62022TJ0625_RES
Case T‑625/22
Republic of Austria
v
European Commission
Judgment of the General Court (Grand Chamber) 10 September 2025
(Environment – Delegated Regulation (EU) 2022/1214 – Taxonomy – Economic activities in the fossil gas and nuclear energy sectors – Inclusion in sustainable economic activities – Investments – Contribution to the transition towards a carbon-neutral economy in accordance with the 1.5 °C objective fixed by the Paris Agreement – Objective of net zero emissions by 2050 – Substantial contribution to climate change mitigation and adaptation – Articles 10 and 11 of Regulation (EU) 2020/852 – Concept of ‘low-carbon activity’ – Significant harm to environmental objectives – Risks associated with serious reactor accidents – Risks associated with high-level radioactive waste – Risks associated with droughts and climate hazards – Precautionary principle – Technical screening criteria – Reduction of greenhouse gas emissions – Article 290 TFEU – Concept of ‘essential elements’ of a legislative act – Scientific evidence – Commission’s margin of discretion – Manifest error of assessment)
EU institutions – Exercise of powers – Power conferred on the Commission to adopt delegated acts – Scope – Complex assessments and evaluations – Broad discretion – Establishment of a framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria – Judicial review – Limits – Manifest error of assessment – Burden of proof
(Regulation 2020/852 of the European Parliament and of the Council; Commission Regulation 2022/12/14)
(see paragraphs 32-37, 179, 204, 214, 225, 230, 276, 338, 383, 440, 469, 516, 536, 538, 567, 578, 590, 604)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the fossil gas sector and the nuclear energy sector and amending an existing delegated regulation – Impact assessment and public consultation concerning those activities carried out in the adoption of the existing delegated regulation – No obligation for the Commission to carry out any additional impact assessment or public consultation
(Regulation 2020/852 of the European Parliament and of the Council; Commission Regulations 2021/2139 and 2022/1214)
(see paragraphs 72-74, 79-83, 92)
EU institutions – Exercise of powers – Power conferred on the Commission to adopt delegated acts – Obligation not to modify the essential elements of the basic legislative act – Basic regulation laying down environmental sustainability criteria – Delegated regulation laying down technical screening criteria for all types of activity meeting those sustainability criteria – Whether permissible
(Regulation 2020/852 of the European Parliament and of the Council, Art. 3; Commission Regulation 2022/1214)
(see paragraphs 100-126)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the fossil gas sector and the nuclear energy sector – Classification of those activities as transitional activities in order to guarantee security of supply – Whether permissible
(Regulation 2020/852 of the European Parliament and of the Council, Art. 10(2))
(see paragraphs 160, 164-170, 594-596)
EU law – Interpretation – Methods – Interpretation in the light of the international agreements concluded by the European Union – Interpretation of Regulation 2020/852 in a manner consistent with the Paris Agreement
(Regulation 2020/852 of the European Parliament and of the Council, Art. 10(2))
(see paragraphs 188-195)
Acts of the institutions – Statement of reasons – Obligation – Scope – Assessment of the obligation to state reasons by reference to the circumstances of the case – Need to specify all the relevant factual and legal elements – None
(Art. 296 TFEU)
(see paragraphs 216-218, 241, 325, 365)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the nuclear energy sector – Prior assessment of risks to human health and the environment – Application of the precautionary principle – Scope – Concepts of risk and hazard – Determination of the level of risk judged unacceptable for society – Competence of the EU institution designated by the relevant legislation – Obligation to ensure a high level of protection of public health, safety and the environment – Judicial review – Limits – Manifest error of assessment
(Arts 11, 168(1), 169(1) and (2), and 191(1) and (2) TFEU; Regulation 2020/852 of the European Parliament and of the Council, Arts 3(b), 9 and 17)
(see paragraphs 247-257, 262, 274, 297, 298, 307-309, 315-324, 326, 334, 345, 357, 360, 373)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the fossil gas sector and the nuclear energy sector – Obligation to take account of the life-cycle of products or services – Scope – Taking into account the life-cycle of activities situated upstream or downstream – Not included
(Regulation 2020/852 of the European Parliament and of the Council, Arts 17(2) and 19(1)(g))
(see paragraphs 429-438, 574-576)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the fossil gas sector and the nuclear energy sector – No explanation of certain legal concepts and conditions to be observed – Whether permissible – Breach of the principle of legal certainty – Conditions – Technical screening criteria displaying ambiguity such as to leave doubts as to their scope or meaning
(Regulation 2020/852 of the European Parliament and of the Council, Art. 19(1)(k))
(see paragraphs 484-486, 676)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the fossil gas sector – Whether permissible – Condition – No low-carbon alternatives guaranteeing security of supply
(Regulation 2020/852 of the European Parliament and of the Council, Art. 10(2))
(see paragraphs 507-517)
Approximation of laws – Framework to facilitate sustainable investment – Determination of environmental sustainability of economic activities – Adoption by the Commission of a delegated regulation laying down technical screening criteria for activities in the fossil gas sector – Step-by-step approach – Whether permissible
(Regulation 2020/852 of the European Parliament and of the Council, Art. 10(2))
(see paragraphs 535, 538-540)
Judicial proceedings – Forms of order sought in the application – Modification in the course of proceedings – Measure amending the contested measure in the course of proceedings – Modification of initial forms of order sought and pleas in law – Whether permissible – Conditions
(Rules of Procedure of the General Court, Art. 86)
(see paragraphs 689-694)
Résumé
The General Court dismisses the action for annulment brought by the Republic of Austria against Commission Delegated Regulation 2022/1214 (
1
)supplementing Regulation 2020/852 on the establishment of a framework to facilitate sustainable investment (
2
) (‘the Taxonomy Regulation’). On that occasion, it rules for the first time on the application of the criteria laid down in the Taxonomy Regulation to economic activities in the fossil gas sector and the nuclear energy sector.
The Taxonomy Regulation harmonises the criteria at EU level for determining whether an economic activity qualifies as environmentally sustainable, in the light of different environmental objectives, such as climate change mitigation and adaptation. (
3
)
In that context, the Commission adopted Commission Delegated Regulation 2021/2139 (
4
) supplementing the Taxonomy Regulation by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to the abovementioned environmental objectives and for determining whether that economic activity causes no significant harm to any of the other environmental objectives.
In March 2022, the Commission adopted the contested regulation, which amends Delegated Regulation 2021/2139 by establishing technical screening criteria to include certain activities in the nuclear energy and fossil gas sectors in the category of activities deemed to contribute substantially to climate change mitigation and climate change adaptation.
The Republic of Austria brought an action before the General Court seeking annulment of the contested regulation which, in its view, infringes a number of provisions of the Taxonomy Regulation.
Findings of the Court
As a preliminary point, the Court notes that, in the exercise of its powers under a delegated power for the purposes of Article 290 TFEU, the Commission enjoys broad discretion where it is called on, inter alia, to undertake complex assessments and evaluations. The judicial review carried out by the Courts of the European Union of the merits of a decision taken in the exercise of such discretion must not lead it to substitute its own assessment for that of the Commission, but must seek to ascertain that such a decision is not based on materially incorrect facts and that it is not vitiated by a manifest error of assessment or misuse of powers.
In that regard, 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. 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.
However, as regards questions of law, the General Court carries out a comprehensive review. It has jurisdiction to interpret legal provisions on the basis of objective factors and verify whether or not the conditions for the application of such a provision are satisfied.
Moreover, in order to establish that that institution committed a manifest error in assessing complex facts, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the act implausible.
It is in the light of those considerations that the Court dismisses, in the first place, the pleas in law alleging, inter alia, infringement of the procedural provisions laid down in the Taxonomy Regulation for the adoption of the contested regulation.
It notes in that regard that the contested regulation forms part of the continuity of Delegated Regulation 2021/2139. In particular, in the procedure that led to the adoption of the latter regulation, Technical expert group on sustainable finance (‘the TEG’) had taken account of economic activities in the nuclear energy sector and had recommended that other studies be carried out, which were done.
Consequently, the Commission could legitimately base itself on the expert assessments carried out for the adoption of Delegated Regulation 2021/2139 for the purposes of the adoption of the contested regulation. The two delegated regulations complement the Taxonomy Regulation and the procedures that led to their adoption are mutually complementary as regards the examination of economic activities in the nuclear energy sector. Thus, the Commission was not required to carry out any additional, specific impact assessment and public consultation.
The same holds true for emission thresholds for activities in the fossil gas sector, since the expert assessments and public consultations for that sector had already been carried out for the adoption of Delegated Regulation 2021/2139.
In the second place, the Court rejects the plea alleging infringement of Article 290 TFEU inasmuch as the categorisation of activities in the nuclear energy sector as sustainable activities comes within the essential elements of the Taxonomy Regulation, which could not be the object of a delegated act due to the political and controversial nature of the inclusion of nuclear energy in the taxonomy.
On that point, the Court finds that, in view of the objective and content of the Taxonomy Regulation, the essential elements thereof consist, inter alia, in the definition of environmental objectives, the environmental sustainability criteria and the requirements applicable to the technical screening criteria. As a result, the determination of economic activities per se, and the establishment of technical screening criteria for each economic activity implementing the sustainability criteria, apart from expressly excluded fossil fuels, do not fall within the essential elements of the Taxonomy Regulation.
Moreover, in leaving the Commission the possibility of determining the technical screening criteria for all types of activities meeting the sustainability criteria, the EU legislature also allows it to adapt the technical screening criteria in step with technological developments. Nor can that legislature be required to list all existing or envisaged technologies, since that would not enable the legislation to withstand the test of time and would make it technologically obsolete, because it would be unable to take account of inevitable and desirable technological innovation.
That conclusion is not called into question by the fact that the inclusion of economic activities in the nuclear energy sector carries a political aspect and is controversial amongst the Member States, since the EU legislature did not opt to exclude that activity, unlike power generation activities that use solid fossil fuels. In any event, that fact is not relevant in relation to Article 290 TFEU, under which the essential elements of an area, and not the political and controversial elements thereof, are to be reserved for legislative acts.
In the third place, the Court rejects the plea alleging infringement of Article 10(2) on the ground that that provision is not applicable to low-carbon economic activities, such as economic activities in the nuclear energy sector, and that the conditions of application of that provision are not satisfied.
That provision defines the conditions for economic activities for which there are no technologically and economically feasible low-carbon alternatives to qualify as ‘transitional’ activities, that is to say, as contributing substantially to climate change mitigation by supporting the transition to a climate-neutral economy consistent with a pathway to limit the temperature increase to 1.5 °C above pre-industrial levels.
In that regard, the Court observes that the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part.
Thus, it is apparent from a literal, teleological and systematic interpretation of Article 10(2) of the Taxonomy Regulation that transitional activities may include activities which are not low-carbon and for which there are no technologically and economically feasible low-carbon alternatives, but also, a fortiori, low-carbon activities which do not satisfy the conditions of application of Article 10(1) thereof, (
5
) provided that the specific conditions of Article 10(2) are satisfied.
Moreover, in retaining in the contested regulation the lack of availability ‘at a sufficient scale’ of low-carbon alternatives to nuclear energy in order ‘to cover the energy demand in a continuous and reliable manner’, the Commission did not expand the scope of Article 10(2) of the Taxonomy Regulation.
The Court observes, first, that measures adopted by the Commission in the context of the establishment and functioning of the internal market, such as the contested regulation, must comply with the principle of energy solidarity, enshrined in Article 194 TFEU, and ensure, inter alia, security of energy supply in the European Union.
Secondly, the objective of the Taxonomy Regulation is to support the transition to a safe, climate-neutral, climate-resilient, more resource-efficient and circular economy. Yet that objective would be compromised if the use of energy sources qualifying as contributing substantially to climate change mitigation did not allow for securing energy supply at a sufficient scale to cover the energy demand.
Thirdly, that Article 10(2) of the Taxonomy Regulation refers to a situation where there is no ‘technologically and economically feasible’ low-carbon alternative. Thus, the EU legislature emphasised the practicability and availability of those alternatives, which underlies the imperative of security of supply and meeting EU energy needs. That provision must accordingly be interpreted as referring to transitional activities for which there are no realistic and practicable alternatives enabling the European Union to continue to cover its energy needs.
As to the arguments alleging that economic activities in the nuclear sector do not satisfy the conditions laid down in Article 10(2) of the Taxonomy Regulation, the Court observes that, for the purpose of interpreting a treaty, there must be taken into account, inter alia, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, and any subsequent practice in the application of that treaty which establishes that agreement. (
6
)
In the present case, it is apparent from the Paris Agreement that, in order to reduce greenhouse gas (‘GHG’) emissions, the parties to that agreement committed to undertake to contribute to global efforts, including by accelerating zero- and low-emission technologies, such as nuclear.
Thus, an interpretation of Article 10(2) of the Taxonomy Regulation consistent with that agreement tends to confirm that economic activities in the nuclear energy sector may constitute transitional activities within the meaning of that provision.
It further follows from that provision, the lawfulness of which is not disputed, that those climate objectives are met when the economic activity in question supports the transition to a climate-neutral economy through inter alia phasing out of GHG emissions. In the present case, the Commission stated, on the basis of opinions gathered in the procedure for adopting the contested regulation, that economic activities in the nuclear energy sector are low-carbon activities, that nuclear energy generation has near to zero GHG emissions and that evidence on the potential substantial contribution of nuclear energy to climate change mitigation objectives was extensive and clear.
In the fourth place, in including economic activities in the nuclear sector in transitional activities and in establishing technical screening criteria for those activities, the Commission did not infringe the precautionary principle or Article 19(1)(f) and (g) of the Taxonomy Regulation, or fail to adhere to the DNSH criterion, that is to say, the criterion according to which the economic activity in question must not cause significant harm to any of the environmental objectives pursued by that regulation, provided for in Article 17 thereof.
As a preliminary point, the Court recalls that the application of the precautionary principle presupposes a scientific assessment of the risks, the determination of the risk deemed acceptable and, if necessary, the adoption of appropriate protective measures.
In the present case, first of all, the Court rejects the line of argument put forward by the Republic of Austria to the effect that, in the examination of compliance with the precautionary principle, the lack of scientific evidence of significant harm is not a relevant criterion; the only material question is whether any reasonable doubt of such harm could be ruled out. The precautionary principle does not require that all reasonable scientific doubt as to the existence of environmental harm be ruled out, as that would amount to requiring a zero risk of the Commission, contrary to the case-law. Thus, the criterion of the lack of scientific evidence of significant harm complies with Article 19(1)(f) of the Taxonomy Regulation, which only requires the Commission to base itself on conclusive scientific evidence.
Next, as to the line of argument to the effect that the Commission failed to take account of the possible consequences that serious reactor accidents may have on the environmental objectives laid down in the Taxonomy Regulation, the Court states that compliance with the DNSH criterion cannot be verified in the abstract; rather, it must be done in the light of the technical screening criteria established in the contested regulation.
Economic activities in the nuclear energy sector are strictly regulated in EU law, which is intended to reduce the probability of serious reactor accidents and the severity of such accidents for human health and the environment. In that regard, the technical screening criteria refer expressly to all EU nuclear energy safety rules, and also to the most recent international guidelines of the International Atomic Energy Agency and the Western European Nuclear Regulators Association.
Moreover, the Republic of Austria has failed to demonstrate that the Commission made a manifest error of assessment in finding that, under the EU nuclear energy safety rules referred to in the contested regulation, the DNSH criterion had been complied with and, in particular, that it had not been established that economic activities in the nuclear energy sector were detrimental to the good ecological status of bodies of water or marine waters, or led to a significant increase in the emissions of pollutants into water, air or land.
The same holds true for the risks of high-level radioactive waste, as the Republic of Austria has failed to demonstrate that the Commission’s finding that there was no significant harm to the environment due to the management of nuclear energy waste is vitiated by a manifest error of assessment.
On that point, first, the Court notes that Directive 2011/70 Euratom (
7
)establishes a framework for ensuring, in EU law, responsible and safe management of spent fuel and radioactive waste. It also ensures that Member States provide for appropriate national arrangements for a high level of safety in spent fuel and radioactive waste management. The contested regulation refers to that directive.
Nor can the Commission be required to be required to rely on scientific evidence which is beyond doubt and which proves that the final disposal of high-level radioactive waste will not significantly harm the environmental objectives referred to in Article 17(1)(c) to (f) of the Taxonomy Regulation, as that would amount to imposing zero risk on it, contrary to the case-law.
Lastly, as regards the line of argument to the effect that the Commission failed to take account of the entire life-cycle of nuclear energy, namely the mining and processing of uranium ore, refining, conversion, uranium enrichment, fuel assembly, transport and potential armed conflicts, the Court notes that those activities are situated upstream or downstream from the activities in the nuclear energy sector referred to in the contested regulation. Yet it is apparent from the wording of Article 17(2) and Article 19(1)(g) of the Taxonomy Regulation that the requirement to take the life cycle of an activity into account does not necessarily extend to activities situated upstream or downstream from the economic activity in question.
In the fifth and last place, as regards fossil gas activities, the Republic of Austria claims that the condition laid down in Article 10(2) of the Taxonomy Regulation, requiring that there not be a low-carbon alternative is not satisfied because renewable energy, intelligent networks and energy disposal and consumption reduction techniques are all low-carbon alternatives that are substitutable for economic activities in the fossil gas sector.
In that regard, the Court states that that condition involves taking into account the aspects relating to security of supply. It is apparent from the contested regulation that, in certain sectors, there are not yet enough low-carbon alternatives guaranteeing the necessary energy supply.
Thus, the Commission took the view that provision should be made for an approach other than direct limitation of GHG emissions, which should deliver similar results over a 20-year period. Under that other approach, facilities may achieve such results by limiting the number of hours of operation or by advancing the date of their transition to renewable or low-carbon gases. In addition, the technical screening criteria for the use of fossil gas should also ensure that robust evidence is available to demonstrate that the same energy capacity cannot be generated with renewable sources, and that effective plans are put in place for each facility, in line with the best performance in the sector, to switch entirely to renewables or low carbon gases by a specific date.
It follows that Article 10(2) of the Taxonomy Regulation must be interpreted as meaning that, in order to preclude a categorisation as environmentally sustainable, it is not sufficient that alternative sources exist; they must also be able to attain the same capacity as existing sources.
Next, the Court rejects the line of argument to the effect that, first, the emissions thresholds laid down in the contested regulation for fossil gas activities are not compatible, inter alia, with the 1.5 °C objective fixed by Article 10(2) of the Taxonomy Regulation and, second, the other technical screening criteria do not contribute to climate change mitigation.
On that point, the Court notes that the Commission applied a threshold higher than 100 grams (g) of CO2 equivalent (CO2eq) per kilowatt-hour (kWh) (
8
) because the 100 g CO2e/kWh threshold is not feasible at the current juncture for gas-fired power plants that do not have a CO2 capture system. Thus, in applying a higher threshold to that type of facility, the Commission brought them within the scope of the contested regulation and made them subject to the other technical screening criteria. Such an approach is compatible with the objective of the Taxonomy Regulation consisting in avoiding inaction or delayed action.
This holds all the more true since the activities in question must also replace an existing high-emitting electricity generation activity that uses solid or liquid fossil fuels and lead to a reduction in GHG emissions of at least 55% over the lifetime of the newly installed production capacity, and the Member State must have committed to phase out the use of energy generation from coal.
Lastly, nor did the Commission make a manifest error of assessment in taking account of direct GHG emissions from the activity, and not life-cycle GHG emissions. It is apparent from the wording of the Taxonomy Regulation (
9
) that the requirement to take the life cycle of an activity into account does not necessarily extend to activities situated upstream or downstream from the economic activity in question. Thus, the obligation to take account of production, use and end-of-life of those products and services provided by economic activities in the fossil gas sector does not entail taking account of the extraction and distribution of fossil gas, upstream from combustion, as those activities do not per se come within the generation of electricity.
Moreover, the Taxonomy Regulation is aimed at establishing a unified classification system for economic activities considered to be environmentally sustainable. That classification or taxonomy therefore concerns given economic activities. Thus, the establishment, by the Commission, of technical screening criteria for determining whether an activity may be regarded as contributing substantially to climate change mitigation and does not cause significant harm to environmental objectives targets, on a case-by-case basis, a specific economic activity.
Since the other pleas in law put forward have also been shown to be unfounded, the Court dismisses the action in its entirety.
(
1
)	Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors and Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities (OJ 2022 L 188, p. 1; ‘the contested regulation’).
(
2
)	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).
(
3
)	Articles 3 and 9 of the Taxonomy Regulation.
(
4
)	Commission Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation 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).
(
5
)	That provision defines economic activities which qualify as contributing substantially to climate change mitigation.
(
6
)	Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331).
(
7
)	Council Directive 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste (OJ 2011 L 199, p. 48).
(
8
)	The TEG considers that the threshold limit of 100 g CO2eq/kWh frames scientifically the compliance with the condition consisting in supporting the transition to a climate-neutral economy and that it should be lowered every five years.
(
9
)	Article 17(2) and Article 19(1)(g) of the Taxonomy Regulation.