Introduction

On 12 November 2025, the General Court delivered its judgment in the Case T-535/23 CEE Bankwatch Network and Ökobüro v Council¹, an action for annulment by which two environmental NGOs challenged a reply to a request for internal review submitted under Regulation (EC) n. 1367/2006 (“Aarhus Regulation” or “AR”)², the legislation by which the EU sought to implement the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters³ (“Aarhus Convention” or “AC”) as regards EU institutions and bodies. On the same day, the General Court also delivered its judgment in the Case T-534/23 Föreningen Svenskt Landskapsskydd and Others v Council, a separate action for annulment concerning the same reply⁴. In these judgments, the General Court ruled, for the first time, that a Council Regulation adopted in accordance with Article 122(1) TFEU could not be reviewed under the AR, since it constituted an act adopted by the Council “in its legislative capacity”, and, as such, was exempted from review.

This annotation critically analyzes the reasoning of the General Court in the Case T-535/23 and argues that the approach followed by the General Court risks to unduly restrict the remit of the AR internal review mechanism, and, consequently, access to justice in environmental matters. For reasons of simplicity, Case T-534/23 will not be analyzed, since the dismissal of the plea regarding the notion of legislative capacity was based on the very same reasoning⁵.

Background of Case T-535/23: Council Regulation (EU) 2022/2577 and the Aarhus Regulation

The case under comment originates from Council Regulation (EU) 2022/2577⁶, one of the acts adopted under Article 122(1) TFEU in response to the energy crisis unfolding after Russia’s large-scale invasion of Ukraine⁷. In particular, the Regulation sought to accelerate the deployment of renewables by temporarily exempting certain permit-granting procedures for specific technologies from environmental assessment obligations laid down in EU legislative acts.

On 20 February 2023, the NGOs Bankwatch Network and Ökobüro submitted a request for internal review of the Regulation to the Council. The applicants relied on the AR, which allows environmental NGOs to seek the internal review of EU administrative acts alleged to contravene EU environmental law. The NGOs argued that the act infringed EU environmental principles under Article 191 and 194 TFEU by failing to ensure the preservation and improvement of the environment, that the simplified procedures it introduced were incompatible with EU secondary environmental law and relevant international treaties, and that the act had been unlawfully adopted under Article 122(1) TFEU rather than Article 192 TFEU⁸.

The Council rejected the request as inadmissible, on the ground that the act had been adopted by the Council acting in its legislative capacity and was, as such, excluded from review under Article 2(1)(c) AR. It also dismissed the request, in the alternative, as unfounded⁹.

With their action, the NGOs sought the annulment of the Council’s negative reply addressed to them, in accordance with the first limb of Article 263(4) TFEU and Article 12 AR. They claimed an error in law in the declaration of inadmissibility, the use of an incorrect legal basis for the adoption of the Regulation, and a manifest error of assessment in the rejection of the request as unfounded.

In their first plea – the only one examined by the General Court – the applicants argued that the notion of “[act adopted in a] legislative capacity” under the AR should mirror the procedural definition of legislative act enshrined in Article 289(3) TFEU. Since the Regulation had not been adopted in accordance with a special or ordinary legislative procedure, it could not be regarded as an act adopted by the Council acting in its legislative capacity, and was therefore subject to review under the AR.

In support of this interpretation, the applicants emphasized the need for terminological consistency between the AR and the TFEU – particularly in light of the complementary relationship between the AR review mechanism and the annulment procedure under Article 263(4) TFEU – and that the AR internal review must extend to all non-legislative acts, including acts of general application, in accordance with the AC¹⁰. They contended that the applicability of the AC may only depend on the procedure of adoption of the act, rather than on the adopting body, substantive content or effects of the act; they further argued that the AC aims to exempt from review only acts directly deriving from democratic processes, a condition not satisfied in the present case, given the European Parliament’s exclusion from the adoption procedure under Article 122(1) TFEU¹¹. Finally, they cautioned that excluding from internal review non-legislative acts capable of derogating from legislative acts would create a problematic accountability gap¹².

The reasoning of the General Court: A “functional” approach to the notion of “legislative capacity”

The General Court rejected the procedural interpretation of “legislative capacity” advanced by the applicants, favoring, instead, a functional approach. It noted that identifying which acts may be subject to review under the AR requires a joint reading of Article 2(1)(g), which defines administrative acts, and Article 2(1)(c), which excludes acts adopted in a legislative capacity¹³. The General Court then emphasized that although administrative acts are defined as non-legislative acts, the AR makes no reference to the procedure of adoption as the distinguishing criterion¹⁴. It also drew a parallel between the terms “legislative” and “legislation”, highlighting how the jurisprudence of the Court of Justice on the latter – in the context of the notion of “environmental law” under the AR – has deviated from the “precise and formalistic” understanding stemming from Article 289 TFEU¹⁵.

The General Court concluded that while no legislative act can constitute an administrative act within the meaning of the AR, certain non-legislative acts might be exempted from internal review, because the notion of “legislative capacity” under the AR and that of “legislative act” under the TFEU are not necessarily coextensive¹⁶.

The General Court further grounded this conclusion on the need to interpret the AR consistently with the AC, on the basis of a teleological interpretation. This required that the notion of “legislative capacity” remain independent of the Parties’ domestic legal systems¹⁷. Furthermore, to reject the procedural approach advanced by the applicants, the General Court referred to the views of the Aarhus Convention Compliance Committee (“ACCC”) and the Court of Justice on the scope of application of the AC¹⁸. It noted that the ACCC has affirmed that “the label in the domestic law of a Party is not decisive”¹⁹ and the Court of Justice has interpreted Directive 2003/4/EC on public access to environmental information to the effect that ministries participating in the legislative process may be exempted from public information obligations in the Member States²⁰.

The General Court’s proposed functional approach treated the nature of the enacting body only as a preliminary matter, while primary importance was to be given to the “functions actually performed” by the institution or body concerned and the “actual substance of the act”²¹. Accordingly, after acknowledging the Council’s role as a body exercising legislative functions, the General Court assessed Article 122(1) TFEU as a legal basis, identifying three main elements indicating a close connection with the “legislative” function: first, the Council’s broad discretion as to the choice of the measures to be adopted; second, the political nature of the decisions to be made in adopting those measures; third, the possibility for the Council to confer implementing powers on the Commission²². The General Court also contrasted acts adopted under Article 122(1) TFEU with implementing and delegated acts, highlighting that such acts are not “intrinsically linked” to any legislative act either as regards their legality or prior authorization²³. The derogating content of the act, its temporary applicability and the exceptional circumstances under which it had been adopted further supported the conclusion that the Regulation constituted “an act of a special nature”²⁴.

These factors – the General Court concluded – demonstrated that, in adopting the Regulation, the Council had exercised powers that fell within the scope of the legislative activity for the purposes of the AR. Having found the applicants’ first plea as unfounded, the action was dismissed in its entirety.

A novel development in the CJEU jurisprudence on the Aarhus Regulation

The obstacles faced by individuals and NGOs in fulfilling legal standing requirements before the CJEU in environmental matters have been discussed in legal scholarship since the Greenpeace case²⁵. The 2006 AR sought to address this issue by allowing certain members of the public to seek the internal review of certain “administrative” acts, and, in case of a negative reply, to challenge the rejection before the EU Courts. Following a finding of non-compliance by the ACCC, Regulation (EU) 2021/1767 broadened, among others, the categories of acts that may be reviewed in accordance with the AR, by amending the definition of “administrative act” in Article 2 (1)(g) to include “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”²⁶. Reflecting the definition of “public authority” enshrined in Article 2(2) AC, instead, Article 2(1)(c) AR continued to exclude the review of acts adopted by EU institutions or bodies acting in their legislative or judicial capacity.

The latter provision, however, had been rarely given attention up until the judgments at hand. The Case T‑338/08 Stichting Natuur en Milieu represents a rare instance in which the Commission argued that it had adopted in its legislative capacity a Regulation establishing certain annexes to a Regulation adopted by the European Parliament and the Council. In that case, the General Court dismissed this argument, briefly noting that the legal basis for the adoption of the Commission Regulation showed that the Commission had exercised its implementing powers, and the “Aarhus Implementation Guide” suggested that the Commission should be regarded as a public authority for the purposes of the AC²⁷. While the Advocate General devoted his Opinion entirely to this issue, the Court of Justice did not rule on this matter, having accepted the appeal on other grounds²⁸.

Against this background, the General Court’s thorough discussion of the notion of “legislative capacity” represents a novel development.

The General Court’s reasoning on the need for a functional approach

While a “functional” classification of EU acts, distinct from that based on the procedure of adoption, would entail crucial constitutional implications if extended to other areas of EU law, such an approach may be justified in the specific context of the AR in relation to the notion of “legislative capacity”. Nevertheless, the reasoning of the General Court in this regard presents some shortcomings.

First, although the General Court later asserted that no legislative act (within the meaning of the TFEU) can constitute an administrative act under the AR, it initially emphasized that Article 2(1)(g) did not support the conclusion that legislative acts should be determined based on the procedure of adoption. Since legislative and non-legislative acts are mutually exclusive categories, this assertion appears to suggest that even those acts falling within the notion of non-legislative act should not be identified by their procedure of adoption. Similar ambiguities arise from the reference made to the broad interpretation of the notion of “environmental law” under the AR. Here, the General Court emphasized that even non-legislative acts may be regarded as “legislation” or “legislative provisions” for the purposes of the AR. While intended to support the need for an interpretation of the notion of “legislative capacity” distinct from that enshrined in the TFEU, these arguments indirectly cast doubt on the established understanding of the notion of “non-legislative act” under Article 2(1)(g). Instead, the General Court could have clarified that while Article 2(1)(g) excludes legislative acts as defined in the TFEU, Article 2(1)(c) further exempts acts adopted in a legislative capacity. In that case, an approach to the notion of legislative capacity distinct from that of the TFEU could be justified by the need to prevent Article 2(1)(c) from becoming redundant.

In line with the Court of Justice’s recent recognition that the AR seeks to implement the AC²⁹, the General Court subsequently affirmed that an interpretation of the former as far as possible consistent with the latter was required. However, while it referred to the ACCC’s view that domestic “labels” are not decisive, it overlooked the ACCC’s reference to the need for an assessment of the “form of decision-making”³⁰. The latter expression suggests that the adoption procedure and the actors involved are, in fact, relevant. Consequently, the fact that the General Court considers the TFEU-based classification of EU acts, which is linked to the participation of the European Parliament in the adoption process, as a mere “label” does not seem convincing.

The criteria advanced by the General Court and access to justice in environmental matters

The criteria subsequently proposed by the General Court also raise significant concerns. First, the General Court’s conclusion that acts adopted under Article 122(1) TFEU would be “legislative” because they may confer implementing powers and because they are not, unlike delegated and implementing acts, based on a legislative act appears unpersuasive, because it overlooks that, under Article 291(2) TFEU, implementing acts do not necessarily need to be adopted based on a legislative act, unlike delegated acts under Article 290(1) TFEU.

Second, the degree of discretion and the ‘political’ nature of the choices to be made by the institution concerned appear to be rather vague benchmarks. This lack of clarity risks hindering the ability of applicants to understand which acts can be reviewed and ultimately undermines legal certainty. Furthermore, the fact that a high level of discretion can lead, along with other factors, to the exclusion of an act from the AR internal review, appears problematic, especially when it comes to acts that do not involve the European Parliament and that, due to their non-legislative legal basis, are exempted from democratic oversight at the national level³¹.

This issue should also be understood against the backdrop of the persistent obstacles to accessing the EU Courts under Article 263(4) TFEU in environmental cases³², a gap which the AR sought to address by complementing the existing system of remedies in relation to non-legislative acts³³. As a matter of fact, the applicants of this case could not seek to challenge the validity of the Regulation at hand under any of the limbs of Article 263(4) TFEU, at the very least because it would have been difficult for them to establish that they were “directly concerned” by the Regulation³⁴. Against this background, and in a context in which the actual impact of the AR internal review has been rather weak so far³⁵, the approach adopted by the General Court ultimately represents an additional obstacle for applicants seeking the internal review of non-legislative acts with environmental implications.

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¹ General Court, 12 November 2025, Case T-535/23, CEE Bankwatch Network z.s. and Ökobüro – Allianz der Umweltbewegung v Council.

² 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 OJ L 264, 25 September 2006, p. 13 ff.

³ Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus, 25 June 1998), UNTS n. 2161, p. 447 ff.

⁴ The Council’s reply combined and treated as one two requests submitted by two different groups of NGOs against the same act. Subsequently, the reply formed the object of two separate actions for annulment.

⁵ General Court, 12 November 2025, Case T-534/23, Föreningen Svenskt Landskapsskydd and Others v Council.

⁶ Council Regulation (EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renewable energy, in OJ L 335, 29 December 2022, p. 36 ff.

⁷ For a discussion on Article 122(1) TFEU see M. Chamon, The Non-Emergency Economic Policy Competence in Article 122(1) TFEU, in CMLR, 2024, p. 1501 ff.

⁸ Request for Internal Review 7216/23 (9 March 2023).

⁹ Council’s Reply 10026/23 (2 June 2023).

¹⁰ General Court, Bankwatch Network, cit., point 16.

¹¹ Ibidem, points 18-20.

¹² Ibidem, point 21.

¹³ Ibidem, points 31-32.

¹⁴ Ibidem, points 27, 34.

¹⁵ Ibidem, point 36. See Court of Justice, 6 July 2023, Joined Cases C-212/21 P and C-223/21 P, EIB and Commission v ClientEarth, point 85, where the Court of Justice concluded that the rules of general application governing the EIB’s activity in relation to the granting of loans constituted “environmental law” under Article 2(1)(f) AR.

¹⁶ General Court, Bankwatch Network, cit., point 37.

¹⁷ Ibidem, points 38-48.

¹⁸ Ibidem, points 49-52.

¹⁹ ACCC, Findings and Recommendations concerning Communication ACCC/C/2008/32 – Part I ECE/MP.PP/C.1/2011/4/Add.1 (adopted 14 April 2011), point 71.

²⁰ 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 in OJ L 41, 14 February 2003, p. 26 ff. See Court of Justice, 14 February 2012, Case C‑204/09, Flachglas Torgau GmbH v Bundesrepublik Deutschland, points 33-51.

²¹ General Court, Bankwatch Network, cit., point 53.

²² Ibidem, points 63-70, 73.

²³ Ibidem, points 71-72.

²⁴ Ibidem, points 74-82.

²⁵ Court of First Instance, 9 August 1995, Case T-585/93, Greenpeace Council and Others v Commission; Court of Justice, 2 April 1998, Case C-321/95 P, Greenpeace Council and Others v Commission. See, among others, L. Krämer, The Environment before the European Court of Justice, in C. Voigt (ed.), International Judicial Practice on the Environment: Questions of Legitimacy, Cambridge, 2019, p. 25 ff.; I. Hadjiyianni, Judicial protection and the environment in the EU legal order: Missing pieces for a complete puzzle of legal remedies, in CMLR, 2021, p. 777 ff.

²⁶ Regulation (EU) 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 OJ L 356, 8 October 2021, p. 1 ff.

²⁷ General Court, 14 June 2012, Case T‑338/08, Stichting Natuur en Milieu and Pesticide Action Network Europe v Commission, points 62-70. See UNECE, The Aarhus Convention: An Implementation Guide, New York-Geneva, 2000, p. 34.

²⁸ Opinion of Advocate General Jääskinen, 8 May 2014, Joined Cases C-404/12 P and C-405/12 P, Council and Commission v Stichting Natuur en Milieu and PAN Europe; Court of Justice, 13 January 2015, Joined Cases C-404/12 P and C-405/12 P, Council and Commission v Stichting Natuur en Milieu and PAN Europe.

²⁹ Court of Justice, 6 July 2023, Joined Cases C-212/21 P and C-223/21 P EIB v ClientEarth, point 67. Contrast with Court of Justice, 3 September 2020, Case C-784/18 P Mellifera eV v Commission, points 87-88.

³⁰  General Court, Bankwatch Network, cit., point 61.

³¹ M. Chamon, The use of Article 122 TFEU. Institutional implications and impact on democratic accountability, 2023, p. 10; C. Cinnirella, ‘Emergency Powers’ of the European Union: An Inquiry on the Supranational Model, in European Papers, 2025, p. 525 ff., p. 545. Non-legislative proposals do not need to be transmitted to national parliaments in accordance with Protocol N. 1 and the subsidiarity scrutiny provided in Protocol N. 2 does not apply to them.

³²  This issue remained unresolved after the amendment of the provision with the Lisbon Treaty, which sought to relax standing requirements for non-legislative acts of general application which do not entail implementing measures.

³³  See Recital 7 of Regulation (EU) 2021/1767. See A. Favi, Riflessioni sull’effettività dell’accesso della società civile alla giustizia in materia ambientale dopo la riforma del regolamento di Aarhus, in Quaderni AISDUE, 2022, p. 606 ff., pp. 616-617.

³⁴ See General Court, 28 September 2016, Case T-600/15 PAN Europe and Others v Commission, point 40.

³⁵ For recent analysis of the Aarhus Regulation limits, see 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., pp. 55-57; L. Grossio, Access to Justice in Environmental Matters Beyond the Aarhus Regulation: Towards an Alternative Adjudicatory Model at the EU Level, in this Review, 2025, p. 1 ff., pp. 16-24.