Sebastian J Kasper

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 251 - 265

Climate change has become one of the critical matters of European Union (EU) Law. Hence, the EU Member States are about to transform their respective energy supplies from mainly fossil fuels to climate-neutral sources. This transformation process requires time, as the security of energy supply must be ensured (see Article 194(1)(b) of the Treaty on the Functioning of the European Union). An approach favoured mainly by France and argued by several parties across Europe is to rely heavily on nuclear power and to invest in (new) nuclear reactors until 2050. Against this background, the question arises whether the EU Member States can support the transformation process by granting State aid for nuclear power plants despite the commonly known risks. Since the European Commission’s recently published Guidelines on State aid for climate, environmental protection and energy 2022 exclude nuclear energy from its scope, a broader review of the European Treaties, including the Euratom Treaty, as well as secondary and tertiary instruments, must be conducted to answer this question. Considering that nuclear energy has, following the Joint Research Centre’s risk assessment, recently been included in the Taxonomy Regulation for a transitionary period, granting State aid for nuclear reactors is likely to be still compatible with EU law upon the European Commission’s discretion, but not for long. Keywords: nuclear power; Taxonomy Regulation; Hinkley Point C; environmental protection; Euratom Treaty

Wolfgang Weiß, Eva Rom

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 368 - 383

The Union legislator has recently amended the Aarhus Regulation with the aim of bringing it more in line with the requirements the Aarhus Convention lays down. EU State aid decisions, however, remain excluded from its scope. This exclusion raises questions that form the object of this contribution. The article argues that the arguments presented to justify the continued exclusion of State aid review are not convincing. By not complying with the recommendations of the ACCC, the EU is in clear violation of international law. Therefore, the article deliberates over the necessary changes and possible exemptions for a sound implementation of the Aarhus Convention against the procedural specificities of State aid review, considering also the Commission´s recently presented options, which contain a number of problematic aspects. Keywords: Aarhus Regulation; Aarhus Convention; Hinkley Point C; internal review; ACCC

Leigh Hancher, Antonios Bouchagiar

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 529 - 545

The judgment of the Court of Justice in the Hinkley case provides food for thought on several fundamental questions of EU State aid law. The present article discusses two of them. First, the authors analyse the role (if any) of objectives of common interest in the assessment of compatibility of aid under Article 107(3)(c) TFEU, as well as the manner in which the Commission should balance the positive against the negative effects of such aid. Second, the authors explore how strong the link of relevance should be between an aid measure and an alleged breach of other EU law (outside the field of State aid) for such a breach to affect the compatibility assessment of the aid. The authors analyse whether the Hinkley judgment has lowered the threshold for finding such a link in comparison to the previous case-law requiring an 'indissoluble link', which could have significant institutional implications. Keywords: Hinkley; objective of common interest; indissoluble link; energy Milestones Preview: this article is based on a chapter of the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Phedon Nicolaides

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 4 - 14

The article argues that the judgment of the Court of Justice in case C-594/18 P Austria v Commission, which appeared to limit the criteria that the Commission uses to determine the compatibility of State aid, may have a positive impact on State aid control if it makes the assessment of the Commission more transparent. There is a need for greater transparency in the ‘weighing’ of the positive and negative effects of State aid and the ‘balancing’ of those effects. The weighing and balancing of the effects of State aid are not easy tasks. But it will be necessary for the Commission to be more explicit about the model it relies on to conclude that aid is compatible or not. Keywords: Article 107(3)(c) TFEU; compatibility with internal market; common interest; affectation of trade; distortion of competition; Hinkley Point C

Wout De Cock

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 180 - 183

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 534 - 545