CEE Bankwatch Network z.s. and Ökobüro - Allianz der Umweltbewegung v Council of the European Union (T-535/23)

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‑535/23,CEE Bankwatch Network z.s., established in Prague (Czech Republic),Ökobüro – Allianz der Umweltbewegung, established in Vienna (Austria),represented by M. Metzler, 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 responses of the Commission and the applicants, lodged at the Registry of the General Court on 9 and 10 December 2024 respectively,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, CEE Bankwatch Network z.s. and Ökobüro – Allianz der Umweltbewegung, 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 20 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

2CEE Bankwatch Network and Ökobüro – Allianz der Umweltbewegung, established in the Czech Republic and in Austria respectively, 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 20 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 three 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, the applicants submit that the Council was wrong to find that Article 122(1) TFEU constituted the appropriate legal basis for the adoption of Regulation 2022/2577. By their third plea, they submit that the contested decision is vitiated by a manifest error of assessment.

13In the context of the first plea, the applicants claim, 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.

14In that regard, they submit that, in accordance with Article 2(1)(g) of the Aarhus Regulation, ‘administrative act’ means ‘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 …’.

15In the first place, the applicants submit that the concept of ‘legislative act’ is a formal concept, defined by the procedure for the adoption of the act concerned. In accordance with Article 289(3) TFEU, only legal acts adopted by legislative procedure constitute legislative acts. Thus, since Regulation 2022/2577 was not adopted by way of one of the legislative procedures provided for in Article 289(1) and (2) TFEU, it constitutes, in the applicants’ view, a non-legislative act and is, therefore, an administrative act.

16The applicants argue that a different interpretation would be contrary to the provisions of Article 9(3) of the Aarhus Convention. In that regard, they note that Regulation 2021/1767 was adopted in order to broaden the material scope of acts subject to the internal review procedure in order to ensure that non-legislative acts of general scope can now be reviewed, thus bringing the Aarhus Regulation in line with Article 9(3) of the Aarhus Convention. Furthermore, according to the applicants, recitals 7 and 12 of Regulation 2021/1767 prove the consistency between the concept of ‘non-legislative act’ in Article 2(1)(g) of the Aarhus Regulation and that set out in the FEU Treaty. They submit that the internal review procedure, provided for in the Aarhus Regulation, supplements the overall system of judicial review at EU level, which allows members of the public to request the review of certain administrative acts by bringing an action directly before the EU Courts under the fourth paragraph of Article 263 TFEU, which establishes, by its three limbs, a distinction between legislative acts and non-legislative acts, for the purposes of Article 289 TFEU.

17In the second place, the applicants submit that Regulation 2022/2577 cannot be regarded as constituting a legislative act for the purposes of the Aarhus Convention.

18The applicants state, first, that Article 9(3) of the Aarhus Convention 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 and, second, that the concept of ‘public authority’ does not include bodies or institutions acting in a legislative capacity, as follows from Article 2(2) of that convention. In that regard, they submit that, when the Council adopts acts in accordance with a procedure other than those laid down in Article 289 TFEU, it is not acting in a legislative or judicial capacity and, therefore, constitutes a public authority within the meaning of the Aarhus Convention. Furthermore, the applicants submit that, in the Aarhus Convention, the reason why legislative acts are excluded from a review of legality is that acts which derive directly from a democratic process are to be excluded from judicial review. They state that that democratic process requires, in the context of the FEU Treaty, the involvement of the European Parliament, as follows from Article 289(1) and (2) TFEU. However, that is not the case with Regulation 2022/2577 which was adopted, in accordance with Article 122(1) TFEU, solely by the Council without the intervention of the Parliament.

19Furthermore, according to the applicants, the application of Article 9(3) of the Aarhus Convention cannot depend either on the substantive content and effects of the acts in question or on the body which adopted them, but only on the procedure for the adoption of those acts.

20Thus, the Council’s assertion that, by reason of its content and effects, Regulation 2022/2577 derogates materially from acts adopted under an ordinary or special legislative procedure in accordance with Article 289(1) and (2) TFEU does not take account, in particular, of the fact that acts which have not been adopted in accordance with one of those procedures include acts adopted directly on the basis of other provisions of the FEU Treaty and delegated acts adopted pursuant to Article 290 TFEU and implementing acts adopted in accordance with Article 291 TFEU which are also capable of amending acts adopted under a legislative procedure in accordance with Article 289(3) TFEU without, however, acquiring a legislative nature, for the purposes of the FEU Treaty.

21Lastly, the applicants claim that excluding from the scope of the internal review procedure acts which have not been adopted in accordance with one of the legislative procedures provided for in Article 289(1) and (2) TFEU, but which derogate from acts adopted in accordance with one of those procedures, would allow public authorities to dispense with having to face a challenge by the public, in particular where those public authorities claim broad competence in an extremely sensitive area and where the mechanisms of legal protection, including the internal review procedure governed by Article 10(1) of the Aarhus Regulation, are particularly necessary. That is the case, in particular, as regards measures taken on the basis of Article 122(1) TFEU, given the exceptional and highly political nature of the situations envisaged by that provision, the procedures to be followed and the measures to be taken.

22The Council, supported by the Commission, disputes the applicants’ arguments.

23It 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.

24In 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.

25In 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).

26In 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 …’.

27It 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.

28In 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.

29In 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.

30Moreover, Article 10 of the Aarhus Regulation lays down the rules relating to a request for internal review of administrative acts.

31It 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.

32In 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).

33Second, 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’.

34It 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.

35Third, 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).

36Thus, it follows from the case-law referred to in paragraph 35 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.

37In 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 28 to 36 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.

38In 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).

39In 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’.

40Thus, 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).

41While 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 38 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).

42Such 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).

43In 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.

44However, the concept of an ‘act which is open to review’ is not defined in the context of Article 9(3) of the Aarhus Convention.

45Nevertheless, 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).

46However, the Aarhus Convention does not specify the circumstances in which bodies or institutions act in a judicial or legislative capacity.

47It 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.

48In 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).

49That 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).

50In 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.

51Furthermore, 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.

52The 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).

53Those 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.

54It 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.

55It follows from paragraphs 26 to 54 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.

56It is in the light of those considerations and, in particular, of the criteria referred to in paragraph 53 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.

57In 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.

58Thus, the Council is a body which exercises legislative functions. However, as follows from paragraph 53 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

59It 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.

60It 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’.

61It 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’.

62Furthermore, 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.

63In 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).

64Furthermore, 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).

65Thus, 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.

66It 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).

67Furthermore, as follows from paragraph 63 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.

68It 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.

69According 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).

70Furthermore, 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).

71Lastly, 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.

72The 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.

73In 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

74It 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.

75As 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.

76To 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.

77Article 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.

78More 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).

79Furthermore, 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).

80Thus, 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 78 and 79 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 77 above, Regulation 2022/2577 requires, in that balancing exercise, recognition of the priority nature of the production of renewable energy.

81Lastly, 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.

82Regulation 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

83It 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.

84Second, 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.

85Third, 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.

86Fourth, 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.

87Fifth, 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.

88It 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.

89Consequently, Regulation 2022/2577 does not constitute an administrative act within the meaning of Article 2(1)(g) of the Aarhus Regulation.

90That assessment cannot be called into question by the applicants’ argument that the reason why bodies or institutions acting in a legislative capacity do not fall within the definition of ‘public authorities’ is that the provision of information to the public and the latter’s participation in the legislative process are generally sufficiently guaranteed in the legislative process and, in particular, by the fact that elected representatives are accountable to the public. Regulation 2022/2577 was not adopted by a ‘democratically’ elected body.

91However, it should be noted that, as follows from paragraph 57 above, Regulation 2022/2577 was adopted by the Council, which, pursuant to Article 16(1) TEU, has, jointly with the Parliament, the status of legislature. Consequently, that argument must be rejected as ineffective.

92Therefore, the Council was fully entitled to reject as inadmissible the applicants’ request for internal review of Regulation 2022/2577.

93The first plea must therefore be rejected.

94In 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 and third pleas, which seek to challenge the substance of the rejection of that request for review, are ineffective and must therefore be rejected.

95In 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).

96Consequently, the action must be dismissed in its entirety.

Costs

97Under 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.

98Under 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 CEE Bankwatch Network z.s. and Ökobüro – Allianz der Umweltbewegung 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.