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THE EUROPEAN COURT OF JUSTICE REJECTS AUSTRIA’S CHALLENGE TO HINKLEY POINT C

The Austrian Government’s challenge to the EC’s approval of state aid to support the development of the nuclear power station at Hinkley Point in the UK was last week rejected by the ECJ.

Austria and Nuclear Energy

Despite being home to the International Atomic Energy Agency (IAEA), an international organisation which “seeks to promote the safe, secure and peaceful use of nuclear technologies“, Austria has a strong anti-nuclear policy that stems from the country’s venture into nuclear energy in the 1970’s. A 700 MW(e) NPP was constructed at Zwentdorf and completed in 1978, but never commissioned. Despite the then government being in favour of nuclear power, there were many large anti-nuclear demonstrations which led to a 20-year ban on nuclear energy in the country; in 1997 this ban was extended indefinitely.

Not only does Austria’s anti-nuclear policy apply to its own generation of electricity, but also to electricity bought from other countries – in 2015 it passed a law banning the importation of nuclear generated electricity (insofar as it is possible to differentiate between the two when drawing from the grid in real time).

Neighbouring Countries:

Austria also has a history of trying to stop the development of nuclear power in neighbouring countries, having previously raised objections to the Temelin NPP in the Czech Republic and Mochovce NPP in Slovakia. In February 2018, Austria launched a lawsuit against the European Commission (EC) for its approval of Hungarian state subsidies for the construction of two reactors at the Paks nuclear site in Hungary – the outcome of this is awaited.

Austria’s concern about Temelin caused IAEA Director General, Mohammed ElBaradei to comment in 2007:

six out of seven of Austria’s neighbour countries have nuclear power plants. I would advise the Austrians not to concentrate on the fact that power plants exist, but rather on their safety”, and;

ultimately, it makes no difference whether the nuclear power plants are in Austria or on its borders. We at the IAEA ensure that the best possible safety standards are applied. I want to guarantee to all Austrians that the reactors surrounding Austria have nothing to do with Chernobyl. Of course, there can never be a 100% guarantee. It is just like flying: very safe, but with a residual risk. But I am not in the least concerned about Temelin. I can say that with a clear conscience, since I too live here in Austria”.

Hinkley Point C:

But Austria takes an anti-nuclear stance beyond its neighbours. In October 2014 it brought a case against the EC for its approval of the UK government’s state aid for Hinkley Point C, which the Commission argued was compatible with the internal market and that the construction of the plant was in the British public’s interest.

Hinkley Point C comprises two 1600 MW(e) EPR reactors and is being constructed by EDF Energy’s subsidiary NNB Generation next to the shutdown Hinkley Point A and operating Hinkley Point B stations in Somerset.

Austria sought to challenge the EC’s decision through the filing of a lawsuit with the European Court in July 2015, supported by Luxembourg. On the other side, the UK, Czech Republic, France, Hungary, Poland, Romania and Slovakia supported the EC’s case. The challenge drew the wrath of Agneta Rising, Director General of the World Nuclear Association, who said in a statement issued at the time:

It is one thing to have an opinion, it is quite another to try and force your opinion on someone else. The UK public, indeed people in all countries, have the right to choose nuclear to meet their energy needs and to help address climate concerns if they so wish. It is a pity that the Austrian government has decided not to respect that right”.

Ruling against Austria:

In its ruling of 12 July, the European Union’s General Court stated:

the Commission did not err in taking the view that the UK was entitled to define the development of nuclear energy as being a public-interest objective, even though that objective is not shared by all of the Member States“.

 It added that “the objective of promoting nuclear power, and, more specifically, of promoting the creation of new nuclear energy production capacities, is related to the Euratom Community’s goal of facilitating investment in the nuclear field“. It also said that each Member State has the right to choose from among the different energy sources those which it prefers.

The court also said that Austria had failed to invalidate the EC’s findings that it was “unrealistic” to expect a comparable amount of wind generating capacity could be built over the same timeframe as constructing Hinkley Point C “given the intermittent nature of that source of renewable energy“.

Austria can appeal to the European Court of Justice within the next two months.

Although Austria does not have an operating commercial NPP, it does have TRIGA research reactor at the Atominstitut (ATI) in Vienna. It is therefore by definition a generator of radioactive waste, and under the requirements of the EU’s radioactive waste Directive should have a long-term policy for dealing with it. It is a signatory to the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, and a signatory to the Convention on Nuclear Safety.

Conclusion

So Austria does take its nuclear responsibilities seriously and has declared its international commitment to improving nuclear safety, for example as reflected in its latest report to the Convention on Nuclear Safety saying that it “attaches utmost importance to international efforts to harmonise and steadily increase nuclear safety”.

Regarding its relationship with the IAEA however, the Austrian government saysAustria’s interests regarding the IAEA are primarily nuclear safety and radiation protection as well as safeguards against the proliferation of nuclear weapons. Austria ascribes considerable importance to the Convention on Nuclear Safety, and expressly supports the Agency’s integrated monitoring system”.

At first sight, Austria appears to be a thorn in the side of the nuclear industry, bringing challenge after challenge to nuclear developments throughout Europe. However, each of these challenges has been dealt with robustly and summarily dismissed. Should Austria stop its opposition to nuclear?  Perhaps ironically for Austria its challenges to date have had positive outcomes for the industry, but one could argue that its stance has the benefit of allowing arguments for and against to be discussed.

About the Author:

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector.

The firm is made up of lawyers, engineers, surveyors and finance experts. This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

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