Introduction

The Aarhus Regulation (namely Regulation 1367/2006)¹ binds the EU institutions and administrative bodies to respect the obligations stemming from the Aarhus Convention, the 1998 UNECE Convention enshrining the three key procedural rights related to the protection of the environment. These are: the right to environmental information, the right to participate in environmental decision-making, and the right to access to justice in environmental matters.

The Aarhus Regulation was amended in 2021² and its reform opened new opportunities for environmental organisations to challenge the legality of EU administrative acts contravening provisions of EU environmental law. Since its reform, practitioners and academics have long awaited the opportunity to measure the impact of the reform on the legal mobilisation efforts of NGOs as well as on the case law of the Court of Justice of the EU (CJEU). Despite remaining criticism³, a few key victories⁴ for NGOs have already shown some positive outcomes of the 2021 reform for the European environmental movement. In this regard, the present case note intends to provide a deeper understanding of the first in a series of victories for NGOs under Article 12 of the ‘new’ Aarhus Regulation, that is the one occurred in Case T-399/23 ClientEarth and Collectif Nourrir v Commission⁵, where – as it will be outlined – the two NGOs involved obtained the annulment of the Commission’s decision approving France’s Common Agricultural Policy (CAP) Strategic Plan for 2023-2027.

Here below, I will now set out the background of the case and the main findings of the Court laid down in its judgment. In the final part, I will provide some critical remarks on what this ruling might entail for future environmental litigation.

The Background of the Case

On 29 October 2025, the General Court of the EU (GCEU) was called upon to rule on an action for annulment brought under the ‘new’ Aarhus Regulation by two environmental NGOs, namely ClientEarth and Collectif Nourrir. The action sought to obtain the annulment of the decision by which the European Commission rejected the NGOs’ request for internal review – brought under Article 10 of the Aarhus Regulation – related to the Commission’s approval of France’s Common Agricultural Policy (CAP) Strategic Plan for 2023-2027 (hereinafter ‘the French plan’) under Regulation (EU) 2021/2115⁶. The CAP Strategic Plans include the intervention strategies, and the CAP instruments each EU country will use from 2023 to 2027 to achieve the CAP objectives⁷. They ensure coherence across the CAP instruments, and the strategic and complementary use of resources⁸.

According to the applicants, in assessing the French plan, the Commission had exceeded its competence by approving it even though the plan was incompatible with the essential requirements of Regulation 2021/2115. On the other hand, the applicants claimed that the Commission had made several manifest errors of assessment, in particular on account of the failure of the French plan to contribute effectively to the achievement of the specific objectives set out in Article 6(1) (d) to (f) of Regulation 2021/2115 aimed at mitigating climate change, protecting natural resources by reducing chemical dependency and halting and reversing biodiversity loss (‘the specific environmental and climate objectives’).

In November 2022, the applicants submitted a request for internal review against the decision by which the European Commission approved the French plan. The EU executive rejected the request, and the applicants then challenged such denial before the GCEU under Article 12 of the Aarhus Regulation and Article 263(4) TFEU.

The Judgment of the Court

First, when ruling on the admissibility of the case, the Court was asked by the Commission to dismiss some of the arguments advanced by the applicants on grounds of (in)consistency between the request for internal review and the subsequent action for annulment. The Commission held that some of the arguments presented by the applicants before the GCEU had not been first submitted in the internal review request. Indeed, there is a consolidated case law⁹ of the CJEU confirming that the action for annulment against the denial of a request for internal review cannot include new pleas, which were not first included in the internal review request. However, the Court added an interesting point, that is that the applicants must be given the opportunity to ‘respond’ on the substance of the decision rejecting their internal review request¹⁰. On this aspect, the Court found that the arguments of the applicants did not go beyond the subject matter of the contested decision¹¹.

Regarding the merits of the NGOs’ action, the EU judges recalled their consolidated case law when it comes to ruling over measures entailing complex technical and scientific assessments. Indeed, the Court stated that the intensity of judicial review over EU acts based on complex technical and scientific assessments challenged under Article 12 of the Aarhus Regulation does not differ from the one exerted over EU acts challenged directly under Article 263(2) and (4) TFEU¹². The Court emphasised that, in undertaking this type of assessments, the Commission enjoys broad discretion and its judicial review over the use of such discretion is limited to check whether the Commission made a manifest error of assessment or misused its powers¹³.

Having said that, in the first set of arguments the applicants held that the Commission had exceeded its competence by approving the French plan even though this was incompatible with the essential requirements of Regulation 2021/2115. The applicants argued that the Commission, when approving the French plan, committed an error of law by basically breaching Article 118(3), (4) and (6) of Regulation 2021/2115. In their view, the Commission adopted an excessively restrictive interpretation of its own powers of review, which should not be limited to verifying compliance with the formal requirement obliging national authorities to provide the Commission with all the necessary information relating to the proposed strategic plan¹⁴. According to the NGOs, the Commission should also check the substantive conditions set out in the strategic plan proposal and such an assessment should be based not only on information presented by the Member State, but also on the own knowledge of the Commission and, where appropriate, the technical reports available on the subject¹⁵.

In particular, Article 118 lays down the rules to be followed in the approval of CAP strategic plans and paragraphs 3 and 4 allow the Commission to i) provide the Member States’ authorities with observations on their strategic plans within three months from the date of their submission; ii) approve the proposed strategic plans provided that the necessary information has been submitted and the plans are compatible with Article 9 and the other requirements set out in Regulation 2021/2115 and Regulation (EU) 2021/2116 as well as the delegated and implementing acts adopted pursuant to them.

In reviewing the nature and the scope of the control exercised by the Commission, the EU judges first found that the Commission was conferred an implementing power to monitor the compliance of each strategic plan proposal with the requirements set out in Regulation 2021/2115¹⁶. Then, the Court maintained that the Commission must carry out a twofold review of the proposal for a CAP strategic plan, namely, first, its completeness in the light of all the necessary information and, second, its compatibility with exhaustively listed requirements derived from EU law¹⁷.

Nevertheless, the Court recalled that, following Article 4(2) TFEU, agriculture is a shared competence between the EU and the Member States and that the principle of subsidiarity applies accordingly¹⁸. The Court referred to recital 3 of Regulation 2021/2115, holding that the way in which the CAP is managed now follows a new approach based on the idea that the EU sets the essential parameters of the policy, while the Member States bear greater responsibility for the way in which they achieve those objectives and achieve the targets¹⁹.

The GCEU acknowledged room for manoeuvre to the Member States, in order to adapt their interventions to the specific needs of their national agriculture while providing for EU control to ensure their compatibility with the CAP²⁰. The Court thus found that the Commission did not err in law as regards the interpretation of Article 118(4) of Regulation 2021/2115 by finding that its role in the context of the assessment, and approval of each proposal for a strategic plan, was limited to ensuring their compatibility with a list of requirements derived from EU law, in particular by assessing the contribution of that proposal to the objectives of that legislation²¹.

Regarding the scope (and the intensity) of the Commission’s control, the applicants claimed that the Commission made several manifest errors of assessment in so far as the French plan did not contribute effectively to the achievement of the specific objectives set out in Article 6(1) (d) to (f) of Regulation 2021/2115, aimed at mitigating climate change, protecting natural resources by reducing chemical dependency and halting and reversing biodiversity loss (‘the specific environmental and climate objectives’).

In this regard, the GCEU found that the Commission did consider that its review should not be limited to an overall assessment of the plan without verifying the measures included therein. Indeed, the Commission shared the view that its assessment must cover “all the constituent elements of the proposed [plan], since it is required to assess not only the individual effects of the measures, but also their coordinated effects”²².

Overall, the Court found that the Commission’s assessment was correct and consistent, in particular in relation to the plan’s contribution to mitigate climate change²³ as well as halting and reversing biodiversity loss²⁴. However, the GCEU did find one specific breach of Regulation 2021/2115, related to standard 7 of the “Good agricultural and environmental conditions” (GAEC), as implemented by the French plan, which, according to the NGOs, did not comply either with Article 13(1) of Regulation 2021/2115 or with the minimum requirements of Annex III to that regulation. Standard 7 of GAEC requires “Crop rotation in arable land, except for crops growing under water” and sets out specific minimum requirements to exempt Member States from this obligation²⁵.

On this point, the Court found that the French plan used a different terminology from that of Annex III to Regulation 2021/2115, without specific justification²⁶. Moreover, the EU judges found that the French plan restricted the scope of the rotation requirement and, as a consequence, that of the main objective of that standard, referred to in that annex, namely the preservation of soil potential²⁷. The Court also found the possibility of choosing between a multiannual rotation of the main crop or an annual rotation of the secondary crop, as laid down under the French plan, in breach of Annex III of Regulation 2021/2115. Indeed, the EU judges held that “such an alternative does not appear to be consistent with Annex III to Regulation 2021/2115, which states that rotation consists of a change of crop at least once a year at parcel level, including appropriately managed secondary crops”²⁸.

The GCEU thus maintained that the Commission vitiated the contested decision by a manifest error of assessment by rejecting as unfounded the ground for internal review alleging that the conditions for the implementation of GAEC standard 7 laid down in the French plan – and endorsed by the approval decision – infringed Regulation 2021/2115. The Court also acknowledged the ‘interdependence’ between the different sections of the contested decision, which makes it impossible “to separate the section of the contested decision vitiated by a manifest error of assessment from its other sections due to the logic of the Commission’s review or even to draw consequences from it on the outcome of the request for internal review”. As a consequence, the Court annulled the contested decision in its entirety. Below are some personal remarks on the judgment of the Court.

Critical Appraisal

The GCEU’s ruling in Case T-399/23 paved the way for a few key victories of NGOs under Article 12 of the Aarhus Regulation, since the latter was reformed in 2021²⁹. Such reform, by removing the ‘individual scope’ barrier embedded in the older version of Article 2(1)(g) of the Aarhus Regulation, has allowed for a more substantive scrutiny of the EU judiciary over EU administrative acts, contravening provisions of EU environmental law. Since the reform, NGOs and EU institutions can now explicitly disagree over the merits of technical and scientific assessments undertaken by EU institutions (and bodies) in the environmental policy field. One of the main questions, before such case(s) reached Luxembourg, revolved around the intensity of the judicial review that the Court would have applied over such assessments and ‘disagreements’. This ruling now sheds new light on legal scholars’ curiosity.

Indeed, despite reminding the longstanding protection of the Commission’s ‘wide margin of manoeuvre’ when undertaking complex technical and scientific assessments, the EU judiciary in the case here at stake also proved – once again³⁰ – to be willing to closely supervise the Commission’s discretion. The Court’s review was indeed only apparently deferential, but rather substantively intense. The EU judiciary, while still protecting the Commission’s discretion, did not refrain from scrutinising its assessment vis-á-vis the requirements laid down under Regulation 2021/2115 and found only one argument as being capable of ultimately demonstrating the Commission’s manifest error of assessment. In other words, the judgment simultaneously reassures institutional discretion while signalling that such discretion is not immune from meaningful judicial control.

Indeed, the intensity of the Court’s scrutiny deployed in this case entails a few key consequences for both, the Commission and environmental organisations. First, the impossibility to challenge the Commission’s initial act (or assessment) under Article 10 of the Aarhus Regulation³¹ does not prevent the EU judiciary from scrutinising the substance of that assessment. The scope of the case is indeed determined by the arguments raised by the complainants in their internal review request, as well as by the counterarguments used by the EU institution or body in rejecting the initial request. In the present ruling, the Court proved its willingness to extend the scope of the case also to arguments which were not raised by the applicants in their initial request for internal review, but which were still necessary to answer to the Commission’s rejection.

Furthermore, CAP strategic plans are not the only national plans requiring the assessment of the EU executive. For instance, nature restoration plans under the Nature Restoration Regulation and national energy and climate plans (NECPs) under the Governance Regulation, also require the Commission’s evaluation. This means that other Commission’s assessments could be challenged and be subject to the Court’s intense scrutiny. The judgment indicates that the Commission’s assessment must therefore not be confined to a formal compliance check between the national proposal and the overarching EU policy measure, but should also entail a deeper evaluation in relation to the adequacy/efficacy of the proposed national measures vis-á-vis the minimum requirements laid down under EU law and the policy objectives pursued under the concerned legislation. However, different legal standards might be applied in relation to national plans only requiring an assessment, and plans requiring an assessment and the approval of the European Commission.

Finally, this case, read in conjunction with the Court’s judgment in T-535/23, CEE Bankwatch Network and Ökobüro v Council³², suggests that cases targeting specific EU administrative acts amplify the Court’s possibilities for applying a more intense scrutiny over the contested EU measure. This since the ‘broader’ the measure, the ‘broader’ the discretion enjoyed by the EU institutions, and vice versa. Indeed, in those actions for annulment triggered under Article 12 of the Aarhus Regulation, where the real (indirect) target of the action seemed to be the overarching EU legislative act, rather than the EU administrative implementing or delegated act, the final outcomes were quite different³³. In this way, the Aarhus Regulation seems to channel NGOs’ litigation efforts toward ‘un-systemic’ cases, namely cases that do not question the foundations of EU climate and environmental policy, but rather focus on specific plans, projects or authorisations in order to achieve more limited – yet remarkable – outcomes.

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¹ Regulation (EC) n. 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 Community institutions and bodies, in OJEU, L 264 of 25 September 2006.

² Regulation (EU) n. 2021/1767 of the European Parliament and of the Council of 6 October 2021 amending Regulation (EC) n. 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, in OJEU, L 356 of 8 October 2021.

³ M. Eliantonio, J. Richelle, Holding the EU Accountable for Environmental Law Violations: Legitimacy Assets, “Complete” System of Remedies and Unexplored Pathways, in EEELR, 2025, p. 52 ff.

⁴ Court of Justice, 18 December 2025, Case C-316/24 P, PAN Europe v Commission; General Court, 19 November 2025, Case T-94/23, Pollinis France v Commission; General Court, 19 November 2025, Case T-412/22, PAN Europe v Commission; General Court, 19 November 2025, Case T-565/23, Aurelia Stiftung v Commission.

⁵ General Court, 29 October 2025, Case T-399/23, ClientEarth and Collectif Nourrir v Commission.

⁶ Regulation (EU) n. 2021/2115 of the European Parliament and of the Council of 2 December 2021 establishing rules on support for strategic plans to be drawn up by Member States under the common agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulations (EU) n. 1305/2013 and (EU) n. 1307/2013, in OJEU, L 435 of 6 December 2021, p. 1 ff.

⁷ The objectives of the CAP for the 2023-2027 period are listed online at the following link: CAP Strategic Plans – Agriculture and rural development.

⁸ Ibidem.

⁹ See, inter alia, Court of Justice, 12 September 2019, Case C-82/17 P, TestBioTech and Others v Commission, para 39.

¹⁰ General Court, ClientEarth and Collectif Nourrir v Commission, cit., para 40.

¹¹ Ibidem, para 42.

¹² Ibidem, para 17.

¹³ Ibidem, para 18.

¹⁴ Ibidem, para 74.

¹⁵ Ibidem, para 76.

¹⁶ Ibidem, para 58.

¹⁷ Ibidem, para 87.

¹⁸ Ibidem, para 100.

¹⁹ Ibidem, para 101: “Greater subsidiarity therefore makes it possible to take better account of local conditions and needs and the particular nature of agricultural activity”.

²⁰ Ibidem, para 102.

²¹ Ibidem, para 110.

²² Ibidem, para 138.

²³ Ibidem, para 244.

²⁴ Ibidem, para 373.

²⁵ GAEC, Standard 7, Annex III of Regulation 2021/2115.

²⁶ General Court, ClientEarth and Collectif Nourrir v Commission, cit., para 261.

²⁷ Ibidem, para 262.

²⁸ Ibidem, para 263.

²⁹ See above, n. 4.

³⁰ See for instance, Court of justice, 9 June 2016, Case C-78/16, Pesce and Others.

³¹ As member of the public may only challenge the decision rejecting the internal review request.

³² See also the analysis of C. Sersale, The General Court’s Judgment in the Case T-535/23 Bankwatch Network: an Additional Obstacle for the Aarhus Regulation?, in RCE, 2026, p. 1 ff.

³³ See for instance, General Court, 10 September, Case T-579/22, ClientEarth v Commission.