Publication Laka-library:
Nuclear Power and the Taxonomy Regulation (2021)
| Author | S.Lünenbürger, M.Kottmann, K.Reiter |
 |
6-01-0-00-289.pdf |
| Date | July 2021 |
| Classification | 6.01.0.00/289 (GENERAL) |
| Front |
From the publication:
Nuclear Power and the Taxonomy Regulation On behalf of the Federal Ministry for Climate Action, Environment, Energy, Mobility, Innovation and Technology Final report Submitted by: Rechtsanwältin Dr. Simone Lünenbürger Rechtsanwalt Dr. Matthias Kottmann, Maître en Droit Rechtsanwalt Dr. Korbinian Reiter, LL.M. Brussels and Berlin, 2 July 2021 A. Summary Regulation (EU) 2020/852 (Taxonomy Regulation; TR) sets out uniform criteria for determining whether an economic activity qualifies as environmentally sustainable. It aims at promoting activities that qualify as sustainable by creating transparency for investors. It does not, however, establish regulatory requirements for economic activities, nor does it entail a ban on activities or investments not considered sustainable. Under the TR, an activity is considered sustainable if it: • contributes substantially to one or more of the environmental objectives; • does not significantly harm any of the other environmental objectives; • is carried out in compliance with minimum social safeguards; and • complies with technical screening criteria established by the Commission. As regards the first criterion, Article 10(1) and (2) TR set out three exhaustive categories of activities that may be considered as contributing substantially to climate change mitigation. Generating nuclear power does not fall under any of these categories. Although it is frequently considered a low-carbon activity, this is as such not sufficient to satisfy the criteria laid down by the Union legislature. Namely, nuclear power is not mentioned in the list of ‘green activities’ set out in Article 10(1) lit. (a) to (h) TR. In effect, a reference to “climate neutral energy (including carbon neutral energy)”, mentioned in Art. 10 (1) lit (a) TR expressly in addition to renewable energy, was deliberately deleted from that list in the course of the legislative procedure leading to the adoption of the TR. Moreover, nuclear power does not qualify as an ‘enabling activity’ since it does not meet the respective requirements enshrined in Article 10(1) lit. (i) and Article 16 TR. Finally, nuclear power cannot be regarded as a ‘transitional activity’ within the meaning of Article 10(2) TR. According to a literal, systemic and purposive interpretation, that provision only applies to carbon-intensive activities for which there is currently no low-carbon alternative. If one considers nuclear power a low-carbon activity, it hence cannot be regarded a transitional activity from the outset. Moreover, there is considerable doubt whether nuclear power could fulfil the other requirements laid down in Article 10(2) TR.