Blogpost 36/2022 The limited direct access of individuals to the CJEU is, and has been, the cause for much debate in EU law. However, in the recent Nord Stream 2 judgment, the Court of Justice confirmed that it is not quite as limited as the General Court had laid it out to be in its 2020 order. Generally, for private persons – natural or legal – to be able to challenge an EU legislative act before the CJEU under Article 263(4) TFEU, they must show that, despite not being explicitly addressed by the act, they are nevertheless directly and individually concerned. Since ..read more

The limited direct access of individuals to the CJEU is, and has been, the cause for much debate in EU law. However, in the recent Nord Stream 2 judgment, the Court of Justice confirmed that it is not quite as limited as the General Court had laid it out to be in its 2020 order. Generally, for private persons – natural or legal – to be able to challenge an EU legislative act before the CJEU under Article 263(4) TFEU, they must show that, despite not being explicitly addressed by the act, they are nevertheless directly and individually concerned. Since the notorious Pla ..read more

In its judgment in Achmea, the European Court of Justice (‘ECJ’) held that intra-EU investor-State arbitration (‘ISDS’) clauses in treaties between Member States are incompatible with EU law and are therefore invalid (see discussion here and here). However, commercial arbitration was found compatible with EU law. This is because it is a result of the freely expressed will of the parties, whereas investment arbitration is based on a treaty between the Member States. Still, Achmea left one question open, namely what the consequences are if a Member State does not contest the jurisdiction of the ..read more

Earlier this month, the Court of Justice handed down its judgment in Komstroy. The judgment was the latest on the relationship between EU law and international investment law following earlier cases such as Achmea (discussed here) and Opinion 1/17 (discussed here) where the Court demarked the limits under which international investment tribunals can legally operate under EU law. Komstroy added explicitly (and rather predictably) that there is no place for intra-EU arbitration proceedings under the Energy Charter Treaty (ECT), a multilateral agreement to which the EU, its Member States (apart f ..read more

We knew that third parties’ rights in State aid assessment procedures are virtually non-existent – as has been deplored for many years (see e.g. here or here) – but Advocate General Tanchev’s Opinion of 3 June 2021 in Case C-57/19 P Commission v. Tempus Energy Ltd and Tempus Energy Technology Ltd (the Opinion) would effectively grant unfettered discretion to the Commission to cherry-pick the information it analyses when deciding on the compatibility of aid measures with the internal market. Besides being illogical in several aspects, the Opinion also highlights the intrinsic flaws of State aid ..read more

By Chrysa Alexandraki Background On 8 January 2019, an action was brought before the Court of Justice of the European Union (hereafter CJEU) by an environmental law charity, ClientEarth (hereafter applicant) against a multilateral development bank (hereafter MDB) and European institution, the European Investment Bank (hereafter EIB). The case concerns the financing by the bank of a biomass energy generating project in Northern Spain – Galicia -, of the cost of 60 million euros, followed by the bank’s refusal to refine its decision to finance the aforementioned investment, regardless the applic ..read more

In May 2018, the European Commission adopted a package of measures aiming at reorienting capital flows towards sustainability and providing investors with more clarity and transparency when investing in “green” products.  These measures consist of: The Regulation on the establishment of a framework to facilitate sustainable investment (the “Taxonomy Regulation”), which establishes uniform criteria to determine whether an economic activity is environmentally sustainable; The Regulation (EU) 2019/ 2088 on sustainability-related disclosures in the financial services sector (the “Disclosure ..read more

Solidarity in the European Union’s energy policy is not merely a wishful thought but a justiciable principle of EU primary law. This is according Advocate General (AG) Campos Sánchez-Bordona, who on 18 March 2021 delivered his Opinion in Case C-848/19 P Germany v Poland. In his submission, the AG thus advises the Court of Justice to uphold the General Court’s ruling in Case T-883/16 Poland v Commission. Should the CJEU follow the AG’s opinion, this case has the potential to have far-reaching consequences for Union policy on gas imports and the infrastructure that facilitates them, but also for ..read more

By Kai P Purnhagen, Josephine van Zeben, Hanna Schebesta, and Robbert Biesbroek On 9 October 2018, the Civil Division of the The Hague Court of Appeal in the Netherlands has delivered its judgment on the appeal of the ‘Urgenda case’ The Court imposed an order to act on the Dutch government to adjust its policy from 20% to achieve a 25% emission reduction by 2020, compared to 1990 levels (paras 51 and 75). The judgment confirmed the initial ruling in favour of Urgenda in 2015.[i] The consequences for Dutch climate, energy and environmental policy and potentially for climate mitigation efforts w ..read more

By Sebastian Bechtel Currently pending before the CJEU is a fundamental issue regarding the assessment of environmental effects of major projects: Should their impacts only be reassessed when construction takes place? Or should there also be an environmental impact assessment (‘EIA’) if an aging project is allowed to continue operation many years beyond its originally projected lifetime, without any physical alterations? Case C-411/17 requires the Court to address its own interpretation of the EIA Directive in an earlier judgement which arguably contradicts the EU’s obligations under internati ..read more