62023TJ0535_RES
Case T‑535/23
CEE Bankwatch Network z.s.andÖkobüro – Allianz der Umweltbewegung
v
Council of the European Union
Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 November 2025
(Environment – Regulation (EU) 2022/2577 laying down a framework to accelerate the deployment of renewable energy – Request for internal review – Article 10(1) of Regulation (EC) No 1367/2006 – Refusal of request – Act adopted on the basis of Article 122(1) TFEU – Act not capable of being the subject of a request for internal review – Article 2(1)(g) of Regulation No 1367/2006 – Concept of ‘administrative act’ – Article 9(3) of the Aarhus Convention – Article 2(2) of the Aarhus Convention – Act adopted in a ‘legislative capacity’)
Environment – Aarhus Convention – Application to EU institutions – Ability of non-governmental organisations to request internal review of administrative acts in environmental matters – Subject matter of the review – Administrative act – Concept – Act not adopted in a legislative capacity – Concept of legislative capacity – Functional interpretation – Criteria
(Art. 16(1) TEU; Arts 122(1) and 289 TFEU; Aarhus Convention, Art. 2(2); European Parliament and Council Regulations No 1367/2006, Art. 2(1)(c), (f) and (g), and Art. 10, and 2021/1767; Council Regulation No 2022/2577)
(see paragraphs 23-37, 43-91)
EU law – Interpretation – Methods – Interpretation in the light of the international agreements concluded by the European Union – Interpretation of Regulation No 1367/2006 in the light of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
(Art. 3(5) TEU; Aarhus Convention, Arts 2(2) and 9(3) and (4); European Parliament and Council Regulation No 1367/2006, Art. 2(1)(g))
(see paragraphs 38-42)
Résumé
The General Court upholds the decisions of the Council of the European Union rejecting the requests for internal review of Regulation 2022/2577 (
1
) that had been made by a number of non-profit associations promoting environmental protection. On this occasion, the Court clarifies, for the first time, the concept of ‘administrative act’ within the meaning of the Aarhus Regulation, (
2
) following the latter’s amendment by Regulation 2021/1767, (
3
) which broadened the material scope of acts subject to the internal review procedure.
As a result of the war waged by Russia against Ukraine, a sudden and significant interruption of gas flows from Russia occurred in 2022. In that context, in December 2022, the Council adopted Regulation 2022/2577, which introduced, inter alia, the exemption from certain assessment obligations laid down in EU environmental legislation in order to accelerate the pace of deployment of renewable energy in the short term.
In February 2023, the applicants sent to the Council two requests for internal review of Regulation 2022/2577, on the basis of the Aarhus Regulation. By decisions of 13 June 2023, the Council rejected those requests as inadmissible and, in the alternative, as unfounded (‘the contested decisions’). By their actions before the Court, the applicants seek the annulment of those decisions.
Findings of the Court
The Court examines whether the Council wrongly rejected the requests for internal review of Regulation 2022/2577 as inadmissible on the ground that they did not concern an act that could be the subject of such a review, namely an ‘administrative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation.
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 its context as well as the objectives and purpose pursued by the act of which it forms part.
As regards the literal interpretation, the Aarhus Regulation defines an ‘administrative act’ as ‘any non-legislative act adopted by a Union institution or body, which has legal and external effects and contains provisions that may contravene environmental law’. Thus, the EU legislature defined that concept as opposed to the concept of a ‘legislative act’, without, however, referring to the category of acts adopted under an ordinary or special legislative procedure within the meaning of Article 289 TFEU.
As regards the contextual interpretation, the Aarhus Regulation does not apply to EU institutions and bodies acting in a judicial or legislative capacity. Acts adopted in such a capacity cannot therefore constitute administrative acts within the meaning of the Aarhus Regulation.
Moreover, although, when adopting Regulation 2021/1767, the EU legislature wished to broaden the scope of the internal review procedure with the aim of bringing EU law in line with the provisions of the Aarhus Convention, the EU legislature did not intend to amend the exclusion of legislative acts from the scope of that review procedure.
Furthermore, the fact that the definition of the concept of ‘environmental law’ given in Article 2(1)(f) of the Aarhus Regulation refers, in certain language versions, to the concepts of ‘legislation’ or ‘legislative provision’ does not mean that the concept of ‘environmental law’ is, for the purposes of the application of that regulation, limited to legislative acts, within the meaning of Article 289(3) TFEU.
In those circumstances, while it is true that a legislative act within the meaning of Article 289 TFEU does not constitute an administrative act within the meaning and for the application of the Aarhus Regulation, it does not follow from the contextual interpretation that the concept of ‘legislative capacity’, referred to in the Aarhus Regulation, coincides exactly with the category of legislative acts defined in that provision.
As regards the teleological interpretation, the purpose of the Aarhus Regulation is to implement the provisions of Article 9(3) of the Aarhus Convention. According to that provision, each party must ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
It is apparent from the Aarhus Convention that Article 9(3) does not apply to acts of bodies or institutions acting in a judicial or legislative capacity, without further defining the term ‘legislative capacity’. The interpretation of the term ‘legislation’ for the purposes of an instrument of public international law must remain independent from the domestic law of the contracting parties.
It is therefore appropriate to adopt a functional approach to the concept of ‘legislative capacity’, which relates not only to the nature of the body concerned but also to the functions actually performed by the institution or body in question. Thus, although the organic criterion constitutes evidence for characterising a legislative act within the meaning of the Aarhus Regulation, account must also be taken of the actual substance of the act adopted by that institution or body.
It follows that the concept of ‘legislative capacity’ within the meaning of the Aarhus Regulation cannot be interpreted as covering only acts which have been adopted under an ordinary or special legislative procedure in accordance with Article 289 TFEU. Accordingly, the concept of ‘administrative act’ set out in Article 2(1)(g) of that regulation refers to any act which has not been adopted by an EU institution acting in a legislative capacity, and does not refer only to legislative acts adopted under an ordinary or special legislative procedure in accordance with Article 289 TFEU.
In the light of those considerations, the Court determines whether Regulation 2022/2577 constitutes an ‘administrative act’ within the meaning of the Aarhus Regulation.
As regards the organic criterion, the Court states that that regulation was adopted by the Council, which is an institution on which the Treaties have conferred legislative functions, jointly with the Parliament.
As regards the substance of Regulation 2022/2577, the Court observes, in the first place, that it was adopted on the basis of Article 122(1) TFEU, which authorises the Council to take appropriate economic policy measures aimed at dealing with severe difficulties in the supply of energy products. That provision confers on the Council a broad discretion, which characterises the exercise of the legislative function, for the adoption of measures intended to deal with serious economic difficulties requiring political choices falling within the responsibilities of the EU legislature. It also grants the Council the power, which is reserved to the EU legislature, to confer implementing powers on the Commission.
The Court adds that the scope of acts adopted under Article 122(1) TFEU is distinct from that of delegated acts and implementing acts adopted under Articles 290 and 291 TFEU. The powers conferred on the Council in that regard do not depend on prior authorisation by way of a basic legislative act. Furthermore, acts adopted under Article 122(1) TFEU are not intrinsically linked to acts adopted in accordance with Article 289(1) and (2) TFEU, unlike delegated and implementing acts, the legality of which depends on what the legislature has provided for.
In the second place, the Court takes into consideration the content of Regulation 2022/577, which was adopted in the context of the reduction of supplies of natural gas from Russia to the Member States. To that end, that regulation contains simplification measures to encourage the production of renewable energy by introducing exemptions from certain assessment obligations laid down in EU environmental legislation.
Thus, some of those measures derogate temporarily and in specific respects from provisions of secondary law set out in several directives which require a balancing of legal interests prior to any consent for projects that may harm the environment. Regulation 2022/2577 requires, in that balancing exercise, recognition of the priority nature of the production of renewable energy. That regulation therefore constitutes an act of a special nature in that it establishes such a recognition by creating a presumption that those production activities are of overriding public interest.
The Court concludes that there are a number of factors demonstrating that the powers exercised by the Council when adopting Regulation 2022/2577, on the basis of Article 122(1) TFEU, fall within the scope of legislative activity. That regulation therefore does not constitute an administrative act within the meaning of the Aarhus Regulation, with the result that the Council was fully entitled to reject as inadmissible the applicants’ requests for internal review.
(
1
)	Council Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy (OJ 2022 L 335, p. 36).
(
2
)	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 Union 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; ‘the Aarhus Regulation’).
(
3
)	Regulation (EU) 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation (EC) No 1367/2006 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 2021 L 356, p. 1).