(fra kommisjonsforordningen)

(1) The Union is party to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’). The Aarhus Convention is implemented in the Union by Regulation (EC) No 1367/2006 of the European Parliament and of the Council (2).

(2) Article 2(2), point (a) of Regulation (EC) No 1367/2006 excludes administrative acts, within the meaning of Article 2(1), point (g), adopted by the Commission in the field of competition from the scope of Regulation (EC) No 1367/2006. Commission decisions on State aid concerned by the procedure laid down in Article 108(2) of the Treaty cannot be subject to a request for review by members of the public as provided by Article 10 of Regulation (EC) No 1367/2006.

(3) The Aarhus Convention Compliance Committee (the ‘ACCC’) in case ACCC/C/2015/128 (3), found the Union to be in breach of the Aarhus Convention for failing to provide members of the public access to administrative or judicial procedures to challenge decisions on State aid measures taken by the Commission pursuant to Article 108(2) of the Treaty which contravene Union law relating to the environment.

(4) The Union should take steps to address the findings of the ACCC by setting up an internal review mechanism. That mechanism should apply to State aid decisions closing the formal investigation procedure under Article 108(2) of the Treaty, adopted by the Commission pursuant to Article 9(3) and (4) of Regulation (EU) 2015/1589, having as legal basis Article 107(3), point (a), first part of point (b) (aid to promote the execution of an important project of common European interest), points (c), (d) and (e) of the Treaty, Article 93 of the Treaty, and Article 106(2) of the Treaty. In this context, the notifying Member State should confirm that neither the activity subject to State aid, nor any aspects of the notified State aid measure indissolubly linked to the object of the aid contravene Union environmental law (4). That confirmation should be given in the form set out in Part I, point 6.8 of Annex I to Commission Regulation (EC) No 794/2004 (5). If the State aid measure is contrary to Union law, and provided the relevant requirements set out in the case-law are met (6), the Commission cannot authorise the aid.

(5) In order to allow Member States to adapt to the new requirements stemming from this new internal review mechanism, the obligation for Member States to confirm in their notification the absence of a breach of Union environmental law should only apply as from two months following the publication of this Regulation in the Official Journal of the European Union.

(6) The arrangements for the internal review procedure are detailed in the Communication from the Commission concerning the Code of Best Practices for the conduct of State aid control procedures (7).

(7) In accordance with Article 4(1) of Regulation (EC) No 794/2004, an increase up to 20 % of the original budget of an aid scheme should not be considered as alteration of existing aid. In the interest of legal certainty, it is appropriate to clarify that Article 4(1) of that Regulation applies only to authorised aid schemes or aid schemes deemed compatible under Regulation (EU) No 651/2014 (8), since other types of existing aid, such as pre-accession aid, might not have an authorised original budget.

(8) The Commission should amend its notification forms, following the adoption of updated State aid regulations, guidelines and frameworks concerning regional aid (9), research, development and innovation (10), broadband (11), climate, environmental protection and energy (12), risk finance (13), aid for agriculture (14) and fisheries (15) as well as extending the State aid guidelines on aviation (16). Given those changes, the State aid notification form and information sheets set out in Regulation (EC) No 794/2004 should be amended to reflect the changes and to ensure that the Commission receives all the information it needs to carry out its assessment under the amended State aid rules.

(9) The Commission’s practice has evolved in terms of using electronic notification systems and annual reporting formats. Article 3(3) and Article 5(1) of Commission Regulation (EC) No 794/2004 should therefore be amended to ensure the Commission receives all the information it needs to carry out its assessment under the State aid rules.

(10) The Commission’s practice as regards reporting in the agriculture and fisheries sectors needs to be amended, in line with the general reporting rules. Member States should therefore submit their reports also in the agriculture and fisheries sectors in accordance with Annex III to Regulation (EC) No 794/2004, pursuant to Article 5(1) of that Regulation.

(11) The case law of the Union Courts has further clarified the notion of ‘interested party’ under Article 1, point (h), of Regulation (EU) 2015/1589 (17). The complaint form set out in Annex IV to Regulation (EC) No 794/2004 should therefore be amended.

(12) Regulation (EC) No 794/2004 should therefore be amended accordingly,