Redeker Sellner Dahs acting as counsel for the Austrian Ministry for Protection of the Climate

Brussels, 10 October 2022. The EU Taxonomy Regulation is a key element of the European Green Deal and the European Union's Sustainable Finance Action Plan. It seeks to clearly spell out which economic activities can be classified as environmentally sustainable and thus contribute to attaining the EU's climate goals. The aim is to put a stop to greenwashing, so companies are only able to call their products green if they meet these requirements.

On New Year's Eve 2021, the EU Commission sent out a draft for the Taxonomy Complementary Delegated Act. It classifies nuclear power and natural gas as environmentally sustainable. Austria announced already back at that time that it would take action for annulment with the European Court of Justice to prevent inclusion of nuclear power and natural gas in the EU Taxonomy Regulation.

Since the Delegated Act along with its blessing for nuclear energy and gas was adopted as provided for in the draft, Austria has now brought an action before the Court of Justice of the European Union.

Redeker Sellner Dahs has helped prepare the complaint for Austria.

Austria's main points of criticism are:

  1. Nuclear energy
    Nuclear energy does not meet the requirements laid down in the Taxonomy Regulation, including one very central criterion: green technologies must not cause any significant environmental damage according to the so‑​called “do no significant harm” principle. Reactor accidents such as Chernobyl or Fukushima, with their enormous damage to the environment and population, demonstrate that significant environmental damage is indeed caused by nuclear energy.
  2. Natural gas
    Natural gas is fundamentally speaking an energy source that is harmful to the climate. Cost‑​effective and rapidly expandable renewable energy sources are already available. Certifying gas as sustainable creates harmful parallel structures for investments and pointlessly delays the urgently needed energy transition in Europe.
    Moreover, in the Taxonomy Regulation gas has lock‑​in effects in fossil infrastructures, which the regulation was intended to prevent. This results in high costs, competitive disadvantages and a further exacerbation of the climate crisis.
  3. Legal aspects
    The published Delegated Act does not align with the legal foundations set out in the Taxonomy Regulation. It does not lie within the domain of the Commission 's competence to independently take such far‑​reaching and politically sensitive decisions – but the classification of nuclear power and natural gas as environmentally sustainable is a far‑​reaching decision. Furthermore, procedural requirements, such as the required impact assessment, public consultation and timely consultation of the Member States, have been insufficiently met.

According to the Austrian Minister for the Protection of the Climate, Leonore Gewessler:

“The Commission has completely ignored some essential EU legal rules and even the critical opinion of its own expert panel. No impact assessment was carried out, the public was not consulted and the EU Member States were not informed in due time. This shows that it is probably mostly about satisfying the strong fossil fuel and nuclear lobby groups, and the EU Commission is obviously not even itself so convinced that this is the right decision.”

In the words of Dr Simone Lünenbürger, attorney at law, Redeker Sellner Dahs, Brussels:

“ ‘Where there's green on the surface, there's green below!’ – Does this promise of the European taxonomy still apply? This has been on shaky ground since the European Commission also classified natural gas and nuclear energy as ecologically sustainable under certain conditions. Austria has filed a complaint against this decision by the Commission, as we are of the opinion that the Commission should not have decided in this way. It constitutes a violation of European primary law and the Taxonomy Regulation. Green – it is no longer just a colour, but also a legal category, regarding which a decision is now to be rendered by the Court of Justice of the European Union in Luxembourg.”

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