German Vice-Chancellor Robert Habeck said on Monday (January 7th) that Berlin would consider a controversial European Commission proposal to include nuclear power and fossil gas in the EU’s sustainable finance taxonomy before considering a possible trial.

The EU’s proposed green investment label for nuclear and gas has drawn heavy criticism, with Austria and Luxembourg saying they will challenge the proposal in the European Court of Justice.

Now Germany is also considering legal action against the proposal. “We will observe the vote in the European Council and then we will check whether everything is legally correct and clean,” said Robert Habeck, German Minister for Economics and Climate Protection, adding that “this is not an announcement or an exclusion.”

“The position of the federal government is that it would not have needed the second delegated act,” Habeck told reporters, referring to the legal form of the proposal, a fast-track procedure by which EU countries delegate legislative powers to the European Commission.

“We will see what kind of majority will be formed in the Council,” said Habeck. during a visit to Paris where he met French Minister of Economy Bruno Le Maire and Minister of Ecological Transition Barbara Pompili.

“And then we will have to decide whether the judicial review will lead us to a trial or not,” he added.

The German government is divided over the inclusion of fossil gas in the EU’s green finance taxonomy. While all parties are united in their rejection of nuclear power, the Greens of Habeck are opposed to the inclusion of gas while the socialist party SPD of Chancellor Olaf Scholz is in favor of it.

Steffen Hebestreit, the German government’s top spokesman, admitted the issue of a trial was now on the table, but suggested he was unlikely to succeed.

“So does the European Commission have the right to regulate something like this or not?” he wondered. “As far as I know, a legal action could not be brought against the content of such a regulation, but only against the legal basis,” he explained. The European Commission, mandated by EU member states and the European Parliament, “appears to be on safe legal ground”, he told reporters on January 3.

However, Habeck and his fellow Green ministers in government have little choice and are bound by a resolution passed at the Green party congress in January.

The resolution, passed on January 28 and 29, calls on environmental ministers “to consider whether the delegated act is tenable and, if not, to take its own legal action against the classification of the nuclear energy and natural gas in the taxonomy of the EU or, failing that, to join the lawsuit of Austria and Luxembourg on the matter”.

Will Spain join the lawsuit?

While Austria and Luxembourg have made clear their intention to challenge the EU taxonomy in court, Spain has remained inactive.

Teresa Ribera, the country’s Ecological Transition Minister, said the European Commission had made a “big mistake” in calling nuclear and gas “green investments”. Addressing the Spanish public television broadcast “El Cafè d’idees” on February 4, instead advocating investing in renewable energy to achieve the EU’s carbon neutrality target by 2050.

However, she did not explicitly support legal action, saying any decision to join the lawsuit brought by Luxembourg and Austria would, above all, require a clear legal analysis before acting.

Others, meanwhile, seem confident about Spain’s willingness to go to court.

“Spain shares Austria’s head-to-head position. Spain sees neither nuclear energy nor fossil gas in the taxonomy and has made that very clear before,” Austrian Environment Minister Leonore Gewessler told EURACTIV in November.

A legal analysis conducted by Austrian lawyers last year found that the inclusion of nuclear and gas in the taxonomy had no legal basis.

[Edited by Frédéric Simon]