Advocate General’s Opinion resolves intra-Member State dispute concerning nuclear power in favour of UK Government

11/05/20

On 7 May 2020 Advocate General Hogan handed down his Opinion in Case C-592/18 P, Austria’s challenge to the European Commission’s Decision that the UK Government could lawfully grant State aid to support the construction of Hinkley Point C nuclear power station.

The outcome of this case is hotly anticipated and the Opinion does not disappoint. Two major themes emerge from the reasoning.

First, the Advocate General opens by describing the case as the “legal side of a dispute between Member States that are in favour of nuclear power and those that are not.” [1] The Opinion resolves that dispute decisively in favour of the freedom of Member States to pursue their own energy policies. In a clear articulation of judicial restraint, Advocate General Hogan states that the Court “quite obviously has neither the competence nor, just as importantly, the democratic legitimacy to rule on such issues” [42]

This logic runs through the opinion. When assessing the proportionality of the measure, the Advocate General concludes that the relevant market – for the purposes of that assessment – is the market in nuclear energy generation, not the market in electricity generation in general. That is consistent with his approach that the starting point must be the freedom of Member States, as set out in Article 194 TFEU, to choose their own energy mix (see by way of example [108]).

For that reason (and relying on the content of the Euratom Treaty), the Advocate General rejected Austria’s submission that nuclear power is “per se inconsistent with the environmental objectives of the TFEU” [40]. Member States are entitled to grant State aid to support the construction of nuclear power plants.

Second, and more importantly, the Opinion marks a significant departure in the field of State aid law concerning Article 107(3)(c). The Advocate General suggests that the Court should overturn the established case law of the General Court (and the practice of the Commission) that aid granted under Article 107(3)(c) must “pursue an objective in the common interest.”

In his view, no such requirement is set out on the face of the Treaty and the existing case law in this field is wrong. Aid granted under Article 107(3)(c) must only meet the requirements set out in the Treaty itself. In his view, the General Court went awry in Mediaset v Commission (2010) when it imposed that additional requirement. That judgment, and the subsequent cases are “not correct in law.” [58]

The Opinion is here.