UNSPLASH | License | Steven Kamenar
Sustainability of the forest biomass energy: lessons learned from the CJEU’s Robin Wood judgment
Introduction
On 11 December 2019, the European Commission adopted the European Green Deal,[1] a comprehensive policy roadmap to achieve an ambitious goal by 2050: net climate neutrality, meaning there are no net greenhouse gas (GHG) emissions and economic growth is decoupled from resource use.[2] This is in line with the European Council’s conclusions,[3] which were adopted the next day. While these documents were shaping the climate and decarbonization strategy, they were not legally binding. However, the Green Deal introduced the idea of the first European Climate Law,[4] which was adopted in 2021, giving legally binding force to the 2050 target.[5] The act also set an intermediate target to 2030 to reduce the GHG emissions by 55% compared to the 1990 level.[6] The regulation originally also referred to the subsequent decision on the 2040 target,[7] which was later incorporated into the text in 2026, setting a 90% reduction goal.[8]
These climate goals are strongly based on the EU’s commitment to implement the United Nations Framework Convention[9] and the Paris Agreement.[10] The latter does not include a specific GHG reduction target but a temperature goal[11] that could be achieved, among others, through efficient climate mitigation. The Commission declared before the European Green Deal that the EU’s climate and energy policy will be shaped by new directions promoting the Paris Agreement’s temperature goal and the UN Sustainable Development Goals,[12] which entailed the above-mentioned amendments to the previous reduction targets.[13] To achieve these targets, the Commission introduced new legal acts and modifications. Moreover, it identified strategic areas and issues, such as promoting sustainable finance and increasing transparency regarding the classification and disclosure of relevant economic activities. The Robin Wood case[14] concerns this regulation and primarily raises technical questions about the sustainability criteria for forest biomass.
Legal background
Several non-governmental organizations filed the complaint.[16] It primarily concerned the implementation of the EU Taxonomy Regulation, which is part of the EU’s sustainable finance framework under the European Green Deal. The Commission’s roadmap identified the private sector as a key stakeholder to finance the green transition;[17] therefore, the EU’s sustainable finance strategy needed to be renewed. Before that, the Taxonomy Regulation was adopted. According to the new sustainable finance strategy,[18] the Taxonomy Regulation – a classification system for sustainable activities – is the ‘first building block’[19] of the EU’s sustainable finance framework, alongside the rules on financial disclosure[20] and other tools.[21] In this light, the Taxonomy Regulation sets the criteria for environmentally sustainable economic activities. It applies to relevant measures adopted by Member States and by the EU, available financial products of financial market participants, and undertakings subject to nonfinancial reporting obligations under the Accounting Directive.[22] Under the Regulation, financial market participants shall disclose information in pre-contractual disclosures and periodic reports on how their investments contributed to relevant environmental goals.[23] One of the main purposes of the regulation is to prevent greenwashing,[24] an unfair competitive advantage based on false or misleading marketing strategies about the products’ or services’ environmental impact.[25]
An economic activity can be considered environmentally sustainable if it contributes significantly to at least one of the environmental objectives identified in Article 9 and does not harm these objectives significantly.[26] The objectives under Article 9 are the following:
- climate change mitigation;[27]
- climate change adaptation;[28]
- sustainable use and protection of water and marine resources;
- pollution prevention and control;
- protection and restoration of biodiversity and ecosystems;[29]
The Regulation also requires compliance with technical screening criteria and minimum safeguards,[30] such as the OECD Guidelines for Multinational Enterprises, the UN Guiding Principles on Business and Human Rights, the Declaration of the International Labour Organisation on Fundamental Principles and Rights at Work, and the International Bill of Human Rights.[31] It should be mentioned that the Commission can adopt delegated acts on various issues, like the content, the form, and the methodology of the taxonomy disclosure, and technical screening criteria regarding climate mitigation and adaptation, protection of water and marine resources, promoting the circular economy, preventing and controlling pollution, protecting and restoring biodiversity and ecosystems.[32]
Questioning the sustainability of forest bioenergy activities
The applicants claimed that Article 10 (1) and (3) of the Taxonomy Regulation on the substantial contribution to climate change mitigation were violated by the Commission’s delegated act of 4 June 2021, which classified forest bioenergy activities as sustainable investments.[33] They argued that the Commission applied a ’business-as-usual’ baseline to assess the activities' contribution to climate change and assumed it is necessarily positive for climate change mitigation. The applicants found this approach insufficient as neither the technical screening criteria nor other provisions required the maintenance of the forest’s carbon sinks,[34] which would enhance the realization of the Paris Agreement’s goals.[35] Meanwhile, the Commission, in its response, referred to Article 29 (7)(b) of the RED II directive,[36] which requires the economic operators to establish a forest management system, including forest management plans, that serves the purpose of maintaining or restoring carbon sinks. However, the applicants argued that these management provisions lack the criteria for strengthening carbon sinks and increasing forests’ carbon removal capacity, which would be essential to meet the Paris Agreement’s targets.[37] Furthermore, the applicants claimed that the Commission incorrectly interpreted the law when it refused to establish fixed criteria for assessing the contribution of forestry activities to climate change, referring to geographical variety in this field. The applicants suggested that the Commission could have established criteria that would result in an improvement exceeding the minimum level compared to standard practice.[38]
It is noteworthy that the scientific community is not unequivocal about the sustainability of forest bioenergy. For example, a study examined several natural and intensively managed forests in Germany and the United States, considering several factors, such as carbon capture and storage capacity. The results showed that forest biomass energy is not necessarily carbon positive. Its sustainability depends on various factors, and in several cases, its use leads to higher GHG emissions than fossil natural gas.[39] Another analysis shows that the sustainability of forest bioenergy significantly depends on the specific nature of the activities involved. In some cases, biodiversity protection and climate mitigation can be realized consistently, like collecting slash – residues left behind after logging – can generate energy without endangering the forest’s ecosystem. In contrast, removal of coarse woody debris (CWD) – such as large trunks and fallen branches – can harm ecosystems, as CWD is essential for several species’ survival and provides nutrients to the land during decomposition.[40] Other research criticizes the EU’s forest bioenergy policy because carbon sinks are weakening, and the sustainability criteria are insufficient to prevent biodiversity loss and GHG reductions from burning wood. Moreover, the research finds it concerning that Member States can subsidize private bioenergy companies in the name of sustainability and bioeconomy, while using forest bioenergy can undermine the realization of the EU’s climate goals. They recommend phasing out the qualification of forest biomass as renewable and sustainable, and ending subsidies for these activities.[41]
The main considerations of the CJEU’s judgment
The applicants claimed that the Commission stated in its response that – in light of Article 10 (1) (f) of the Taxonomy Regulation on the requirement of strengthening land carbon sinks[42] – forestry activities necessarily contribute positively to climate mitigation. According to the Court, Article 10 (1) (f) proves that the EU legislature means that forestry-related measures can facilitate strengthening land carbon sinks, taking into account the principle of avoiding deforestation, forest degradation, and the requirement to restore forests. The Commission did not declare that forest management activities, per se, make a substantial positive contribution to mitigation, as it depends on certain scenarios, and the contested technical screening criteria are intended to decide this.[43] Regarding the obligation of preparing forest management plans, the CJEU pointed out that strengthening carbon sinks can be realized in two ways: on the one hand, with measures intended to increase carbon sinks, and on the other hand, with measures aimed at avoiding deforestation and degradation. Overall, the requirement of forest management plans in line with the relevant technical screening criteria is consistent with this concept.[44]
The applicants also referred to Article 29 (7) (b) of the RED II Directive regarding the insufficiency of the forest management plans’ criteria. The Court confirmed the Commission's interpretation that this provision requires a climate benefit analysis of the economic activity that should prove the GHG emissions and the removals’ net balance over 30 years, is lower than the business-as-usual baseline. The Court pointed out that the applicants cannot sufficiently prove why this requirement cannot lead to the strengthening of carbon sinks.[45] The applicants’ argument that the Commission should adopt fixed criteria to determine a forest activity's substantial contribution to climate mitigation was not founded, according to the Court. The CJEU emphasized that the technical screening criteria have two aspects: quantitative and qualitative, and the Commission can decide which methodology is the most suitable in certain cases. The Court accepted the Commission’s argument that due to the diversity of the EU’s forests, it is scientifically not possible to determine a unified threshold, and the applicants were not able to provide sufficient evidence on how such a requirement could be identified.[46] Regarding the applicants’ argument that the Commission’s response manifested errors of assessment regarding the prevention of pollution and the protection and restoration of biodiversity and ecosystems, the Court noted that using the ‘best available technique’[47] as a ‘gold standard’ is in line with the principle of do no significant harm.[48]
It is a noteworthy part of the judgment where the CJEU examined the possible direct effect of provisions of the Paris Agreement and the UNFCCC. According to settled case law, international agreements forming part of EU law may have direct effect where, in light of their wording, purpose, and nature, their provisions contain a clear, precise, and unconditional obligation that does not require any further implementing measures.[49] These two cumulative conditions shall be met to assess the legality of an EU act in light of the particular provision of the international agreement.[50] In the current case, the applicants relied primarily on Article 2 of the UNFCCC[51] and Article 2 (1) of the Paris Agreement,[52] both setting the legal acts’ objectives. According to the CJEU, these are general goals without definitions of specific means or parameters to achieve them. Therefore, it can be concluded that the provisions' realization requires further implementing acts, so the two conditions were not met to establish their direct effect. This means that the concerned persons cannot refer to these provisions directly before a national court or question the legality of certain EU acts based on them.[53]
Reflections on the Judgment
The case considered primarily the technical aspects of the Taxonomy Regulation regarding forest bioenergy activities. Therefore, the Court did not decide whether the use of forest bioenergy is sustainable per se or not; it focused on the technical screening criteria defined by the Commission. In this light, the relevant criteria are sufficient, because the CJEU found it clear that the EU’s forests are so diverse that there is no universal threshold for their protection. Moreover, the Commission has a wide margin of appreciation regarding qualitative and quantitative methods, which is appropriate to protect the forest carbon sinks without any further specific requirement for their strengthening. The Court also declared that the main objectives of the UNFCCC and the Paris Agreement are not clear and unconditional enough to have direct effect or to serve as a basis for the direct review of EU legal acts. This means that the general international climate goals themselves are not appropriate foundations for future climate litigation, even where the contested EU act seeks to implement those goals.[54] From the perspective of the applicants, the case shows that extended scientific evidence should be provided in technical sustainability cases like this. As the case was initiated by NGOs,[55] it is not surprising that the judgment generated the strongest reactions from these organizations. The Robin Wood expressed in a press release their strong disappointment that the CJEU leaves too much margin of appreciation for the Commission to declare a forest bioenergy project as sustainable, which can be a barrier to preventing harmful practices like clear-cutting. They also emphasized that, considering the relevant global climate goals, the EU should not choose a simple regulatory but a forward-looking, prevention-based approach. The NGO pointed out that the CJEU imposed an excessively heavy burden of proof on the organization, which can hinder efficient civil advocacy.[56] While the Court found the examined legal basis and the technical screening criteria sufficient to determine the sustainability of a forest bioenergy activity, from a practical perspective, it is concerning that forest carbon sinks are declining in the EU. According to the European Environment Agency (EEA), over the past decades, the carbon sinks – symbolizing the net carbon removal – have been weakened as the forests are aging, tree felling has increased, and the adverse effects of climate change have affected this sector negatively.[57] This shows that the Court examined the legality of the criteria but not their environmental integrity. However, this does not mean the issue will not remain relevant in the future, particularly if forest carbon sinks continue to decline and climate change’s impacts increase, or if further developments occur regarding best available techniques, the scientific background, and other relevant circumstances. The case may also continue because the applicants had appealed[58] at the time of writing this analysis.
This post is a reprint of an article written by colleague, which was originally published on June 13, 2026, in the Pázmány Law Working Papers.
