A time when Europe is desperately trying to decouple itself from fossil fuel dependence, events are unfolding in the realm of State Aid that could pose a risk to rapid actions to put in place more sustainable alternatives. Few would have guessed that this situation would arise from a convention with environmental protection as its purpose.
What I’m talking about is the Aarhus convention - a completely reasonable UNECE convention that the EU has signed up to. The convention is meant to guarantee public access to information, participation in decision making and access to justice in environmental issues.
Currently, the European Commission is looking into the issue on how State Aid procedures can meet the requirements of the Aarhus convention. The reason for this is that the Aarhus Convention Compliance Committee (ACCC) found that - in case ACCC/C/2015/128 - the EU does not fulfil these requirements in State Aid procedures.
While one might, at first glance, question why State Aid should be given special treatment under the convention, there are good reasons for this. State Aid measures are, in themselves, not a physical activity and can thus never influence the environment. However, the economic activity that benefits from the State Aid may do so. If such an activity were to have an environmental effect of any sort, it would, however, need to undergo national permit processes; these in turn could be appealed in court by the public or, in reality more often by non-governmental organisations. The State Aid recipient has thus already had its activity tried and tested, meaning that another process at EU level would constitute double legislation.
So what is the solution? Perhaps one way to resolve this could be to complement the current State Aid notification processes. These could be made to include information on whether the beneficiary has already undergone national permit processes regarding its environmental impact, and whether the public have access to those processes and the opportunity to appeal the outcome. Thereby, the State Aid process will have built-in safeguards to ensure that the important principles in the convention are respected.
Otherwise, the risk is that we create double legislation, which could lead to the further postponement of important projects - in particular those for putting in place new fossil-free energy production. This is because there may be actors who want to take every opportunity to question the legal considerations that have been made. The establishment of both new hydroelectric as well as nuclear plants have been questioned. Further administrative and judicial appeals could see new facilities postponed for several years – a delay that we simply cannot afford in this time of crisis.
You can read our full response to the European Commission’s public consultation below.
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