Article 37 - Environmental protection
Key facts of the case:
Appeal – State aid – Article 107(3)(c) TFEU – Articles 11 and 194 TFEU – Article 1, Article 2(c) and Article 106a(3) of the Euratom Treaty – Planned aid for Hinkley Point C nuclear power station (United Kingdom) – Decision declaring the aid compatible with the internal market – Objective of common interest – Environmental objectives of the European Union – Principle of protection of the environment, ‘polluter pays’ principle, precautionary principle and principle of sustainability – Determination of the economic activity concerned – Market failure – Proportionality of the aid – Operating or investment aid – Determination of the aid elements – Guarantee Notice.
Outcome of the case:
In these circumstances, I therefore propose that the Court should dismiss the appeal brought by the Republic of Austria in respect of the judgment of the General Court.
31) In the third part of its first plea in law, the Republic of Austria criticises the General Court’s reliance on Article 106a of the Euratom Treaty when it applied Article 107 TFEU, on the basis that the Euratom Treaty does not contain any rules dealing with State aid. Given that the General Court applied Article 107(3)(c) TFEU to a situation governed by the Euratom Treaty, it should also have taken into consideration other provisions of EU law outside the Euratom Treaty. The provisions in question are those on the protection of the environment — which encompasses the protection of health — namely Article 37 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 11 TFEU and, more specifically, ‘in the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment … [the promotion] of energy efficiency and energy saving and the development of new and renewable forms of energy’, as specifically singled out as aims of the Union policy on energy in Article 194(1)(c) TFEU. It also points to the fact that the General Court did not take those objectives into account, something which it maintains runs counter to the precautionary principle, the ‘polluter pays’ principle and the principle of sustainability. In that respect, the Republic of Austria challenges paragraph 516 of the judgment under appeal.
39) The Republic of Austria seems to accept this. It maintains, however, that if one accepts that the rules on State aid — which pursue the TFEU objective of achieving/maintaining undistorted competition — can be applied in the field of nuclear energy, then other Treaty objectives, like environmental protection, the ‘polluter pays’ principle and Article 37 of the Charter (relating to environmental protection) must also be taken into account.
83) The Republic of Austria, on the other hand, argues that, if — in spite of Article 106a(3) of the Euratom Treaty — one applies Article 107 TFEU to nuclear power, one must also apply other principles of EU law, such as environmental protection requirements, which encompass the protection of health, referred to in Article 37 of the Charter and Article 11 TFEU. Furthermore, the Republic of Austria argues that Article 106a(3) of the Euratom Treaty should not be relied on to justify State aid because that provision primarily deals with conflicts regarding the legal basis for legislative action, a conflict which does not exist in the present case. Those arguments invite the following response.