On Monday 12 May, the European Commission adopted 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, and following the conclusions of the Aarhus Convention Compliance Committee (case ACCC/C/2015/128), the Commission revised the rules allowing non-governmental organisations (NGOs) to request a Commission review of certain State aid decisions to establish whether they contravene EU environmental law.
Any NGO meeting a set of criteria, such as proven experience in the area of the environment, may submit a review request, starting two months after publication of the amendments to the implementing regulation in the Official Journal of the EU. Eligible NGOs will 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 application must be submitted on a form within eight weeks of publication of the State aid decision in the Official Journal. The Commission will respond within sixteen weeks - 22 weeks in some cases - of the expiry of this deadline. Applicants may challenge the Commission’s response 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.
The Commission has also updated other provisions of the Implementing Regulation (EC) No 794/2004 on State aid and of the Code of Best Practices for the conduct of State aid control procedures, in line with its established practice and the case law of the Court of Justice of the EU.
In the last quarter of 2025, the Commission will publish guidance on its website on the concept of an ‘indissoluble link’, a necessary condition for establishing a breach of EU environmental law in State aid proceedings. (Original version in French by Camille-Cerise Gessant)