments put forward in the reply, according to which the technical screening criteria do not comply with Regulation 2020/852 for other reasons, are inadmissible, because they are new.
105The applicants having thus acknowledged that the contested decision refers the fact that the technical screening criteria with regard to the substantial contribution to climate change mitigation through the generation of electricity from wind power are based on conclusive scientific evidence, the present limb of the plea must, in any event, be rejected as unfounded.
Second limb: infringement of Article 10(3)(a) of Regulation 2020/852
106The applicants argue that, in so far as the Delegated Regulation does not lay down an obligation to carry out an actual quantitative measurement of CO2 emissions per kWh of electricity generated from wind power or to measure the impact of the intermittency of electricity generation from wind power on CO2 emissions per kWh of electricity generated, all energy sources combined, it does not satisfy the requirement laid down in Article 10(3) of Regulation 2020/852, according to which it is necessary to determine whether and to what extent the activity contributes substantially to the stabilisation of greenhouse gas concentrations in the atmosphere. The Commission’s contentions contained in the contested decision, according to which it was not possible to factor in the activity’s intermittency, show that the Commission was aware of that fact. It thus committed a manifest error of assessment by not taking it into account. The Commission’s approach amounts to avoiding an overall assessment of the environmental impact of the activity as a whole. In the alternative, the Commission exceeded the competence conferred on it by Article 10(3)(a) of the said regulation by deciding not to carry out an actual quantitative measurement of CO2 emissions per kWh of electricity generated from wind power or to measure the impact of intermittency.
107The Commission disputes the applicants’ arguments.
108First of all, it should be noted that, even though the arguments put forward by the applicants in the application might give the impression that they criticise the Delegated Regulation, it is unequivocally apparent from paragraph 82 of the application that they consider that the response given by the Commission in the contested decision to the request for internal review is contrary to Article 10(3)(a) of Regulation 2020/852. Accordingly, those arguments must be regarded as referring to that decision.
109Article 10(3)(a) of Regulation 2020/852 provides that ‘the Commission shall adopt a delegated act … to … 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’.
110Article 10(3)(a) of Regulation 2020/852 refers only to the ‘conditions under which’ an activity qualifies as contributing substantially to climate change mitigation. The applicants are therefore mistaken in claiming that it follows from that provision that it requires a ‘determination of whether and to what extent the Activity’ makes such a contribution. The said provision does not in fact contain any reference to the idea of a necessarily quantitative assessment, in the sense of compliance with a defined threshold.
111Moreover, in the second paragraph cited in paragraph 100 above, the Commission stated, in essence, that it considered, for the reasons set out in the impact assessment of the Delegated Regulation, that any electricity generation activity (namely all technologies combined) causing emissions below a threshold of 100 g of CO2 per kWh based on the life cycle contributes substantially to climate change mitigation.
112The applicants did not put forward any evidence in the request for internal review – nor have they done so in their written pleadings – which would call into question the consideration referred to in paragraph 111 above on which the approach followed by the Commission is based.
113Next, in the second paragraph cited in paragraph 100 above, the Commission explained that it was apparent from the IPCC data that ‘the life-cycle [greenhouse gas] emissions of wind energy (both onshore and offshore) are far below the set threshold (maximum emissions at [56 g CO2 e/kWh])’.
114Contrary to what the applicants claim, therefore, it is indeed clear from the contested decision that the Commission applied a quantitative threshold. As that threshold was always complied with by the activity of generating electricity from wind power, it nevertheless considered, in essence, that it was unnecessary to assess compliance with it in each specific case.
115The only argument put forward by the applicants capable of calling into question the Commission’s finding that the threshold of 100 g of CO2 per kWh (as such not called into question by the applicants, see paragraph 112 above) is always complied with by the generation of electricity from wind power is based on the ‘intermittency’ of the generation of electricity from wind power.
116In that regard, the Commission explained, in the first paragraph cited in paragraph 100 above, that it is the Delegated Regulation which defines the exact scope of the various economic activities. According to the Commission, ‘given the narrow focus on economic activities in [Regulation 2020/852], it was not possible to extend the scope of assessment to a system-wide analysis’, ‘each activity has been assessed for its substantial contribution to the climate objectives and [the principle of “do no significant harm”] to the other environmental objectives without assessing other activities linked to them’ and, ‘under this approach, it is not possible to factor-in the activities’ intermittency.’
117First of all, various provisions of Regulation 2020/852 indicate unequivocally that it is based on the idea that it is specific ‘economic activities’ which are subject to the criteria laid down by or on the basis of that regulation in order to assess whether those ‘economic activities’ are regarded as environmentally sustainable.
118First, Article 1(1) of Regulation 2020/852 provides that that 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’.
119Second, Article 3 of Regulation 2020/852 provides that ‘an economic activity shall qualify as environmentally sustainable where that economic activity’ meets certain conditions.
120Third, Article 10(1) of Regulation 2020/852 provides that ‘an economic activity shall qualify as contributing substantially to climate change mitigation where that activity contributes substantially to the stabilisation of greenhouse gas concentrations in the atmosphere at a level which prevents dangerous anthropogenic interference with the climate system … through the avoidance or reduction of greenhouse gas emissions or the increase of greenhouse gas removals’.
121Fourth, according to Article 10(3)(a) of Regulation 2020/852, a delegated act is to be adopted by the Commission ‘to … 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’.
122The Commission was therefore entitled to structure the Delegated Regulation by providing, in Annexes I and II thereto, points for each economic activity it covers. The applicants do not, moreover, call that approach into question.
123In point 4.3 of Annexes I and II to the Delegated Regulation, entitled ‘Electricity generation from wind power’, the Commission gave the following ‘description of the activity’: ‘construction or operation of electricity generation facilities that produce electricity from wind power.’
124It is therefore clear that the economic activity at issue is defined in such a way that, on the one hand, it covers only the generation of electricity and, on the other hand, the only relevant source of energy is wind power. However, that economic activity does not cover, first, the making available of electricity to final customers or, second, the generation of electricity from other energy sources.
125Next, the Commission noted that the generation of electricity from wind power was ‘intermittent’, in that it involved not continuous electrical power, but power which varied according to weather conditions.
126However, the Commission took the view that ‘it [was] not possible to factor-in … intermittency’, since, in essence, the ‘compensation’ of the ‘under-production’ of electricity of an installation generating electricity from wind power from other energy sources was not part of that first activity and such ‘other activities’ that are ‘related’ in that way would not be assessed in that context.
127That position is free from manifest errors of assessment.
128First, in the light of paragraphs 117 to 122 above, the Commission is right to argue that, according to Regulation 2020/852, an economic activity must in principle be assessed individually.
129Second, the Commission is also right to argue that it would be very difficult to quantify the intermittency of electricity generation from wind power and to establish its impact.
130In the first place, while it is true, as the applicants essentially submit, that existing historical data show a certain fluctuation in the total generation of electricity from wind power in certain geographical areas, the fact remains that, given that such statistical data related to rather wide geographic areas, they do not make it possible to deduce with certainty the actual future generation of a specific installation generating electricity from wind power.
131In the second place, the Commission rightly argues that the impact of intermittency in the generation of electricity from wind power depends above all on the technologies used to compensate for the potentially low generation of wind power. It is not possible to predict which exact technologies will be used to compensate for the low generation of wind power by a given installation.
132In the third place, those are, in any event, factors which are not in the hands of those carrying out the activity of generating electricity from wind power. Such external factors, however, which are difficult to establish, cannot be taken into account by the operators of an installation generating electricity from wind power without creating particular difficulties for those operators. As the Commission rightly submits, that would run counter to Article 19(1)(k) of Regulation 2020/852, from which it follows that the technical screening criteria are to ‘be easy to use and be set in a manner that facilitates the verification of their compliance’.
133It follows that the Commission did not commit a manifest error of assessment by not taking into account the intermittency of the generation of electricity from wind power.
134Consequently, it must be concluded that the Commission’s finding that the threshold of 100 g of CO2 per kWh is always complied with by the generation of electricity from wind power is not called into question by the applicants’ arguments (see paragraphs 114 and 115 above).
135Consequently, the applicants’ argument that the Commission did not apply a quantitative threshold must be rejected, as must the present limb of the plea in support of which it was made.
Third limb: infringement of Article 19(1)(a) and (j) of Regulation 2020/852
136According to the applicants, the contested decision does not satisfy Article 19(1)(a) of Regulation 2020/852 or the principle of technological neutrality contained therein, read in conjunction with Article 19(1)(j) of the same regulation, which requires the Commission to ensure that activities are treated equally if they contribute equally to one or more environmental objectives. The approach adopted by the Commission is the opposite of technological neutrality in so far as it does not take the activity’s intermittency into account. That intermittency is a characteristic which determines the level of CO2 emissions per kWh of electricity in the electricity system concerned as a whole. Account should thus be taken of the CO2 emissions per kWh generated from alternative electricity sources which compensate for the intermittency of the generation of electricity from wind power.
137The Commission disputes the applicants’ arguments.
138It must be pointed out, as the Commission did, that the request for internal review contains absolutely nothing which could be interpreted as arguing that a ‘principle of technological neutrality’ allegedly provided for by Article 19(1)(a) of Regulation 2020/852 was not observed, or that the equal treatment of activities contributing equally towards one or more environmental objectives, within the meaning of Article 19(1)(j) of that regulation, was not observed, either.
139Consequently, the arguments put forward in support of the present limb must be rejected as inadmissible because they are new, in accordance with the case-law cited in paragraph 28 above.
140The present limb must therefore be rejected.
Fourth limb: infringement of Article 19(3) of Regulation 2020/852
141The applicants submit that, by proclaiming in the contested decision that it was not possible to factor in the intermittency of electricity generation from wind power, the Commission infringed Article 19(3) of Regulation 2020/852, which provided that technical screening criteria had to ensure that power generation activities that used solid fossil fuels did not qualify as environmentally sustainable economic activities. Intermittency is an unavoidable feature of electricity generation from wind power, while electricity consumption requires a constant and on-demand supply. In those circumstances, that provision requires the Commission to evaluate if, and to what extent, power generation from solid fossil fuels is not de facto considered environmentally sustainable. The Commission should have established specific technical screening criteria to ensure that the intermittency of electricity generation from wind power did not entail the systemic use of solid fossil fuels by power generation sources used by the electricity network to remedy the intermittency.
142The Commission disputes the applicants’ arguments.
143As the Commission submits, it should be noted that the request for internal review is silent as regards an alleged infringement of Article 19(3) of Regulation 2020/852 and that the applicants did not claim, in that request, that the technical screening criteria did not preclude electricity generation activities using solid fossil fuels from being deemed environmentally sustainable economic activities.
144Nor can, contrary to what the applicants claim, such an argument, based expressly on Article 19(3) of Regulation 2020/852, be regarded as merely amplifying the arguments by which the applicants, first, dispute the Commission’s assertion that it is not possible to take account of the intermittency of electricity generation from wind power and, second, refer to the place of that activity in the overall generation of electricity. By those arguments, the applicants allege, in the first place, infringement of Article 10(3)(a) of that regulation, which has been examined in the context of the second limb of the second plea, whereas the present limb alleges infringement of Article 19(3) of that regulation. Given that the respective legal bases relied on by the applicants are different, it cannot be maintained that the present limb presents a sufficiently close connection with the second limb of the second plea in order to be considered as forming part of the normal evolution of debate in judicial proceedings, within the meaning of the case-law cited in paragraph 29 above.
145Consequently, the arguments in support of the present limb must be rejected as inadmissible, because they are new, in accordance with the case-law cited in paragraph 28 above.
146Accordingly, the second plea must be rejected in its entirety.
Third plea: climate change adaptation
147The applicants claim, in essence, that the Commission failed, in the contested decision, to address a number of points raised in the request for internal review with regard to the technical screening criteria for assessing the substantial contribution to climate change adaptation, thereby infringing Article 10(2) of Regulation No 1367/2006. According to the applicants, first, the Commission did not examine – let alone dispute – the assertion in that request that the technical screening criteria set out in the Delegated Regulation were contrary to Article 11(1) and (3) of Regulation 2020/852. Second, it also failed to address the arguments, set out in that request, that the technical screening criteria were not sufficiently precise, since concepts, such as those of ‘physical and non-physical solutions that substantially reduce the most important physical climate risks that are material to that activity’, had not been defined. Third, it did not address the argument relating to the absence of a method to verify the substantial contribution and the determination of what constitutes ‘pre-defined indicators’. Fourth, it was silent on whether the fact that wind power is dependent on weather conditions should be taken into account. Fifth, it said nothing about whether or not the activity ought to be defined from the point of view of energy consumption.
148The Commission disputes the applicants’ arguments.
149As the applicants also acknowledged at the hearing, it is apparent from the wording of the third plea that they merely allege that the Commission did not respond, in the contested decision, to certain arguments contained in the request for internal review.
150Article 10(2) of Regulation No 1367/2006 provides that ‘the [EU] institution … shall consider any such request [for internal review]. … The [EU] institution … shall state its reasons in a written reply’.
151That obligation to state reasons in a reply to a request for internal review under Article 10(2) of Regulation No 1367/2006 must be interpreted in the same way as the obligation to state reasons under the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights.
152It should be borne in mind, first, that the second paragraph of Article 296 TFEU provides that legal acts of the institutions of the European Union are to state the reasons on which they are based and, second, that the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights, imposes an obligation on the institutions, bodies, offices and agencies of the European Union to give reasons for their decisions.
153The statement of the reasons for the decision of an EU institution, body, office or agency is particularly important in so far as it allows persons concerned to decide in full knowledge of the circumstances whether it is worthwhile to bring an action against the decision and the court with jurisdiction to review it. It is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights is effective (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 103 and the case-law cited).
154It is also clear from the Court of Justice’s case-law that the statement of reasons must be adapted to the nature of the legal act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the act concerning him or her (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 104 and the case-law cited).
155Thus, it has been held that the reasoning may be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the General Court with sufficient material for it to exercise its power of review (see judgment of 13 July 2011, General Technic-Otis and Others v Commission, T‑141/07, T‑142/07, T‑145/07 and T‑146/07, EU:T:2011:363, paragraph 302 and the case-law cited).
156It follows that the applicants are mistaken in submitting, in essence, that the Commission was required to respond separately to each specific point raised in the request for internal review. In so far as it follows implicitly from the contested decision that the Commission rejected a point raised by the applicants in that request, it cannot be held that the Commission infringed Article 10(2) of Regulation No 1367/2006 by failing to respond separately to that point.
157In the first place, the applicants claim that, in the contested decision, the Commission remained silent on the alleged contradiction between the technical screening criteria and the conditions laid down in Article 11(1) and (3) of Regulation 2020/852.
158In that regard, the applicants refer to the following passages of the request for internal review:‘First, the four points presented as technical screening criteria do not address any of the two conditions set out at [Article 11(1)] of [R]egulation 2020/852 with regard to the determination of a substantial contribution to climate change adaptation:…As they are currently worded the Four points do not permit the determination of the extent to which electricity generation from wind power may make a contribution to climate change adaptation. It therefore cannot be assessed whether such a contribution may be considered as substantial.’
159In the light of the passages in question, to which the applicants refer explicitly, it is clear that that argument set out in the application must be understood as claiming that the Commission did not take a position on the criticism made in the request for internal review that, in essence, the technical screening criteria are not quantitative and, therefore, do not make it possible to assess either the extent of the contribution to climate change adaptation or whether that contribution is substantial.
160Under the heading ‘Electricity generation from wind power regarding climate change adaptation’ in Annex IV to the contested decision, the Commission explained the following:‘The Commission’s approach on climate change adaptation laid down in Appendix A of Annex I and Annex II to the Delegated Act is explained in [points] 1.2. and 2.3. of Annex III above, in response to the claims made by another Applicant [for internal review] made in paragraphs 106 and 107, 161 to 177, and 381 to 389 of that Applicant’s request. The Commission explains there that its approach to climate change adaptation is consistent with [Article] 11(1), [Article] 17(1), point (b) and [Article] 19(1) of [Regulation 2020/852]. For the reasons presented in those parts of the Commission’s response, the claim of the Applicant is unfounded.’
161In point 1.2 of Annex III to the contested decision, entitled ‘The climate change adaptation criteria’, the Commission stated, inter alia, as follows:‘The Commission’s approach is explained in pages 30 [and] 31 of the Climate DA Impact Assessment that states the following:…For substantial contribution to climate change adaptation, technical screening criteria are set that are uniform and mostly qualitative and process-based for most adapted activities as well as specific, tailor-made criteria for a limited number of enabling activities. The primary qualitative nature of the criteria results from the lack of measured baselines or accepted metrics for defining quantitative screening criteria for adaptation at this point in time, and relative lack of quantitative adaptation targets defined at the national, sectoral, or subnational level. Setting uniform and qualitative criteria for adapted activities, consistent across all sectors of the economy, was also supported by the feedback on adaptation received from stakeholders in the 2019 call for feedback by the TEG. …It results from this excerpt that:…The qualitative nature of the criteria results from the lack of measured baselines or accepted metrics for defining quantitative screening criteria for adaptation at this point in time, and relative lack of quantitative adaptation targets defined at the national, sectoral, or subnational level.This approach is in line with the empowerment of Article 11(3) of [Regulation 2020/852] and the requirements referred to in Article 19(1) of [that regulation], in particular the requirement referred to in Article 19(1), point (c) [thereof] that provides that technical screening criteria shall “be quantitative and contain thresholds to the extent possible, and otherwise be qualitative”.The Commission has not, therefore, misused its delegated powers when it decided [to]:…Provide uniform rules of qualitative nature for adapted activities.’
162Thus, it must be held that, in the contested decision, the Commission did explain why it had set technical screening criteria of a qualitative rather than quantitative nature. It also explained therein that it considered that approach to be consistent with Regulation 2020/852, in particular because of Article 19(1)(c) of that regulation, according to which the technical screening criteria are to ‘be quantitative and contain thresholds to the extent possible, and otherwise be qualitative’. According to that institution, there was a lack of accepted quantitative criteria.
163It follows that the Commission did respond to that argument raised by the applicants in the request for internal review.
164In the second place, the applicants submit that the Commission did not respond, in the contested decision, to the argument that, even if the technical screening criteria were deemed to be compatible with Article 11 of Regulation 2020/852, they did not enable a sufficiently precise technical screening of the activity, since concepts such as ‘physical and non-physical solutions substantially reducing the most significant physical climate risks that are important for this activity’ were not defined.
165The applicants state that they raised the argument at issue in the following passage of the request for internal review:‘Second, even if it were to be considered that the criteria set out at point 4.3 of annex II of the Delegated [R]egulation are consistent with the conditions of [A]rticle [11(1)] referred to above, the Four points do not allow a sufficiently precise technical screening of the activity.Regarding the first point (“adaptation solutions”), the notion of “physical and non-physical solutions” is not defined and the condition that such solutions “substantially reduce the most important physical climate risks that are material” to the activity is vague and does not allow an objective measurement of the performance of the said activity.Similarly, the second point (physical climate risks) and third point (best practice and available guidance) create the presumption of a substantial contribution of the activity to climate change adapt[at]ion without supporting reasoning.’
166It should be noted at the outset that the third paragraph of the quotation in paragraph 165 above does not concern the alleged absence of a definition of concepts used in the Delegated Regulation and that it is therefore not relevant in the present case.
167Furthermore, even though, in the application, the applicants criticise a more general absence of a definition of the concepts used in the technical screening criteria, it is important to point out that, in the request for internal review, they in fact addressed only the lack of definition of certain concepts, namely those of ‘physical and non-physical solutions substantially reducing the most significant physical climate risks that are important for this activity’, also cited by way of example (‘notions such as’) in the application. Consequently, their line of argument is admissible only in so far as they invoke a failure to respond to the argument alleging the absence of a definition of those concepts.
168In that regard, the explanation referred to in paragraph 160 above does not reveal any elements which could be interpreted as a direct response by the Commission to the argument in question.
169However, for the reasons set out in paragraphs 155 and 156 above, it cannot be held that the Commission infringed Article 10(2) of Regulation No 1367/2006 by failing to respond separately to the argument in question if it is implicit from the contested decision that it rejected it.
170In that regard, the Commission submits that ‘it is evident that the technical screening criteria for climate change adaptation in the Delegated Act in respect of [electricity generation from wind power] are in compliance with Article 11 of [Regulation 2020/852] and that therefore there was no need to reply to each and every argument made by the Applicants’. Thus, it submits, in essence, that the said decision contains a general statement that the technical screening criteria, as regards climate change adaptation, comply with all the requirements of that regulation, in particular those arising from Article 11 thereof.
171In particular, the Commission refers to point 1.2 of Annex IV to the contested decision, which in turn refers to points 1.2 and 2.3 of Annex III to that decision.
172As has been noted in paragraph 160 above, the Commission explained, in point 1.2 of Annex IV to the contested decision, that ‘[its] approach on climate change adaptation … is explained in in [points] 1.2. and 2.3. of Annex III [to that decision], in response to the claims made by another Applicant [for internal review]’ and that ‘[it] explains there that its approach to climate change adaptation is consistent with Articles 11(1), 17(1)[(b)] and 19(1) of [Regulation 2020/852]’. According to that institution, ‘for the reasons presented in those parts of the Commission’s response, the claim of the Applicant[s wa]s unfounded’.
173In addition, in point 2.3 of Annex III to the contested decision, the Commission concluded that its approach to the technical screening criteria for determining whether an economic activity does no significant harm to the environmental objective of climate change adaptation ‘is in line with Articles 10(3), 19(1) and 17(1)[(b)] of [Regulation 2020/852,] interpreted in the light of Article 11(1)[(a)] of [that regulation]’.
174Thus, it is apparent from a combined reading of point 1.2 of Annex IV to the contested decision and of points 1.2 and 2.3 of Annex III to that decision that the Commission was of the opinion that the technical screening criteria relating to climate change adaptation set out in the Delegated Regulation, in particular as regards the generation of electricity from wind power at issue in the present case, complied with all the requirements of Regulation 2020/852, in particular those arising from Article 11 of that regulation.
175In those circumstances, it must be concluded that, by making such a general assertion of compliance, the Commission implicitly rejected the argument at issue.
176Consequently, for the reasons set out in paragraphs 155 and 156 above, it cannot be held that, with regard to the argument at issue, the Commission failed to fulfil its obligation to state reasons under Article 10(2) of Regulation No 1367/2006.
177In the third place, according to the applicants, the Commission did not respond, in the contested decision, to the argument relating to the absence of a method to verify the substantial contribution and the determination of what constitutes ‘pre-defined indicators’.
178The argument in question appears in the following paragraph of the request for internal review:‘Third, the fourth point (additional conditions to be satisfied by the solutions implemented) also does not permit a verification. In particular the notion of “pre-defined indicators” in [point 4](d) [of the table entitled “Substantial contribution to climate change adaptation”] is not explained.’
179Although, in the contested decision, the Commission did not respond directly to the argument in question, it nevertheless stated in general terms that the technical screening criteria relating to climate change adaptation set out in the Delegated Regulation, in particular as regards the generation of electricity from wind power at issue in the present case, complied with all the requirements of Regulation 2020/852, in particular those arising from Article 11 of that regulation (see paragraphs 172 to 174 above). It therefore implicitly rejected that argument (see, by analogy, paragraph 175 above).
180Consequently, for the reasons set out in paragraphs 155 and 156 above, it cannot be held that, with regard to the argument at issue, the Commission failed to fulfil its obligation to state reasons under Article 10(2) of Regulation No 1367/2006.
181In the fourth place, the applicants are of the view that the contested decision says nothing about whether, on the one hand, the technical screening criteria for a substantial contribution to climate change adaptation may fail to take account of the fact that the activity is dependent on weather conditions and, on the other hand, whether the activity must be linked to energy consumption rather than to energy generation.
182In that regard, the applicants refer to the following two paragraphs of the request for internal review:‘Fourth, the fact that electricity generation from wind power is an activity subject to the availability of adequate wind, and therefore not readily available, whereas electricity is not subject to workable large scale storage is not addressed either as a practical constraint nor in terms of the impact this may have on the cycle of electricity production, namely the consequences, including in terms of the need for a permanent alternative source of electricity generation to supplement electricity generation from wind power.As already indicated with regard to the objective of climate change mitigation, the alleged substantial contribution of electricity generation from wind power to the objective of climate adaptation should be evaluated from the point of view of final electricity consumption and not exclusively from the perspective of electricity generation from wind power.’
183As is apparent from the considerations concerning the second plea and in particular from paragraph 116 above, the Commission explained, in the contested decision, why it had not taken intermittency into account and that it had defined the economic activity at issue as that of electricity generation from wind power.
184It follows that, even though those considerations do not appear in the parts of the contested decision devoted to the applicants’ arguments concerning the technical screening criteria for assessing the substantial contribution to climate change adaptation, the Commission did indeed take a position in that regard.
185Accordingly, the third plea must be rejected.
Fourth plea: principle of do no significant harm to the other environmental objectives
186The applicants dispute the legality of the contested decision so far as concerns the responses given by the Commission to the request for internal review relating to the principle that the activity in question must do no significant harm to the other environmental objectives. In support of the present plea, they put forward four limbs relating to one of the four other environmental objectives, namely (i) the sustainable use and protection of water and marine resources, (ii) the transition to a circular economy, (iii) pollution prevention and control, and (iv) the protection and restoration of biodiversity and ecosystems.
187As a preliminary point, it is appropriate to note the following: the technical screening criteria for determining whether an economic activity subject to those criteria, established pursuant to Article 10(3)(a) of Regulation 2020/852 (substantial contribution to climate change mitigation) and Article 11(3)(a) of that regulation (substantial contribution to climate change adaptation), does significant harm to one or more of the relevant environmental objectives have been laid down in essentially identical terms in point 4.3 of Annex I to the Delegated Regulation, pursuant to Article 10(3)(b) of the said regulation, as regards an activity of generation of electricity from wind power contributing substantially to climate change mitigation, and in point 4.3 of Annex II to the said delegated regulation, pursuant to Article 11(3)(b) of that delegated regulation, as regards such an activity contributing substantially to climate change adaptation. The only difference lies in the fact that, in addition to the four other environmental objectives, the objective relating to climate change adaptation is set out in Annex I to that delegated regulation, whereas the objective relating to climate change mitigation is mentioned in Annex II to the same delegated regulation.
188However, as early as the request for internal review, the applicants criticised the technical screening criteria only in relation to the other four environmental objectives. The technical screening criteria for those environmental objectives are laid down identically in point 4.3 of Annexes I and II to the Delegated Regulation, in lines 3 to 6 of the table entitled ‘Do no significant harm (“DNSH”)’.
189That is why the applicants do not distinguish between the two annexes to the Delegated Regulation, even though the technical screening criteria were established on the basis of two separate provisions (Article 10(3)(b) and Article 11(3)(b) of Regulation 2020/852).
First limb: sustainable use and protection of water and marine resources
190The applicants maintain, in essence, that, in the contested decision, the Commission did not respond to the allegations contained in the request for internal review, concerning the technical screening criteria relating to the sustainable use and protection of water and marine resources, thereby infringing Article 10(2) of Regulation 2020/852. In their view, the Commission did not specifically examine the exclusionary effect that electricity generation from wind power de facto has in maritime space. They consider that that question, raised in the said request, gave rise to serious doubts as to the technical screening criteria and is therefore admissible. The claim, set out in the contested decision, that electricity generation from wind power does not necessarily result in an exclusive use of maritime space is not supported by evidence and does not address the finding of the European Parliament resolution referred to in that request. The reference to existing EU legislation made in the technical screening criteria does not address the consequences of the exclusionary effect of the activity, nor its implications for the environment.
191The Commission disputes the applicants’ arguments.
192It should be noted that, in the request for internal review, the applicants first cited the technical screening criterion relating to the sustainable use and protection of water and marine resources and claimed the following:‘The above criteria do not include the impact of offshore electricity generation from wind power as an exclusive use of maritime space [footnote: “As identified by the Parliament resolution of 7 July 2021 on the impact on the fishing sector of offshore wind farms and other renewable energy systems …, point 30.”), the insufficient scientific knowledge of environmental impacts [footnote: “Idem, points 4, 14 and 38.”)] and as to whether such exclusivity of the said activity constitutes a sustainable use of maritime space and resources.’
193In point 1.3 of Annex IV to the contested decision, the Commission first considered that the claim at issue was inadmissible because it was not substantiated by evidence. Next, it considered the following:‘Nevertheless, [it] notes that offshore electricity generation does not necessarily result in an exclusive use of maritime space, as multiple use of space is possible and can contribute to a more efficient use of maritime space (such as multi-use between aquaculture, fisheries, nature restoration, tourism and offshore renewables). Environmental sustainability of offshore electricity generation from wind power is ensured through the DNSH criteria, which build on existing EU legislation, importantly on environmental impact assessments as required under [Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30)], [Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1)], [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 (Marine Strategy Framework Directive) (OJ 2008 L 164, p. 19)], [Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)] and [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7)].’
194First of all, even though certain passages of the application concerning the present limb may give the impression that the applicants are calling into question the substance of the technical screening criterion, they state, in paragraph 140 of the application, as a ‘result’ of their arguments, that the Commission’s response, as contained in the contested decision, ‘should be held as not having addressed this point of the Request [for internal review] in breach of Article 10(2) of [Regulation No 1367/2006]’.
195It therefore follows that, by the present limb, the applicants criticise only the alleged failure to respond to the claim at issue.
196It must be pointed out, however, that the Commission did respond to the claim at issue in point 1.3 of Annex IV to the contested decision. It explicitly addresses there the alleged exclusive use of maritime space, impacts on fishing, ecological impact analysis and the environmental sustainability of the activity.
197As to the substance, the request for internal review merely refers to a resolution of the Parliament of 7 July 2021 ‘on the impact on the fishing sector of offshore wind farms and other renewable energy systems’ (document P9_TA(2021)0338) in order to argue, first, that the generation of electricity from offshore wind power makes exclusive use of maritime space and, second, that there were insufficient scientific data on environmental impacts.
198Point 30 of the Parliament resolution of 7 July 2021 ‘on the impact on the fishing sector of offshore wind farms and other renewable energy systems’, however, makes no mention of such exclusivity:‘[the Parliament] is concerned about the fact that, apart from prohibitions and restrictions to fishing activities, fishers tend to avoid fishing in areas with [offshore wind farms] even if access is permitted because of the risk of accidental damage, snagging and loss of fishing gear, and that consequently the fear of potential exposure to liability is a source of concern that hinders coexistence’.
199Leaving aside the assertion that point 30 of the Parliament resolution of 7 July 2021 ‘on the impact on the fishing sector of offshore wind farms and other renewable energy systems’ speaks of an exclusive use of maritime space by offshore wind power installations compared to fishing, it is worth pointing out that that point says absolutely nothing about all of the other sectors. It cannot therefore be used as an argument to substantiate the claim at issue, according to which the generation of electricity from offshore wind power uses maritime space exclusively, that is to say, to the exclusion of all other activities.
200A similar finding applies to the reference to points 4, 14 and 38 of the Parliament resolution of 7 July 2021 ‘on the impact on the fishing sector of offshore wind farms and other renewable energy systems’ contained both in the request for internal review and in the application. In point 4 of that resolution, the Parliament states that it is ‘concerned about the lack of research into the decommissioning of offshore wind turbines and into the effects of decommissioning on the environment’. In point 14 of that resolution, it ‘stresses the need to investigate the potential effects … on marine life and fisheries, which could be limited to the operational phase and to examine how decommissioning can be carried out in such a way that its benefits might not be temporary’ and ‘underlines that when [offshore wind farms] are decommissioned, the sites need to be left in a state that allows fishing activities … and that protects and respects the environment’. In point 38 of that resolution, it ‘stresses that standardised monitoring programmes and harmonisation of fishing effort data are required to enable cumulative ecological and socio-economic as well as environmental impact assessment of the expansion of offshore renewable energy and that compatibility and comparability of data have to be improved’.
201Irrespective of the fact that a political resolution of the Parliament cannot be relied on to ‘prove’ scientific factual assertions, points 4, 14 and 38 of the Parliament resolution of 7 July 2021 ‘on the impact on the fishing sector of offshore wind farms and other renewable energy systems’ do not, in any event, contain any clear assertion that there were insufficient scientific data on environmental impacts. On the contrary, by expressing, in point 38 of that resolution, its wish that ‘compatibility and comparability of data have to be improved’, the Parliament explicitly acknowledges that such data ‘to enable cumulative ecological and socio-economic as well as environmental impact assessment of the expansion of offshore renewable energy’ do indeed exist, but that an effort would have to be made to make them more usable.
202In those circumstances, it must be held that the request for internal review was not at all substantiated by evidence confirming what the applicants had put forward. Thus, the Commission was not required to respond expressly to it.
203Accordingly, the present limb must, in any event, be rejected.
Second limb: transition to a circular economy
204The applicants claim that the response given by the Commission, in the contested decision, does not address the question, raised in the request for internal review, relating to the establishment of benchmarks of availability and usability of the necessary equipment and components, their respective durability and recyclability and their ease of dismantlement and refurbishing. The Commission was not justified in rejecting that question as inadmissible. It did not take account of the requirements of Article 17(1)(d) of Regulation 2020/852, which indicates precisely under which conditions an activity will be regarded as significantly harming the objective of the transition to a circular economy. By referring to the fact that other policy instruments and legislative texts were better suited to addressing those priorities, it confirms that it did not apply the requirements of the said provision.
205The Commission disputes the applicants’ arguments.
206In the request for internal review, the applicants first cited the technical screening criterion relating to the transition to a circular economy and claimed the following:‘The internal review should result in setting clear benchmarks of (a) availability and usability of the necessary equipment and components, (b) their respective durability and recyclability and (c) their ease of dismantlement and refurbishing in line with the requirements of [A]rticle 13[(1)] and [(2)] of [R]egulation 2020/852.’
207In point 1.4 of Annex IV to the contested decision, the Commission responded to the claim in question as follows:‘This claim is also unsubstantiated by evidence and as such needs to be rejected as inadmissible. The Applicant has not established where this obligation should stem from. Instead, it merely makes a policy claim.Nevertheless, the Commission notes that the [“do no significant harm”] criteria for the circular economy objective are aligned with [Regulation 2020/852]. The concepts of availability, usability, durability and ease of dismantlement and refurbishing are highly complex, limiting the effectiveness of general thresholds within the EU Taxonomy. Other policy instruments and pieces of legislation are better suited to address these priorities. For instance, the recently adopted Commission’s proposal for an Ecodesign for Sustainable Products Regulation … should provide an effective process for establishing minimum requirements for placing such equipment or components on the market. Therefore, this claim is also unfounded.’
208First of all, the applicants are right to criticise the position taken by the Commission in the first paragraph cited in paragraph 207 above, according to which that claim contained in the request for internal review was inadmissible.
209On the one hand, it should be borne in mind that the technical screening criterion at issue reads as follows: ‘The activity assesses availability of and, where feasible, uses equipment and components of high durability and recyclability and that are easy to dismantle and refurbish.’ What the applicants criticised in the request for internal review is limited to the absence of clear benchmarks in that regard, which were required. It was not possible to substantiate that claim as to the absence of such benchmarks with factual evidence. Contrary to what the Commission considered in the first sentence of the first paragraph cited in paragraph 207 above, the fact that that claim as to the absence of such benchmarks was not supported by evidence did not therefore render it inadmissible.
210On the other hand, the Commission was wrong to consider, in the second sentence of the first paragraph cited in paragraph 207 above, that that claim was inadmissible since the applicants had not indicated, in the request for internal review, the provision from which an obligation to establish clear benchmarks could arise. Questions of law do not fall within the factual framework to be established by the parties through the production of evidence.
211As to the substance, the applicants claim that the response given by the Commission, in the contested decision, to the claim in question is contrary to Article 17(1)(d) of Regulation 2020/852. According to that provision, an ‘economic activity shall be considered to significantly harm … 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’.
212Thus, the applicants argue that the obligation to establish clear benchmarks derives from Article 17(1)(d) of Regulation 2020/852, which constitutes an admissible clarification of the claim at issue. The position advocated by the Commission, according to which that is a new and therefore inadmissible ground, must therefore be rejected.
213The applicants’ argument is essentially that the Commission should have established clear quantitative thresholds or benchmarks.
214It is apparent from Article 19(1)(c) of Regulation 2020/852, however, that the technical screening criteria established pursuant to, inter alia, Article 10(3) and Article 11(3) of that regulation are to ‘be quantitative and contain thresholds to the extent possible, and otherwise be qualitative’ (see also paragraph 162 above). In the case at hand, the Commission stated very clearly, in the second sentence of the second paragraph cited in paragraph 207 above, that, in its view, the concepts of ‘availability’, ‘usability’, ‘durability’ and ‘ease of dismantlement’ and ‘refurbishing’, used in the technical screening criteria, were highly complex, limiting the effectiveness of general thresholds within the EU Taxonomy.
215Nor is there anything in the wording of Article 17(1)(d) of Regulation 2020/852 to indicate that the criteria referred to therein must be quantitative in the sense that they establish precise thresholds or clear benchmarks. As the Commission rightly notes, the applicants merely assert that that is the case, yet do not put forward any more detailed argument in support of that assertion.
216The arguments put forward by the applicant do not support the finding that the Commission committed a manifest error of assessment in that regard.
217It is apparent from the third and fourth sentences of the second paragraph cited in paragraph 207 above that ‘other policy instruments and pieces of legislation are better suited to address these priorities’ and that, ‘for instance, the recently adopted Commission’s proposal for an Ecodesign for Sustainable Products Regulation … should provide an effective process for establishing minimum requirements for placing such equipment or components on the market.’ The applicants appear to infer from this that the Commission acknowledges that the technical screening criteria do not suffice to avoid significant harm to the circular economy, including waste prevention and recycling.
218However, the applicants misrepresent what the Commission said in the contested decision. In the first place, that institution stated that the concepts of ‘availability’, ‘usability’, ‘durability’ and ‘ease of dismantlement’ and ‘refurbishing’, used in the technical screening criteria, were highly complex, limiting the effectiveness of general thresholds within the EU Taxonomy (see paragraph 214 above). Thus, it is clear that it considers above all that, in the specific context of the taxonomy, the data were too complex to allow general thresholds to be set. It is only in the second place that the Commission explained, in essence, that more specific legal instruments, that is to say, ones dedicated to the aspects of the circular economy, would be much more suitable for establishing a more detailed framework and, potentially, quantitative thresholds. Consequently, it must be held that, in the said decision, the Commission simply does not say what the applicants are reading therein.
219It follows that the applicants’ arguments do not call into question the Commission’s substantive assessment relating to the claim at issue, in the contested decision, such that the present limb must be rejected.
Third limb: pollution prevention and control
220So far as concerns the principle of ‘do no significant harm’ to the objective of pollution prevention and control, the applicants dispute the assertion, appearing in the contested decision, that the arguments that they had put forward in the request for internal review were inadmissible. In their view, the calling into question of the absence of technical screening criteria cannot be rejected as unsubstantiated. The interpretation of Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise (OJ 2002 L 189, p. 12), proposed by the Commission in the said decision, contradicts the spirit and letter of that directive and contradicts the objective and effectiveness of Regulation No 1367/2006. The Commission should have indicated whether or not it was going to address the question of supplementing that directive with provisions specific to the generation of electricity from wind power. The Commission thus infringed Article 10(2) of Regulation No 1367/2006.
221The Commission disputes the applicants’ arguments.
222In the request for internal review, the applicants alleged the following regarding the technical screening criterion relating to pollution prevention and control:‘As quoted above, the Delegated [R]egulation holds that the environmental objective of pollution prevention and control is not applicable (“N/A” …) to electricity generation from wind power.The internal review should assess in particular the principle of [“do no significant harm”] of the activity with regard to noise pollution and in particular with the provisions and the effet utile of [D]irective 2002/49 on noise pollution.The Associations also refer to the decision of the PETI committee of the European Parliament on 10 January 2022 with regard to petition 0482/2021 on wind turbine noise to further investigate not only the nature of wind turbine noise but also how to best remedy it through the adoption of European Union rules.’
223In point 1.5 of Annex IV to the contested decision, the Commission responded to the claim in question as follows:‘This claim is also unsubstantiated by evidence and as such needs to be rejected as inadmissible. The Applicant has not established where this obligation should stem from. Instead, it merely makes a policy claim.Nevertheless, the Commission notes that this claim overlooks key aspects of the technical screening criteria and EU legislation. For wind energy projects, EU legislation requires Member States to assess whether taking into account the specific characteristics of the projects, their location and their potential impact, there is a need to carry out an environmental impact assessment in accordance with [Directive 2011/92]. As concerns the issue of noise, EU law provides for monitoring of cases where significant noise-related health effects are present, such as on industrial sites next to an agglomeration, and prepare action plans (see Directive [2002/49]). Whether or not to include noise management for all industrial sites in the scope of EU legislation would need to consider the subsidiarity principle of the European Union, and the effectiveness of any EU legislation. This is beyond the scope of [Regulation 2020/852]. Therefore, this claim is also unfounded.’
224The applicants argue that that response given in the contested decision to the request for internal review is contrary to Article 10(2) of Regulation No 1367/2006. However, they fail to explain why they consider that provision to have been infringed. That argument must therefore be rejected as inadmissible.
225Moreover, it is worth noting that the applicants are not alleging infringement of Article 17(1)(e) of Regulation 2020/852, which (in conjunction with Article 10(3)(b) and Article 11(3)(b) of Regulation 2020/852) is, however, the legal basis of the technical screening criteria at issue in the context of the present limb.
226In terms of the question of the admissibility of the applicants’ arguments put forward in the request for internal review, addressed both in the contested decision and in the defence, for the same reasons as those set out in paragraph 210 above, the applicants cannot be criticised for not having referred to a specific provision giving rise to an obligation to establish precise technical screening criteria to ensure that the generation of electricity from wind power does not significantly harm the prevention and reduction of pollution.
227The Commission appears to accept that, in principle, Regulation 2020/852 requires such criteria. As the applicants rightly submit, it may come as a surprise in that situation that the Delegated Regulation does not, in fact, establish any technical screening criteria in so far as it merely indicates ‘N/A’. In those circumstances, it was not necessary to give further reasons for the request for internal review of the applicants, which simply argue that precise criteria should have been indicated instead of ‘N/A’.
228As to the substance, the applicants’ arguments concern only the aspect of noise and, more specifically, Directive 2002/49. According to the applicants, the Commission acknowledged that that directive applies to the activity of generating electricity from wind power. They argue that the Commission should have indicated clearly whether (or not) it was going to supplement that directive with provisions specific to that activity.
229Those arguments of the applicants are ineffective. In so far as, by those arguments, they merely claim that the Commission should have taken a position, in the contested decision, on whether it was necessary to amend Directive 2002/49, the applicants are no longer relying on an internal review of the Delegated Regulation but rather on an internal review of the said directive. Even supposing that the request for internal review could be interpreted as also seeking an internal review of that directive, however, it must be pointed out that such a request was out of time, not having been made within the time limit of eight weeks after the adoption or publication of the directive (or of the acts amending it) laid down by the second subparagraph of Article 10(1) of Regulation No 1367/2006. That request, after all, was lodged on 3 January 2022 (see paragraph 4 above) and Directive 2002/49 was last amended by Commission Delegated Directive (EU) 2021/1226 of 21 December 2020 (OJ 2021 L 269, p. 65), published in the Official Journal on 28 July 2021 – thus well over eight weeks before the request for internal review was lodged. Consequently, those arguments have no bearing on the legality of the contested decision and are therefore ineffective.
230In so far as it could be inferred from paragraph 142 of the reply that the applicants are in fact referring not to Directive 2002/49, but to the ‘absence of technical screening criteria with regard to [the principle of “do no significant harm”] for the objective of pollution prevention and control’, the question arises as to whether the applicants set out in an admissible manner what they had put forward in the application or indeed changed their arguments in an inadmissible manner at that stage of the procedure.
231However, even if that clarification had to be accepted, such a line of argument could not succeed. As the Commission specifies in its defence, it must be pointed out that the contested decision refers to Directive 2011/92. According to the Commission, for activities or projects which undergo an environmental impact assessment in accordance with the requirements set out in the criteria for the principle of ‘do no significant harm’ with a view to the environmental objective of protection and restoration of biodiversity and ecosystems pursuant to Appendix D to Annex I and Annex II to the Delegated Regulation, potential noise impacts are assessed as part of that environmental impact assessment. It follows that noise impacts are addressed in the Delegated Regulation.
232It must however be pointed out, as the Commission does in the rejoinder, that the applicants remain completely silent, both in the application and in the reply, on the Commission’s argument based on Directive 2011/92. In the absence of arguments calling into question – or even addressing – that key argument of the Commission, they have failed to fulfil their obligation to demonstrate a manifest error of assessment committed by the Commission in the contested decision. The present limb must therefore be rejected.
Fourth limb: protection and restoration of biodiversity and ecosystems
233The applicants criticise the Commission for having failed to address the question of whether the relevant technical screening criteria set out in point 4.3 of Annexes I and II and Appendix D to the Delegated Regulation applied only in ‘Natura 2000’ areas. In addition, they believe that the position taken by the Commission could no longer be maintained in the light of legislative developments subsequent to the adoption of that delegated regulation. In their view, they were entitled to raise those developments, which could not have been formulated in the request for internal review as they did not yet exist at that time. The Commission infringed Article 10(2) of Regulation No 1367/2006.
234The Commission disputes the applicants’ arguments.
235In the request for internal review, the applicants alleged the following regarding the technical screening criterion relating to the protection and restoration of biodiversity and ecosystems:‘The Delegated [R]egulation considers that the principle of [“do no significant harm”] to the protection and restoration of biodiversity and ecosystems is satisfied under similar conditions to that of the objective of sustainable use and protection of water and marine resources ([point] 4.3. of [A]nnexes I and II [to] the Delegat[ed R]egulation).This raises two issues which should be examined in the internal review.On the one hand, it means that the assessment of the principle [of “do no significant harm”] regarding the objective of the protection and restoration of biodiversity and ecosystems does not examine the characteristics of land based (as opposed to offshore) electricity generation from wind power at large but merely deals with Natura 2000 areas …On the other hand, the requirements set out regarding specifically offshore electricity generation from wind power is merely a general reference to [D]irective 2008/56, [D]ecision 2017/848 and to [D]irective 2011/92.’
236In point 1.6 of Annex I to the contested decision, the Commission responded to the claim in question as follows:‘This claim stems from a misinterpretation of Appendix D of Annexes I and II to the Delegated Act. Appendix D does not distinguish between land-based or offshore activities as both land-based and offshore wind energy generation activities are concerned by an Environmental Impact Assessment or an Appropriate Assessment (Article 6(3) Habitats Directive). For wind energy projects, EU legislation requires Member States to assess whether there is a need to carry out an environmental impact assessment as per [Directive 2011/92] to cover the effects of certain public and private projects on the environment, including biodiversity and net land take. Such an assessment would take into account the specific characteristics of the projects, their location and their potential impact. This requirement also applies outside Natura 2000 areas. Therefore, the claim of the Applicant is unfounded.’
237The applicants argue that that response is contrary to Article 10(2) of Regulation No 1367/2006. However, they fail to explain why they consider that provision to have been infringed. That argument must therefore be rejected as inadmissible.
238In the first place, the applicants claim that, in the contested decision, the Commission did not address the claim at issue and, in particular, the question of whether the technical screening criteria concern only Natura 2000 areas.
239The Commission states that it has identified an inadmissible expansion of the claim at issue. In its view, in the application, the applicants made a ‘general and overall claim concerning “the relevant technical screening criteria”’.
240However, the words ‘in particular’ at the beginning of paragraph 163 of the application clearly explain which specific aspect the applicants invoke in order to assert that the technical screening criteria are problematic. The question of applicability outside Natura 2000 areas was indeed addressed by the applicants in the request for internal review. As the applicants’ arguments in the application have to be interpreted in that way, there is no problem of admissibility.
241As to the substance, the claim at issue is manifestly unfounded. It is unequivocally apparent from the penultimate sentence of the paragraph cited in paragraph 236 above that, according to the Commission, the question of whether a project is situated in a Natura 2000 area is immaterial. The Commission therefore did respond to that claim, such that the present limb is unfounded in that regard.
242In the second place, the applicants refer to developments subsequent to the adoption of the Delegated Regulation.
243In that regard, the Commission is of the view that it is apparent from paragraph 164 of the application that the applicants are referring not to the contested decision but to the Delegated Regulation. The Commission, however, misrepresents their argument. It is true that, in that paragraph of the application, they proceed from the express assumption that ‘the technical screening criteria ensured that the Activity satisfied the principle of [“do no significant harm”] to the environmental objective of the protection and restoration of biodiversity and ecosystems in the Delegated Regulation’. However, the argument put forward by the applicants alleges that, by contrast, ‘such a conclusion could no longer be held from a legal point of view at the time of the adoption of the [contested] Decision given the Commission[’s] public position on the same issues’. It is therefore clear that the applicants are referring to that decision and that the considerations concerning the said delegated regulation are merely hypothetical. The Commission’s argument that the application is inadmissible in that regard must therefore also be rejected.
244The Commission further submits that the applicants’ arguments based on developments subsequent to the adoption of the Delegated Regulation are inadmissible because they were not raised in the request for internal review and are therefore new.
245The applicants, for their part, point out that those arguments, based on a Commission recommendation and on a proposal for a directive of 18 May 2022, could not have been formulated in the request for internal review lodged on 3 February 2022. The contested decision dated 7 July 2022 should have taken into consideration the implications of that recommendation and that proposal for a directive in relation to the objective of protecting and restoring biodiversity and ecosystems.
246As the Commission rightly submits, those arguments must be rejected as inadmissible. As has been recalled in paragraph 28 above, it is apparent from the case-law that proceedings against a decision rejecting as unfounded a request for internal review cannot be founded on new grounds or on evidence not appearing in the request for review, as otherwise the requirement, in Article 10(1) of Regulation No 1367/2006, relating to the statement of grounds for such a request would be made redundant and the object of the procedure initiated by the request would be altered. The EU institution or body which is the author of the administrative act whose internal review is requested is not required to examine grounds other than those put forward in the request for internal review by the party making the request.
247It follows that the Commission was not required to examine the implications of the recommendation and the proposal for a directive not mentioned in the request for internal review, all the more so as it would have to do so on its own initiative.
248Those arguments of the applicants must therefore be rejected as inadmissible.
249Accordingly, the present limb must be rejected in its entirety as must, consequently, the fourth plea in its entirety.
Fifth plea: obligation to state reasons
250The applicants argue that the contested decision does not contain an adequate statement of reasons in two respects. In the first place, the assertion that it is not possible to factor in the activities’ intermittency is not supported by an adequate statement of reasons in the light of the requirement contained in Article 19(1) of Regulation 2020/852. The implied reasoning based on the fact that Regulation 2020/852 mainly concerns economic activities and that a system-wide analysis was not possible does not constitute a sufficient statement of reasons, since, on the one hand, intermittency concerns the activity itself and, on the other hand, the objective of that regulation is not further defined or explained. In the second place, the choice made to exempt electricity generation from wind power from quantitative technical screening criteria for substantial contribution to the environmental objective of climate change mitigation is not supported by a sufficient statement of reasons. The Commission’s statement reflects the positions expressed by advisory bodies, not the position of the Commission.
251The Commission disputes the applicants’ arguments.
252It must be recalled, at the outset, that the duty to state reasons in decisions is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 181 and the case-law cited).
253Thus, by the two arguments put forward in the context of the fifth plea, the applicants appear to challenge not the statement of reasons for the contested decision in that regard, but rather its merits.
254As regards the first argument, however, it is apparent from paragraphs 115 to 133 above, on the one hand, that the statement of reasons for the contested decision in that regard enabled both the applicants to bring an action against that decision and the Court, as the court with jurisdiction, to review it (see paragraph 153 above), with the result that a failure to state reasons cannot be held and, on the other hand, that the Commission’s assessment in that regard is free from manifest errors of assessment.
255As regards the second argument, it is apparent from paragraphs 159 to 163 above that, in the contested decision, the Commission did explain why it set qualitative rather than quantitative technical screening criteria.
256It follows that the statement of reasons for the contested decision, criticised by the applicants, is sufficient in the light of the criteria set out in the case-law and that the Commission’s assessment, criticised in the applicants’ first argument, is free from errors of assessment.
257Consequently, the fifth plea must be rejected.
Alternative plea: illegality of the Delegated Regulation
258In the reply, the applicants raise, in the alternative, an additional plea in law on the basis of Article 277 TFEU alleging the illegality of the Delegated Regulation. That plea is submitted as ‘an alternative response to the arguments of inadmissibility … that the applicants would be challenging not the [contested decision] but the Delegated Regulation’ which the Commission put forward, according to the applicants, in paragraphs 33 to 35, 58, 62, 74, 90, 101, 102, 128, 135, 153 and 156 of the defence. In support of the plea, the applicants refer to certain arguments put forward in the application in support of the first (namely paragraphs 51 to 58, 63 and 68 to 70 of the application), second (namely paragraphs 75, 82, 83, 91 to 97 of the application) and fourth (namely paragraphs 139, 140, 144, 145, 147, 148 and 162 to 171 of the application) pleas and submit that the said decision should be annulled on the basis of that alternative plea raised under Article 277 TFEU and alleging the illegality of the Delegated Regulation.
259The Commission disputes both the admissibility and the merits of the present alternative plea. At the hearing, the Commission partially withdrew the arguments by which it had claimed that certain arguments put forward by the applicants in the application were inadmissible because they were directed not against the contested decision but against the Delegated Regulation, formal note of which was taken in the minutes of the hearing. The arguments in question are those put forward by the Commission in paragraphs 34, 58, 62, 74, 90 (but only as regards paragraphs 82 and 83 of the application), 128 and 135 of the defence.
260In essence, the applicants submit the present alternative plea in the event that the Court deems well founded the Commission’s arguments alleging that certain arguments put forward in the application are inadmissible on the ground that they challenge not the contested decision, but the Delegated Regulation.
261First, however, the Commission withdrew those arguments in so far as they are set out in paragraphs 34, 58, 62, 74, 90 (but only as regards paragraphs 82 and 83 of the application), 128 and 135 of the defence (see paragraph 259 above). Paragraph 33 of the defence merely serves to introduce the argument set out in paragraph 34 thereof, whereas paragraph 35 merely develops that argument. The Commission’s withdrawal of that argument therefore encompasses the entirety of paragraphs 33 to 35 of the defence, to which the applicants refer (see paragraph 258 above).
262Second, as regards the Commission’s other arguments – namely those put forward in paragraphs 90 (but not as regards paragraphs 82 and 83 of the application, see paragraph 259 above, and thus only as regards paragraphs 91 and 92 of the application), 101, 102, 153 and 156 of the defence – it must first of all be observed that, contrary to what the applicants appear to claim (see paragraph 258 above), in paragraphs 102 and 156 of the defence, the Commission contends that the applicants’ arguments identified in those paragraphs are inadmissible not because they concern the Delegated Regulation instead of the contested decision, but for other reasons.
263Third, it follows from the foregoing that it has been possible to reject the second part of the second plea, to which the Commission’s argument in paragraph 90 of the defence refers, and the third part of the fourth plea, to which the Commission refers in paragraph 101 of the defence, on the merits (see paragraphs 109 to 135 and 224 to 232 above). The fourth part of that plea, to which the Commission refers in paragraph 153 of its defence, has been rejected as partly inadmissible for a reason other than that of being directed against the Delegated Regulation instead of against the contested decision, and as partly unfounded (see paragraphs 237 to 249 above).
264Consequently, all of the Commission’s arguments alleging that certain arguments put forward by the applicants in the application are inadmissible, on the ground that they challenge not the contested decision, but the Delegated Regulation, have either been withdrawn or have not been upheld by the Court, such that the condition set by the applicants for invoking the present alternative plea is not satisfied. The Court therefore does not have to analyse it.
Conclusion
265It follows from all of the foregoing that none of the pleas put forward by the applicants can succeed. The action must therefore be dismissed.
Costs
266Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
267Since the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the Commission.
Operative part
On those grounds,THE GENERAL COURT (Sixth Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders Fédération environnement durable, Bundesinitiative Vernunftkraft eV, Vent de Colère ! – Fédération nationale and Vent de Raison – Wind met Redelijkheid (VdR-WmR) to pay the costs.
Delivered in open court in Luxembourg on 10 September 2025.
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