The nonbinding advisory opinion from advocate general Gerland Hogan recommended that the European Court of Justice uphold a lower court decision to dismiss a complaint alleging unfair government funding of Hinkley Point C.
“It is clear that the development of nuclear power is, as reflected in the Euratom Treaty, a clearly defined objective of EU law,” Mr Hogan wrote.
The Court of Justice is not required to follow the advice in advisory opinions, but it does some 80% of the time.
Austria in 2015 challenged the European Commission’s decision to back the UK measures, after a number of agreed changes. Austria lost in 2018 and appealed one last time.
In 2014, the commission had approved a British plan to use taxpayer money to support the £20bn ($25m) project to build two EPR reactor units, which is a joint venture between the French power company EDF and China General Nuclear Power Corporation.
“After a thorough investigation, the commission can now conclude that the support is compatible with EU state aid rules,” then-European commissioner for competition Joaquín Almunia said when he announced the approval.
EU law generally prevents governments from subsidising national private companies, but in this case the commission found there was a “lack of market-based financial instruments and other contracts to hedge against the substantial investment risks in the project.”
However, a previous Austrian government took issue with the decision and filed a case with the General Court in 2015, arguing that it contradicted EU policy of supporting renewable energy.
One aspect Vienna objects to is a guaranteed price for electricity from the plant which is higher than market rates. It also opposes state credit guarantees being provided for the project.
“Subsidies are there to support modern technologies that lie in the general interest of all EU member states. This is not the case with nuclear power,” Austria’s then-chancellor Werner Faymann said when bringing the initial complaint to the commission in 2015.
Large antinuclear demonstrations in the 1970s have had a lasting legacy on Austria’s energy politics. Not only does the country ban nuclear plants within its borders, but a 2015 law also bans the import of electricity generated by nuclear power.