Judgment of the General Court (Ninth Chamber, Extended Composition) of 12 November 2025

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31 It 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.

32 In 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.

33 In 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).

34 In 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 …’.

35 It 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.

36 In 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.

37 In 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.

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

39 It 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.

40 In 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 ).

41 Second, 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’.

42 It 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.

43 Third, 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 ).

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

45 In those circumstances, while it is true that a legislative act within the meaning of Article 289 TFEU does not constitute an administrative act within the meaning and for the application of the Aarhus Regulation, it does not follow from the contextual interpretation set out in paragraphs 36 to 44 above that the concept of ‘legislative capacity’, referred to in Article 2(1)(c) of that regulation, coincides exactly with the category of legislative acts defined in Article 289 TFEU.

46 In 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).

47 In 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’.

48 Thus, 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).

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

50 Such 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 ).

51 In 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.

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

53 Nevertheless, 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 ).

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

55 It 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.

56 In 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 ).

57 That 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 ).

58 In 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.

59 Furthermore, 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.

60 The 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 ).

61 Those 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.

62 It 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.

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

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

65 In 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.

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

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

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

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

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

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

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

105 In 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 ).

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