Föreningen Svenskt Landskapsskydd and Others v Council of the European Union (T-534/23)

Contents

Judgment of the General Court (Ninth Chamber, Extended Composition)12 November 2025^note(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)In Case T‑534/23,Föreningen Svenskt Landskapsskydd, established in Koler (Sweden), and the other applicants whose names are set out in the annex,^note represented by M. Le Berre, lawyer,vCouncil of the European Union, represented by R. Boucquey, A. Maceroni and L. Vétillard, acting as Agents,supported byEuropean Commission, represented by C. Hermes, G. Gattinara, B. De Meester and C. Valero, acting as Agents,THE GENERAL COURT (Ninth Chamber, Extended Composition),composed, at the time of the deliberations, of L. Truchot, President, H. Kanninen, M. Sampol Pucurull (Rapporteur), T. Perišin and H. Cassagnabère, Judges,Registrar: V. Di Bucci,having regard to the written part of the procedure, including the measure of organisation of procedure of 18 November 2024 and the Commission’s response lodged at the Registry of the General Court on 9 December 2024,having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,gives the following

Judgment

1By their action under Article 263 TFEU, the applicants, Föreningen Svenskt Landskapsskydd and the other legal persons whose names are set out in the annex, seek annulment of the decision of the Council of the European Union of 13 June 2023 (‘the contested decision’) which rejected as inadmissible, and in the alternative as unfounded, the request for internal review of 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), which they made on 22 February 2023 on the basis of Article 10(1) of 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’).

Background to the dispute

2The applicants are non-profit associations promoting environmental protection.

3Following the war of aggression waged by the Russian Federation against Ukraine, in 2022 there was a sudden and significant disruption of gas flows from Russia that gave rise to an urgent need to diversify away from Russian supplies and to ensure the security of supply in the European Union.

4In that context, on 20 and 21 October 2022, the European Council, in its conclusions, invited the Council of the European Union and the European Commission urgently to put forward concrete decisions, in particular by way of accelerating and streamlining permit-granting processes in order to stimulate the deployment of renewable energy and electricity grids, including by means of emergency measures on the basis of Article 122 TFEU. On 9 November 2022, the Commission adopted Proposal COM(2022) 591 final for a Council Regulation laying down a framework to accelerate the deployment of renewable energy, providing for temporary, proportionate and extraordinary measures to complement initiatives aimed at responding to the crisis in energy markets and to complement existing relevant EU legislation. On 24 November 2022, the Council agreed in principle to a draft text. On 22 December 2022, on the basis of Article 122(1) TFEU, the Council adopted Regulation 2022/2577.

5As is apparent from recitals 3, 4 and 6 of Regulation 2022/2577, in order to accelerate the pace of deployment of renewable energy in the European Union in the short term, the Council considered it necessary to accelerate certain permit-granting processes applicable to specific technologies in the field of renewable energy, in particular by exempting certain assessment obligations set in EU environmental legislation.

6On 22 February 2023, the applicants submitted to the Council a request for internal review of Regulation 2022/2577, in accordance with Article 10(1) of the Aarhus Regulation.

7By the contested decision, notified to the applicants on 13 June 2023, the Council rejected the request for internal review of Regulation 2022/2577 as inadmissible and, in the alternative, as unfounded.

8The Council stated, in essence, that Regulation 2022/2577, adopted on the basis of Article 122(1) TFEU, introduced targeted and temporary derogations from acts adopted in accordance with an ordinary or special legislative procedure within the meaning of Article 289(1) and (2) TFEU and could not therefore fall within the definition of an ‘administrative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation. In that regard, the Council stated that even though Regulation 2022/2577 was not regarded as a legislative act within the meaning of the FEU Treaty, namely an act adopted under an ordinary or special legislative procedure in accordance with Article 289(1) and (2) TFEU, on account of its content and effects, it nevertheless constituted a legislative act in the light of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 4; ‘the Aarhus Convention’). In the alternative, the Council also rejected the request for internal review of Regulation 2022/2577 on the ground that it was unfounded.

Forms of order sought

9The applicants claim that the Court should:– annul the contested decision;– order the Council to pay the costs.

10The Council contends that the Court should:– dismiss the action as unfounded;– order the applicants to pay the costs.

11The Commission contends that the Court should:– dismiss the action;– order the applicants to pay the costs.

Law

12In support of their action, the applicants raise five pleas in law. By their first plea, they submit that the Council erred in law in rejecting as inadmissible the request for internal review of Regulation 2022/2577. By their second plea, they submit that the Council vitiated the contested decision by an error of law in the light of Article 10(2) of the Aarhus Regulation by rejecting their request for internal review on the ground that Regulation 2022/2577 was not an administrative act for the purposes of that regulation. By their third plea, they raise a plea of illegality in respect of Regulation 2022/2577. By their fourth plea, the applicants submit, in essence, that the contested decision is vitiated by a manifest error of assessment. By their fifth plea, they allege infringement of the obligation to state reasons.

13On reading the applicants’ pleadings, four parts in support of the first plea are identified, alleging (i) in essence, a failure to state reasons; (ii) in essence, infringement of Article 2(2) of the Aarhus Convention and of Article 2(1)(g) of the Aarhus Regulation; (iii) infringement of Article 2(1)(c) and (g) and of Article 10(1) of the Aarhus Regulation; and (iv) infringement of Article 289(1) to (3) TFEU and of the principle of legal certainty.

14The Court considers that it is appropriate to examine, first of all, the first part of the first plea, then the second and third parts of that plea together and, lastly, the fourth part of that plea.

The first part of the first plea, alleging, in essence, a failure to state reasons

15In support of the first part of the first plea, alleging a lack of intelligibility, the applicants submit, in reality, that the statement of reasons for the contested decision is inadequate.

16In that regard, the applicants claim that the Council’s line of argument in the contested decision, to the effect that Regulation 2022/2577 is neither a ‘legislative act’ under the FEU Treaty nor an ‘administrative act’ under the Aarhus Regulation is contradictory. In their view, the two categories of acts are mutually exclusive. Furthermore, they state that the Council does not define in concrete terms, in that decision, the type of act to which Regulation 2022/2577 could correspond under the FEU Treaty, the Aarhus Convention and the Aarhus Regulation, in breach of the principle of legal certainty.

17The Council, supported by the Commission, disputes the applicants’ arguments.

18It should be noted that, as follows from settled case-law, the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the abovementioned provisions must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 80 and the case-law cited, and of 3 May 2018, Malta v Commission, T‑653/16, EU:T:2018:241, paragraph 53 and the case-law cited).

19Nevertheless, the absence of a statement of reasons may be found even where the decision in question contains certain elements of reasoning. Thus, a contradictory or unintelligible statement of reasons amounts to a failure to state reasons. The same applies where the statement of reasons in the decision in question is so incomplete that it does not in any way enable the addressee, in the context of its adoption, to understand its author’s reasoning (see, to that effect, judgment of 11 June 2020, Commission v Di Bernardo, C‑114/19 P, EU:C:2020:457, paragraph 55 and the case-law cited).

20Furthermore, Article 10(2) of the Aarhus Regulation also provides that the written position taken by the EU institution or body to which a request for internal review of one of its acts has been submitted is to state the reasons on which it is based. The reasons given should enable the applicant to understand the reasoning of the competent institution or body (judgment of 27 January 2021, ClientEarth v EIB, T‑9/19, EU:T:2021:42, paragraph 87).

21In the present case, as is apparent from the contested decision, the Council rejected the request for internal review as inadmissible on the ground that Regulation 2022/2577 did not constitute an act that was capable of being the subject of internal review, namely an ‘administrative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation. In that regard, the Council notes that, although Regulation 2022/2577 does not constitute a legislative act within the meaning of the Treaties, it does not, however, constitute an ‘administrative act’ within the meaning of the Aarhus Regulation. The Council states that, because of its content and effects, Regulation 2022/2577 is intrinsically linked to legislative acts, which are excluded from the scope of the Aarhus Regulation. In addition, the Council states that Regulation 2022/2577 contains measures which may derogate from other acts, including other legislative acts.

22In that regard, the reasons set out in the contested decision are sufficient to enable the applicants to know the reasons why the Council rejected as inadmissible the request for internal review of Regulation 2022/2577, and to enable the applicants to challenge the merits of those reasons. Moreover, those reasons are sufficient to enable the Court to carry out a judicial review. Thus, the statement of reasons for the contested decision is neither contradictory nor unintelligible and discloses the reasoning of its author in a clear and unequivocal manner.

23Accordingly, the first part of the first plea must be rejected as unfounded.

The second and third parts of the first plea, alleging, in essence, infringement of Article 2(2) of the Aarhus Convention, and of Article 2(1)(c) and (g) and Article 10(1) of the Aarhus Regulation

24As a preliminary point, as regards the second part, the applicants allege, in reality, errors of law, namely infringement of Article 2(2) of the Aarhus Convention and infringement of Article 2(1)(g) of the Aarhus Regulation. Furthermore, in the third part, the applicants allege infringement of Article 2(1)(c) and (g) and of Article 10(1) of the Aarhus Regulation.

25The applicants submit, in essence, that the Council vitiated the contested decision by an error of law in the light of Article 2(2) of the Aarhus Convention and in the light of Article 2(1)(c) and (g) and Article 10(1) of the Aarhus Regulation, by rejecting their request for internal review on the ground that Regulation 2022/2577 was not an ‘administrative act’ within the meaning of the Aarhus Regulation.

26In that regard, the applicants highlight the fact that the Aarhus Regulation applies to the institutions and bodies of the European Union, defined in Article 2(1)(c) thereof as ‘any … institution, body, office or agency … except when acting in a judicial or legislative capacity’. Furthermore, Article 2(2) of the Aarhus Convention defines the term ‘public authority’ broadly, stating that that definition does not include ‘bodies or institutions acting in a … legislative capacity’.

27In addition, the applicants submit that an ‘administrative act’ that is capable of being the subject of a request for review in accordance with Article 10(1) of the Aarhus Regulation is defined in Article 2(1)(g) of that regulation as ‘any non-legislative act adopted by a Union institution or body …’.

28Thus, since Regulation 2022/2577 was not adopted by the Council following one of the legislative procedures provided for in Article 289(1) and (2) TFEU and therefore in a legislative capacity, it constitutes, in the applicants’ view, an ‘administrative act’ that is capable of being the subject of an internal review procedure provided for in Article 10(1) of the Aarhus Regulation and in Article 9(3) of the Aarhus Convention, which provides that members of the public may have access to administrative or judicial procedures to challenge acts of public authorities which contravene provisions of national law relating to the environment.

29Furthermore, the applicants submit that the Council’s assertion, in the contested decision, to the effect that the amendment of the definition of the concept of ‘administrative act’ by Regulation 2021/1767 was intended to broaden the material scope of acts subject to the review procedure to acts of general application, without, however, including acts which, under the Aarhus Convention, had to be classified as legislative acts, is contradicted by the provisions of that regulation. First, the concept of ‘administrative act’ is, according to the applicants, now defined by Regulation 2021/1767 as ‘any non-legislative act adopted by a Union institution or body’. Second, they argue that recital 8 of that regulation refers to the need to broaden the material scope of acts subject to the internal review procedure in order to include ‘non-legislative acts of general scope’.

30The Council, supported by the Commission, disputes the applicants’ arguments.

31It is for the Court to examine whether the Council wrongly rejected the request for internal review of Regulation 2022/2577 as inadmissible on the ground that that request did not concern an act that is capable of being the subject of such a review under Article 10(1) of the Aarhus Regulation, namely an ‘administrative act’ as defined in Article 2(1)(g) of that regulation.

32In order to assess the merits of the first plea, it is therefore necessary to interpret the concept of ‘administrative act’ within the meaning and for the application of the Aarhus Regulation.

33In accordance with settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of the context in which it occurs, as well as the objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation (see judgment of 29 July 2024, Asociația Crescătorilor de Vaci ‘Bălțată Românească’ Tip Simmental, C‑286/23, EU:C:2024:655, paragraph 38 and the case-law cited).

34In the first place, as regards the literal interpretation, it follows from the wording of Article 2(1)(g) of the Aarhus Regulation that that provision 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 …’.

35It should be noted that, first, the EU legislature, in Article 2(1)(g) of the Aarhus Regulation, defined the concept of ‘administrative act’ only as a ‘non-legislative act’ and that, second, it 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(1) and (2) TFEU.

36In the second place, as regards the contextual interpretation, first, it is apparent from recitals 7 and 11 of the Aarhus Regulation that the EU legislature wished EU institutions or bodies acting in a legislative capacity to be excluded from the scope of the Aarhus Convention.

37In that regard, Article 1 of the Aarhus Regulation provides that that regulation is to apply ‘to Union institutions and bodies’. Article 2(1)(c) of that regulation provides a definition of the concept of ‘Union institutions and bodies’ which excludes EU institutions or bodies acting in a judicial or legislative capacity. It therefore follows from a reading of Article 1 in conjunction with Article 2(1)(c) of the Aarhus Regulation that that regulation does not apply to EU institutions and bodies acting in a judicial or legislative capacity.

38Moreover, Article 10 of the Aarhus Regulation lays down the rules relating to a request for internal review of administrative acts.

39It should be noted that the concept of ‘non-legislative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation and the concept of ‘acts adopted by Union institutions or bodies acting in a judicial or legislative capacity’, which appears in Article 2(1)(c) of that regulation, are interdependent. The scope of Article 10 of that regulation cannot go beyond the scope of the regulation itself, as defined in particular by Article 1 and Article 2(1)(c) and (g) thereof.

40In that regard, since Article 2(1)(c) of the Aarhus Regulation excludes the application of that regulation to EU institutions or bodies acting in a judicial or legislative capacity, acts adopted in that context cannot constitute administrative acts within the meaning of the Aarhus Regulation (see, to that effect, judgment of 3 September 2020, Mellifera v Commission, C‑784/18 P, not published, EU:C:2020:630, paragraph 81).

41Second, it should be noted that, 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 that exclusion of legislative acts from the scope of that particular review procedure, as evidenced, in particular, by recital 8 of that regulation, which states that it is necessary to include in the scope of Article 10 of the Aarhus Regulation only ‘non-legislative acts of general scope’.

42It is true that recital 8 of Regulation 2021/1767 refers to the need to broaden the scope of the internal review procedure laid down in the Aarhus Regulation to include non-legislative acts of general scope. However, in order to define which legislative acts are excluded from the scope of the Aarhus Regulation, that recital does not refer to the legislative procedures laid down in Article 289(1) and (2) TFEU.

43Third, it must also be noted that, as regards Article 2(1)(f) of the Aarhus Regulation, which defines the concept of ‘environmental law’, the Court of Justice has held that the fact that that article refers, in certain language versions, to ‘legislation’ or to ‘any 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 (see, to that effect, judgment of 6 July 2023, EIB and Commission v ClientEarth, C‑212/21 P and C‑223/21 P, EU:C:2023:546, paragraph 85).

44Thus, it follows from the case-law referred to in paragraph 43 above that the Court of Justice has not interpreted the expression ‘legislation’, which appears in Article 2(1)(f) of the Aarhus Regulation, in the precise and formalistic sense that follows from Article 289 TFEU.

45In 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 set out in paragraphs 36 to 44 above that the concept of ‘legislative capacity’, referred to in Article 2(1)(c) of that regulation, coincides exactly with the category of legislative acts defined in Article 289 TFEU.

46In the third place, as regards the teleological interpretation, it must be noted that, according to settled case-law, EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where that EU legislation is intended specifically to give effect to an international agreement concluded by the European Union, that international law being part of the legal order of the European Union and binding on the EU institutions (see, to that effect, judgments of 15 January 2015, Evans, C‑179/13, EU:C:2015:12, paragraph 35 and the case-law cited, and of 6 July 2023, EIB and Commission v ClientEarth, C‑212/21 P and C‑223/21 P, EU:C:2023:546, paragraph 66 and the case-law cited).

47In that regard, it follows from Article 3(5) TEU that the European Union is to contribute to the ‘strict observance and the development of international law’.

48Thus, the Aarhus Regulation is intended to implement, as regards the institutions of the European Union, the provisions of Article 9(3) of the Aarhus Convention (see judgment of 6 July 2023, EIB and Commission v ClientEarth, C‑212/21 P and C‑223/21 P, EU:C:2023:546, paragraph 67 and the case-law cited).

49While Article 9(3) of the Aarhus Convention cannot be relied on in order to assess the legality of Article 10(1) of the Aarhus Regulation, such a finding, in accordance with the case-law referred to in paragraph 46 of the present judgment, does not preclude the provisions of that regulation from being interpreted, so far as possible, in a manner that is consistent with the Aarhus Convention (see judgment of 6 July 2023, EIB and Commission v ClientEarth, C‑212/21 P and C‑223/21 P, EU:C:2023:546, paragraph 68 and the case-law cited).

50Such an interpretation is an essential means of ensuring, in accordance with the intention of the EU legislature as expressed in recital 3 of the Aarhus Regulation, that provisions of EU law remain consistent with those of that convention (judgment of 6 July 2023, EIB and Commission v ClientEarth, C‑212/21 P and C‑223/21 P, EU:C:2023:546, paragraph 69).

51In that regard, according to Article 9(3) of the Aarhus Convention, relating to access to justice, 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.

52However, the concept of an ‘act which is open to review’ is not defined in the context of Article 9(3) of the Aarhus Convention.

53Nevertheless, the prima facie extremely broad scope of Article 9(3) of the Aarhus Convention must be tempered. The material scope of that provision is defined by Article 2(2) of that convention, from which it is apparent that that convention does not apply to acts of a legislative nature. Pursuant to that provision, the concept of a ‘public authority’ whose acts, where they contravene environmental law, are open to challenge excludes bodies or institutions acting in a judicial or legislative capacity (see, to that effect, judgment of 6 July 2023, EIB and Commission v ClientEarth, C‑212/21 P and C‑223/21 P, EU:C:2023:546, paragraph 70).

54However, the Aarhus Convention does not specify the circumstances in which bodies or institutions act in a judicial or legislative capacity.

55It follows that the authors of the Aarhus Convention expressly excluded from the scope of Article 9(3) of that convention, in the light of the last sentence of Article 2(2) thereof, acts of bodies or institutions acting in a judicial or legislative capacity, without further defining what was to be understood by the term ‘legislative capacity’ and, in particular, by not leaving it to the parties to that convention to define that concept by reference to their domestic law.

56In that regard, it should be noted that a literal interpretation of Article 2(2) of the Aarhus Convention does not permit the inference that the definition of the concept of ‘legislative capacity’ falls within the discretion conferred on the contracting parties. 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. Thus, the interpretation of Article 2(2) of that convention cannot be based solely on the legal system of one of the parties to that convention (see, to that effect, Opinion of Advocate General Jääskinen in Joined Cases Council and Commission v Stichting Natuur en Milieu and Pesticide Action Network Europe, C‑404/12 P and C‑405/12 P, EU:C:2014:309, point 30).

57That interpretation is supported by the communications of the Aarhus Convention Compliance Committee (‘the Aarhus Committee’) established in order to verify compliance, by the parties to that convention, with the obligations arising therefrom. Although they have no normative value, those communications are one of the elements that may guide the interpretation of that convention (see, to that effect and by analogy, judgment of 7 March 2024, Roheline Kogukond and Others, C‑234/22, EU:C:2024:211, paragraph 39).

58In that regard, it should be noted that the Aarhus Committee opposes an interpretation of Article 2(2) of the Aarhus Convention based solely on references specific to the legal system of one of the parties to that convention. Thus, in its communication ACCC/C/2008/32, that committee concluded that, in order to determine whether a decision, an act or an omission has been adopted in a legislative capacity in the light of Article 2(2) of that convention, its label in the domestic law of a contracting party to that convention cannot be decisive.

59Furthermore, in its communications ACCC/C/2011/61 and ACCC/C/2014/120, the Aarhus Committee noted that, although the Aarhus Convention did not specify the circumstances in which an institution or body has acted in a legislative capacity, it was clear that that convention excluded an institution or body only where it had acted in that specific capacity. Thus, a national parliament of a contracting party, although a democratically elected body, may be regarded as a public authority within the meaning of the Aarhus Convention where it is not acting in its legislative capacity, for example, when it authorises an activity or a project.

60The Court of Justice has also had occasion to rule on the concept of ‘bodies or institutions acting in a judicial or legislative capacity’ in the context of the interpretation of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26), in the light of the Aarhus Convention. In that regard, the Court of Justice has held that it was appropriate to rely on a functional interpretation of the phrase ‘bodies or institutions acting in a … legislative capacity’, according to which ministries which, pursuant to national law, are responsible for tabling draft laws, presenting them to the parliament and participating in the legislative process, in particular by formulating opinions, could be considered to fall within that definition (see, to that effect, judgment of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 49).

61Those considerations therefore lead to a functional approach to the concept of ‘legislative capacity’. In that regard, it should be noted that the functional approach relates not only to the nature of the body concerned, namely whether that institution or body has traditionally acted in a legislative capacity, but 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, it is not in itself decisive. Account must also be taken of a criterion relating to the actual substance of the act adopted by that institution or body. That approach is all the more justified because the legislative procedure may differ appreciably, depending on the parties to the Aarhus Convention.

62It follows that a purely formal approach, specific to the legal system of one of the parties to the Aarhus Convention and based on a purely procedural criterion, cannot be used in order to determine whether an act has been adopted in a legislative capacity. Thus, the concept of ‘legislative capacity’ set out in Article 2(1)(c) 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(1) and (2) TFEU.

63It follows from paragraphs 34 to 62 above that the concept of ‘administrative act’ set out in Article 2(1)(g) of the Aarhus Regulation refers to any act which has not been adopted by an EU institution acting in a legislative capacity, and does not, as the applicants claim, refer only to legislative acts adopted under an ordinary or special legislative procedure in accordance with Article 289(1) and (2) TFEU.

64It is in the light of those considerations and, in particular, of the criteria referred to in paragraph 61 above that it is necessary to determine whether Regulation 2022/2577 constitutes an ‘administrative act’ within the meaning of Article 2(1)(g) of the Aarhus Regulation, as interpreted in the light of the Aarhus Convention.

65In the present case, it should be noted that Regulation 2022/2577 was adopted by the Council, which, pursuant to Article 16(1) TEU, is an institution on which the Treaties have conferred legislative functions, jointly with the Parliament.

66Thus, the Council is a body which exercises legislative functions. However, as follows from paragraph 61 above, although the organic criterion is evidence of acting in a legislative capacity, it is not in itself decisive. Account must also be taken of the actual substance of Regulation 2022/2577.

The nature of the powers exercised by the Council when adopting Regulation 2022/2577

–The legal basis of Regulation 2022/2577

67It should be noted that Regulation 2022/2577 was adopted on the basis of Article 122(1) TFEU, which comes under Chapter 1, entitled ‘Economic Policy’, of Title VIII of Part Three of the FEU Treaty.

68It follows from Article 122(1) TFEU that ‘without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy’.

69It follows that Article 122(1) TFEU empowers the Council to adopt measures in specific circumstances ‘without prejudice to any other procedures provided for in the Treaties’.

70Furthermore, Article 122(1) TFEU expressly authorises the Council to take appropriate economic policy measures aimed at dealing with severe difficulties in the supply of energy products.

71In that regard, it should be noted that it was apparent from Article 103 of the EEC Treaty, which subsequently became Article 122 TFEU, that the expression ‘appropriate measures’ meant that, as regards also the form of the measures, the Council could choose whichever seemed best suited to the case in hand and that, subject to the requirement of a unanimous decision, Article 103(2) of the EEC Treaty referred to the exercise by the Council of its powers, including its right to delegate to the Commission the implementation of regulations which it had laid down. Thus, the Court of Justice has held that, by empowering the Council to adopt measures appropriate to the situation, Article 103 of the EEC Treaty conferred on that institution a broad discretion to be exercised in accordance with the common interest (see, to that effect, judgment of 24 October 1973, Balkan-Import-Export, 5/73, EU:C:1973:109, paragraph 18).

72Furthermore, it follows that, in the exercise of the powers provided for in Article 103(2) of the EEC Treaty, and which are now defined by Article 122(1) TFEU, when the Council was obliged, in a situation that was developing constantly and more or less unpredictably, to adopt measures having immediate effect, that institution was entitled to carry out an overall assessment of the advantages and disadvantages of the system to be introduced. In addition, the Council was required to ensure the permanent harmonisation made necessary by any conflicts between different economic policy objectives taken individually and, where necessary, to allow any one of them temporary priority in order to satisfy the demands of the economic factors or conditions (see, to that effect, judgment of 24 October 1973, Balkan-Import-Export, 5/73, EU:C:1973:109, paragraphs 21 and 24).

73Thus, it follows from Article 122(1) TFEU, the provisions of which are substantially equivalent to those of the former Article 103(2) of the EEC Treaty, that, when implementing them, the Council has 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, in that they involve a weighing up of the divergent interests in question on the basis of multiple assessments. That broad discretion is justified by the fact that that institution is called upon, in the exercise of that function, to undertake complex assessments.

74It should be noted in that regard that the adoption of the essential rules of a matter is reserved to the EU legislature. It follows that the provisions laying down the essential elements of the basic legislation, the adoption of which requires political choices falling within the responsibilities of that legislature, cannot appear in implementing acts (see, to that effect and by analogy, judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 41 and the case-law cited).

75Furthermore, as follows from paragraph 71 above, Article 103(2) of the EEC Treaty, which is now replaced by Article 122(1) TFEU, grants the Council the possibility of conferring implementing powers on the Commission.

76It should be noted, in that regard, that the possibility, provided for in Article 122(1) TFEU, of conferring on the Commission the implementation of rules which the Council has laid down is reserved to the EU legislature.

77According to the case-law, the EU legislature has discretion when it decides to confer on the Commission an implementing power pursuant to Article 291(2) TFEU (see, to that effect, judgment of 16 July 2015, Commission v Parliament and Council, C‑88/14, EU:C:2015:499, paragraph 28 and the case-law cited).

78Furthermore, with respect to the conferral of an implementing power, Article 291(2) TFEU states that legally binding Union acts are to confer, in duly justified specific cases, such power on the Council, where uniform conditions for implementing those acts are needed. In the exercise of the implementing power conferred on it, the institution concerned must provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all the Member States (see, to that effect, judgment of 16 July 2015, Commission v Parliament and Council, C‑88/14, EU:C:2015:499, paragraph 30 and the case-law cited).

79Lastly, it should be noted that the scope of acts adopted under Article 122(1) TFEU is distinct from that of implementing and delegated acts adopted under Articles 290 and 291 TFEU.

80The powers conferred on the Council under Article 122(1) TFEU do not depend, unlike delegated and implementing powers, 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. Furthermore, even though delegated acts may also amend elements of a legislative act within the meaning of Article 289(3) TFEU, it should be noted that they may amend only the ‘non-essential’ elements of an act adopted in accordance with Article 289 TFEU.

81In addition, it should be noted that Article 291(2) TFEU establishes that ‘where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council.’ It should be noted that the wording of that article does not refer to legislative acts within the meaning of Article 289(3) TFEU but, on the contrary, the text empowers the legislature which adopts legally binding acts to confer implementing powers on the Commission or, exceptionally, on the Council.

–The content of Regulation 2022/2577

82It should be noted that the adoption of Regulation 2022/2577 originates in the context of the war of aggression waged by the Russian Federation against Ukraine and the unprecedented reduction in natural gas supplies from the Russian Federation to the Member States, threatening the security and supply of the European Union and of its Member States and leading to a surge in energy prices in the European Union.

83As is apparent from recital 3 of Regulation 2022/2577, in that context, and in order to tackle the exposure of European consumers and businesses to high and volatile prices that cause economic and social hardship, the Council considered it appropriate to take immediate and temporary action to accelerate the deployment of renewable energy.

84To that end, Regulation 2022/2577 contains simplification measures to encourage the production of renewable energy by introducing exemptions from certain assessment obligations laid down in EU environmental legislation, in particular by streamlining the procedures applicable to specific permit-granting processes.

85Article 3(1) of Regulation 2022/2577 establishes a general derogation from the permit-granting processes laid down in provisions of secondary EU law, by creating a presumption that the activity of producing renewable energy is of overriding public interest.

86More specifically, Article 4 of Regulation 2022/2577, which includes measures to accelerate the permit-granting process for the installation of solar energy equipment, provides for a specific derogation from the obligation to carry out environmental impact assessments under Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1).

87Furthermore, Article 6 of Regulation 2022/2577 exempts renewable energy production projects from the obligation to carry out an environmental impact assessment under Article 2(1) of Directive 2011/92 and from the species protection assessments under Article 12(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) and under Article 5 of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).

88Thus, in order to implement the objectives of Regulation 2022/2577, certain measures provided for in that regulation derogate, temporarily and on specific points, from the provisions of secondary law set out in the directives referred to in paragraphs 86 and 87 above which require a ‘balancing of legal interests’ prior to any consent for projects that may harm the environment, in so far as, as noted in paragraph 85 above, Regulation 2022/2577 requires, in that balancing exercise, recognition of the priority nature of the production of renewable energy.

89Lastly, Article 9 of Regulation 2022/2577 sets out a review clause in respect of that regulation in order to assess its impact, which allows the Commission to propose to prolong the validity of that regulation, such a clause being comparable to the usual review clauses set out in acts adopted in accordance with one of the legislative procedures provided for in Article 289(1) and (2) TFEU.

90Regulation 2022/2577 thus constitutes an act of a special nature in that it establishes, for the first time, the recognition of the priority nature of the production of renewable energy by creating a presumption that activities for the production of renewable energy are of overriding public interest, thereby derogating from the general permit-granting procedures which are laid down in secondary legislation and contain environmental assessment obligations.

Conclusion

91It follows from the foregoing, first, that, in the context of the adoption of the measures set out in Regulation 2022/2577, the Council exercised the broad discretion conferred on it under Article 122(1) TFEU, which reflected that it acted in a legislative capacity within the meaning of the Aarhus Regulation. The Council was obliged, in a situation that was developing constantly and unpredictably, to adopt measures having immediate effect, and carried out an overall assessment of the advantages and disadvantages of the system to be introduced, and ensured the harmonisation made necessary by any conflicts between different economic policy objectives taken individually, allowing any one of them temporary priority in order to satisfy the demands of the economic conditions.

92Second, the exceptional powers conferred on the Council under Article 122(1) TFEU do not depend on prior authorisation by way of a basic legislative act.

93Third, Article 122(1) TFEU empowers the Council to adopt acts which entail implementing measures, since the power to adopt such measures is reserved to the EU legislature.

94Fourth, certain provisions of Regulation 2022/2577 also amend essential elements of provisions of several legislative acts, within the meaning of the FEU Treaty, of EU law. Thus, Regulation 2022/2577 does not occupy a lower position in the hierarchy of norms, in relation to certain legislative acts, within the meaning of the FEU Treaty, namely Directive 2011/92, Directive 92/43 and Directive 2009/147, all of which it derogates from.

95Fifth, the fact that Regulation 2022/2577 was adopted, on the basis of Article 122(1) TFEU, by the Council and not by the Commission constitutes an additional factor capable of demonstrating that that regulation is not an implementing act, but an act adopted by the Council as the legislature.

96It follows from the foregoing that there are a certain 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, for the purposes of the application of Article 2(1)(c) of the Aarhus Regulation, within the scope of legislative activity.

97Consequently, Regulation 2022/2577 does not constitute an administrative act within the meaning of Article 2(1)(g) of the Aarhus Regulation.

98Therefore, the Council was fully entitled to reject as inadmissible the applicants’ request for internal review of Regulation 2022/2577.

99The second and third parts of the first plea must therefore be rejected as unfounded.

The fourth part of the first plea, alleging infringement of Article 289(1) to (3) TFEU and of the principle of legal certainty

100The applicants submit that, even if Regulation 2022/2577 did not constitute an administrative act within the meaning of the Aarhus Regulation, such a situation would be contrary to Article 289 TFEU. In that regard, they argue, in essence, that the concept of ‘legislative act’ within the meaning of that regulation is a formal concept, defined by the procedure for the adoption of the act concerned. It is therefore, according to the applicants, common ground that Regulation 2022/2577 does not constitute a legislative act within the meaning of the Aarhus Regulation, since that act was not adopted in accordance with one of the legislative procedures referred to in Article 289(1) and (2) TFEU.

101The Council, supported by the Commission, disputes the applicants’ arguments.

102That part of the plea must be rejected as ineffective. It is common ground that Regulation 2022/2577 was not adopted in accordance with one of the legislative procedures laid down in Article 289(1) and (2) TFEU. However, as follows from the examination of the second and third parts of the first plea, the concept of ‘administrative act’ in the Aarhus Regulation cannot be defined by the procedure for the adoption of the act concerned.

103Accordingly, the fourth part of the first plea must be rejected, as must, consequently, the first plea in its entirety.

104In so far as the first plea is unfounded and the Council was fully entitled to reject the request for internal review of Regulation 2022/2577 as inadmissible, the second, third, fourth and fifth pleas, which seek to challenge the substance of the rejection of that request for review, are ineffective and must therefore be rejected.

105In that regard, it must be noted that the EU Courts may, inter alia, for reasons relating to the effective administration of justice, refrain from examining the merits of pleas in law which must be dismissed as inadmissible or ineffective (judgment of 29 September 2022, HIM v Commission, C‑500/21 P, not published, EU:C:2022:741, paragraph 73).

106Consequently, the action must be dismissed in its entirety.

Costs

107Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.

108Under Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission shall therefore bear its own costs.

Operative part

On those grounds,THE GENERAL COURT (Ninth Chamber, Extended Composition)hereby:

1.Dismisses the action;

2.Orders Föreningen Svenskt Landskapsskydd and the other applicants whose names are set out in the annex to bear their own costs and to pay those incurred by the Council of the European Union;

3.Orders the European Commission to bear its own costs.

Delivered in open court in Luxembourg on 12 November 2025.