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Additional information and outline of the oral hearing in the proceedings “Nuclear phase-out”

Press Release No. 13/2016 of 19 February 2016

Reference: 1 BvR 2821/11, 1 BvR 321/12, 1 BvR 1456/12

As announced, the First Senate of the Federal Constitutional Court will conduct an oral hearing on Thursday 15 March 2016 and Wednesday 16 March 2016 with regard to three constitutional complaints against provisions of the Thirteenth Law Amending the Atomic Energy Act of 31 July 2011 (Dreizehntes Gesetz zur Änderung des Atomgesetzes) (cf. Press Release No. 97/2015 of 22 December 2015, available in English).

With the Thirteenth Law Amending the Atomic Energy Act (Dreizehntes Gesetz zur Änderung des Atomgesetzes13. AtG-Novelle, 13th AtG Amendment), the legislature decided to accelerate the phase-out of peaceful uses of nuclear energy. Complainants are the nuclear power companies of three of the four large energy suppliers operating in Germany as well as an operating company of a nuclear power plant.

The initial decision to phase out the peaceful uses of nuclear energy already resulted from the Act on the Controlled Termination of the Use of Nuclear Energy (Gesetz zur geordneten Beendigung der Kernenergienutzung zur gewerblichen Erzeugung von ElektrizitätAusstiegsnovelle, Nuclear Phase-out Amendment Act), which was initiated in 2002 by the coalition governing at that time. The core element of this Act, which was preceded by an agreement between the then Federal Government and the four large energy suppliers, was that it restricted the operating lives of the existing nuclear power plants by allocating specific residual electricity volumes (Reststrommengen) to the individual nuclear power plants. Those were thus licensed to operate until the exhaustion of the allocated residual electricity volumes.

After the German federal parliamentary elections in 2009, the newly elected Federal Government pursued a modified energy concept, which led, inter alia, to the allocation of additional residual electricity volumes and thus resulted in an extension of the operating lives of the German nuclear power plants by an average of 12 years under the Eleventh Law Amending the Atomic Energy Act of 8 December 2010 (Elftes Gesetz zur Änderung des Atomgesetzes11. AtG-Novelle, 11th AtG Amendment).

Following the tsunami on 11 March 2011 and the core meltdown in the nuclear power plant in Fukushima, Japan, another reorientation took place in Germany. In mid-March 2011, an official decree ordered a temporary discontinuation of the power operation of seven nuclear power plants. This so-called “Moratorium on Nuclear Energy” (Atommoratorium) will not be reviewed in the constitutional complaint proceedings at issue.

With the 13th AtG Amendment that is under review in these constitutional complaints, the legislature revised the 2002 Nuclear Phase-out Amendment Act to the extent that it incorporated in law definite shut-down dates for the nuclear power plants by which they had to use up the residual electricity volumes they were allocated in 2002. At the same time, the legislature reversed the additional residual electricity volumes that had been allocated to the plants under the 11th AtG Amendment in autumn 2010.

With the constitutional complaints, the complainants assert a violation of their fundamental rights under Art. 14, and Art. 12, as well as Art. 3 sec. 1 of the Basic Law (Grundgesetz – GG). They claim that the cancellation of the electricity volumes by the 11th AtG Amendment and the determination of fixed shut-down dates by the 13th AtG Amendment constitute an expropriation (Enteignung) of different protected interests falling within the scope of protection of Article 14 GG. The complainants assert that the 13th AtG Amendment is unconstitutional due to the lack of a compensation regime provided for by law. Furthermore, they claim that even if the rules of the 13th AtG Amendment were not considered to constitute an expropriation but rather provisions defining the content and limits of property (Inhalts- und Schrankenbestimmung), these rules fail to meet formal constitutional requirements [translator’s note: applying to the legislature] for providing reasons [translator’s note: for an Act of Parliament] (Gesetzesbegründung) and investigating and establishing facts (Tatsachenermittlung) [translator’s note: that form the factual basis of the Act of Parliament]. According to the complainants, the challenged Act does not meet the substantive requirements of the principle of proportionality (Verhältnismäßigkeitsgrundsatz) and the principle of legitimate expectations (Vertrauensgrundsatz). Moreover, they argue that the determination of fixed shut-down dates leads to a significant difference in treatment that does not satisfy the requirements set out in Art. 3 sec. 1 GG. They further claim that constitutionality of the 13th AtG Amendment could have been ensured at most by providing for a pecuniary compensation. Finally, the complainants state that the 13th AtG Amendment constitutes an unjustified interference with the scope of the freedom of occupation (Berufsfreiheit) of operators of nuclear power plants.

Please find the outline of the oral hearing below.

Outline of the Oral Hearing of the First Senate of the Federal Constitutional Court on 15 and 16 March 2016 

A.        General Issues 

I.       Formalities and Report on the Facts of the Case 

II.     Introductory Statements 

B.        Background and Legislative History of the 13th AtG Amendment 

C.        Complainants in Proceedings 1 BvR 1456/12 (Krümmel/Vattenfall) and Their Status as Potential Carriers of German Fundamental Rights 

D.        Article 14 GG 

I.       Constitutionally Protected Property 

II.     Expropriation

III.   Provisions Defining Content and Limits of Property (Inhalts- und Schrankenbestimmung

1.     Interferences with the Right to Property through the 13th AtG Amendment, and the Act’s Legitimation 

2.     Proportionality (Verhältnismäßigkeit

3.     Protection of Legitimate Expectations (Vertrauensgrundsatz

4.     Principle of Equality (Art. 3 sec. 1 GG) 

E.        Art. 12 GG  

F.         Art. 19 sec. 1 sentence 1 GG 

G.        Legal Consequences if the Alleged Violation of Constitutional Law Were Present