Is the German Nuclear strategy lawful under EU law? Article 194(2) TFEU and its limitations

Abstract

Germany streamlined its nuclear phase-out policy following the Fukushima Daishi nuclear accident, planning to decommission all of its nuclear capacity by 2022. As a member of the EU, although Germany is entitled to determine its own energy mix pursuant to Article 194(2) of the TFEU, this policy may conflict with other EU legislation and jurisprudence relevant to the EU energy sector. In particular, in this paper, we argue that the German nuclear phase-out may be contrary to the European Atomic Energy Community Treaty and the primary and secondary EU legislation regarding security of energy supply. We explore how Germany’s commitments under this legislation act as a limitation to its national energy policy autonomy and might entail the unlawfulness of the German nuclear phase-out strategy.