I write this blog fully expecting the Austrian legal challenge to the Commission decision facilitating the Hinkley Point C nuclear power project to have finally been confirmed.
But as it turns out the Austrians have lots of time and you might not actually hear of a development with regard to their lawsuit right up until the 22nd of July.
It seems to have been forever since Vienna first served notice of their intent to object to the subsidisation of the project, but nobody, apart from the Austrians themselves (and maybe an energy-political aware postman) seems to know how much time they have left to play their hand.
Initially Austrian officials were declaring behind the scenes, as their legal department continued to work hard on the case, that the objection would be launched on Monday the 29th
This elongated and much publicised blow to the UK’s energy policy was then postponed until midweek but here we are on Friday and still no sign, which is why I think this blog might remain relevant and not get overtaken by events for another ten days or more… maybe?
An email response to our investigations from the European Court media office in Luxembourg goes: “We don't know (the date the window for objection expires) before the case is lodged, it's only something we check once the case has actually arrived. We don't keep a list of all possible challenges to all the pieces of legislation and when the deadlines run out for everyone.”
“(We) can't give you a precise date, other than say that the deadline is 2 months and 10 days since Austria was notified of the Commission's decision, and we don't know when that was. Moreover, our rules of procedure state that if an application is lodged by email, whilst the date of the email counts in terms of the deadline, the case is only registered (and therefore officially exists) once the original has arrived by post - this must happen within 10 days of the email.”
As this decision was published in the EU's Official Journal it is possible that time will have started to run from publication, which was on 28th April. When calculating time based on publication of the OJ, time starts to run from the end of the 14th day after publication. The time limit is 2 months and ten days. Therefore, by my calculation, and I stress that this is in no way official, Austria have until the 22nd July to lodge their case.”
“If Austria was notified in another way (other) than publication, which is possible, then they will have two months and ten days from that date instead.”
So there you have it – unnecessarily, complicated bureaucratic protocol at EU level – the reason for all this confusion.
On a side note, whatever does happen in the coming week(s), it will be interesting to see if Austria’s legal adviser on the action Dr Dorte Fouquet, Partner, BBH Brussels will prove to be correct in her assertion that the project will be delayed for at least five years due to the objection.
She had told delegates at the Platts Power Summit in London that this was the average delay that could be expected when an objection is launched. Those I have heard from in the nuclear sector are (unsurprisingly) sceptical of that claim and point to the lawyer’s background as evidence of hers being a partisan view.
Incidentally once the case is registered it will be put on the list that you can find here: (scroll to the bottom for the most recent cases) and will have the name Austria v Commission.