European Commission amends EU State aid rules to strengthen access to justice in environmental matters
The Commission has adopted significant amendments to its State aid framework to improve public access to justice in environmental matters. These changes establish a new review mechanism enabling qualified environmental NGOs to request a reassessment of certain Commission State aid decisions that may breach EU environmental law. The reform responds to the findings of the Aarhus Convention Compliance Committee in case ACCC/C/2015/128 and reinforces the EU’s compliance with its international obligations.
The revised rules, reflected in the updated State aid Best Practices Code (BPC), provide that:
- Any non-governmental organisation (NGO) fulfilling a set of conditions- such as being independent, non-profit, active in the field related to the request, and with proven environmental expertise – may submit a review request.
- Reviewable acts include final State aid decisions adopted after a formal investigation under Article 108(2) TFEU, in which the Commission has found the aid measure compatible with the internal market (a ‘positive decision’) or conditionally compatible (a ‘conditional decision’).
- Exclusions apply to final decisions adopted under Article 107(2) TFEU (e.g. aid with a social character or compensation for natural disasters), and under Article 107(3)(b) TFEU insofar as they concern aid addressing serious economic disturbances in a Member State.
- NGOs must demonstrate that the aided activity, or any aspect of the aid inextricably linked to the aid’s objective, infringes specific provisions of EU environmental law.
- Requests must be submitted via a dedicated form within eight weeks of the decision’s publication in the Official Journal. The Commission will respond within 16 weeks after the deadline, extendable to 22 weeks where justified. Both the requests and the Commission’s replies will be made publicly available on a dedicated website.
- Applicants may challenge the Commission’s reply before the Court of Justice of the EU.
- Member States must now confirm, in their notification forms, that the aid measure and the aided activity do not breach EU environmental law.
The reform also updates the State aid Implementing Regulation (EC) No 794/2004 and aligns the Code of Best Practices for the conduct of State aid control procedures (“Best Practice Code”) with the Court of Justice’s case law and the Commission’s administrative practice. NGOs will be able to request reviews of final decisions authorising notified aid starting two months after the revised rules are published in the Official Journal. Similar rights will apply to non-notified aid if the formal investigation was opened after publication.
In late 2025, the Commission will publish guidance on the notion of the ‘inextricable link’ – a key concept in determining whether an environmental rule has been breached in the context of State aid.
For more information, see the PR.