EU Magistrate Rejects Challenge to Funding for UK Nuclear Plant

An advisory opinion for the European Court of Justice found that the production of nuclear energy falls within the economic interests of the EU.

The Hinkley Point C nuclear power station under construction in October 2017. (Photo via Nick Chipchase/Wikipedia Commons)

LUXEMBOURG (CN) — Austria’s attempt to stop a nuclear power plant in the United Kingdom should be thrown out, a magistrate for the European Union’s top court said Thursday.

The nonbinding advisory opinion from Advocate General Gerland Hogan is a blow to Austria’s crusade against nuclear power in the EU, recommending the European Court of Justice uphold a lower court decision to dismiss a complaint alleging unfair government funding of the Hinkley Point C nuclear power station near Somerset, England. 

Large antinuclear demonstrations in the 1970s have had a lasting legacy on Austria’s energy politics. Not only does the country ban nuclear plants within its borders, but a 2015 law also bans the import of electricity generated by nuclear power. Ironically, the International Atomic Energy Agency, which “seeks to promote the peaceful use of nuclear energy,” is headquartered in the Austrian capital city of Vienna. 

Political and economic connections between countries in the 27-member union don’t offer a mechanism for Austria to contest the building of a nuclear power plant in another EU country. Instead, Austria is challenging the European Commission’s approval of state aid for the Hinkley Point facility. 

In 2014, the European Commission, the EU’s executive body, approved a British plan to use taxpayer money to support the 19.6 billion pound ($24 million) project, which is a joint venture between the French power company EDF and China General Nuclear Power Corp. 

“After a thorough investigation, the commission can now conclude that the support is compatible with EU state aid rules,” then-European Commissioner for Competition Joaquín Almunia said when he announced the approval.

EU law generally prevents governments from subsidizing national private companies, but in this case the commission found there was a “lack of market-based financial instruments and other contracts to hedge against the substantial investment risks in the project.” 

“Subsidies are there to support modern technologies that lie in the general interest of all EU member states. This is not the case with nuclear power,” Austria’s then-Chancellor Werner Faymann said when bringing the initial complaint to the commission in 2015. 

Proposed by Westminster in 2010, the Hinkley Point nuclear station got its official go-ahead in 2016 with plans to come online in 2025, becoming the first new reactor construction in the U.K. in decades. Situated on the site of two other nuclear stations in southwest England, the station would provide 7% of the U.K.’s energy needs for 60 years, according to estimates from the government. 

Austria’s claim that “the construction of a new nuclear power station does not constitute an objective in the interest of the European Union” was rejected in 2018 by the European General Court, the EU’s lower court.

In Thursday’s advisory opinion for the Court of Justice, Hogan found that “the General Court did not err when it concluded that the production of nuclear energy was the relevant economic activity for the purposes of state aid rules.” 

On the same day in 1957 that the original seven members signed the Treaty Establishing the European Economic Community, creating the start of the European Union, they also signed the Treaty Establishing the European Atomic Energy Community, also known as the Euratom Treaty. 

The lesser-known treaty governs the development and distribution of nuclear energy and has subsequently been signed by every EU member state, including Austria.

“It is clear that the development of nuclear power is, as reflected in the Euratom Treaty, a clearly defined objective of EU law,” Hogan wrote.

The Court of Justice is not required to follow the advice in advisory opinions, but it does some 80% of the time. 

Hogan’s opinion also addressed the issue of Brexit. The U.K. formally left the EU at the start of this year but is still in the process of withdrawing.

“The judgment of this court will continue to have binding force in its entirety on and in the United Kingdom if it is handed down before the end of the transition period,” the magistrate wrote.

That transition period ends on Jan. 1, 2021. A ruling from the Luxembourg-based Court of Justice is expected later this year. 

Environmentalists in Austria stood by their opposition to the Hinkley Point project.

“Sinking endless amounts of tax money into the most uneconomical and dangerous form of electricity generation at any time on the basis of a parallel contract is obviously legally possible, but shows once again the urgent need to abolish this contract,” said Reinhard Uhrig of the Austrian environmental organization GLOBAL 2000. 

Austria has also lodged a separate complaint with the European Commission over approval of Hungarian state subsidies for the construction of two reactors at the Paks nuclear power plant. That project is located about 125 miles from the Austrian border. 

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