The General Court in T-534/23 and T-535/23: Aarhus and the EU’s Functionally Legislative Power under Article 122(1) TFEU

The cases in comment concerned the validity of the decision through which the Council rejected two requests for internal review under the Aarhus framework. Subject of the requests was Council Regulation (EU) 2022/2577, regarding emergency measures in the context of the energy crisis stemming from the Russian aggression of Ukraine. The Regulation was formally non-legislative, as it had been adopted pursuant to art.122(1) TFEU. Nevertheless, the General Court upheld the Council's view that the Regulation had been adopted in a functionally legislative capacity for the purposes of the Aarhus framework and thus fell outside the scope of the internal review mechanism. The Court's attempt to disentangle the notion of "legislative capacity" from the Treaties' formalistic understanding of legislation is respectful of the autonomy of that notion under the Aarhus Convention. However, considering the procedures followed for the adoption of the Regulation and its emergency nature, a different functional approach would have been arguably more in line with the spirit of the Convention.