Sabo and Others v. Parliament and Council

(EU Biomass Plaintiffs v. European Union)

Case name: Sabo and Others v. Parliament and Council

also known as: EU Biomass Plaintiffs v. European Union

Jurisdiction: European Union

Type of claim: Cases against specific legislation or policies which do not provide sufficient protection

Summary of result: Dismissal – Inadmissibility – Act not of individual concern.

Judgment final: Yes

Court Instances:

Court

Type of decision

Summary of decision

European General Court

Judgment of 6 May 2020

Case no.: T-141/19

2019/C 148/59

Dismissal.

Application dismissed on grounds of inadmissibility: “Act not of individual concern.”

European Court of Justice

Judgement of 14 January 2021

Case no.: Case T-141/19

C‑297/20 P

Dismissal.

Appeal dismissed as grounds for appeal are manifestly unfounded.

Last updated as of: June 15, 2021

Summary of Judgment

1. Background on GHG Emissions and Biomass Use in the EU

The United Nations Intergovernmental Panel on Climate Change (IPCC) has emphasized that mitigating the effects of climate change required both an increase in carbon uptake as well as a reduction in greenhouse gas (GHG) emissions.

In 2014, the European Council approved the 2030 climate and energy policy framework for the European Union (EU). That framework set a binding target of at least 40% reduction in EU GHG emissions by 2030. The increased use of energy from renewable sources constituted an important part of the package of measures needed to reduce GHG emissions.

In 2018, the European Parliament and the Council of the European Union adopted Directive (EU) 2018/2001 (“the Directive”), which deals with the promotion and use of renewable energy sources. This Directive was an update of a 2009 directive on renewable energy sources.

Summary of Relevant Provisions of the Directive

Article 7(1) sets out the rules for calculating the gross final consumption of energy from renewable sources in each Member State. It further holds that biofuels, bioliquids and biomass fuels that do not fulfil the sustainability and greenhouse gas emissions saving criteria laid down in Article 29(2) to (7) and (10) shall not be taken into account.

Article 29 contains many relevant provisions to the case. It provides the goals towards which bioenergy will be counted and provides some criteria for forest bioenergy sources.

Article 29(1) provides that energy from biofuels, bioliquids, and biomass fuels will be taken into account for:

Contributing towards the EU’s collective, binding target of having 32% of the EU’s gross final consumption of energy come from renewable sources by 2030;
Measuring compliance with renewable energy obligations; and
eligibility for financial support for the consumption of biofuels, bioliquids and biomass fuels.

Criteria for Energy Sources in the Directive

General Criteria

Articles 29(1), (3), (4), and (10) provide general criteria for biofuels, bioliquids, and biomass fuels to be counted to the goals outlined in 29(1). The total rated thermal input must be ≥ 20 MW for solid biomass fuels and ≥ 2 MW in the case of gaseous biomass fuels. Member States may apply the sustainability and greenhouse gas emissions saving criteria to installations with lower total rated thermal input. Fuel produced from agricultural biomass cannot be obtained from land with high biodiversity value (e.g. primary forest/wooded areas with high biodiversity or no visible indication of human activity as of January 2008, lands designated for protection and/or conservation, etc.) or land with high-carbon stock, e.g. forested areas or significantly wooded areas with at least 10-30% canopy cover.
Forest Biomass-Specific Criteria

Article 29(6) provides forest biomass-specific criteria. The country of harvest must have national laws, sub-national laws, or management systems to ensure the legality of harvesting operations, forest regeneration of harvested areas, protection of designated sensitive areas, minimized impact of harvesting, and a maintained level of the forest’s production capacity.

Article 29(7) lays out forest biomass-specific land use, land use change, and forestry (LULUCF) criteria. The country of harvest must either be party to the Paris Agreement, have submitted a nationally determined contribution to the United Nations Framework Convention on Climate Change which ensures that changes in carbon stock associated with biomass harvest are accounted for in the country’s commitment to reduce or limit greenhouse gas emissions, or have national laws, sub-national laws, or management systems in place to conserve and enhance carbon stocks and sinks such that LULUCF emissions do not exceed removals.

Article 29(10) provides a minimum standard of greenhouse gas emission savings from the use of biofuels, bioliquids and biomass fuels based on the date. The calculation of greenhouse gas emissions savings is to be done in accordance with the method stipulated in Article 31(1).

Many EU Member States have turned towards biomass energy (also referred to as ‘bioenergy’) to meet their IPCC directions and EU targets. Biomass is defined as “plant material that can be turned into fuel … to supply heat and electricity.”[i] It is harvested from a variety of sources, including dedicated crops, agricultural waste and residue, and forest products or by-products.[ii] Biomass energy is typically considered carbon neutral in international climate agreements and within intergovernmental organizations’ policies, such as the Directive.[iii]

However, the use of biomass as a fuel is problematic because bioenergy’s CO₂emissions are not accurately accounted for and the production of biomass often drives deforestation.

Bioenergy and CO2 Emissions

Biomass power plants emit a high amount of CO₂per unit of energy—even more than fossil-fired plants. Untreated wood biomass is inefficient to burn because of its high moisture content, while treatment to increase combustion efficiency (e.g. manufacturing wood pellets) requires energy and emits carbon.[iv] Such increased emissions also have clear impacts on human health and wellbeing.

Biomass and Deforestation

The UN Framework Convention on Climate Change (“UNFCCC”) recognises the importance of natural sinks, including biomass and forests that capture carbon, in achieving net-zero—or event negative—carbon levels.[vi]

According to the EU’s Land Use, Land Use Change, and Forestry (LULUCF) reports, forests and harvested wood products comprise the EU’s only net carbon sinks.[vii]

The use of forest biomass in energy production thus poses a two-fold problem: it creates a large amount of CO₂emissions while driving deforestation, which destroys important carbon sinks.

In the EU, bioenergy accounted for 65% of the EU’s energy inputs that are classified as ‘renewable’ in 2016.[v] This continues the trend of a sharp increase in the EU’s use of biomass energy since 1990. Meanwhile, the EU’s carbon sinks only balanced out 7% of its 2016 emissions.

2. The Parties

The seven applicants hail from six countries: Estonia, France, Ireland, Romania, Slovakia, and the United States of America.[viii] The applicants include individuals and environmental NGOs who claim to have suffered individual harms as a result of biomass energy production under the Directive and its 2009 predecessor.

The defendants are the European Parliament and the Council of the European Union. They are European Union bodies that have the right to adopt legislation proposed by the European Commission.

European Parliament

The European Parliament represents and is directly elected by the EU’s citizens. It is one of the three main institutions involved in creating legislation for the European Union (EU). Alongside the Council of the European Union, which represents governments of EU Member States, and European Commission, which represents the interest of the EU as a whole, it produces policies and laws that apply throughout the EU. Typically, the European Commission proposes new laws, and the European Parliament and Council of the European Union adopt them.

Council of the European Union

The Council of the European Union—not to be confused with the European Council—represents the governments of individual EU Member States. It is the main decision-making body of the European Union.

Its ministers can commit their respective governments to any actions agreed upon in meetings.

In support of the defendants, the European Commission, the U.S. Industrial Pellet Association, the Stichting Dutch Biomass Certification, and the Stichting Rotterdam Biomass Commodities Network submitted separate applications to intervene.

EU's Courts and the TFEU

The TFEU, Article 256 provides that in certain cases, the European General Court shall act as a first instance court. These exclude special types of cases assigned to special courts under Article 257 and questions referred for a preliminary ruling in specific areas under Article 267.

Article 256 also provides that the General Court’s decisions may be subject to a right of appeal to the Court of Justice on points of law only.

The TFEU, Article 263 provides that any natural or legal person may institute proceedings against either:
1. an act addressed to that person or which is of direct and individual concern to them or
2. a regulatory act which is of direct concern to them and does not entail implementing measures.

Under the TFEU, Article 264, EU courts have the authority to declare legislative acts void if they find that an action is well-founded.

The Applicants’ Claims

The applicants allege that the Directive’s forest biomass-related provisions fail to comply with EU principles for environmental policy laid out in the TFEU and that the Directive violates their individual rights under the Charter of Fundamental Rights of the European Union. The applicants ask the Court to declare void all provisions in the Directive that allow “forest biomass” to count as a renewable energy source that contributes to the Directive’s goals in Article 29 (1).

Standing

In order to make a claim before the Court, the applicants must demonstrate that they have standing to do so.

Article 263 of the TFEU provides that any natural or legal person (i.e. an individual person or a corporation) may institute proceedings against a legislative act that is of “direct and individual concern” to them. To satisfy this requirement, a person must meet two criteria.

First, the contested act must affect the person because either:

the person has unique attributes that are peculiar to them or
because circumstances differentiate them from all other persons.

Second, this difference distinguishes the person in a way similar to being addressed specifically by law.[ix] Claims made by persons who do not meet this test will be deemed “inadmissible” and will not be heard by the Court.

The applicants submitted that they met the requirements of having “direct and individual concern”. To support this, they argued that the deforestation driven by the use of forest biomass products and the operation of biomass power plants affected a limited category of persons that included them. This, they claimed, qualified them as having “direct and individual concern.”

In the alternative, the applicants submitted that the Court should reform its interpretation of “direct and individual concern” given the context of environmental law cases. They contended that the court’s strict interpretation is inappropriate for three reasons.[x] First the quality of the environment and protection of the environment, by their very nature, affect everyone in both current and future generations. This cannot preclude individuals or environmental NGOs from having standing in any case relating to the environment. Second, a strict interpretation is at odds with the general principle of access to justice. Third, a strict interpretation is at odds with provisions on access to justice within the United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“Aarhus Convention”).[xi] The European Union is a party to the Aarhus Convention.

The Aarhus Convention

The European Union is a party to the Aarhus Convention. The EU has accepted the convention. This has the same legal affect as ratification, which expresses the consent to be bound.

Environmental Rights and Duties

The Aarhus Convention’s preambulatory clauses recognises every person’s right to live in an environment adequate to their health and well-being as well as a duty to protect the environment for current and future generations. The preamble also recognises that in order to exercise this right and duty, citizens must have access to justice in environmental matters.

Education on and Support for Accessing Environmental Justice

Articles 3(2) and 3(3) calls on parties to ensure that the public has education on how to obtain access to justice in environmental matters as well as support from authorities in doing so. Article 9(2) requires parties to ensure that members of the public have access to review if they have sufficient interest or maintain that one of their rights has been impaired. This review process must be before a court of law or a legally-established, independent, and impartial body and must allow the person to challenge the legality of a decision, act, or omission subject to Article 6’s provisions on public participation in decisions on specific activities.

Challenging Environmental Law Contraventions

Article 9(3) states that parties must ensure that members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene the party’s national law relating to the environment.

Claim 1: Incompatibility with TFEU Article 191 on environment protections

In their submission to the Court, the applicants’ first claim is that the EU’s inclusion of forest biomass in its Directive as counting towards the Directive’s Article 29(1) goals on sustainability for biofuels, bioliquids, and biomass fuels violates Article 191 of the TFEU.[xii]

Biomass Energy and the Goals of the Directive

Article 29(1) of the Directive provides that energy from biofuels, bioliquids, and biomass fuels may be taken into account for the following purposes:

Contributing towards the EU’s collective, binding target of having 32% of the EU’s gross final consumption of energy come from renewable sources by 2030;
Measuring compliance with renewable energy obligations; and
Eligibility for financial support for the consumption of biofuels, bioliquids and biomass fuels.

These fuel sources must fulfil certain sustainability and GHG emissions saving criteria in order to be counted towards the Directive’s goals. These criteria attempt to ensure that the fuels are not produced in a way that undermines biodiversity or existing carbon sinks, are subject to appropriate laws, and demonstrate minimum GHG emissions savings.

TFEU Article 191

Article 191 of the TFEU describes the objectives of EU policies on the environment and the factors that will be considered in preparing those policies. The key provisions of Article 191 are:

commit to preserving, protecting, and improving the quality of the environment; protection of human health; and prudent and rational use of natural resources;
iterates that EU policy will be based on the precautionary principle, that preventative action should be taken, that environmental damage should be rectified at source, and that the polluter should pay; and
affirms the importance of considering scientific and technical data, the environmental conditions of various EU regions, and potential benefits and costs of action or inaction.

The applicants claim that the inclusion of forest biomass as a fuel in Article 29(1) of the Directive “fatally undermines the goals of the Directive”. They contend that the sustainability criteria are minimal, which requires only that source country have some sort of forestry laws, regulations, or management system and allows highly damaging actions to be tolerated. Similarly, the sole GHG emissions savings standard that applies to forest biomass and emissions savings calculations that apply to forest biomass are inadequate and fail to properly reflect CO₂ emissions from the burning of wood biomass.[xiii]

The applicants argue that the Directive also falsely portrays wood-burning power plants as climate friendly by ignoring how the use of forest biomass causes increased logging and deforestation that destroys important carbon sinks, harms biodiversity, and encourages the harvesting of trees that would otherwise be deemed as ‘low value’ to industry but are important to forest ecosystems.[xiv]

In allowing forest biomass to be considered a renewable energy source, counted towards renewable energy goals, and eligible for financial support, the Directive fails to remedy environmental damage at source and respect scientific evidence that mitigating climate change requires both increasing carbon uptake and reducing GHG emissions.[xv] The policy not only fails to make polluters pay, but the fact that forest biomass energy production is eligible for renewable-energy-related financial support runs contrary to Article 191(2).

Claim 2: Incompatibility with Charter of Fundamental Rights of the European Union

The applicants’ second claim is that the Directive violates numerous rights of the applicants that are enshrined in the Charter of Fundamental Rights of the European Union (the “Charter”). They hold that the harms they have suffered as a result of the use of forest biomass in energy generation infringe on their individual rights, including those recognized by the following Articles of the Charter:

Article 7: respect for private and family life;
Article 10: freedom of thought, conscience, and religion;
Article 14: right to education;
Article 17: right to property;
Article 22: cultural, religious, and linguistic diversity;
Article 24: the rights of the child;
Article 35: health care; and
Article 37: environmental protection.

The alleged harms suffered by the applicants include:

the destruction of culture and cultural heritage from deforestation of sacred forest sites in Estonia, ancient primeval forests in Romania and Slovakia, and forests in the USA;
harm to health and property rights from pollution associated with wood-burning in France; and
directly threatening years of work to oppose peat-fired power installations and thus the survival of peat bogs in Ireland by introducing the viability of co-firing forest biomass with peat. [xvi]

They argue that the infringements cannot be justified since they are neither necessary for nor connected to the EU’s environmental protection objectives. Rather, the infringements run contrary to the EU’s environmental protection objectives.

Remedies Sought

The applicants ask the Court to strike down the inclusion of “forest biomass”—including tree stems, stumps, branches, and bark— as a renewable fuel within the Directive. This includes cancelling those provisions that permit forest biomass fuel to count towards the goals of Article 29(1).

The Defendant’s Arguments

In response to the applicants’ claims, the European Parliament and Council of the European Union argued that the claims were inadmissible because the applicants did not have standing under Article 263 of the TFEU. The defendants requested that the Court, under Article 130(1) and (7) of the Rules of Procedure, make a decision on the question of admissibility without considering the substance of the case.

3. European General Court Judgment

The proceeding was first heard by the European General Court, in accordance with the Treaty of the Functioning of the European Union (TFEU). EU courts have the authority to declare legislative acts void if they find that an action is well-founded.

The action was dismissed without trial on grounds of inadmissibility.

The Court agreed with the Defendants and decided that it had sufficient information from the material in the file to rule on the question of inadmissibility without taking further steps in the proceedings.[xvii] The Court held that the applicants did not have standing to bring a claim because they had failed to demonstrate that the Directive was of “individual concern” to the applicants under Article 263 of the TFEU.

The Court gave four reasons for finding that the applicants’ claim of “individual concern” could not succeed.

It is impossible to identify a limited category of people concerned by the provisions of the Directive that are at issue because the Directive constitutes an act of general application, applies to objectively determined situations, and applies to all persons. The applicants did not demonstrate any factor that would distinguish them as individuals. The Court held that the applicants’ own acknowledgement that the protection and regulation of the environment affects “everyone in both current and future generations” runs contrary to the notion of individual concern.
Unlike other cases regarding individual concern, the applicants have not alleged that they had lost a specific right.
The allegation that a legislative act with general application infringes upon the individual applicants’ fundamental rights is not sufficient by itself to establish that an action brought by an individual is admissible. Even in the case that the Directive infringes on the applicants’ fundamental rights, the applicants have not demonstrated that the Directive applies in a way which distinguishes them individually from everyone else in the same way as a person to whom an act is individually addressed.
The applicants that are environmental NGOs have not demonstrated that the Directive affects them in a way that allows an act to be of individual concern to an association.

The Court recognized the importance of EU action in environmental matters. It also acknowledged that it might be beneficial to broaden the category of actors who could use the EU court system to challenge EU acts of general application in environmental matters. However, the court rejected the applicants’ argument that the court should reform the interpretation of direct and individual concern. Rather, it held that only EU Member States could reform the criteria for challenging EU acts of general applications by amending the TFEU.

The Court further held that because the conditions of “direct and individual concern” are cumulative (that is: both “directness” and “individual concern” are required), the Court did not need to assess whether the Directive is of direct concern to the applicants if it is not of individual concern to them.

Interveners

Because the Court dismissed the action, it did not make a decision on the applications to intervene from the European Commission, the U.S. Industrial Pellet Association, the Stichting Dutch Biomass Certification, and the Stichting Rotterdam Biomass Commodities Network. All submitted separate applications to intervene.

4. Appeal to the European Court of Justice

Article 256 of the TFEU provides that the General Court’s decisions may be subject to a right of appeal to the Court of Justice only on points of law.

On 2 July, 2020, the applicants appealed the General Court’s dismissal to the European Court of Justice. The applicants claimed that they have demonstrated “direct and individual concern” and their appeal rests on three grounds:

The General Court did not properly understand the Directive’s relevant provisions and mistook provisions that impose restrictions on agricultural biomass as also pertaining to forest biomass;
The General Court misunderstood and misapplied the individual concern requirement; and
The General Court misinterpreted its role and jurisdiction as set out under the TFEU.[xviii]

5. European Court of Justice Judgment

The Court held that the appeal should be dismissed.[xix] It rejected the applicants’ three grounds for appeal as manifestly unfounded.

First, it held that the General Court did not err in interpreting and applying the requirement for individual concern. It agreed with the General Court that applicants were not in a situation that differentiated them from the general EU public and were not differentiated by the fact that they held a specific acquired right. It also agreed with the General Court that the claim that an act infringes fundamental rights is not, by itself, sufficient to allow the action to be admitted where the applicant does not meet the criteria for admissibility.

Second, it agreed that reforms to the EU court system in place must be done by EU Member States. It also held that this was not inconsistent with the Aarhus Convention, as legislation by EU institutions are excluded from the scope of Article 9(3). Article 9(3)’s provision concerns acts of public authorities. However, bodies or institutions acting in a judicial or legislative capacity are explicitly excluded from the Aarhus Convention’s definition of “public authority.”

Finally, the Court held that regardless of how the General Court interpreted Article 29(3), the applicants did not demonstrate that they were affected by the Directive in a way similar to being directly addressed by the act because of the attributes peculiar to the applicants or by circumstances that distinguished them from all other persons.

Footnotes

[i] Natural Resources Canada. “Bioenergy from biomass.” Government of Canada, 20 July 2020, https://www.nrcan.gc.ca/our-natural-resources/forests-forestry/forest-industry-trade/forest-bioeconomy-bioenergy-biop/bioenergy-biomass/13323.

[ii] Natural Resources Canada. “Bioenergy from biomass.” Government of Canada, 20 July 2020, https://www.nrcan.gc.ca/our-natural-resources/forests-forestry/forest-industry-trade/forest-bioeconomy-bioenergy-biop/bioenergy-biomass/13323.

Clean Energy BC. “Biomass.” Clean Energy BC, https://www.cleanenergybc.org/about/clean-energy-sectors/biomass. Accessed May 15, 2021.

[iii] Application for Annulment Pursuant to Article 263 TFEU, at paras 21 to 28.

These paragraphs cited research by ecosystem scientist Dr. Mary S. Booth and an impact assessment report, “Sustainability of Bioenergy“, by the EU’s Joint Research Centre.

[iv] Application for Annulment Pursuant to Article 263 TFEU, at para 19.

[v] Including solid biomass, liquid biofuels, biogas, biogenic waste, and charcoal.

Application for Annulment Pursuant to Article 263 TFEU, at paras 14, 15.

[vi] Application for Annulment Pursuant to Article 263 TFEU, at paras 9-10. They cite:

United Nations Framework Convention on Climate Change, 9 May 1992, Article 1 (entered into force 21 March 1994).

Paris Agreement, 12 December 2015, Articles 5 and 5.2 (entered into force 4 November 2016).

[vii] Application for Annulment Pursuant to Article 263 TFEU, at paras 13-14.

[viii] “EU Renewable Energy Policy Devastates Forests and Accelerates Climate Change, New Lawsuit Claims.” EU Biomass Legal Case, 4 Mar. 2019, https://eubiomasscase.org/eu-renewable-energy-policy-devastates-forests-and-accelerates-climate-change-new-lawsuit-claims/.

[ix] Order of 6 May 2020, Sabo and Others v. Parliament and Council, T-141/19, [2020], EU:T:2020:179, paragraph 27.

[x] Application for Annulment Pursuant to Article 263 TFEU at paras. 125, 128.

[xi] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998 (entered into force 30 October 2001).

[xii] Action brought on 4 March 2019, Sabo and Others v. Parliament and Council, T-141/19, [2019].

[xiii] Application for Annulment Pursuant to Article 263 TFEU, at paras 20, 32, 33, 35.

[xiv] Application for Annulment Pursuant to Article 263 TFEU, at paras 39-45.

[xv] Application for Annulment Pursuant to Article 263 TFEU, at paras 7-8.

[xvi] “Summary of the EU Biomass Case.” EU Biomass Legal Case. Accessed 20 Nov. 2020, https://eubiomasscase.org/the-case/.

[xvii] Order of 6 May 2020, Sabo and Others v. Parliament and Council, T-141/19, [2020], EU:T:2020:179, paragraph 18.

[xviii] Appeal brought on 2 July 2020, Sabo and Others v. Parliament and Council, C-297/20, [2021], EU:C:2021:24, paragraphs 20-21.

Application to Appeal Against Order of Inadmissibility

[xix] Order of the Court (Eighth Chamber) of 14 January 2021, Sabo and Others v. Parliament and Council, C-297/20, [2021], EU:C:2021:24, paragraphs 20-21.