Views: 0
The European Commission has launched a consultation concerning the draft amendments to the State aid Implementing Regulation 794/2004 and to the State aid Best Practices Code (BPC) in preparation to new rules on access to environmental justice following the Aarhus Convention Compliance Committee’s findings revealed in several cases.
The draft Implementing regulation and the Best Practices Code’s amendments will set out a new mechanism which allows the member states and the public to request a Commission review of certain State aid decisions to establish whether they contravene the EU environmental law. In the amended BPC, the Commission sets out the arrangements for the internal review procedure: e.g. who can request the review, which decisions can be subject to the review, as well as the applicable deadlines.
The Commission also takes the opportunity of this revision to update other procedural rules in accordance with the Commission’s established practice and the EU Court’s case law.
Interested stakeholders can respond to the consultation until 21 March 2025; the proposals under consultation and all details about the consultation can be seen at:
https://competition-policy.ec.europa.eu/public-consultations/2025-state-aid-environmental-matters_en
Background
Present consultation follows up on the 2021 findings of the Aarhus Convention Compliance Committee concluding that the EU states are in breach of the Aarhus Convention, because the public cannot challenge State aid decisions adopted under Article 108(2) TFEU if these decisions allegedly breach EU environmental law.
In May 2023, the Commission adopted a Communication identifying options to follow up on the Aarhus Convention Compliance Committee’s findings with the aim of creating a new procedure. A call for evidence was launched by the Commission in May 2024, followed by a Targeted Consultation open from July 2024 to September 2024. The targeted consultation is addressed to: a) business community (undertakings, business associations and investors), and b) relevant public authorities dealing with State aid and environmental matters.
Under new procedure, eligible members of the public, such as environmental non-governmental organisations, would be able to ask the Commission for an internal review of a State aid decision for alleged violations of EU environmental law. The eligible applicants would have a right of redress before the EU Courts.
The new procedure will give due consideration to the special characteristics of State aid law and its effectiveness, including the speed of the EU procedures. It will consider the role that State aid plays for the European Green Deal, as well as for ensuring economic and financial stability for the internal market in times of crisis.
On targeted consultations in: https://competition-policy.ec.europa.eu/state-aid/publications/targeted-consultation_en
Aarhus Convention
The United Nations Economic Commission for Europe (UNECE) adopted in 2005 the convention on access to information, public participation in decision-making and access to justice in environmental matters.
It is the leading international agreement on “environmental democracy” which took place in Denmark, the city of Aarhus, hence the Aarhus Convention, to protects every person’s right to live in a healthy environment and it guarantees the public rights on information concerning environmental issues. All EU states are parties to the Aarhus Regulation: it means that all states, institutions and bodies are obliged to provide adequate information for public participation in preparing, modifying or reviewing plans and programs relating to the environment.
Access to information refers to the public’s right to receive environmental information held by public authorities. This includes information on: a) the state of the environment, b) policies or measures affecting the environment, and c) public health and safety where these are affected by the state of the environment.
Besides, the public participation refers to the public’s right to participate in environmental decision-making. Public authorities are required to allow the general public and environmental NGOs to meaningfully participate in decision-making regarding projects affecting the environment and plans and programmes relating to the environment.
Access to “environmental justice” refers to the public’s right to review by a court or another independent body to ensure that public authorities respect the rights to access to information and public participation, and environmental law in general.
Main objectives of the Aarhus Convention include the following points concerning environmental democracy: a) laying down a set of basic procedural rights for the public; b) imposing obligations on public authorities to make these rights effective; c) increasing transparency, and d) making governments more accountable to the people.
In October 2021, the EU adopted Regulation 2021/1767 that amended Regulation 1367/2006 to allow for better public scrutiny of EU acts affecting the environment by NGOs and other members of the public. The 2021 revision significantly increased the range of decisions that may be subject to internal review under the Regulation.
More on Regulation in: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R1767
More on Aarhus Convention in: https://environment.ec.europa.eu/law-and-governance/aarhus_en; the Convention regulates access to information, public participation in decision-making and access to justice in environmental matters. The text (adopted in February 2005) in: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32005D0370
Perspectives
In addition to the ongoing consultations, the draft amendments will be discussed at meetings between the Commission and the EU member states.
The adoption of the amended Implementing Regulation and BPC is planned for the second quarter of 2025. It will be accompanied by a Commission Staff Working Document assessing the scope, content and likely impacts of the new procedure.
Reference to: https://ec.europa.eu/commission/presscorner/detail/en/ip_25_440
Main EU laws on environmental guidance in: = Aarhus Convention (2005/370/EC), = Access to Environmental Information Directive (2003/4/EC), = Public Participation Directive 2003/35/EC, = Aarhus Regulation (Regulation 1367/2006) as amended by Regulation (EC) 2021/1767.
As well as related topics in the following Commission websites: = Environmental impact assessments, = Environmental crime, = Environmental liability, = Protecting journalists and human rights defenders in strategic lawsuits against public participation; = Industrial emissions, = Industrial accidents, = Water, Nature and biodiversity, = Waste and recycling, = INSPIRE, and = Green Data4All initiative.