Case: OCE-128262-B9G0Z2 and OCE-138020-L5T6K8
Dear EU Commission
Thank you for your letter dated 24 July 2023.
In this letter the Commission has refused to grant access to a set of documents concerning state aid investigations of Ireland’s proposed forestry programme. The refusal was based on a presumption of confidentiality of these records established in the case law and the lack of an overriding public interest in disclosure. Right to Know wishes to make a confirmatory application and sets out below the basis for this application.
As a preliminary matter, it seems that the state aid investigations have now concluded and the state aid proposed by Ireland to support its forestry programme has been granted. Therefore we would ask that the confirmatory application is considered in light of this development. Specifically the exception in Article 4(3) is no longer relevant. Second, the requested documents contain environmental information, therefore the confirmatory application must apply the provisions of Regulation 1049/2001 as modified by Regulation 1367/2006 (the Aarhus Regulation) and should be applied and interpreted in light of the Aarhus Convention.
Presumption of Confidentiality
In Right to Know’s view, the case law that has given rise to a presumption of confidentiality is not applicable in the instant case. All of the cases cited in the initial decision relate to non-environmental state aid decisions and did not take into account the application of the Aarhus Regulation. There is no basis indicated in the decision whereby a presumption of confidentiality of state aid files applies to state aid in the environmental field. In particular, state aid decisions come within the material scope of Article 9(3) of the Aarhus Convention as determined by the Aarhus Convention Compliance Committee in its decision on case ACCC/C/2015/128 which requires that there be administrative or judicial procedures which provide adequate and effective remedies to challenge such decisions. The case law of the Court of Justice has identified that Article 9(3) of the Aarhus Convention read in conjunction with and Article 47 of the Charter of Fundamental Rights of the European Union imposes obligations to ensure effective judicial protection of the rights conferred by EU law. Access to the file is an essential procedural safeguard in relation to access to justice. Therefore there can be no presumption of confidentiality. Nor is this a question of the rules on access to documents prevailing over the state aid rules as the initial decision asserts. The state aid rules are silent on access to documents and therefore the request should be handled entirely within the framework of Regulation 1049/2001 as applied by the Aarhus Regulation. Similarly the alleged misinterpretation or misrepresentation of the requested documents and the alleged external pressure are irrelevant and/or hypothetical. Similarly there is no suggestion that a Member State, which is subject to the Treaties and a duty of sincere cooperation would refuse to cooperate in a state aid file for fear of a possible third party access to the file.
Overriding public interest
There is a specific overriding public interest in this case due to the significant environmental impact in Ireland from the state forestry programme. As set out in some detail by Bird Watch Ireland, the previous programme failed to protect birds and appeared to be in breach of the Birds Directive and Habitats Directive. It is therefore very important that access is granted to the requested documents so that they can be scrutinized to ensure that the derogation granted to Ireland from the prohibition on state aid does not harm bird life. In addition a high degree of forestry in Ireland is concentrated on peat soils and there is a risk that draining these soils and or planting forestry will increase carbon emissions. There is therefore an overriding public interest relating to combatting climate change for access to these documents to check and ensure that the Commission has not granted a derogation from state aid prohibitions that will harm the climate and make it more difficult to mitigate climate change.
https://ireland.representation.ec.europa.eu/news-and-events/news/state-aid-commission-approves-eu308-million-irish-scheme-support-investments-afforestation-2023-08-02_enhttps://unece.org/sites/default/files/2021-10/ECE_MP.PP_C.1_2021_21_E.pdf Judgment of 8 November 2022, Case C-873/19, Deutsche Umwelthilfe, EU:C:2022:857, para 66 See by analogy Opinion of the Advocate General of 15 June 2023, Case C-330/22, Friends of the Irish Environment (Possibilités de pêche supérieures à zéro), EU:C:2023:487, para 48 to 59 and case law cited.https://birdwatchireland.ie/ireland-breached-eu-state-aid-conditions-of-forestry-programme-and-eu-environmental-law/https://birdwatchireland.ie/app/uploads/2022/12/BirdWatch-Ireland-Submission-to-Forest-Strategy-and-IFSIP-to-CION.pdf “The management of peatlands is a particular concern with respect to potential for loss of carbon. Peat extraction and change of use of drained peatland to grassland or forestry leads to high rates of carbon loss. In general, land management should aim to preserve or enhance areas that have active carbon uptake in soils and biomass, and reduce or eliminate areas that are a source of carbon emissions. Such altered practices also yield benefits for ecosystem services and biodiversity.” https://www.epa.ie/our-services/monitoring–assessment/climate-change/ghg/lulucf/
Link to request
AAIE 23 342