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

Birgitte Jourdan-Andersen, Astrid Skjønborg Brunt

European State Aid Law Quarterly, Volume 21 (2022), Issue 3, Page 266 - 277

This article presents and analyses Taxonomy and the new State Aid Guidelines on Climate, Environmental Protection, and Energy (CEEAG), two regulatory regimes applicable for financing and support schemes for energy and climate projects. The article also addresses the necessary infrastructure development for delivering Europe's 2030 and 2050 climate targets, Europe's Green Deal, where both private and public funding are required. The EU Taxonomy is a transparency tool and a classification system to propel sustainable private investments. CEEAG are key for establishing the required public funding and support schemes. CEEAG oblige the Commission and the EFTA Surveillance Authority (ESA) to pay particular attention to the Taxonomy. Not only will the private capital have to ‘tune in’ to the Taxonomy, but all public support will also have to be assessed in line with the Taxonomy screening criteria. In analysing the CEEAG and the Taxonomy, it is argued that the novel CEEAG guidelines and Taxonomy legislation need to be viewed together and combined with the sectorial climate and energy legislation. It is argued that for any energy or climate initiative, it is essential to have regulatory oversight and not to overlook these two important pieces of legislation while approaching the massive climate and energy sectorial legislation from the EU. Where measures meet the Taxonomy requirements, the State aid assessment can be simplified. In balancing the positive and negative effects of the aid, the Commission will pay particular attention to compliance with the ‘do no significant harm' principle. Keywords: CEEAG; taxonomy; infrastructure; Green Transition; Green Deal; Fit for-55