New mechanism for reviewing State aid for access to environmental justice
On 12 May 2025, the European Commission adopted a reform of the rules on State aid to strengthen public access to justice in environmental matters. This reform, in response to the conclusions of the Aarhus Convention Compliance Committee, introduces a new mechanism allowing non-governmental organisations (NGOs) to request the Commission to review certain State aid decisions that may violate EU environmental law.
As part of this reform, the Commission has amended Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty and the State aid Best Practices Code. It aims to fill the legal gap identified by the Aarhus Convention Compliance Committee in 2021 by providing NGOs with effective remedies against decisions that may harm the environment, while strengthening transparency and accountability in the allocation of public funding. The Compliance Committee had criticised the EU for not having a mechanism allowing the public to challenge decisions that could violate European environmental laws.
The creation of a review mechanism
In order to address the issues raised by the aforementioned Compliance Committee, on 17 May 2023 the European Commission published a communication presenting various options for establishing a new review procedure. It then launched a call for evidence in May 2024, followed by several consultations to gather the views of a wide range of stakeholders on its proposed amendments.
The new mechanism provided for by the Commission allows environmental NGOs to request the European Commission to review certain final decisions on State aid adopted following the formal investigation procedure provided for in Article 108(2) TFEU. In this regard, it is worth recalling that, under this procedure, any interested third party may submit comments following the publication (in the Official Journal of the EU) of the Commission’s decision to open the procedure.
These decisions may be positive (measure deemed compatible with the internal market) or conditional (compatibility subject to certain conditions).
A review may be requested on any grounds of compatibility recognised by the TFEU in the context of the authorisation of State aid. However, certain decisions are excluded from a review, namely those based on:
- Article 107(2) TFEU, which concerns social aid to individual consumers and aid for natural disasters or exceptional occurrences;
- Article 107(3)(b) TFEU, in the case of aid to remedy a serious disruption in the economy of a Member State.
It should be noted that applicants may challenge the Commission’s response before the Court of Justice of the European Union.
Eligible applicants
Any NGO that meets a set of criteria may submit a request for review. It must be independent and non-profit-making, carry out an activity directly related to the subject matter of the request, and have proven experience in the field of the environment.
In addition, the NGO must demonstrate that the activity receiving the aid or an aspect of the approved aid measure infringes one or more EU environmental standards. This infringement must be ‘indissolubly linked’ to the objective of the aid, i.e. it must have a direct link to the environmental infringements alleged.
Deadlines and entry into force
NGOs have eight weeks from the publication of the final decision approving the State aid in question in the Official Journal of the EU to submit their request for review using a specific form.
After such a request has been submitted, the European Commission has 16 weeks to respond, which may be extended to 22 weeks in justified cases, in particular if the request raises complex issues that require more thorough analysis.
All requests and responses from the Commission are published on a dedicated website, ensuring transparency and accessibility.
This new mechanism will enter into force two months after the publication of the amendments to the implementing regulation in the Official Journal, i.e. on 15 August 2025.
New obligations
Member States must now certify in the form, when notifying aid, that neither the activity supported nor the aid measure itself infringes EU environmental law.
This requirement will strengthen ex ante control of public funding for projects that comply with EU environmental standards.
Next steps
In the fourth quarter of 2025, the Commission will publish guidance on its website on the concept of indissoluble link an essential criterion for demonstrating a breach of EU environmental law in State aid proceedings.
CMS has the widest coverage and largest team of State aid specialists in Europe. In addition, we have extensive experience in setting up aid schemes and support measures for individual projects.
Please feel free to consult our brochure to find the CMS contact in your jurisdiction.
Below is a link to the CMS expert guide on State aid:
