This podcast focuses on the Commission’s state aid decision on the Belgian capacity mechanism from August 2021 and highlights the key legal aspects of the case. This case is a recent one in a long line of Commission’s state aid decisions on capacity mechanisms but it contains several novel features.

It involves an assessment of whether the capacity mechanism complies with the 2019 Electricity Regulation and illustrates how the European Commission conducts the balancing of the positive and negative assessments of a proposed measure in anticipation of the new state aid guidelines for climate, energy and environment (CEEAG) which came into force in January 2022. It is also the only case so far where the Commission deals with the complexities of avoiding so-called carbon lock-in effects.

In this podcast, Professors Kim Talus (Universities of Tulane, Eastern Finland and Helsinki), Dirk Buschle (Energy Community Secretariat, College of Europe), and Leigh Hancher (FSR, Tilburg University, and Baker Botts LLP) discuss the impact that the CJEU’s recent recognition of energy solidarity as a justiciable principle of EU law will have on the future of EU energy law and policy.

This podcast episode discusses the European Commission’s State aid decision to open a formal investigation procedure with regards to the German lignite phase-out plans, which were passed with the coal phase-out law of 2020. The episode highlights the doubts expressed by the Commission in its opening decision and also touches upon possible additional doubts on some of the other assessment criteria that will have to be addressed by the Commission’s formal investigation. The podcast also touches upon the new section in the Commission’s draft Climate, Environmental and Energy Aid Guidelines, on aid for the early closure of coal plants and its provisions on compensation for such closure.

Podcast Series
“Energy Transition – the Commission’s State aid decisions on the Dutch and German coal phase-out laws”

This podcast episode discusses the European Commission’s State aid decision concerning Germany’s coal phase-out law of 2020, in particular its auction mechanism to compensate operators for hard coal closures. The episode highlights some criticalities in the decision and also touches upon the outcome of the first two auction rounds.

Podcast Series
“Energy Transition – the Commission’s State aid decisions on the Dutch and German coal phase-out laws”

This podcast episode addresses the European Commission’s State aid decision regarding the Dutch coal phase-out law passed in 2019. Starting with the landmark Urgenda judgment in the background of the Dutch coal phase-out law, it discusses the details of the Commission’s decision concerning the compensation granted by The Netherlands to Vattenfall for the early closure of its Hemweg plant.

In its Order on 20 May 2020 the General Court in Nord Stream 2 v Parliament and Council ruled the application inadmissible. The case raises some important questions as to the standing requirements for private persons directly challenging EU acts before the EU courts.

It appears that the main reason for refusal to grant the appellant standing to directly challenge the amendments to the 2009 Gas Market Directive stems from the fact that the EU act under challenge is a Directive that requires implementation at national level. This in turn, according to the General Court, implies that there is no ‘direct concern’.

Nord Stream 2 v Parliament and Council is a case that turns largely on its facts and it may be that the General Court’s approach does not take this into consideration. This is a case where the intended effect of the amendment is to complicate one project, Nord Stream 2, and leave other comparable import pipelines unaffected.

This podcast will examine the Order of the General Court and provide certain degree of criticism to the approach taken by the Court. The podcast is based on an OGEL article that is available here:

https://www.ogel.org/journal-advance-publication-article.asp?key=678

In this podcast with Christopher Bremme (Linklaters, Berlin) and Julia Sack (Linklaters, Berlin), we focus on the increasing role of foreign investment controls in the EU with the so-called Screening Regulation, which came into effect in October 2020, and the impact of these mechanisms on the energy sector, particularly as it relates to Germany.

This podcast focuses on the latest developments in Case C-594/18 P: Austria v European Commission, a long-running legal saga surrounding the development of a new nuclear power plant at Hinkley Point in the UK, which sheds light on EU state aid rules and the interaction between the Euratom Treaty and the TFEU. As the Euratom Treaty does not contain state aid rules, to what extent do the principles of the TFEU apply when it comes to determining the compatibility of state aid to the nuclear sector?

In 2014, the EC approved the UK’s plans to give state aid to support the construction of two EPR reactor units at Hinkley Point C, deeming it compatible with EU state aid guidelines, and thus the internal market. The basis of their approval was Art 107(3)(c) TFEU. The project, a joint venture between EDF and CGN, would be the first new nuclear power station in the UK in almost 20 years, and account for roughly 7% of the UK’s electricity supply. In the rare move of one MS challenging a state aid decision for another, Austria launched an appeal to this decision in 2015 on the basis that approval of the scheme contradicted the EU policy to support renewable energy. The case divided Member States. In July 2018, the GC dismissed the action on the basis that there was no need to establish an EU-wide objective of common interest for the project or, surprisingly, to establish that the aid is there to correct a market failure. Furthermore, it was found that the ET principles are separate from those of the TFEU/TEU, and thus the principles on the protection of the environment do not apply. Austria appealed the decision.

In a non-binding opinion of 7 May 2020, AG Gerard Hogan suggested EU judges should dismiss the appeal. He argued that Art 107(3)(c) TFEU does not predicate the compatibility of state aid upon it serving a ‘public’ or ‘common’ interest objective. Rather, compatibility need only be determined according to the potential of the aid to distort competition or trade. By accepting the objectives of the ET, all MS have “clearly signified their unqualified acceptance in principle of the right of other Member States to develop nuclear power plants in their own territories should they wish to do so.” He also noted that EU law (via Art 194 TFEU) has given each MS the right to determine its own energy mix. Ultimately, according to Hogan’s interpretation, compatibility cannot be used as an instrument to effect positive integration.

In the subsequent ruling of 22 Sept 2020, the Court dismissed Austria’s appeal and confirmed that the construction of the power plant may benefit from state aid, as originally approved by the EC pursuant to Art 107(3)(c) TFEU and in line with AG Hogan’s opinion. The Court confirmed that in the absence of specific state aid rules in the ET, the state aid rules of the TFEU are applicable to the nuclear energy sector. The Court concluded that the compatibility of aid is not dependent on the pursuit of a ‘common interest.’ The existence of a market failure may therefore be a factor in declaring aid compatible, but it is not a requisite for compatibility, according to the conditions laid out in Art 107(3)(c). Significantly, contrary to the GC’s findings, the new ruling held that state aid for an economic activity, which contravenes environmental rules, cannot be declared compatible with the internal market. The same is true for the provisions of secondary EU law on the environment. However, in the same ruling, the Court noted that the EC is required to take into account the negative effects of the state aid on competition and trade between MS only, and concludes that the GC in its earlier ruling was correct in the interpretation that the EC did not have to take into account the negatives effects of the measures on the environmental principles. How does this tally? What can be deducted from this split conclusion with respect to environmental protection principles?

In this podcast, Leigh Hancher discusses the recent non-binding opinion (http://curia.europa.eu/juris/documents.jsf?num=C-594/18) of Gerard Hogan, Advocate General of the European Court of Justice, with regard to a decision on state aid to the nuclear power plant Hinkley Point C in the UK. In Hogan’s opinion, EU judges should dismiss an appeal by Austria aimed at overturning the approval of UK state aid to support the construction of the nuclear plant. Hogan stated, “it is clear that the development of nuclear power is, as reflected in the Euratom Treaty, a clearly defined objective of EU law”.
In 2014, after several agreed changes to the plans, the European Commission approved the UK’s plans to give state aid to support the construction of two EPR reactor units at Hinkley Point C, deeming it compatible with EU state aid guidelines and thus the internal market. At the time, it was considered by the Commission that the aid was justified as there was a “lack of market-based financial instruments and other contracts to hedge against the substantial investment risks in the project”. The project is a joint venture between EDF and China General Nuclear Power Corporation, with the latter holding a 33.5% stake. The planned plant, which would be the first new nuclear power station to be built in the UK in almost twenty years, would account for approximately 7% of the UK’s electricity supply.

Austria first launched an appeal to this decision in 2015 on the basis that approval of the scheme contradicted EU policy to support renewable energy. The then Austrian chancellor Werner Faymann argued that nuclear power “is not an innovative technology and is therefore not worthy of a subsidy”. He added that “[State] aid is there to support new and modern technologies that are in the general interest of all EU countries. This is in no way true of nuclear power.” The case divided Member States. In the course of proceedings, Luxembourg intervened in support of Austria while France, Poland, Czechia, Hungary, Romania, Slovakia and the UK intervened in support of the Commission.
In July 2018, the General Court dismissed the action brought by Austria. However, in September 2018, Austria appealed against the decision before the European Court of Justice. In his opinion of 7 May 2020, Hogan stated that, by accepting the objectives of the Euratom Treaty, all Member States have “clearly signified their unqualified acceptance in principle of the right of other Member States to develop nuclear power plants in their own territories should they wish to do so.” He also notes that EU law (according to Art 194 TFEU) has given each Member State the right to determine its own energy mix.
Hogan comments that, according to its wording and the position of the provision in the TFEU, aid, in order to be compatible with the Treaty, neither has to pursue an ‘objective of common interest’ nor an ‘objective of public interest’. It only has to ‘facilitate the development of certain economic activities’ and it must not ‘adversely affect trading conditions to an extent contrary to the common interest.’
As Hogan noted, “This case can be described as the legal side of a dispute between Member States that are in favour of nuclear power and those that are not. Both sides claim that they pursue their course with a view to protecting the environment”.

While a decision on this appeal is still pending, Hogan’s opinion will be taken into account when the European Court ultimately rules on Austria’s appeal. In the podcast, Leigh Hancher shares her thoughts on the opinion.

In this podcast, Professor Leigh Hancher discusses the Baltic Cable case, a case centred on a power line which interconnects the electric power grids of Germany and Sweden, and weighs the implications of this case for cross-border interconnectors in the EU as well as its wider significance for EU energy law.

In this podcast, Clemens Ziegler (Ziegler State Aid AntiTrust SRL) discusses the EU Commission’s emergency state aid rules, which were announced on 19 March 2020 in response to the COVID-19 crisis. What do these temporary rules allow? And what may be the implications of relaxing some of the EU state aid controls, especially for the energy sector?

In this podcast, Professor Kim Talus from Tulane University discusses the latest controversies surrounding the OPAL gas pipeline, which links the Nordstream gas pipeline to Eastern Europe, and the implications of the recent judgment from the European Court of Justice for the interpretation and application of EU energy law. On 10 Sept 2019, the General Court of the ECJ annulled an earlier Commission decision to modify the exemption of the OPAL pipeline, by drawing on the principle of energy solidarity introduced by the Lisbon Treaty, as laid down in Article 194 of the Treaty on the Functioning of the EU. In this podcast, Professor Talus gives a brief overview of the case, discusses the salient features of the judgment, particularly the meaning of the principle of solidarity, and reflects on the consequences of such an interpretation.