Commission amends State aid rules to provide public access to justice in environmental matters

This article is brought to you in association with the European Commission.

The European Commission has adopted today amendments to its State aid rules to provide public access to justice in environmental matters in relation to EU State aid decisions. For that purpose, the Commission revised rules which allow non-governmental organisations (‘NGOs’)  to request a Commission review of certain State aid decisions to establish whether they contravene EU environmental law. This new review mechanism addresses the Aarhus Convention Compliance Committee’s findings in case ACCC/C/2015/128.  

The Commission has also taken the opportunity of this revision to update other provisions in the State aid Implementing Regulation (EC) No794/2004 and the State aid Best Practices Code (‘BPC’) in accordance with the Commission’s established practice and the Court of Justice of the EU’s case law.

The new review mechanism

The revision includes the following conditions, in particular, as specified in the BPC:

• Any NGO that meets a set of criteria may submit a review request. These criteria relate to the NGOs independence, non-profit nature and activity in relation to the request, as well as proven experience in the area of the environment.
• The acts that may be subject to review requests are final State aid decisions closing the formal investigation procedure initiated under Article 108(2) of the Treaty on the Functioning of the EU (‘TFEU’) by finding that a measure is compatible with the internal market (‘positive decision’) or can be compatible under conditions (‘conditional decision’). Reviews can be requested for all grounds for compatibility under the TFEU for authorising State aid, except final decisions adopted under Article 107(2) TFEU (‘aid having a social character, granted to individual consumers’ and ‘aid to make good the damage caused by natural disasters or exceptional occurrences’), and Article 107(3)(b) TFEU as far as it concerns aid ‘to remedy a serious disturbance in the economy of a Member State’.
• Eligible NGOs would have to show that the aided activity or any of the aspects of the State aid measure approved by the Commission decision, that are inseparable from the goal of the aid (‘indissolubly linked’), are in breach of a specific rule or specific rules of EU environmental law.
• The request will have to be submitted through a form within 8 weeks after the State aid decision has been published in the Official Journal.  The Commission will reply within 16 weeks after the expiry of the eight-week deadline. This can be extended to 22 weeks in justified cases. The Commission will publish the requests and the replies on a dedicated website.
• Applicants can challenge the Commission’s reply before the Court of Justice of the EU.

The amendment to the Implementing Regulation requires Member States to confirm in the State aid notification form that neither the aided activity nor the aid measure contravene EU environmental law.

Entry into force and applicability

Eligible NGOs will be able to submit review requests on final State aid decisions authorising notified aid by Member States, starting from two months after the publication of the amendments to the Implementing Regulation in the Official Journal.

Requests can also be made with regard to final decisions authorising non-notified aid, where the decision to initiate proceedings under Article 108(2) of the Treaty was adopted after the publication of the amendments to the Implementing Regulation in the Official Journal.

Next steps

The Commission will publish guidance on its website in the fourth quarter of 2025 on the notion of ‘indissoluble link’ which is a necessary condition for establishing a violation of EU environmental law in a State aid procedure.

Background

The adoption of the amendments to the Implementing Regulation and the revised BPC follow up on the 2021 findings of the Aarhus Convention Compliance Committee concluding that the EU is in breach of the Aarhus Convention, because the public cannot challenge State aid decisions adopted under Article 108(2) TFEU if these decisions allegedly breach EU environmental law.

On 17 May 2023, the Commission adopted a Communication identifying options to follow up on the Aarhus Convention Compliance Committee’s findings with the aim of creating a new procedure.

A call for evidence was launched by the Commission on 30 May 2024, followed by a Targeted Consultation open from 1 July 2024 to 6 September 2024. From 7 February to 21 March 2025, the Commission held a public consultation of stakeholders, through which it obtained the views of Member States, public authorities, citizens, companies, business associations and other organisations (including environmental NGOs), lawyers, and academics on the draft amendmentsto the Implementing Regulation and the BPC.

For More Information

The revised rules are accompanied by a Commission Staff Working Document assessing the scope, content and likely impacts of the new procedure and summarising the information received during the consultation activities organised by the Commission.