COMMISSION STAFF WORKING DOCUMENT STAKEHOLDER CONSULTATION - SYNOPSIS REPORT on the findings adopted by the Aarhus Convention Compliance Committee in case ACCC/C/2015/128 as regards state aid: Analysing the implications of the findings and assessing the options available Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the findings adopted by the Aarhus Convention Compliance Committee in case ACCC/C/2015/128 as regards state aid: Analysing the implications of the findings and assessing the options available
Date: 2023-05-17
Institutions: Directorate-General for Environment, European Commission
Subjects: State aid, UN convention, access to information, control of State aid, disclosure of information, environmental law, environmental monitoring, international cooperation, nuclear power station, right to justice

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 17.5.2023  SWD(2023) 307 final  COMMISSION STAFF WORKING DOCUMENT  STAKEHOLDER CONSULTATION - SYNOPSIS REPORT  on the findings adopted by the Aarhus Convention Compliance Committee in case ACCC/C/2015/128 as regards state aid: Analysing the implications of the findings and assessing the options available Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the findings adopted by the Aarhus Convention Compliance Committee in case ACCC/C/2015/128 as regards state aid: Analysing the implications of the findings and assessing the options available {COM(2023) 307 final}  
 
 
1. 

INTRODUCTION 

This  Synopsis  Report  (the  ‘Report’  or  ‘Staff  Working  Document’)  provides  an  overview  of 
the  input1  received  by  the  European  Commission  following  the  publication  of  a  Call  for 
Evidence and of an Online Public Consultation (‘OPC’) on 13 July 2022 on the implications 
of 
in  case 
(‘ACCC’) 
ACCC/C/2015/1282 and the options available to address those findings.  

the  Aarhus  Convention  Compliance  Committee 

findings 

The  Report  also  summarises  the  input  received  during  an  online  stakeholder  consultation 
meeting conducted by Commission services on 9 September 2022 and an ad hoc joint expert 
group meeting with Member State experts from authorities in charge of State aid on the one 
hand and of Aarhus Convention matters on the other hand, held on 12 September 2022.  

The  Report  accompanies  the  Commission  Communication  COM(2023)307  on  the  findings 
adopted  by  the  ACCC  in  case  ACCC/C/2015/128  as  regards  State  aid:  Analysing  the 
implications of the findings and assessing the options available. 

2. 

CONSULTATION 

2.1. Consultation objectives 

The consultation sought to collect the views of the stakeholders and the public on the existing 
systems  and  possible  future  options  for  providing  members  of  the  public  with  access  to 
administrative or judicial  review regarding State aid  decisions by the Commission  that may 
contravene  EU  environmental  law.  In  the  OPC,  the  Commission  has  identified  and  put 
forward three potential options: 

i.  Option 1, amendment of the Aarhus Regulation3 to include State aid in the scope of 
such  Regulation.  Under  this  option,  State  aid  decisions  adopted  by  the  Commission 
would  be  subject  to  the  same  review  procedures  as  any  other  administrative  act 
contravening EU environmental law. 

ii.  Option  2,  amendment  of  the  Code  of  Best  Practices  for  the  conduct  of  State  aid 
procedure  (‘BPC’)4  to  introduce  an  internal  review  process  similar  to  the  one 
applicable  under  the  Aarhus  Regulation  but  adapted  to  the  specificities  of  State  aid 
control  (for  instance,  shorter  deadlines  for  review  requests  and  replies  by  the 
Commission  compared  to  the  Aarhus  Regulation5).  This  amendment  would  be 
combined  with  a  review  of  the  State  Aid  Implementing  Regulation  on  State  aid 
notifications,  requiring  Member  States  to  provide  the  Commission  with  assurances 
that the aid  measure and the aided activity comply with  EU  environmental  law. The 
Commission  would  then  be  able  to  revoke  a  State  aid  decision  if  based on  incorrect 

1  The  contributions  received  in  the  context  of  this  consultation  cannot  be  regarded  as  indicating  the  official 
position of the Commission, nor are they binding on the Commission. Additionally, the respondents providing 
input in the consultation do not reflect a representative sample of the EU population. 
2 https://unece.org/env/pp/cc/accc.c.2015.128_european-union 
3 Regulation (EC) No 1367/2006, as amended by Regulation (EU) 2021/1767. 
4 Code of Best Practices for the conduct of State aid control procedures, OJ C 253, 19.7.2018, p. 14. 
5 For reference, under the Aarhus Regulation the review procedure may take between 16 and 22 weeks, further 
prolonged by months or years if the review reply is challenged in Court. 

1 

 
 
                                                           
information from the Member States. It would be complemented by the publication of 
summaries  of  notifications  that  would  enable  the  public  to  identify  and  point  out 
possible  breaches  of  environmental  law  at  an  early  stage  of  the  State  aid  procedure; 
and 

iii.  Option  3,  amendment  of  the  State  Aid  Procedural  Regulation6  to  provide  for  an 
internal  review  process  similar  to  the  one  under  the  Aarhus  Regulation.  This  option 
would  have  similar  parameters  to  Option  2  in  so  far  as  it  would  include  an  internal 
review  mechanism  with  shorter  deadlines  for  review  requests  and  replies  by  the 
Commission7. 

Respondents  were  also  given  the  opportunity  to  suggest  alternative  options  not  covered  by 
those identified by the Commission during the consultation process, including maintaining the 
status quo. 

2.2. Description of the consultation process 

On  13  July  2022  the  Commission  published  on  the  ‘Have  Your  Say’  platform,  a  ‘Call  for 
evidence’ and an OPC questionnaire. The deadline to respond to both the ‘Call for evidence’ 
and  the  OPC  was  5  October  2022.  The  Commission  also  organized  a  meeting  with 
stakeholders  on  9  September  2022,  followed  by  a  meeting  with  Member  States  on  12 
September 2022. Across these two consultations, the Commission has received 71 replies – 41 
replies  for  the  OPC,  submitted  via  the  Have  Your  Say  Portal,  11  additional  replies8  to  the 
OPC, submitted via email, and 19 replies to the Call for Evidence. The relevant stakeholder 
groups that participated in the consultation are outlined below in Table 1. 

Table  1:  Outline  of  participating  stakeholder  groups  as  defined  by  the  online  public 
consultation 

Stakeholder groups 
1. EU Member State 
Public authorities and 
non-EU Member State 
authorities 

2. NGOs 

3. Businesses 

4. Other 

Stakeholders represented 

  MS national authorities responsible for State aid 
  MS ministries and authorities responsible for the environment 
  Municipal/local government authorities 
  Third country national authority responsible for State aid 
  Environmental NGOs 
  Environmental organisations 
  National industry and business 

associations/Companies/Business organisations 

  General public 
  Technical experts (academia, environmental consultants and 

environmental experts) 

  Lawyers 

6 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 
108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9). 
7 Other changes proposed under Option 2 concerning an amendment of the Commission’s Implementing 
Regulation or the publication of the summary of notifications are not envisaged under Option 3.   
8 Out of 11 replies submitted by public authorities, two were marked as preliminary, one was complementing the 
reply submitted via the OPC. Also, one environmental organisation submitted a document complementing their 
reply. 

2 

 
 
                                                           
Source: OPC Survey 2022 

2.2.1. Online public consultation (OPC) 

The OPC received replies from 52 respondents including replies received both on the ‘Have 
Your Say’ platform (41 replies) and outside this platform (11 email contributions9). The Staff 
Working Document reports on all these contributions in a consolidated fashion. The statistics 
and graphs take into account all replies received, whether via email or through the platform, 
provided that the relevant information was included in the replies. The two largest groups of 
respondents  were,  on  the  one  hand,  public  authorities,  mostly  State  aid,  and  some 
environmental  and  other  authorities  (52%,  or  27,  of  the  52  replies)  and,  on  the  other  hand, 
environmental  NGOs  and  environmental  organisations  (29%,  or  15,  of  the  52  replies)  (see 
Graph 1). Companies/business organisations/associations and individuals/citizens, account for 
6 and 3 of the replies respectively. One reply was also received from a law firm.  

9 The following Member States submitted contributions expressing views by e-mail: Austria, Greece, Germany, 
Denmark, France, Portugal, Romania, Italy, Malta and Luxembourg. Malta’s and Luxembourg’s positions were 
marked as preliminary, and therefore, will not be included in the detailed statistics and graphs provided in this 
Report. Authorities from Austria submitted two contributions separately, one on behalf of the Federal Ministry 
for  Climate  Action,  and  one  on  behalf  of  Federal  Ministry  for  Work  and  Economy  representing  State  aid 
authorities. The submissions from Greece and Romania came from their respective national State aid authorities 
and the submission from Germany came from the Federal Ministry for the Environment, Nature Conservation, 
Nuclear  Safety  and  Consumer Protection,  representing  national  authority  responsible  for  environment.  Malta’s 
preliminary  position  was  submitted  by  the  Environment  Resources  Authority.  The  contribution  from 
Luxembourg was submitted by the Ministry of Economy. Denmark, France, Portugal and Italy each presented a 
consolidated position on behalf of its Member State. Italy has submitted contributions both via the Have Your 
Say portal (on behalf of the national authority responsible for State aid)  and via email (on behalf of the Italian 
Republic);  for  purposes  of  the  detailed  statistics,  the  Italian  contribution  will  be  counted  once.  With  the 
exception  of  Federal  Ministry  of  Climate  Action  of  Austria,  all  the  submissions  submitted  via  email  were 
received  after  the  OPC  had  closed.  During  the  preparatory  process  the  Commission  also  received  additional 
submissions/position papers from an environmental NGO (ClientEarth). 

3 

 
 
                                                           
Graph 1: Overview of respondents to the OPC 

Overview of respondents

EU Member States

National authority responsible for
state aid

Other public authority

Company/Business organisation

Business association

Non-governmental organisation
(NGOs)

Environmental organisation

EU cizizens

Other

7

8

1

3

6

14

4

2

7

In  terms  of  geographical  scope,  27  public  authorities  from  18  Member  States10  and  one 
country outside the EU, Norway, replied to the OPC. The 15 NGOs submitting replies to the 
OPC  included  environmental  organisations  and  networks  active  on  the  European  level  on 
access  to  justice  matters,  as  well  as  some  national  environmental  organisations.  Among  the 
business organisations replying, one sectoral association has a significant EU outreach. 

2.2.2. Call for evidence 

The  ‘Call  for  evidence’  received  submissions  from  19  respondents.11  Environmental  NGOs 
submitted  the  majority  of  the  responses  (ten  replies).  Individuals/citizens  submitted  five 
replies. Public authorities, academia, and business stakeholder respondents each submitted 1 
reply, in addition to 1 reply from a public interest group.  

10  The  public  authorities  in  EU  Member  States  included  public  authorities  in:  Poland  (4  public  authorities), 
Hungary,  Bulgaria,  Czechia,  Latvia  (4  public  authorities),  Lithuania,  Austria  (2  public  authorities),  Germany, 
Greece Luxembourg, Malta, Romania, Finland, France, Denmark, Italy and Sweden. They expressed their views 
mainly on behalf of national, regional, or sectoral public administrations responsible for State aid matters, with a 
few expressing  views of authorities responsible for environmental protection. Only  Finland, France, Denmark, 
Italy and Sweden indicated that they participate in the survey on behalf of the Member State as a whole. 
11 Aarhus Convention Compliance Committee case on State aid: implications/options (europa.eu) 

4 

 
 
 
 
                                                           
2.2.3  Meetings with Member States and stakeholders 

The  Commission  organised  a  virtual  meeting  on  9  September  2022  open  to  all  interested 
stakeholders.  The  meeting  was  attended  by  32  participants,  primarily  environmental  NGOs 
with  a  few  representatives  from  business  associations,  academia,  law  firms  and  public 
authorities.12  Furthermore,  the  Commission  organised  an  ad  hoc  joint  meeting  between 
Member State experts from the competition/State aid policy area and from the environmental 
policy area (Aarhus Expert Group), held on 12 September 2022.13 

3. 

RESPONSES 

1.1. 

 Short Summary of the OPC 

The respondents were asked to provide answers to the questions grouped under the following 
sections: ‘Experience with existing administrative and judicial remedies relating to a plan or 
decision of  a Member State to  grant an aid  measure or a Commission  decision authorizing 
State  aid’,  ‘Options  for  further  scoping  the  access  to  justice  for  environmental  NGOs  and 
other members of the public’ and ‘Impact of options’. 

The OPC revealed opinions are divided in two main groups, i.e., environmental NGOs and 
most  of  the  public  authorities  responsible  for  environmental  protection  (preferring  Option  1 
‘Amendment of the Aarhus Regulation’) on the one hand, and most of the public authorities 
responsible for State  aid as well as  companies/business associations  (primarily preferring to 
maintain the status quo) on the other hand.  

As for  broad categories of views, most of the environmental NGOs  (86%, or 13 out  of 15 
respondents) preferred Option 1. On the other hand, most of the public authorities (67%, or 16 
out of 24 respondents) and companies/business associations (83% or 5 out of 6 respondents) 
prefer the option ‘Other’ (see Graph 2). By ‘Other’ most of these public authorities (75% of 
these authorities, or 12 out of 16 respondents, typically those responsible for State aid matters 
at  national,  regional  or  sectoral  level)  and  companies/trade  association  (80%  or  4  out  of  5 
respondents) mean ‘maintaining the status quo’. Only 21% of the public authorities (or 5 out 
of  24  respondents)  would,  as  their  ‘first  preference’,  chose  Option  1  (amendment  of  the 
Aarhus Regulation). Options 2 or 3 (‘Amendment  of the BPC’ or ‘Amendment of the  State 
aid Procedural Regulation’) would come as their ‘second preference’. For companies/business 
associations,  the  ‘first  preference’  would  be  maintaining  the  status  quo  (67%,  or  4  out  of  6 
respondents),  followed  by  ‘Option  3’  (amendment  of  the  State  aid  Procedural  Regulation), 
and Option 2 (BPC). 

Graph 2: ‘First preference’ by respondents in the OPC 

12 For the minutes of the stakeholder meeting, see Circabc (europa.eu) 
13 For the minutes of the joint Expert Group meeting, see Register of Commission expert groups and other 
similar entities (europa.eu) 

5 

 
 
                                                           
‘First preference’ of NGOs 

NGO 

Other
7%

Option 1
93%

Option 2 
0% 

Option 3 
0%

Other

Option 1

Option 2

Option 3

‘First preference’ of Public authorities 

Public Authorities

Option 3
4%

Option 2
8%

Option 1
21%

Other
67%

Other

Option 1

Option 2

Option 3

‘First preference’ of companies/business associations 

Companies/Business associations

Option 1
0%

Option 2
0%

Option 3
17%

Other
83%

Other

Option 1

Option 2

Option 3

6 

 
 
 
 
 
In  terms  of  options,  just  over  half  of  the  respondents  have  put  forward  as  their  ‘first 
preference’ the option ‘Other (including maintaining the  status quo)’ (51%, or 25 out  of 49 
respondents) (see Graph 3), followed by Option 1 (‘Amendment of the Aarhus Regulation’) 
(41%, or 20 out of 49 respondents). Options 2 and 3 (amendment of the BPC and the State aid 
Procedural  Regulation)  were  –  overall  -  not  given  ‘first  preference’,  but  they  featured  as 
‘second choices’ (Option 2 with 4%, or 2 out of 49 respondents and Option 3 with 4%, or 2 
out  of  49  respondents).  More  granularly,  a  majority  of  those  who  responded  ‘Other’  would 
like to keep the status quo (64% of these respondents or 33%, or 16 out of 49 respondents), 
while the rest prefer a combination of options (e.g., Option 1 and Option 2 on ‘transparency’), 
or other solutions. 

Graph 3: Overall first choice of all respondents in the OPC 

Option 1
41%

Other
51%

Option 3
4%

Option 2
4%

Details of the views of the respondents, as expressed in the OPC, are provided below.  

1.1.1.  Experience with existing administrative and judicial remedies relating to 
a  plan  or  decision  of  a  Member  State  to  grant  an  aid  measure  or  a 
Commission decision authorizing State aid 

The  OPC  results  revealed  that  the  majority  of  the  respondents  have  not  made  use  of  the 
existing administrative and judicial remedies relating to a plan or decision of a Member 
State to grant an aid measure or a Commission decision authorizing State aid. Only five 
respondents (5 of 49) indicated that they had made use of the possibility to express their views 
on  plans  or  decisions  of  a  Member  State  to  grant  aid  to  an  economic  activity,  where  they 
considered  that  the  aid  or  the  project  contravened  EU  environmental  law,  before  the 
competent  national  authority:  two  environmental  organisations,  one  EU  citizen,  and  two 
NGOs.  

7 

 
 
 
 
 
Only  8  of  49  respondents  replied  that  they  had  made  use  of  the  possibility  to  express  their 
views on matter of the compliance of a State aid decision with EU environmental law in the 
administrative  procedure  before  the  Commission.  35  of  49  respondents  replied  that  they 
had not  made use of the possibility to  express  their views on matter of the compliance of  a 
State  aid  decision  with  EU  environmental  law  in  the  administrative  procedure  before  the 
Commission  as  they  were  either  not  aware  of  the  possibilities  under  the  State  aid  rules  to 
express concerns (7 of 35), or their aim was to submit a complaint but did not have standing 
to complain about the granting of an unlawful State aid or alleged misuse of aid (2 of 35), or 
providing other reasons for not having made use of this possibility (26 of 35). 6 respondents 
did not provide information on this subject. 

None  of  the  respondents  indicated  that  they  had  made  use  of  a  possibility  to  challenge  a 
national  measure  by  which  the  State  grants  aid  before  a  national  court  for  alleged 
violations  of  EU  environmental  law.  One  respondent  indicated  that  it  had  made  use  of  a 
possibility to  challenge a Commission decision authorizing State aid  before a national  court 
and one respondent indicated that it had made use of a possibility to bring a challenge against 
a Commission decision authorizing a State aid measure before the General Court.  

Some  respondents  representing  NGOs  expressed  doubts  in  relation  to  the  capacity  to 
challenge Commission State aid decisions before national courts and voiced concerns on the 
difficulties faced when challenging State aid measures and decisions in national jurisdictions. 
One  such  respondent  noted  that  national  courts  are  not  empowered  to  determine  if  an  aid 
measure is compatible with EU (environmental) law. In the latter’s view, while action before 
national  courts  can  be  complementary,  it  would  not  be  a  substitute  for  adequate  remedies 
against Commission decisions.  

1.1.2.  Options for further scoping access to justice for environmental NGOs and 

other members of the public 

23  of  the  49  OPC  respondents,  the  majority  of  which  were  environmental  organisations  or 
NGOs (15 of 23), expressed the view that, beyond the opportunities already available, there is 
a  need  for  additional  means  of  challenging  Commission  State  aid  decisions  (as 
recommended  by  the  ACCC  in  ACCC/C/2015/128),  whereas  20  out  of  49  respondents,  the 
majority  of  which  were  public  authorities  (13  of  20),  asserted  that  there  is  no  need  for 
additional measures and that status quo should be maintained instead. 6 of the 49 respondents 
did not express their views on this subject. All the respondents benefitted from the option to 
explain their answers.  

Some  respondents,  in  particular  environmental  NGOs  as  well  as  environmental  consultants, 
some  academics,  and  some  public  authorities  emphasised  the  importance  of  providing 
sufficient access to justice in environmental matters, taking into account the recommendations 
of  the  ACCC  and  ensuring  compliance  with  international  commitments  under  the  Aarhus 
Convention.  Many  NGOs  and  environmental  organisation  respondents  argued  that  there  are 
no meaningful legal avenues which give NGOs the ability to challenge Commission State aid 
decisions and  cited  the findings  in  ACCC/C/2015/128 as  evidence of this. One  NGO stated 
that  it  was  ‘systematically’  not  recognised  as  an  ‘interested  party’  in  State  aid  proceedings 

8 

 
 
before  the  Commission.  As  result,  their  complaints  are  considered  ‘market  information’  by 
the Commission. In relation to challenges of State aid decisions at the national level, almost 
all  the  respondents  representing  NGOs  highlighted  that  there  are  significant  administrative 
and  financial  obstacles  preventing  them  from  challenging  State  aid  measures  before  the 
competent national authority in their respective Member States. Among the obstacles cited by 
these  respondents  were  the  lack  of  transparency  in  administrative  procedures,  high  costs, 
administrative burdens, and legal barriers in relation to standing.  

Most of the public authorities argued that the existing legal framework already allows for the 
possibility  to  challenge  Commission  State  aid  decisions.  One  respondent  explained  that 
members of the public (including environmental NGOs) have access, at national level, to an 
administrative or judicial review of the decision to grant State aid on the basis of national law. 
They  were seconded by  two companies making the same point and asking that State aid  be 
assessed  separately  from  compliance  with  EU  environmental  law.  One  company  also 
indicated  that  the  relevant  departments  of  the  Commission  are  competent  to  assess 
compliance  with  environmental  regulations  as  part  of  the  interservice  consultations.  Some 
public  authorities  highlighted  that  the  national  remedies  that  environmental  NGOs  have  at 
their  disposal  may  not  only  concern  national  aid  granting  acts  but  may  also  involve 
Commission approval decisions, as individuals and legal entities may request a national court 
to bring an action before the CJEU for a ruling on the validity of EU acts pursuant to Article 
267  TFEU.  One  public  authority  indicated  that,  in  their  view,  the  judgment  of  the  Court  of 
Justice  in  C-594/18  Austria  v.  Commission,14  cited  by  the  ACCC  in  its  findings  in 
ACCC/C/2015/128 and by the environmental NGOs indicates that Commission decisions on 
State aid cannot in themselves infringe environmental rules, since any infringement would, in 
their  view,  result  from  the  subsidised  economic  activity  and  not  from  the  Commission 
decision to authorise aid. 

Many State aid authorities and business associations emphasized the bilateral nature of State 
aid  procedure  which  takes  place  only  between  the  Commission  and  the  Member  States  and 
pointed out that environmental NGOs cannot acquire rights affecting such bilateral character. 
Also,  most  State  aid  authorities  were  of  the  view  that  the  procedure  for  the  examination  of 
State aid measures by the Commission, including those relating to environmental protection in 
its  current  form  is  already  complex  and  time-consuming.  The  respondents  were  therefore 
concerned that  extending  the scope of the Aarhus  Regulation  to  State aid  procedures  would 
further  prolong  these  procedures,  thus  delaying  the  moment  at  which  the  State  aid  decision 
becomes  definitive.  This  could  discourage  much  needed  private  investment  for  green 
transformation of the EU economy and could equally delay time-sensitive financial support, 
in  particular,  in  times  of  crisis,  such  as  the  COVID-19  and  the  Russian  military  aggression 
against Ukraine. Most of these stakeholders indicated their preferred option is to maintain the 
status  quo.  Respondents  stressed  that  efficiency  and  procedural  simplicity  should  be 
prioritised; they argued that an internal review procedure for State aid decisions would entail 
lengthy and complex decision-making procedures. One respondent elaborated that it is in the 

14 Judgement in C-594/18 Austria v. Commission of 22 September 2020, ECLI:EU:C:2020:742. 

9 

 
 
                                                           
interests of all Member States to ensure the widest and simplest possible public involvement 
in  environmental  issues.  In  case  such  involvement  is  not  sufficient,  the  solution  should  not 
affect the existing State aid control framework.  

Some State aid authorities suggested that State aid review procedures were not the appropriate 
fora for reviewing EU environmental law compliance, and that there were other mechanisms 
for  ensuring  such  compliance.  They  asserted  that  the  State  aid  review  procedure  is  a 
mechanism  which  has  as  its  purpose  the  protection  of  the  competitiveness  of  the  internal 
market,  meaning  that  issues  related  to  EU  environmental  law  are  not  of  relevance  in  this 
context.  They  highlighted  that  there  are  already  existing  mechanisms  to  ensure  compliance 
with  EU  environmental  law,  which  ought  to  be  relied  on.  They  also  highlighted  that  the 
Commission has an obligation to ensure compliance of the aid with EU environmental law as 
a matter of consistency with other areas of EU Law15, and that NGOs have the possibility to 
challenge  Member  State  decisions  to  grant  State  aid  at  national  level,  where  such  decisions 
are taken. The views communicated by State aid authorities were largely reflected by State aid 
beneficiary  respondents,  and  the  industry  respondents,  who  were  sharing  the  same 
conclusions.  

In  addition,  one  public  State  aid  authority  respondent  urged  the  Commission  to  take  into 
account the fact that in case of schemes, the beneficiary might not be known at the time of the 
adoption  of  the  Commission  decision,  making  it  unlikely,  in  their  view,  that  relevant 
information about any potential infringement of EU environmental law would be available in 
such cases. One State aid authority asserted that Member States are not obliged to implement 
the  measures  approved  the  Commission.  If  a  Commission  decision  is  based  on  incorrect 
information  provided  by  the  Member  State,  the  Commission  may  revoke  the  decision 
according to the Procedural Regulation. The respondent proposed that the involvement of the 
NGOs  could  be  foreseen  in  the  context  of  the  formal  investigations  rather  than  preliminary 
examination,  coupled  with  the  one-month  period  allowed  to  third  parties  to  express  their 
views. In this way, the impact on the overall decision-making process would be limited and 
legal uncertainty reduced.  

Regarding  which  of  the  State  aid  decisions  should  be  concerned  by  the  initiative 
(compatibility  grounds  indicated),  26  out  of  49  of  the  respondents,  including  8  out  of  24 
public authorities (two national authorities responsible for State aid, two Member States and 
four other public authorities) were of the view that all State aid decisions by the Commission 
that  meet  the  definition  of  an  administrative  act  under  the  Aarhus  Regulation  should  be 
concerned,  whereas  17  of  49  of  the  respondents,  including  10  out  of  24  public  authorities 
(eight national authorities responsible for State Aid and two Member States) did not support 

15 Ex multis, Judgment of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraph 14: « Those aspects 
of aid which contravene specific provision of the Treaty (…) may be so indissolubly linked to the object of the 
aid that it is impossible to evaluate them separately so that their effect on compatibility or incompatibility of the 
aid  viewed  as  a  whole  must  therefore  of  necessity  be  determined  in  the  light  of  the  procedure  prescribed  in 
Article 93" 

10 

 
 
                                                           
 
this view and stated that none of the decisions have to be subject to review. Also, 6 out of 49 
did not provide an answer.  

Some respondents considered limiting the State aid decisions under review. One of the public 
authorities  suggested  that  only  decisions  relating  to  environmental,  public  health  and  safety 
impacts should be covered. In addition, other public authorities recommended to exclude from 
the  review  cases  where  compliance  with  environmental  law  is  not  relevant,  as  well  as 
measures  under  Article  107(3)(b)  of  the  TFEU  and  rescue  aid.  Eight  out  of  24  public 
authorities (seven  of them  representing national  State aid  authorities  and  one  – other public 
authority)  were  of  the  view  that  State  aid  decisions  approved  under  the  Commission 
Communication on Guidelines on State aid for Climate, Environmental protection and Energy 
(2022)  and  State  aid  decisions  approved  under  the  Commission  Communication  on 
Guidelines  on  Regional  State  aid  should  not  be  concerned16,  while  nine  out  of  24  public 
authorities  (four  of  them  representing  national  state  aid  authorities,  two  –  Member  States, 
three  –  other  public  authorities)  had  the  contrary  view.  Regarding  State  aid  decisions 
approved  on  the  basis  of  other  guidelines  (or  compatibility  grounds),  the  replies  to  this 
question showed clear division between the respondents representing public authorities: while 
some respondents reiterated their views that all State aid decision should be included, others 
held to their opinion that none of the State aid decisions should be touched by this initiative, 
urging to maintain the status quo. 

Regarding the types of Commission State aid decisions which should be concerned by this 
initiative  (legal  basis  indicated)  opinions  were  equally  divided.  Most  NGO  respondents 
stated  that  such  a  review  procedure  should  not  be  limited  to  certain  types  of  State  aid 
decisions  or  certain  contraventions  of  EU  environmental  law,  as  none  of  these  limitations 
would be compatible with Article 9(3) of the Aarhus Convention and accordingly the ACCC 
findings in ACCC/C/2015/128. In their view, the scope of review should cover any State aid 
which may contravene environmental law, notwithstanding under which Guidance document 
such  aid  is  considered.  These  respondents  argue  that  Hinkley  Point  C  judgment  of  the  EU 
Court of Justice shows that it is not only decisions under the Commission Communication on 
Guidelines on State aid for Climate, Environmental protection and Energy that are relevant to 
the protection of the environment in the context of State aid.  

On  the  other  hand,  eight  public  authorities  disagree  with  subjecting  any  type  of  State  aid 
decision  to  an  internal  review,  while  the  remaining  public  authorities  are  pleading  for  a 
limitation of the decisions under internal review. Here respondents’ views are split, as regards 
the inclusion or exclusion of each type of decision.  

Lastly, NGOs acknowledged that some cases are urgent, such as those involving aid during a 
pandemic,  and  here  the  work  to  assess  environmental  compliance  is  more  challenging. 
However,  one  NGO  stressed  in  the  stakeholder  meeting  that  even  for  urgent  files,  Member 
States should provide minimum information and there should be a possibility for review. 

16 Commission Communication on Guidelines on regional State aid (2021/C 153/01). 

11 

 
 
                                                           
Regarding  the  options  put  forward  for  consultation,  the  following  views  have  been 
expressed: 

Option 1 

Almost all NGO respondents were in support of Option 1, by virtue of its perceived capacity 
to  accommodate  the  concerns  raised  by  the  ACCC17.  The  NGO  respondents  argue  that  it is 
necessary to take EU environmental law into account during review procedures for all  State 
aid  decisions,  given  the  potential  damage  of  supported  activities  to  the  environment. 
Therefore,  they  asserted  that  State  aid  decisions  must  be  amenable  to  a  review  procedure 
under  the  auspices  of  the  Aarhus  Regulation  under  which  justiciable  rights  can  be  asserted. 
One  NGO  appraised  it  as  a  ‘small,  surgical  amendment’,  offering  a  relatively  simple  and 
efficient means of resolving the issues highlighted in ACCC/C/2015/128. 

In  contrast,  most  of  the  respondents  from  State  aid  authorities  and  State  aid  beneficiaries 
expressed  significant  concerns  about  adding  further  procedures  or  layers  to  the  already 
complex  State  aid  process  and  argued  in  favour  of  finding  solutions  that  would  not  further 
complicate the process at the EU level.  They expressed reservations in relation to Option 1, 
arguing that the internal review mechanism would render the State aid process more complex 
and time consuming than it is in its current structure. Some also made the point that State aid 
control should not serve to detect infringements of EU environmental law, because there are 
other  procedures  available  for  these  purposes.  A  national  industry  association  representing 
State  aid  beneficiaries  commented  that  the  Aarhus  review  procedure  could  increase  legal 
uncertainty  and  thereby  deter  private  investments  that  are  meant  to  accelerate  the  green 
transition.  It  could  also  constitute  double  legislation,  on  top  of  existing  environmental 
regulations and decisions (such as environmental permits) which can already be challenged by 
the  public  and  NGOs  at  national  level.  However,  two  State  aid  authorities  who  replied 
considered  that  this  option  would  ensure  more  certain  access  to  administrative  or  judicial 
procedures  for  environmental  NGOs  and,  one  of  them  added,  compliance  with  the  Aarhus 
Convention. Yet, they  also  highlighted that  this  option  affects  legal  certainty and legitimate 
expectation for Member States, stakeholders, and State aid beneficiaries, possibly prolonging 
litigation in connection to that financing. 

Option 2  

The  NGO  respondents  unanimously  regarded  Option  2  as  the  least  preferable  means  of 
responding  to  the  findings  of  the  ACCC  (aside  from  maintaining  the  status  quo).  NGOs 
asserted  that  the  measures  which  are  ultimately  adopted  must  guarantee  that  applicants  will 
receive  a  legally  binding  reply  in  response  to  a  request  or  complaint.  This  is  necessary  to 
ensure  that  rights  are  created  for  members  of  the  public  concerned  to  appeal  unsatisfactory 
internal  review  decisions  to  the  Court  of  Justice  of  the  European  Union.  Some  NGOs  have 

17  One  NGO  preferred  Option  ‘Other  (including  maintaining  the  status  quo)’,  explaining  that  their  preferred 
option  would  include  Option  1,  the  review  of  the  Aarhus  Regulation,  in  combination  with  the  transparency 
provisions in Option 2. Another NGO also marked ‘Other (including maintaining the  status quo)’ but explained 
that it has no specific preference and it would like the EU to take action to help protect the environment. 

12 

 
 
                                                           
highlighted that an action before the EU General Court under Art. 263 TFEU is only open in 
relation to acts that are intended to produce legal effects vis-à-vis third parties. Many NGOs 
expressed the view that Option 2 would not provide such justiciable rights. In their analysis, 
the Commission would not be able to take a decision with legal effects pursuant to the BPC, 
that  they  can  further  challenge  in  Court  based  on  Article  263  TFEU.  This  option  would 
therefore  be 
the  concerns  raised  by  case 
ACCC/C/2015/128. However, some NGOs have suggested that while Option 2 cannot in their 
view, in its own right address the findings of the ACCC findings in case ACCC/C/2015/128, 
elements  of  it  such  as  the  possibility  of  environmental  NGOs  to  comment  on  published 
meaningful  summaries  of  State  aid  notifications  (subject  to  agreement  by  Member  States) 
could still be of value as a complementary measure to be applied in tandem with Options 1 or 
3, and that it could help to increase transparency in the State aid decision-making process. 

their  view  of  addressing 

incapable 

in 

Most  of  the  public  State  aid  authorities  and  State  aid  beneficiaries  having  preferred 
maintaining  the  status  quo  as  their  ‘first  choice’  indicated  that  Option  2  would  be  their 
‘second best’ solution. Most of State aid authorities highlighted it as offering a wider degree 
of  flexibility  to  the  Commission  in  terms  of  adoption  and  revision,  preventing  any  further 
delays  due  to  additional  procedures,  with  possible  damaging  consequences  on  private 
investments. The Commission would also keep better control of the design of the procedure, 
including by limiting the types of decisions subject to review and reducing the time window 
in  which  a  decision  can  be  appealed  and  the  time  for  the  review  itself.  Those  respondents 
viewed these aspects as essential for safeguarding legal certainty and legitimate expectations 
for Member States and beneficiaries. Others from this stakeholder group highlighted that this 
option  avoids  the  creation  of  new  administrative  burdens,  preserving  legal  certainty  and 
legitimate  expectations.  However,  some  respondents  expressed  concerns  that,  in  spite  of  its 
flexibility, 
in  case 
ACCC/C/2015/128. An industry representative suggested that a solution based on increasing 
transparency and monitoring the decisions subject to review, while maintaining efficiency and 
limiting administrative burden, is needed.  

this  option  would  not  address 

the  concerns  of 

the  ACCC 

Option 3 

In  general,  NGOs  and  environmental  organisations  expressed  the  view  that  the  approach 
suggested  in  Option  3  could  address  the  concerns  highlighted  in  ACCC/C/2015/128.  This 
would in their view be due to its capacity to create justiciable rights. However, doubts were 
expressed across this stakeholder group because the creation of a second, separate mechanism 
for reviewing State aid decisions would likely be both inefficient and confusing.  It was also 
highlighted  by  one  NGO  that  the  creation  of  a  new  review  mechanism  under  the  State  aid 
Procedural  Regulation  would  be  complex.  Consequently,  NGOs  were  reluctant  to  put  their 
full  support  behind  Option  3,  going  on  to  cite  concerns  of  uncertainty  as  to  its  results,  and 
suggesting  that  it  would  first  be  necessary  to  have  a  clearer  idea  of  how  the  Procedural 
Regulation would be amended.  

13 

 
 
Few  public  authorities  considered  Option  3  as  the  ‘second  best’  option,  considering  that 
Option  2  could  offer  similar  advantages  to  the  State  aid  Procedural  Regulation  in  terms  of 
safeguarding the specificities of State aid control.  

Option ‘Other (including the option of maintaining the status quo)’ 

Most  of  the  replies  from  the  national  State  aid  authorities  and  State  aid  beneficiaries 
expressed  the  view  that  the  existing  system  already  satisfactorily  complies  with  the  Aarhus 
Convention, and that the EU should not change anything, thus maintaining status quo. They 
also  argued  that  all  of  the  options  put  forward,  including  Option  2,  are  a  disproportionate 
administrative burden. Most of the State aid authorities and State aid beneficiaries that replied 
indicated a firm opposition to the development of any new procedures which might prolong 
the State aid review process. As a result, there was strong support for maintaining the status 
quo.  This  group  of  respondents  mainly  expressed  a  preference  for  maintaining  the  existing 
arrangements as this would also ensure that the Member State and the beneficiary have legal 
certainty and legitimate expectations that the aid measure is feasible and will not be subject to 
a review by an EU institution or court within a reasonable time. One respondent highlighted 
that failing this, a preference for Option 2 would come second to maintaining the status quo as 
it  represents  the  least  intrusive  option  of  the  three.  State  aid  experts  expressed  similar 
concerns  and  showed  similar  preferences  in  their  written  submissions  as  State  aid 
beneficiaries.  

The  unanimous  consensus  among  NGO  respondents  was  that  maintaining  the  status  quo  in 
the  State  aid  decision-making  process  is  not  a  viable  option,  as  it  does  not  implement,  or 
respond  to,  the  findings  of  the  ACCC,  and  therefore,  fails  to  comply  with  the  Aarhus 
Convention.  It  was  argued  that  maintaining  the  status  quo  is  insufficient  as,  in  their  view, 
there  are  currently  no  administrative  or  judicial  mechanisms  available  for  NGOs  and  other 
members  of  the  public  to  challenge  Commission  State  aid  decisions.  They  stressed  the 
importance  of  compliance  with  international  law,  and  the  need  to  uphold  the  rights  of  EU 
citizens. Among the NGO submissions, concerns were expressed over the fact that the status 
quo was being contemplated at all.  

A few respondents suggested an alternative, hybrid approach blending some elements from 
both Options 1 and 2 (i.e., transparency). Another alternative approach was put forward by a 
Member  State,  involving  the  introduction  of  a  separate  opportunity  to  complain  to  an 
independent  body  fitting  the  requirements  of  the  Aarhus  Convention,  whilst  remaining 
separate  from  the  State  aid  notification  procedure.  The  respondent  explained  that  the  main 
reason  why  the  existing  options  proposed  by  the  Commission  are  not  justifiable  is  because 
they  entail  a  disproportionate  prolongation  of  the  State  aid  procedure  and  encouraged  the 
Commission  to  examine  alternatives  that  could  be  implemented  without  encumbering  the 
notification procedure.  

1.1.3.  Ranking of the options  

In  the  OPC,  respondents  were  asked  to  rank  the  options  from  most  to  least  preferred  (see 
Graph  4).  Respondents  were  also  asked  to  identify  which  of  the  options  would  best  ensure 

14 

 
 
effective access to justice, regard for Union law and State aid procedures, legal certainty and 
legitimate  expectations,  and  efficiency  in  the  granting  and  implementation  of  State  aid. 
Stakeholders expressed divergent opinions: 

As  regards  ensuring  an  effective  access  to  justice  for  environmental  NGOs  and  other 
members of the public: 

-  39% (19 of 49) of all respondents (all environmental organizations (7), and nearly all 

NGOs (6), some public authorities (5) and one EU citizen chose Option 1; 

-  47% (23/49) of the respondents (majority of the public authorities (13), three business 
associations, two companies/business organisations, two NGOs, two EU citizens and 
one other respondent chose the Option ‘Other (including the option of maintaining the 
status  quo)’.  Out  of  those  choosing  this  Option,  61%  (14  respondents)  chose  the 
option where the status quo was maintained.  

-  One business association preferred Option 3 and none of the respondents chose Option 

2 as their first option. 

-  12% (6 respondents) did not provide an answer for this question.  

As  regards  the  options  which  would  have  best  regard  of  Union  law,  in  particular  the 
existing  State  aid  rules  and  procedures,  regarding  the  options  which  would  best  ensure 
legal certainty for those concerned by the State aid decision, in particular the Member States, 
regarding the options which would best ensure legitimate expectations for the beneficiaries 
of  State  aid  and  regarding  the  options  which  would  minimise  any  delays  affecting  the 
granting and the implementation of State aid: 

-  33% (16/49) of the respondents (all environmental organizations (7), almost all NGOs 
(one  choosing  Option  ‘Other  (including  maintaining  the  status  quo’)  by  which  it 
meant  Option  1  in  combination  with  option  2  transparency  elements),  two  public 
authorities and one EU citizen chose Option 1. 

-  51 % (25/49) of the respondents (majority of the public authorities (15), three business 
associations  (3),  two  companies/business  organisations,  two  NGOs,  two  EU  citizens 
and one other respondent expressed preference for Option ‘Other (including the option 
of maintaining the status quo’).  

-  4%  (2/49)  of  the  respondents  (one  business  association  and  one  public  authority) 
chose  Option  3  and  none  of  the  respondents  chose  Option  2  as  ‘best  ensuring’  the 
above-mentioned outcomes. 

-  12% (6/49) respondents did not provide an answer for this question.  

Overall,  almost  all  of  the  NGOs  and  environmental  organisations  (one  choosing  Option 
‘Other  (including  maintaining  the  status  quo’)  by  which  it  meant  Option  1  in  combination 
with option 2 transparency elements) preferred Option 1, which ensures a procedure which is 
consistent with the process already in place for administrative decisions in other policy areas. 
In their view, Option 1 would have a similar effect to Option 3, in ensuring justiciable rights 
in  the  State  aid  review  procedure,  without  requiring  a  large  overhaul  of  the  process  as 
foreseen under Option 3. It also carries with it greater certainty, as there is more clarity as to 
how Option 1 would be implemented, as compared to Option 3. 

15 

 
 
On the other hand, almost all State aid public authorities, and every State aid beneficiary was 
of  the  view  that  all  options  put  forward  by  the  Commission  would  prolong  the  State  aid 
review  procedure  unnecessarily,  with  consequences  for  legal  certainty  and  legitimate 
expectations.  Overall,  while  a  preference  was  shown  among  these  stakeholder  groups  for 
Option 2, it was secondary to maintaining the status quo.  

Graph 4: Chart reflecting the support for each of the options based on rankings indicated in 
the OPC on ‘EU Platform’18 

Source: OPC Survey (‘EU Platform’) 

18 Where rankings have been provided by contributors.  

16