On 12 May 2025, the Commission adopted amendments to its state aid rules to provide for public access to justice in environmental matters in relation to EU state aid decisions.
NGOs that fulfil the eligibility criteria set out in paragraph 78 of the BPC will be able to submit requests for review of certain final state aid decisions. These eligibility criteria relate to the NGO's independence, non-profit nature and activity in relation to the request, and proven experience in the field of the environment.
Background
The EU and its member states are parties to the Aarhus Convention, an international agreement that guarantees the public's right to a healthy environment. The Convention guarantees three key rights:
- access to information;
- public participation in decision-making; and
- access to justice in environmental matters.
The EU has implemented the Convention's provisions on access to justice in environmental matters in relation to EU institutions and bodies through the Aarhus Regulation.
On 9 March 2015, the environmental NGO’s GLOBAL 2000 and OEKOBUERO-Alliance of the Austrian Environmental Movement submitted a communication to the Aarhus Compliance Committee alleging that the EU had failed to comply with Article 9(3) and (4) of the Convention on Access to Justice in relation to the EU Commissions decision to approve state aid for the Hinkley Point C nuclear power plant project (SA.34947).
In 2021, the Convention's Compliance Committee found that the EU had failed to comply with the Convention because the public had no possibility to challenge state aid decisions adopted under Article 108(2) TFEU where these decisions were alleged to be in breach of EU environmental law.
Following these findings, the EU Commission began analysing these implications, assessed the options available and stated that, if appropriate, it would present measures to address the issue by the end of 2023, taking into account the obligations of the EU and its member states under both the Convention and EU state aid law.
On 17 May 2023, the EU Commission adopted a Communication setting out options to follow up on the findings of the Convention Compliance Committee with the aim of creating a new procedure that would comply with the Convention.
On 30 May 2024, the Commission launched a call for evidence, followed by a targeted consultation until 6 September 2024. From 7 February to 21 March 2025, the Commission gathered the views of stakeholders on the proposed draft amendments to the State Aid Implementing Regulation (EC) No 794/2004 and the State Aid Best Practice Code (BPC).
Setting up the new review mechanism
Subject to review requests by eligible NGOs are final State aid decisions by the EU Commission closing the formal investigation procedure by either finding that
- a measure is compatible with the internal market (positive decision) or
- can be compatible under conditions (conditional decision).
Excluded from the right of NGOs to request a review are final decisions adopted under Article 107(2) TFEU (i.e. aid having a social character, granted to individual consumers and aid to make good the damage caused by natural disasters or exceptional occurrences) and Article 107(3)(b) TFEU as far as it concerns aid to remedy a serious disturbance in the economy of a member state.
To be successful, NGOs must demonstrate that the activity supported by the state aid, or one part of the state aid measure approved by the Commission decision that are inseparable from the objective of the aid (“indissolubly linked”) infringes one or more specific rules of EU environmental law.
The request must be submitted by means of a form within eight weeks of the publication of the state aid decision concerned in the Official Journal. The Commission will reply within 16 weeks from the end of the eight-week period. This period may be extended to 22 weeks in duly justified cases. The Commission will publish requests and replies on a dedicated website. Applicants can challenge the EU Commission's replies before the European Court of Justice.
Next steps
The mechanism will enter into force two weeks after the publication of the amendments to the Implementing Regulation in the Official Journal.
The EU Commission announced that it will publish guidance on the notion of “indissoluble link” on its website at the end of 2025.
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