Press release: 22 May 2023

Unlawful State aid remains “immune to challenge” by civil society – ClientEarth reacts

ClientEarth lawyers are deeply disappointed with the European Commission’s release of a “plan for a plan” to tackle its long-term breach of international access to justice laws.

Five months past the deadline, the Commission released a Communication last week that should have detailed how it would rapidly come into compliance with the Aarhus Convention – which the Convention’s compliance committee flagged the EU was flouting in 2021.

The Convention demands that NGOs and the public must be able to challenge environmental failings by authorities – including unlawful EU State aid decisions – in court. However, under current EU law, when it comes to State aid decisions, only businesses have the right to raise issues in court.

This is in breach of the UN’s Aarhus Convention, which is designed to ensure access to justice to protect the environment in signatory countries.

In 2021, the Aarhus Convention Compliance Committee (ACCC) called on the bloc to remedy this issue.

In a long-awaited Communication, due in 2022, the Commission was supposed to explain how it would resolve this issue. Instead, the Communication – published only last week – merely promises further analysis.

ClientEarth senior environmental democracy lawyer Juliette Delarue said:

“The Commission recognises that the EU needs to comply with the Aarhus Convention – but months after deadline, it has released a plan for a plan. We are exactly where we were a year ago. Decisions that commit major sums to environmentally harmful companies and operations remain, to date, immune to challenge by the public.”

State aid – public subsidies and other financial advantages (such as tax rebates) granted by the EU Member States to businesses – must in principle be greenlighted by the European Commission. If proposed aid breaches EU environmental law, or would be granted to a business breaching it, the Commission legally cannot grant it – as ruled by the CJEU in 2020. However, sometimes unlawful aid slips through the cracks, meaning public money is channelled into businesses breaching environmental law. These financial boosts can total hundreds of billions of Euros across the bloc each year.

Delarue said: “NGOs and members of the public need to be able to go to court to take on unlawful decisions that undermine environmental protection, the level playing field between businesses and, ultimately, the EU Green Deal. This would prevent huge amounts of taxpayers’ money effectively being used to push EU environmental goals further away. But for now, these decisions remain immune to challenge by civil society – the ones paying those taxes.”

The next phase is for the Commission to analyse possible options to achieve compliance in an impact assessment. It has given no timeline for either this assessment, or any follow-up actions.

Delarue added:

“The reform of the Aarhus Regulation is the most logical solution to bring the EU in compliance with its international obligations. We are calling on the EU institutions to carry out this necessary reform ahead of the next Aarhus Convention Meeting of the Parties – it is essential for the EU to keep its environmental law leadership on the international scene.”


Notes to editors:

In October 2021, the EU Parliament gave its final approval to a landmark reform of EU access to justice laws – lifting the main barriers preventing NGOs and people from challenging environmental wrongdoings in court.

This followed a decade-long battle led by ClientEarth for more access to justice at EU level.

Unfortunately, the EU maintained an exclusion in the newly revised Aarhus Regulation preventing civil society from challenging EU Commission’s decisions authorising State aid that breaks environmental law.

This was despite the fact that earlier in 2021, the Aarhus Convention Compliance Committee (ACCC) found that the EU was breaching the Aarhus Convention for this lack of access to justice in EU State aid decisions. In a regrettable move, the EU insisted that the endorsement of these findings would be postponed to the following Meeting of the Parties – this is only the second time in the history of the Convention that ACCC findings are not endorsed right away, and it is the second time the EU is the driving force.

In July 2022, the Commission sent a plan of action to the ACCC stating that it would publish a Communication assessing its options before the end of the year. The Communication was instead published only on 17 May 2023.

The EU Council’s Working Party on International Environment Issues, which prepares EU positions for international negotiations related to environmental and climate change issues, will likely discuss this Communication at its next meeting on 1 June 2023. The Communication will also be sent to the European Parliament for consideration.

The next Meeting of the Parties to the Aarhus Convention, where the EU will be asked to report on its progress to implement the ACCC’s findings and their endorsement will be discussed again, will take place in 2025.

About ClientEarth

ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.