Introduction

In the judgement Austria v Commission of 10 September 2025¹, the General Court examined an action for annulment of Commission delegated regulation (EU) 2022/1214 (“Complementary Climate Delegated Act”)². This delegated act was adopted to include specific nuclear and gas energy activities among the sustainable economic activities identified by regulation (EU) 2020/852 (“EU Taxonomy”)³ and, upon its presentation by the Commission, already met considerable public criticism. The judgement constitutes the first ruling on the legality of the Complementary Climate Delegated Act. Given the breadth of Austria’s claims and the sensitivity around the matter of the case, it is not surprising that ten Member States intervened in the proceedings: Luxembourg in support of the applicant, and nine Member States in support of the Commission.

The lengthy judgement, delivered in Grand Chamber formation, offers numerous points for analysis and commentary – not only from a perspective of EU environmental law, since this is the first time that the EU judge was called upon to rule on the application of the sustainable investment criteria set out in the EU Taxonomy; but also from an institutional angle, because it addresses the requirements for the judicial review of delegated acts and, implicitly, the appropriate use of delegated powers by the Commission. After presenting some introductory remarks on the framework created by the EU Taxonomy, this annotation provides an overview of the judgement and a commentary of certain procedural aspects that emerge from the ruling.

Some remarks on the framework of the EU Taxonomy

The EU Taxonomy establishes a unified classification system for sustainable investment, designed to redirect capital towards activities that are best positioned to support the transition to a more environmentally sustainable economy. To classify an investment as environmentally sustainable, the Taxonomy requires an assessment based on three criteria: a substantial contribution to at least one of the six environmental objectives in Article 9; the respect of the principle “do no significant harm” (DNSH) to any of the other objectives; and compliance with minimum safeguards⁴. The EU legislature opted to include in the Regulation the criteria to determine the substantial contribution and the significant harm, and left to the Commission their concrete operationalisation by means of metrics and benchmarks, to be established in the form of technical screening criteria⁵.

Therefore, a central element of the Taxonomy are said technical screening criteria, that the Commission has to prepare with the advice of the Platform on Sustainable Finance (“Platform”) and of the Member State Expert Group on Sustainable Finance⁶. To establish them, the Commission adopted delegated regulation n. 2021/2139 (“Climate Delegated Act”)⁷ for the criteria related to climate change mitigation and adaptation, and delegated regulation n. 2023/2486 (“Environmental Delegated Act”)⁸ for those pertaining to the non-climate environmental objectives.

The Complementary Climate Delegated Act was adopted shortly after the Climate Delegated Act as an amendment to it. The aim and the substance of this act have been contentious from the outset, because the inclusion of nuclear energy and natural gas activities was perceived by some as incompatible with the sustainability-oriented character of the Taxonomy. Similar considerations almost prevented the Parliament’s consent to the act: the competent parliamentary committees adopted an objection⁹, which ultimately was not endorsed by the plenary¹⁰. Consequently, it is not surprising that various actions for annulment were filed before the CJEU¹¹.

Overview of the judgement

In the action brought on 7 October 2022, the Republic of Austria sought the annulment of the Complementary Climate Delegated Act, relying on sixteen extensive pleas in law, organised in a manner to require a full judicial review by the General Court¹². The first eight pleas in law pertained to nuclear energy, the other eight to fossil gas¹³. Austria had also attempted to modify its application in accordance with Article 86 of the General Court’s Rules of Procedure, in order to extends its forms of order sought also to the Environmental Delegated Act. But it had failed to do so in time¹⁴ and, as a result, it could not extend its request of judicial review to the remaining technical screening criteria relevant for the implementation of the EU Taxonomy.

In the judgment, the General Court opens its reasoning with some preliminary considerations regarding the scope of judicial review for delegated acts¹⁵. It confirms that its review is limited to verifying that the contested regulation is not based on materially incorrect facts, nor vitiated by manifest errors of assessment or misuse of powers. Consequently, any evidence adduced to establish a manifest error must be sufficient to render implausible the Commission’s factual assessment. Moreover, given the Commission’s broad discretion under Article 290 TFEU, the General Court’s review must ascertain not only that the evidence on which the act is based is accurate, reliable, and consistent, but also that it includes all the information relevant for the Commission’s assessment and that it can substantiate its conclusions. Compliance with the procedural guarantees is also required, including the duty to examine carefully and impartially all the aspect of the situation in question.

The General Court first examines the claims about the procedure by which the delegated act was adopted (first and ninth pleas). Austria had questioned most of the procedural stages, and inter alia: the timing of the Commission’s submission of the draft act; the management of the consultations with the Platform and with the Expert Group; the absence of a public consultation or impact assessment on the technical screening criteria; and the absence of a compatibility assessment with the EU’s binding climate objectives¹⁶. Yet, adopting a rather formalistic approach and avoiding any scrutiny of how the procedure was actually conducted, the General Court finds no fault on the Commission’s part, given that all the necessary steps outlined in the EU Taxonomy were undertaken.

The General Court then turns to Austria’s eighth plea, alleging that the Commission, by including nuclear energy in the act, exceeded the scope of the delegated power by regulating an essential element which, under Article 290 TFEU, is reserved to the EU legislature. The General Court emphasises that in the Taxonomy Regulation the EU legislature merely defined the criteria for environmental sustainability, leaving to the Commission the determination of the activities fulfilling those criteria, with the sole exclusion of fossil fuels. It follows that the inclusion of nuclear energy is permissible. Then, the General Court addresses Austria’s concern that the inclusion of nuclear activities in the reach of the EU Taxonomy was inherently a choice for the EU legislature, because it is imbued with political and controversial aspects. The EU Court stresses that the political and controversial nature of a certain topic is not relevant for the assessment of delegated acts, because it does not constitute per se part of the “essential elements of an area” reserved to the legislative act¹⁷.

The judgement then develops into a detailed examination of the pleas advanced by Austria concerning the compatibility of the delegated regulation with the provisions and principles of the EU Taxonomy. Austria argued for the incompatibility of the delegated act with the EU Taxonomy under multiple aspects: in its view, the delegated act does not comply with the climate change mitigation requirements for transitional activities under Article 10(2) (second and tenth pleas); it does not fulfil the DNSH principle under Article 17 (third, fourth, and twelfth pleas), or the principle of technological neutrality (eleventh plea); and it does not respect the climate change adaptation requirements under Article 11 (fifth and thirteenth pleas). For all these claims, Austria pointed at the incompatibility of the technical screening criteria with the relevant requirements set in Article 19, and with the precautionary principle under primary law.

Upon carefully analysing the pleas, the General Court rejects Austria’s arguments one by one. In several instances, it finds that Austria misinterpreted the provisions of the Taxonomy Regulation. Moreover, in many points of the judgement, the EU Court notes that Austria had failed to provide sufficient evidence to establish a manifest error on the part of the Commission. Overall, the General Court finds that there are not sufficient and adequate grounds to conclude that the Commission’s decision was vitiated by manifest errors of assessment, or that the Commission relied on insufficient evidence in conducting its assessment. After rejecting each plea in law, the General Court dismisses the action in its entirety.

Some considerations on the judgement

It appears from various elements in the judgment that, in bringing its action against the Complementary Climate Delegated Act, the Republic of Austria was effectively taking a political stance against the contested regulation. This emerges in particular from the numerous and articulated pleas, essentially aiming to ensure a full judicial review by the General Court, which is called to examine virtually all the procedural and substantive aspects of the contested act. This is also evident in Austria’s unsuccessful attempt to extend the scope of judicial review to the Environment Delegated Act. Likewise, Austria’s intention to fully call into question the Commission’s use of delegated powers during the preparation of the contested act emerges from its arguments and the evidence adducted in support. This is equally evident in some broader submissions made by Austria, such as the argument that political and controversial topics should fall within the prerogative of the EU legislature rather than the Commission.

Various elements of the judgement merit attention from a procedural perspective. The most noteworthy observations pertain to the scope of judicial review that the General Court permits for delegated acts. Particularly interesting is the General Court’s examination of the adoption procedure for the contested act, and of the standard of proof required to establish a manifest error.

With regard to the first aspect, Austria essentially argued the Commission failed to timely and properly consult the Platform and the Expert Group before drafting the act, as required by the EU Taxonomy and the 2016 Interinstitutional Agreement¹⁸. The main criticism that can be moved to the judgement is that the General Court adopts a purely formalistic approach to this matter and limits itself to verifying whether all prescribed procedural steps had been followed¹⁹. The reasoning in the judgement, however, does not fully reflect the concerns raised by the advisory bodies, which lamented that the deadline was too short to provide comprehensive comments²⁰. Moreover, in interpreting the Interinstitutional Agreement and the requirement of timely consultations, the General Court confines itself to a formal verification of compliance, without engaging in a deeper interpretation of the Agreement and its spirit – which is undoubtedly centred on the goal of fostering effective cooperation between the institutions²¹. In essence, the review could have extended to the effectiveness of the procedure – a result that Austria had sought to obtain through its first and eighth pleas. But the EU Court preferred to limit its examination to the formal procedural requirements, without attempting any systematic or teleological interpretation.

Another striking aspect is the General Court’s reliance on the notions of continuity and complementarity to dismiss some of Austria’s complaints about the preparation of the delegated act. The EU Court argues that the procedure for adopting the contested regulation stands in continuity and complementarity with the procedure for the Climate Delegated Act, adopted prior to the contested measure. As a result, the Commission was not required to carry out additional assessment or consultations for the Complementary Climate Delegated Act, since those carried out in the first place sufficed²². The General Court’s finding of continuity is thus essential to its conclusion that the procedure was conducted in accordance with the criteria in the EU Taxonomy and in the 2016 Interinstitutional Agreement. Yet, this finding is, at best, unconvincing. As it emerges from the facts recalled in the judgement, the preparatory work for the Climate Delegated Act lacked sufficient substantial analysis on nuclear and gas activities, which prompted the Commission to request a JRC Report on the underanalysed aspects before drafting the Complementary Climate Delegated Act. This evidence makes it difficult to support and justify the notion of procedural continuity.

In essence, the judgement shows that the General Court still prefers a formalistic examination of the procedure to adopt delegated acts and, as long as this fulfils the necessary requirements, it does not engage in a more substantive investigation.

With regard to the evidentiary requirements necessary to establish a manifest error, it shall be stressed that, in support of its pleas, Austria submitted alternative scientific studies, which the General Court found irrelevant or insufficient to demonstrate a manifest error in the Commission’s assessment²³. On the contrary, the General Court repeatedly emphasised the broad discretion enjoyed by the Commission in choosing and evaluating the scientific studies it can rely upon in drafting delegated acts²⁴. This confirms a significantly high threshold for challenging a Commission delegated act on the basis of conflicting scientific evidence.

At the same time, the judgement leaves two important questions untreated. Firstly, it does not address the question of the independence of the JRC as the scientific advisory body of the Commission, and whether such independent nature is required for the provision of the “conclusive scientific evidence” demanded by the EU Taxonomy²⁵. Austria called into question the probative value of reports by the JRC, on the ground that it is an internal body of the Commission; but the EU Court dismisses the point arguing that it was not sufficiently substantiated²⁶.

Secondly, the judgment does not address the issue of the limits to the Commission’s broad discretion when the institution deviates from the experts’ advice²⁷, where that advice is prescribed by the EU Taxonomy. In drafting the technical screening criteria for natural gas as a transitional activity, the Commission adopted a higher threshold (270 g CO₂e/kWh) than the recommended one (262 g CO₂e/kWh). Yet, strict adherence to the precautionary principle would lead to think that the lower threshold would have been the only acceptable option. Nonetheless, Austria limited its argument to the compatibility of the threshold with the EU’s climate commitments under the Paris Agreement²⁸, and thus the question remains unexplored in the judgment.

Overall, from this judgement it appears that, for delegated acts, the General Court confirms that a high standard of proof is necessary to establish a manifest error. Yet, a doubt remains: if the Commission enjoys such a broad discretion in selecting the scientific evidence for its regulatory decisions, what, then, is required to prove a manifest error in its assessment? Austria’s extensive, yet ultimately fruitless, attempt to test this threshold seems to suggest that a manifest error might, in practice, only amount to a self-evident one. The General Court by no means endorses this perspective; yet, the judgement confirms that challenging the validity of a delegated act remains a much demanding and possibly unproductive endeavour.

In conclusion, the General Court’s judgement in Austria v Commission sheds additional light on the procedural and evidentiary standards applicable to delegated acts under Article 290 TFEU. On the procedural front, the General Court’s approach remains predominantly formalistic, as it confines itself to verifying compliance with prescribed requirements. On the evidentiary standards for assessing manifest errors, the judgement confirms a strong preference for preserving the Commission’s regulatory autonomy, which is in line with the traditional deference and light-touch approach that the General Court displayed in earlier case law²⁹.

Nonetheless, the dispute is not yet settled: the Republic of Austria has, in fact, appealed the judgement before the Court of Justice³⁰. In anticipation of the judgment, it is worth noticing that, in cases involving delegated acts, the General Court was often overruled on appeal, especially with regard to its assessment of the essentiality and specificity requirements under Article 290 TFEU³¹. The future judgment could therefore be an opportunity for the Court of Justice to examine the legal reasoning in Austria v Commission and possibly to conduct broader reflections on the exercise of delegated powers, including the perimeter of the essentiality and specificity requirements, the discretion granted to the Commission, and the standard of proof necessary to challenge the legality of delegated acts.

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¹ General Court, 10 September 2025, Case T-625/22, Austria v Commission, ECLI:EU:T:2025:869.

² Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors and Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities, in OJ L 188, 15 July 2022, p. 1 ff.

³ Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 in OJ L 198, 22 June 2020, p. 13 ff.

⁴ Article 3 EU Taxonomy.

⁵ Article 3(d) and Articles 10-15 EU Taxonomy.

⁶ Articles 20 and 24 EU Taxonomy, respectively.

⁷ Commission Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation (EU) 2020/852 of the European Parliament and of the Council by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to climate change mitigation or climate change adaptation and for determining whether that economic activity causes no significant harm to any of the other environmental objectives, in OJ L 442, 9 December 2021, p. 1 ff.

⁸ Commission Delegated Regulation (EU) 2023/2486 of 27 June 2023 supplementing Regulation (EU) 2020/852 of the European Parliament and of the Council by establishing the technical screening criteria for determining the conditions under which an economic activity qualifies as contributing substantially to the sustainable use and protection of water and marine resources, to the transition to a circular economy, to pollution prevention and control, or to the protection and restoration of biodiversity and ecosystems and for determining whether that economic activity causes no significant harm to any of the other environmental objectives and amending Commission Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities, in OJ 2486, 21 November 2023.

⁹ See the Parliament’s press release n. 20220613IPR32812 and draft objection B9-0338/2022.

¹⁰ See the Parliament’s press release n. 20220701IPR34365.

¹¹ See General Court, 21 June 2023, Case T-628/22, Repasi v Commission, ECLI:EU:T:2023:353, and General Court, 30 March 2023, Case T‑567/22, ATPN v Commission, ECLI:EU:T:2023:353. Yet, in both cases the applicants failed to demonstrate the direct and individual concern needed to establish their locus standi. This was also confirmed on appeal in the second case: Court of Justice, 26 September 2024, Case C-340/23 P, ATPN v Commission, ECLI:EU:C:2024:806.

¹² Austria v Commission, cit., point 30.

¹³ The General Court summarises the pleas in points 9-27 of the judgement. For a better understanding of the pleas, it is advisable to consult the summary of Austria’s application.

¹⁴ Austria v Commission, cit., points 689-694.

¹⁵ Ibid., points 32-37.

¹⁶ Ibid., points 49, 60, 62, 78 and 84.

¹⁷ Ibid., point 121.

¹⁸ Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making, in OJ L 123, 12 May 2016, p. 1 ff.

¹⁹ Austria v Commission, cit., points 50-58.

²⁰ See the Platform’s Response to the Complementary Delegated Act of 21 January 2022, p. 2.

²¹ See in particular Article 28 of the Interinstitutional Agreement.

²² Austria v Commission, cit., points 72-74, 79-82, 92.

²³ Ibid., points 212, 236, 304, 323, 389.

²⁴ Ibid., points 212-214, 232-238, 270-277, 307, 422.

²⁵ Ibid., points 72-74, 79-82, 92.

²⁶ Ibid., points 280-281.

²⁷ From points 564-565, it appears that the Commission adopted a higher threshold than what was recommended; yet this point is not addressed in the judgement.

²⁸ Austria v Commission, cit., point 520.

²⁹ M. Eliantonio, Deference to the administration in judicial review – the European Union, in G. Zhu (ed.), Deference to the administration in judicial review, Cham, 2019, p. 165 ff.

³⁰ Court of Justice, Case C-739/25 P, Austria v Commission (pending).

³¹ M. Chamon, Limits to Delegation under Article 290 TFEU: The Specificity and Essentiality Requirements Put to the Test, Maastricht Journal Of European And Comparative Law, 2018, p. 231 ff.