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

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   EUROPEAN COMMISSION  Brussels, 17.5.2023  COM(2023) 307 final  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 {SWD(2023) 307 final}  
 
 
1. 

INTRODUCTION  

The  European  Green  Deal  is  a  highly  ambitious  political  priority,  involving  transformative 
changes  across  European  economies.  It  reinforces  the  EU’s  commitment  to  tackling 
generation-defining challenges in the area of climate and the environment and strengthens the 
transition  to  climate  neutrality  by  enhancing  the  competitiveness  of  Europe's  net-zero 
industry. Civil society plays a crucial role in this transition, in a number of important ways. 
One of the ways it plays a role in the transition is by ensuring that the institutions of the EU 
uphold EU environmental law, through the exercise of their right to access to justice.  

The EU and its Member States are parties to the Aarhus Convention on access to information, 
public  participation  in  decision-making,  and  access  to  justice  in  environmental  matters  (the 
‘Aarhus Convention’). The EU is fully committed to compliance with the Aarhus Convention 
and has implemented its provisions on access to justice in environmental matters in relation to 
EU  institutions  and  bodies  through  the  Aarhus  Regulation1.  That  Regulation  was  revised  in 
2021 to provide broader opportunities for NGOs and other members of the public to challenge 
administrative decisions of EU institutions and bodies where these decisions may contravene 
EU environmental law.  

The revised Aarhus Regulation provides a number of exceptions, including an exception for 
State aid decisions. 

The green transition will not happen without financing, and here State aid plays an important 
role.  The  EU’s  State  aid  policy  and  enforcement  actions  support  the  green  transition2.  The 
Guidelines  on  State  aid  for  climate,  environmental  protection  and  energy  provide  a 
predictable  framework enabling Member States to support green investments  by businesses, 
while  minimising  the  negative  effects  of  this  State  aid  on  competition3.  A  number  of 
developments have highlighted the need for a fast and effective system to monitor and control 
State aid in the EU. These developments include the implementation of: (i) the recovery and 
resilience  framework;  (ii)  REPowerEU;  and  (iii)  the  temporary  State  aid  frameworks  put  in 
place to enable Member States to support businesses through both the COVID-19 pandemic 
and the economic consequences of the Russian war of aggression against Ukraine. With a fast 
and effective State aid control system, State aid can accelerate the decarbonisation of the EU 

1 Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to 
Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to 
Community institutions and bodies (OJ L 264, 25.9.2006), p. 13, as amended by Regulation (EU) 2021/1767 of 
the European Parliament and of the Council of 6 October 2021,OJ L356 8 10 2021, p. 1. 
2 See, for instance, the Communication to the Commission Approval of the content of a draft for a Commission 
Regulation  amending  Regulation  (EU)  No  651/2014  declaring  certain  categories  of  aid  compatible  with  the 
internal market in application of Articles 107 and 108 of the Treaty and Regulation (EU) 2022/2473 declaring 
certain  categories  of  aid  to  undertakings  active  in  the  production,  processing  and  marketing  of  fishery  and 
aquaculture products compatible with the internal market in application of Articles 107 and 108 of the Treaty 
(so called ‘Green Deal GBER amendment’) adopted on 9.03.2023 and the Communication from the Commission 
Temporary  Crisis  and  Transition  Framework  for  State  Aid  measures  to  support  the  economy  following  the 
aggression against Ukraine by Russia, 2023/C 101/03 OJ C 101, 17.3.2023, p. 3–46.  
3 Communication from the Commission Guidelines on State aid for climate, environmental protection and 
energy 2022, OJ C80, 18 02 2022, p. 1. 

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economy and promote the development and  uptake of green technologies. Without effective 
and fast State aid control, there is a risk that sustainable investments will be delayed.  

In 2015, the Compliance Committee under the Aarhus Convention  (the ‘ACCC’) received a 
complaint  from  an  environmental  non-governmental  organisation  about  a  Commission 
decision on State aid  granted to support the development of a new nuclear power plant  in a 
Member  State  (case  ACCC/C/2015/128).  Following  the  examination  of  this  complaint,  the 
ACCC  found  that  the  current  possibilities  for  the  public  to  challenge  the  Commission’s 
decisions on State aid fail to comply with the EU’s obligations under the Aarhus Convention4.  

This  Communication:  (i)  sets  out  the  Commission’s  assessment  of  the  implications  of  the 
ACCC’s findings; and (ii) reports on the public consultation that the Commission organised to 
explore  options  for  addressing  the  ACCC’s  findings  while  upholding  the  EU  Treaties  and 
related case-law on State aid control. It also elaborates on the options which will inform the 
Commission’s approach in the future, in light of its obligations under the Aarhus Convention, 
taking into account the need for a fast and effective State aid control mechanism in the EU. 

2. 

THE LEGAL FRAMEWORK OF THE AARHUS CONVENTION 

2.1  The  findings  of  the  Aarhus  Convention  Compliance  Committee  in  case 
ACCC/C/2015/128 on State aid 

The  Aarhus  Convention  sets  out  a  compliance-review  mechanism,  for  which  the  ACCC  is 
responsible. On 17 March 2021, the ACCC issued its findings and recommendations on case 
ACCC/C/2015/128  concerning  the  possibility  for  members  of  the  public  to  challenge 
decisions on State aid measures taken by the European Commission under Article 108(2) of 
the Treaty on the Functioning of the European Union (TFEU).  

The ACCC’s findings are set out in the paragraphs below.  

By  failing  to  provide  access  to  administrative  or  judicial  procedures  for  members  of  the 
public to challenge decisions on State aid measures taken by the European Commission under 
Article 108(2) TFEU which contravene EU law relating  to the environment,  the EU fails to 
comply with Article 9(3) of the Convention. 

By  failing  to  provide  any  procedure  under  Article  9(3)  of  the  Convention  through  which 
members of the public are able to challenge decisions on State aid measures by the European 
Commission  under  Article  108(2)  TFEU  which  contravene  EU  law  relating  to  the 
environment,  the EU also  fails to  provide an adequate and effective remedy regarding such 
decisions as required by Article 9(4) of the Convention.  

The ACCC also made the following recommendation in its findings. 

The Party concerned [should] take the necessary legislative, regulatory and other measures 
to  ensure  that  the  Aarhus  Regulation  is  amended,  or  new  European  Union  legislation  is 

4 For the findings and related case information, see https://unece.org/env/pp/cc/accc.c.2015.128_european-union. 

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adopted,  to  clearly  provide  members  of  the  public  with  access  to  administrative  or  judicial 
procedures to challenge decisions on State aid measures taken by the European Commission 
under Article 108 (2) TFEU that contravene European Union law relating to the environment, 
in accordance with Article 9(3) and (4) of the Convention.  

Following  up  on  the  findings  of  the  ACCC,  the  Commission  restated  its  commitment  to 
ensuring that the EU respects its international obligations in matters pertaining to the Aarhus 
Convention and acknowledged the concerns expressed in the findings adopted by the ACCC. 
The  Commission  committed  to  analysing  the  implications  of  the  findings  and  assessing  the 
options available and stated that, if appropriate, by the end of 2023,  it would come forward 
with measures to address the issue, in light of the obligations of the EU and its Member States 
under the Aarhus Convention and taking into account the rules of Union law concerning State 
aid.5 

On 21 October 2021, at the EU’s request, the Meeting of the Parties of the Aarhus Convention 
postponed the endorsement of the findings in case ACCC/C/2015/128 until the next ordinary 
Meeting of the Parties in 2025.  

2.2 Implementation of the Aarhus Convention’s requirements on access to justice 
in relation to EU institutions and bodies 

The Aarhus Convention was adopted in 1998 under the auspices of the UNECE. Today it has 
46 Parties, including the European Union. It is the leading UN Convention on environmental 
democracy, transparency, public participation, and access to justice in environmental matters. 
In its Article 9(3), the Aarhus Convention provides that ‘each Party shall ensure that, where 
they meet the criteria, if any, laid down in its national law, members of the public have access 
to  administrative or judicial procedures to  challenge acts  and omissions by private persons 
and  public  authorities  which  contravene  provisions  of  its  national  law  relating  to  the 
environment’. 

The  Convention  therefore  operationalises  the  idea  that  the  public  is,  and  should  remain,  a 
driving force of the green transition, and should have the means to actively involve  itself in 
the  development  and  implementation  of  new  policies.  Access  to  justice  in  environmental 
matters, both via the Court of Justice of the European Union (CJEU) and the national courts6, 
is a way to strengthen the role which civil society can play as a watchdog in the democratic 
space.  

5 The Commission statement was announced at the third and final political trilogue on the Proposal for the 
revised Aarhus Regulation and is available at 
https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/ENVI/DV/2021/08-
31/Commissionstatement-stateaid_EN.pdf  
6 Article 19(1) of the Treaty on European Union (TEU) requires Member States to provide remedies sufficient to 
ensure effective legal protection in the fields covered by  EU law. Access to justice in environmental matters is 
also  relevant  in  the  context  of  Articles  41  and  47  of  the  Charter  of  Fundamental  Rights  of  the  EU  and  helps 
provide legal certainty. 

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While  it  is  the  Commission’s  duty  as  guardian  of  the  Treaties  to  proactively  monitor 
compliance with EU environmental laws, individuals and NGOs can also play a crucial role in 
identifying  potential  breaches  of  EU  environmental  law  by  submitting  complaints  to  the 
Commission.  Where  they  believe  that  the  Commission  has  itself  taken  a  decision  which 
breaches  EU  environmental  laws,  the  Aarhus  Regulation  allows  environmental  NGOs  (and 
also, as of 29 April 2023, other defined ‘members of the public’) a right to request an internal 
review of EU administrative acts if such acts breach EU environmental law. The reply of the 
EU institution or body can be challenged before the CJEU7. 

However, since the adoption of the Aarhus Regulation in 2005, certain acts (or omissions) of 
the Commission or other EU institutions or bodies acting as a review body are exempted from 
the internal review mechanism. These include: acts adopted (or omissions) (i) under Articles 
101, 102, 106, and 107 of the Treaty (competition rules); (ii) in infringement proceedings; (iii) 
in Ombudsman proceedings; and (iv) in OLAF proceedings8. 

3. 

WHAT ARE THE SPECIFICITIES AND MAIN ELEMENTS OF EU STATE AID CONTROL? 

State aid control is a cornerstone of the functioning of the EU internal market. It aims to limit 
distortions  of  competition  arising  from  decisions  by  Member  States  to  grant  State  aid,  and 
thereby  aims  to  ensure  a  level  playing  field  for  undertakings  operating  in  the  EU.  When 
assessing  the  implications  of  –  and  options  for  dealing  with  –  the  ACCC  findings,  the 
Commission  must  therefore  take  into  account  the  need  to  maintain  an  efficient  and  reliable 
State aid system. 

1.1.  Overview of the EU system of State aid control  

State  aid  control  in  the  EU  is  based  on  provisions  in  the  TFEU,  secondary  legislation  and 
case-law. While the EU’s policy on State aid contributes to other EU objectives, including in 
the field of environment (e.g., by authorising aid for the promotion of renewable energy), its 
main objective is to ensure a level playing field and prevent subsidy races9. State aid control is 

7 The Aarhus Regulation allows environmental NGOs and, as of 29 April 2023, also other members of the public 
meeting certain criteria, to challenge, in an administrative review procedure, administrative acts adopted by any 
EU  institutions  or  bodies  in  any  policy  area  if  the  applicants  can  show  that  these  acts  contravene  EU 
environmental  law.  Members  of  the  public  may  submit  review  requests  within  eight  weeks  of  the  adoption, 
notification  or  publication  of  the  contested  act,  whichever  is  the  latest.  The  internal  review  process  would 
therefore commence within eight weeks of the adoption, notification, or publication of the Commission State aid 
decision. The review is conducted by the Commission DG which prepared the contested act in consultation with 
other Commission DGs and takes 16 to 22 weeks. If the internal review decision is then challenged before the 
EU courts, the judicial review may add several months or year(s) to the process.  
8 The exception follows from the Aarhus Convention, which provides an exception for public bodies acting in a 
judicial  capacity.  When  assessing  decisions  by  Member  States  to  grant  State  aid,  the  Commission  acts  as  a 
review body, independent and impartial, as guardian of the EU Treaties. The Commission’s role when reviewing 
State aid decisions is therefore akin to that of a judicial body. However, this interpretation put forward by the EU 
was rejected by the ACCC in case ACCC/C/2015/128, as regards State aid control. 
9 See, in that regard, C-594/18 P, Commission v Austria, paragraph 26: ‘Article 107(3)(c) TFEU does not require 
planned aid to pursue an objective of common interest [such as the protection of the environment] in order to be 
declared compatible with the internal market’. 

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meant to protect the internal market against distortions of competition arising from Member 
States’ decisions to grant selective advantages to certain undertakings.  

The procedure for reviewing State aid is, in view of its general scheme, a procedure initiated 
in respect of the Member State responsible, in the light of its obligations under EU law, for 
granting  the  aid.10  The  State  aid  procedure  establishes  a  bilateral  relationship  between  the 
Commission and the Member State, which is apparent not only from the structure of Article 
108(3) TFEU,11 but also from the role of interested parties in the context of the procedure laid 
down in Article 108(2) TFEU.12 

The  EU  and  its  Member  States  have  different  powers  as  regards  State  aid.  It  is  always 
Member States which decide which economic activities should receive State aid as a matter of 
national  policy  (within  the  limitations  of  the  applicable  legal  framework,  including  EU 
environmental  law).  It  is  therefore  at  national  level  that  policy  considerations  become 
relevant, when the decision to grant the aid is taken. 

In  State  aid  matters,  assessment  of  the  compatibility  of  Member  States’  measures  with  the 
internal  market  falls within  the exclusive competence of the Commission,  subject  to  review 
by the EU judicature.  The Commission has laid down in State aid guidelines and frameworks 
how  it  will  carry  out  this  assessment.  The  Council  State  aid  Procedural  Regulation13  (the 
‘Procedural Regulation’) lays down both the procedural rules to be followed, and the type of 
decisions the Commission adopts when assessing State aid measures. These decisions include: 
(i)  decisions  finding  that  a  measure  does  not  constitute  State  aid;  (ii)  decisions  not  to  raise 
objections; (iii) decisions to initiate the formal investigation procedure pursuant to Article 108 
(2) TFEU; and (iv) decisions closing the formal investigation procedure finding that either the 
measure does not constitute aid, or that it can be authorised (‘final positive decision’) or that it 
cannot be authorised (‘final negative decision’).  

While the focus of State aid control is the protection of the internal market against distortions 
of competition, as a general matter of coherence within the EU legal order, the Commission 
must also  ensure that State aid  is  not contrary to other provisions of EU  law, including EU 
environmental  law.  If  a  State  aid  measure  is  contrary  to  EU  law,  and  provided  the  relevant 
requirements set out in the case-law are met14, the Commission cannot authorise the aid. That 
follows from the Braesch and Others and the Hinkley Point C judgment and earlier case-law 

10 Ex multis, Judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland, C-933/19 P, 
EU:C:2021:905, paragraph 60 and the case law cited. 
11 Judgment of 1 June 2006, P & O European Ferries and Diputación Foral de Vizcaya v Commission, C-442/03 
P and C-471/03 P, EU:C:2006:356, paragraph 103 and the case law cited. 
12 Ex multis, Judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland, C-933/19 P, 
EU:C:2021:905, paragraph 65 and the case law cited. 
13 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. 
14 Ex multis, Judgment of 22 March 1977, Iannelli & Volpi, 74/76, EU:C:1977:51, paragraph 14: ‘Those aspects 
of aid which contravene specific provisions 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’. 

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of the EU Courts15. In particular, the EU Court has noted that where the modalities of an aid 
measure  are  so  indissolubly  linked  to  the  object  of  the  aid  that  it  is  impossible  to  evaluate 
them  separately,  their  effect  on  the  compatibility  or  incompatibility  of  the  aid  viewed  as  a 
whole must of necessity be determined in the light of the procedure prescribed in Article 108 
TFEU In practice, the Commission systematically conducts internal consultations  of its DGs 
before authorising the aid with a view to identifying any inconsistencies with other areas of 
EU law.  

1.2.  Ongoing  assessment  to  identify  the  types  of  State  aid  decisions  that  are 

relevant in the context of the ACCC findings in case ACCC/C/2015/128 

The  Commission  notes  that  the  ACCC  concluded  in  its  findings  in  case  ACCC/C/2015/128 
that the EU is in breach of the Aarhus Convention with regard to State aid decisions adopted 
by the Commission under Article 108(2) TFEU. The ACCC referred, in that context, to final 
decisions  allowing  the  Member  State  to  implement  the  aid  following  a  formal  investigation 
procedure in which the Commission publicly stated its doubts about the compatibility of the 
aid with the internal market and invited interested parties to provide their views.  

For the sake of completeness, the Commission sought the views of stakeholders in the online 
public consultation on the types of State aid decisions which could be relevant to address the 
ACCC’s findings: (i) by their types as specified in the Procedural Regulation; and (ii) by their 
compatibility grounds, specified in soft law, such as guidelines and frameworks. 

The  Commission  will  further  assess  the  feedback  received  in  the  online  public  consultation 
and whether other types of decisions would also be relevant to address the breach identified 
by the ACCC.  

In  particular,  the  Commission  will  assess  whether  any  possible  future  review  mechanism 
should apply: (i) to decisions to open the formal investigation; (ii) to decisions finding that the 
measure  does  not  constitute  aid;  and  (iii)  to  final  negative  decisions.  However,  the  first 
category of decisions is provisional  in  nature. For the latter two categories of  decisions, the 
issue  of  the  Commission  decision’s  compliance  with  environmental  law  should  in  principle 
also  not  arise:  (i)  either  because  the  decision  concludes  that  the  measure  at  stake  does  not 
amount to State aid; or (ii) because any potential non-compliance with EU environmental law 
would in any event not change the nature of the conclusions (aid not authorised). 

Similarly,  the  Commission  will  further  assess  whether  all  compatibility  grounds  under  the 
TFEU  are  relevant  to  address  the  ACCC’s  findings  in  case  ACCC/C/2015/128,  taking  into 
account  the  EU’s  obligations  under  the  Aarhus  Convention,  and  the  need  to  preserve  the 
specificities  of  State  aid  control.  The  ACCC  findings  in  case  ACCC/C/2015/128  concerned 
aid  for  the  development  of  a  nuclear  power  station,  in  which  the  Commission  initiated  the 
formal  investigation  procedure  under  Article  108(2)  TFEU  and  adopted  a  final  positive 

15Judgment of 31 January 2023, Commission v Braesch and Others, C-284/21 P, EU:C:2023:58, paragraphs 96 
to  99  and  the  case  law  cited;  Case  C-594/18  P,  Commission  v  Austria,  para.  100,  Judgment  of  15  June  1993, 
Matra v Commission, C-225/91, EU:C:1993:239, paragraph 41.  

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decision  on  the  basis  of  the  compatibility  grounds  set  out  under  Article  107(3)(c)  TFEU16. 
While the recommendations of the ACCC broadly refer to all Commission State aid decisions 
adopted  under  Article  108(2)  TFEU,  the  focus  of  the  findings  is  therefore  State  aid  to 
facilitate  the  development  of  a  particular  project  or  activity  susceptible  to  infringing  EU 
environmental law.  

In  its  assessment,  the  Commission  will  take  into  account  the  objective  of  the  Aarhus 
Convention  of  ensuring  access  to  justice  with  regard  to  acts  that  may  contravene 
environmental law.  

1.3.  Possibilities for third parties to hold the Commission accountable for State 

aid decisions  

Third parties can play an important role in State aid procedures, first at the administrative and 
then at the judicial stage, especially if they can show their interests might be affected by the 
granting of aid17.  

At  the  administrative  stage,  third  parties  qualifying  as  interested  parties  may  submit 
comments on a Commission decision to open the formal investigation procedure18. Provided 
they  fill  in  the  compulsory  complaint  form,  third  parties  can  also  submit  complaints  about 
State aid granted by Member States without prior notification, or about State aid used by the 
beneficiary in breach of the conditions set out in the relevant State aid decision19. Irrespective 
of their status  as interested parties, third parties including  environmental  NGOs  may  in  any 
event  act  as  a  valuable  source  of  information  throughout  the  procedure,  including  by 
signalling possible breaches of EU environmental law. 

As regards judicial control over State aid decisions, and provided they qualify as an interested 
party, third parties can bring a challenge directly before the General Court against a State aid 
decision  not  raising  objections,  with  a  view  to  triggering  a  formal  investigation  procedure. 
However,  as  regards  the  possibility  to  challenge  a  final  positive  decision  (i.e.,  the  type  of 
decision  which  the  ACCC  found  the  EU  to  be  in  breach  of  the  Aarhus  Convention),  the 
conditions  for  admissibility  are  detached  from  the  notion  of  interested  party20  and  the  so-
called Plaumann test of ‘individual concern’ applies in full21. In that context, the possibility 

16  SA.34947  (2013/C)  (ex  2013/N).  Article  107(3)(c)  concerns  ‘aid  to  facilitate  the  development  of  certain 
economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to 
an extent contrary to the common interest’. 
17 According to Article 1(h) of the Procedural Regulation, ‘interested party’ means any Member State and any 
person, undertaking or association of undertakings whose  interests might be affected by the granting of aid, in 
particular the beneficiary of the aid, competing undertakings and trade associations. 
18 Article 6(1) of the Procedural Regulation, Article 24(1) of the Procedural Regulation. 
19 Article 12(1) of the Procedural Regulation, Article 24(2) of the Procedural Regulation.  
20  In  addition,  the  participation  of  the  applicant  as  an  interested  party  in  the  formal  procedure  leading  to  the 
adoption of the challenged decision has no bearing, on its own, on the admissibility of the action: case T-236/10, 
paragraph 44. See also case T-764/15, Deutsche Lufthansa, paragraph 100. 
21 Case 25/62,  Plaumann v Commission: ‘Persons other than those to  whom a  decision is addressed  may only 
claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar 
to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of 
these factors distinguishes them individually just as in the case of the person addressed.’ 

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for  an  association  to  argue  it  has  locus  standi  based  on  an  interest  of  its  own  is  construed 
narrowly 

Third  parties,  including  environmental  NGOs,  can  challenge  the  legality  of  EU  State  aid 
decisions before national courts if they have standing under national law22. In particular, and 
in  accordance  with  national  procedural  rules,  they  can  make  the  argument  that  the 
Commission  State  aid  decision,  which  is  a  necessary  precondition  for  the  national  act 
conferring  the  advantage,  is  illegal23.  As  a  result,  the  national  courts  may,  following  a 
preliminary reference to the Court of Justice, ask the Court to declare the Commission State 
aid decision invalid24.  

The  Commission  considers  that  national  authorities  and  courts  play  a  particularly  important 
role  in  ensuring  access  to  justice  in State  aid  decisions.  Member  States  decide  when  and  to 
whom they grant State aid. Access to justice in Member States therefore remains an important 
element  of  the  architecture  under  the  Aarhus  Convention,  and  an  internal  review  by  the 
Commission cannot replace that. 

As  set  out  in  the  Commission  Communication  on  improving  access  to  justice  in 
environmental  matters  in  the  EU  and  its  Member  States25,  it  is  crucial  for  many  Member 
States to take further action to improve compliance with the Aarhus Convention. Weaknesses 
and  obstacles  for  NGOs  at  national  level,  including  insufficient  standing  and  high  litigation 
costs, partly explain the push to add new requirements at the EU level. Without affecting its 
work to address the findings of the ACCC, the Commission is conducting a further study on 
this  matter,  with  the  title  ‘Collecting  and  updating  information  on  public  participation  and 
access  to  justice in  environmental matters in  the EU Member States  in  case  Member  States 
adopt decisions on state aid’. The study is assessing whether projects in receipt of State aid 
can be challenged effectively by NGOs at the Member State level in cases of alleged breaches 
of EU environmental law. As the study addresses issues at national level, its findings will be 
complementary, and not an alternative solution, to address the compliance issues identified by 
the ACCC at EU level. 

4. 

CONSULTATION PROCESS 

4.1 Object of the consultation 

On 13 July 2022, the Commission published on the ‘Have your say’ portal a call for evidence 
and  an  online  public  consultation.  The  deadline  to  reply  was  set  for  5 October 2022.  On 
9 September 2022,  the  Commission  organised  a  virtual  meeting  open  to  all  interested 
stakeholders (e.g. environmental NGOs, academics, law firms, public authorities)26, followed 

22 Case C-212/19, Compagnie des pêches de Saint-Malo. 
23 Order in Case C-640/16 P Greenpeace Energy v Commission, paragraphs 60-61. 
24 Idem. See also para. 27 of the Commission Enforcement Notice Communication from the Commission Notice 
on the enforcement of State aid rules by national courts 2021/C 305/01 C/2021/5372, OJ C 305, 30.7.2021, pp. 
1–28. 
25 COM (2020) 643 final. 
26 For details from the meeting, see minutes Circabc (europa.eu). 

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by  an  ad  hoc  joint  meeting  between  Member  State  experts  from  the  competition/State  aid 
policy area and the Aarhus Expert Group on 12 September 202227.  

The Commission consulted the public and stakeholders on three scenarios (‘Options’), as well 
as the possibility to identify a fourth scenario ‘Other’ (including maintaining the status quo). 
All three Options on which the public was consulted included the possibility for the public to 
challenge Commission decisions, while Options 2 and 3 were framed taking into account the 
specificities of State aid control. 

-  Option  1:  Amending  the  Aarhus  Regulation  to  include  State  aid  decisions  within  its 
scope.  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.  

-  Option  2:  Amending  the  Best  Practices  Code  (BPC)  for  the  conduct  of  State  aid 
control  procedures28  to  introduce  an  internal  review  mechanism  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  with  the  Aarhus  Regulation29).  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  it  turned  out  to  be 
based  on  incorrect  information  from  the  Member  States.  Option  2  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. 

-  Option  3:  Amending  the  Procedural  Regulation  to  introduce  an  internal  review 
mechanism  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 
Commission30. 

27 For details from the meeting, see minutes Register of Commission expert groups and other similar entities 
(europa.eu) 
28  The  Best  Practice  Code  is  a  Commission  Communication  providing  guidance  to  the  Member  States,  aid 
beneficiaries  and  other  stakeholders  on  how  State  aid  procedures  work  in  practice.  It  aims  to  make  State  aid 
procedures  as  transparent,  simple,  clear,  predictable,  and  timely  as  possible,  while  also  improving  procedures 
where appropriate. 
29 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. 
30  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.   

9 

 
 
 
 
 
                                                           
Considerations  referred  to  under  3.2  as  regards  limitations  on  the  scope  of  decisions  to  be 
reviewed, by type or legal basis, are potentially relevant for all three options identified above, 
therefore also including Option 1. 

4.2. Results of the consultation process  

The call for evidence and the online public consultation generated limited – albeit informative 
– feedback from stakeholders31. The consultation has revealed that opinions are divided into 
two main groups. Nearly all environmental NGOs and most public authorities responsible for 
environmental protection preferred Option 1, an amendment of the Aarhus Regulation. On the 
other  hand,  most  public  authorities  responsible  for  State  aid  as  well  as  most 
companies/business  associations  preferred  to  maintain  the  status  quo.  Public  authorities 
responsible for State aid accounted for the largest number of respondents, followed by NGOs, 
businesses, companies, and other respondents (citizens, lawyers).  

Those favouring Option 1 emphasised the importance of providing sufficient access to justice 
in  environmental  matters  for  all  types  of  State  aid  decisions  and  ensuring  compliance  with 
international  commitments  under  the  Aarhus  Convention.  According  to  them,  the  EU  must 
address  the  findings  and  recommendations  of  the  ACCC.  Compliance  with  the  EU’s 
international  obligations  under  the  Aarhus  Convention  was  also  highlighted  by  the  few 
Member  States  providing  a  consolidated  position  drafted  by  both  their  environmental  and 
State aid  authorities.  The same Member States  said that the State  aid  process  should not  be 
delayed, and that due regard should be paid to legal certainty and legitimate expectations for 
State aid beneficiaries and Member States.  

Furthermore,  most  of  the  stakeholders  with  a  preference  for  Option  1  emphasised  that  this 
option  would  have  the  advantage  of  applying  to  State  aid  an  existing  regime,  thereby 
ensuring, in their view, coherence and consistency between all areas of EU law by including 
them  all  in  the  Aarhus  Regulation.  Environmental  NGOs  also  criticised  Option  2 
(Amendment of the Best Practices Code) because in their view such an instrument would not 
create new legal rights for environmental NGOs and would not sufficiently guarantee that the 
Commission’s reply could then be challenged before the General Court, as would be required 
under  the  Aarhus  Convention.  Instead,  their  view  was  that  the  Code  merely  describes 
Commission practices.  

On  the  other  hand,  most  public  authorities  responsible  for  State  aid  as  well  as  all  business 
stakeholders  and  business  associations  expressed  significant  concerns  about  adding  further 
procedures  or  administrative  layers  to  the  already  complex  State  aid  process.  Most  of  these 
stakeholders  indicated  that  their  preferred  option  was  to  maintain  the  status  quo,  with  no 
consequences  for  the  State  aid  procedure.  In  their  view,  Option  1  (amending  the  Aarhus 
Regulation) risks ‘crowding out’ investments by delaying the moment at which the State aid 
decision  becomes  definitive.  This  could  discourage  much-needed  private  investment  for  the 

31  There  were  19  replies  to  the  call  for  evidence,  and  49  to  the  online  public  consultation.  For  details,  see 
Commission Staff Working Document SWD(2023)307.  

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green transition of the EU economy. Other respondents from this group were of the view that 
such an extra layer of accountability  was not needed, in view of both: (i) the Commission’s 
obligation  to  ensure  compliance  of  the  aid  with  EU  environmental  law  as  a  matter  of 
consistency  with  other  areas  of  EU  law32;  and  (ii)  the  possibility  for  NGOs  to  challenge 
Member  State  decisions  to  grant  State  aid  at  the  national  level,  where  such  decisions  are 
taken. Some stakeholders argued that the Member States are also not obliged to implement the 
aid  even  if  authorised  by  the  Commission,  underlining  the  division  of  powers  between  the 
Commission  acting  as  a  ‘review  body’  and  the  Member  States  deciding  which  activities 
should be aided and eventually taking the decision to grant the aid.  

Most respondents in this group argued that, if the status quo cannot be maintained, the option 
to amend the BPC (Option 2) would be the most flexible solution, in which the specificities of 
State aid could be taken into account in a flexible way. The other possibility would consist in 
the  amendment  of  the  Procedural  Regulation.  Further  arguments  in  favour  of  Option  2 
included  that  the  amendment  of  the  BPC  would  be  easier  and  faster  to  implement.  These 
respondents  argued  that  the  Commission  would  keep  better  control  of  the  design  of  the 
existing review procedures, including by: (i) limiting the types of decisions subject to review; 
(ii) reducing the time window in which a decision can be appealed; and (iii) reducing the time 
spent  on  the  review  itself.  Those  respondents  viewed  these  aspects  as  essential  for 
safeguarding legal certainty and legitimate expectations for Member States and beneficiaries. 
Others arguing in favour of Option 3 as a ‘second best’ solution considered that amending the 
Procedural Regulation could offer similar advantages to Option 2 in terms of safeguarding the 
specificities  of  State  aid  control,  while  providing  more  legal  certainty  than  a  ‘soft  law’ 
instrument like the BPC.  

During  the  consultation  process,  few  stakeholders  identified  alternative  options  for  dealing 
with the findings of the ACCC. One option put forward was a suggestion to amend the scope 
of  the  definition  of  ‘interested  party’  in  the  Procedural  Regulation  to  specifically  include 
‘environmental  NGOs  and other members of the public’.  However, the  ACCC has  assessed 
this option and concluded that it would not be sufficient to meet the requirements of Article 
9(3) of the Aarhus Convention unless these interested parties were also clearly provided with 
the  right  to  challenge  the  decision  taken  by  the  Commission  as  a  result  of  the  formal 
investigation procedure.  

Furthermore, one Member State suggested that the Commission should set up an independent 
body that meets  the requirements of the Aarhus Convention.  However, the Commission  has 
concerns about the complexity of this arrangement and its added value compared with other 
options. In addition, this arrangement might also be difficult to reconcile with the existing role 
of the EU institutions, where the Commission has the power to enforce State aid control and 
supervise compliance with EU environmental legislation, as guardian of the Treaty and under 
the sole control of the EU Courts.  

32 See footnote 9 above. 

11 

 
 
                                                           
Finally, some stakeholders raised the idea that elements of certain options could be combined 
in a separate option.  

5. 

CONCLUSIONS 

The outcome of the consultation process strengthens the need for further careful assessment to 
find  an  optimal  solution  to  address  the  findings  of  the  ACCC  on  the  review  of  State  aid 
decisions in the light of the EU’s obligations under the Aarhus Convention while taking into 
account  the  specificities  of  State  aid.  The  stakeholders’  positions  are  divided  between  two 
sides. On one side, most State aid authorities and businesses call for the maintenance of the 
status quo (or alternatively favouring Option 2 as the most flexible approach that would make 
it  possible  to  preserve  the  specificities  of  State  aid  control).  On  the  other  side,  nearly  all 
environmental  NGOs  and  most  public  authorities  responsible  for  environmental  protection 
support Option 1, removing the exemption for State aid under the Aarhus Regulation. Some 
stakeholders underline the benefits of Option 3, as another legislative option.  

There  is  broad  consensus,  however,  that  the  EU  must  be  fully  compliant  with  the  Aarhus 
Convention. There is also a strong demand that any new review mechanism to ensure access 
to  administrative  or  judicial  review  must  preserve  the  specificities  of  State  aid  and  its 
effectiveness, including the speed of the EU procedures. 

The  Commission  concludes  that  ensuring  compliance  with  the  ACCC  findings  in  case 
ACCC/C/2015/128  requires  an  adjustment  to  the  existing  legal  framework  or  equivalent 
measure.  The  Commission  concludes  that  the  status  quo  would  raise  issues  of  compliance 
with  the  ACCC  findings,  taking  into  account  the  EU’s  obligations  under  the  Aarhus 
Convention.  

At this stage, the Commission is keeping all three options identified in the public consultation 
open and may also consider a combination of options. Finally, the Commission concludes that 
any  adjustment  of  the  existing  framework  should  be  designed  so  as  to  both  preserve  the 
efficiency of State aid control and complement in the most efficient manner the possibilities 
for  review  at  national  level,  while  simultaneously  taking  into  account  the  EU’s  obligations 
under the Aarhus Convention.  

As for the next steps, the Commission will analyse the impacts, including costs and benefits, 
of possible measures in an impact assessment according to the ‘better regulation’ rules. This 
would  include  scrutinising:  (i)  the  instrument  to  be  amended;  (ii)  the  scope  of  State  aid 
decisions subject to review; (iii) the duration of the procedures, in particular in cases where 
the implementation  of the State aid  decision is  urgent and (iv)  the resource implications for 
the EU institutions and bodies concerned. 

12