H e a d n o t e s

to the Order of the First Senate of 29 September 2020

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16th AtG Amendment

1. Only in special circumstances may the entry into force of a law be made subject to the fulfilment of a condition. The condition must be phrased with such clarity that there is no uncertainty as to its meaning; the time at which the provision becomes binding must be clear for everyone.

2. The determination of the date of entry into force may not be delegated; the fulfilment of the condition and the entry into force may not be left to third parties in an arbitrary manner.

3. In principle, it is compatible with Art. 82(2) first sentence of the Basic Law to make the entry into force of a law conditional upon certain measures taken by the European Commission under State aid law.

FEDERAL CONSTITUTIONAL COURT

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IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Harbarth,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 29 September 2020:

1. The complainants’ fundamental right under Art. 14(1) of the Basic Law (Grundgesetz ) has been violated in that, even after 30 June 2018, the legislator failed to enact new provisions to ensure that the electricity volumes allocated to the nuclear power plants in annex 3 column 2 to the Act on the Peaceful Utilisation of Atomic Energy and the Protection against its Hazards (Gesetz über die friedliche Verwendung der Kernenergie und den Schutz gegen ihre Gefahren – Atomgesetz , Atomic Energy Act) could be almost completely used up or to provide adequate compensation for any of these electricity volumes that could no longer be used up, neither by the Sixteenth Act Amending the Atomic Energy Act (Sechzehntes Gesetz zur Änderung des Atomgesetzes ) (Federal Law Gazette I page 1122) nor by another law (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts 143, 246 <248, number 1 of the operative part of the decision>).

2. The legislator remains obliged to enact new provisions.

3. For the rest, the constitutional complaint is rejected.

4. The Federal Republic of Germany must reimburse the complainants their necessary expenses.

R e a s o n s:

A.

[Excerpt from Press Release No 98/2020 of 12 November 2020 ]

The constitutional complaint challenges the Sixteenth Act Amending the Atomic Energy Act of 10 July 2018 (16. Gesetz zur Änderung des Atomgesetzes – 16. AtG-Novelle, 16th AtG Amendment).

In 2001, the then Federal Government and energy suppliers reached a consensus on nuclear energy. This agreement included a maximum electricity volume that each nuclear power plant was permitted to produce from 1 January 2000 onwards (residual electricity volume). The Act on the Controlled Termination of the Use of Nuclear Energy of 22 April 2002 (Gesetz zur geordneten Beendigung der Kernenergienutzung zur gewerblichen Erzeugung von Elektrizität , Nuclear Phase-Out Act) implemented this agreement. In response to the nuclear accident at the Japanese nuclear power plant in Fukushima in March 2011, the legislator statutorily laid down fixed shut down dates for each nuclear power plant in the Thirteenth Act Amending the Atomic Energy Act (13. Gesetz zur Änderung des Atomgesetzes – 13. AtG-Novelle , 13th AtG Amendment). In its judgment of 6 December 2016, the Federal Constitutional Court held, among other things, that the fixed shut down dates set out in the 13th AtG Amendment were incompatible with Art. 14(1) of the Basic Law (Grundgesetz – GG) insofar as the law neither ensured that the electricity volumes allocated to each nuclear power plant in 2002 would be almost completely used up nor did it provide adequate compensation therefor. The Federal Constitutional Court gave the legislator until 30 June 2018 to enact new provisions.

In order to implement the requirements set out in the judgment, the legislator enacted Art. 1 of the 16th AtG Amendment inserting into the Atomic Energy Act (Atomgesetz – AtG) provisions on, for instance, the compensation for electricity volumes that were not used up (§ 7f AtG) and on the administrative procedure related thereto (§ 7g AtG). In respect of its entry into force, Art. 3 of the 16th AtG Amendment sets out that the law enters into force on the day the European Commission approves it under State aid law or communicates in a binding manner that such approval is not required. The German authorities informed the European Commission about the draft of the 16th AtG Amendment. There was no notification pursuant to Art. 108(3) of the Treaty on the Functioning of the European Union (TFEU). The Directorate-General for Competition of the European Commission stated that Commission services assumed that a formal application pursuant to Art. 108(3) TFEU was not required in relation to the 16th AtG Amendment. Subsequently, the Federal Ministry for the Environment announced in the Federal Law Gazette that the European Commission had communicated in a binding manner that an approval under State aid law was not required and that the 16th AtG Amendment had entered into force effective 4 July 2018.

The complainants challenge a violation of their fundamental right to property under Art. 14(1) GG arising from § 7f(1) and (2), § 7g(2) first sentence AtG that were inserted by the 16th AtG Amendment and arising from the fact that the legislator failed to enact new provisions that satisfied the requirements laid out by the Federal Constitutional Court. They claim that the 16th AtG Amendment has not entered into force given that the European Commission neither approved it under State aid law nor issued a binding communication that such an approval was not required.

[End of excerpt ]

[…]

B.

The constitutional complaint is admissible.

[…]

C.

The constitutional complaint is well-founded. The complainants’ fundamental right to property under Art. 14(1) GG is violated in that no law, in particular the 16th AtG Amendment, has entered into force to remedy the violation identified by the Court in its judgment of 6 December 2016 (see I. below). This notwithstanding, in substantive terms § 7f AtG would also not remedy the violation of Art. 14(1) GG identified by the Court in its judgment of 6 December 2016 (see II. below).

I.

The complainants’ fundamental rights have been violated because the violation of fundamental rights identified by the Court in its judgment of 6 December 2016 has not been remedied. Irrespective of whether the provision on entry into force under Art. 3 of the 16th AtG Amendment is constitutional (see 1. below), in any case the conditions set out therein for entry into force have not been fulfilled, which means that the Amendment, the purpose of which was to remedy the fundamental rights violations, did not enter into force and the violation of fundamental rights of the complainants in the present proceedings persists (see 2. below).

1. Art. 3 of the 16th AtG Amendment, which governs entry into force, is not unconstitutional simply because it makes the entry into force conditional upon measures taken by the European Commission under State aid law. There is no need to decide here whether the provision meets the requirements of Art. 82(2) first sentence GG as to the clarity of such condition.

a) Art. 82(2) first sentence GG requires the legislator to determine the date of entry into force. However, it is not necessarily incompatible with that requirement if the legislator makes entry into force subject to a condition without expressly setting a date; in certain circumstances the entry into force of a law may be made subject to a condition being fulfilled (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 42, 263 <283 f.>; […]). The determination of the date of entry into force may not, however, be delegated; the fulfilment of the condition and the entry into force may not be arbitrarily left to third parties (cf. BVerfGE 42, 263 <284>). Furthermore, the condition must be phrased with such clarity that there is no uncertainty about its meaning; the fulfilment of the condition must be discernible for all those involved, and particularly for citizens. This follows from Art. 82(2) first sentence GG. This provision of the Basic Law aims to ensure that there is clarity about the time at which a legal provision becomes binding. Given the far-reaching impact it may often have, the temporal ambit of a legal provision must be determined in a sufficiently precise manner for addressees of the provision to be able to discern when their entitlement or obligation begins. The executive and the courts must also be able to readily determine the date from which the new provision is applicable. The clear determination of the time of entry into force serves the principles of legal certainty and legal clarity regarding the temporal ambit of the legal provision (cf. BVerfGE 42, 263 <285>).

b) The legislator did not set a date for the entry into force of the 16th AtG Amendment. Instead, according to Art. 3 of the 16th AtG Amendment, it is to enter into force on the day on which the European Commission approves it under State aid law or communicates in a binding manner that such approval is not required; the Federal Ministry responsible for nuclear safety and radiation protection is to publish the date of entry into force in the Federal Law Gazette (Bundesgesetzblatt – BGBl). The fact that entry into force is made conditional upon measures taken by the European Commission under State aid law does not in itself render the provision on entry into force unconstitutional (see aa) below) and does not leave the determination of the date of entry into force to the arbitrary decision-making powers of third parties (see bb) below). The question whether the two alternative conditions of entry into force are sufficiently clear does not require a final decision in this instance (see cc) below).

aa) In principle, it is compatible with Art. 82(2) first sentence GG to make the entry into force of a law conditional upon measures taken by the European Commission under State aid law. The legislator had to take into account the general prohibition of State aid (cf. Art. 107(1) TFEU) and the notification requirement applicable to such aid as defined in EU law (cf. Art. 108(3) TFEU). For purposes of compensation as required by the Federal Constitutional Court in its judgment of 6 December 2016, the 16th AtG Amendment establishes claims for financial compensation payable by the state. According to the Asteris case-law of the Court of Justice of the European Union, damages which the national authorities may be ordered to pay to individuals in compensation for the damage they have caused to those individuals do not constitute aid (cf. CJEU, Judgment of 27 September 1988, Asteris AE and others v Hellenic Republic and others, 106 to 120/87, EU:C:1988:457, para. 24). However, companies that the Federal Constitutional Court did not consider to require compensation in its judgment of 6 December 2016 can also benefit indirectly from state compensation payments under § 7f(1) first sentence AtG (cf. BVerfGE 143, 246 <361 para. 320> […]). If, in consequence, the provision in question could be significant in terms of State aid law ([...]), the legislator may make the fulfilment of the condition subject to approval by the European Commission under State aid law ([...]).

bb) Art. 3 of the 16th AtG Amendment does not allow third parties to arbitrarily determine the date of entry into force.

(1) Entry into force under Art. 3 of the 16th AtG Amendment depends on an approval or binding communication by the European Commission under State aid law. However, the Commission is not an arbitrary third party but the body responsible for the application of EU law, which takes precedence in this matter (cf. Art. 108 TFEU). Moreover, the Commission’s decision is legally pre-determined by Arts. 107 and 108 TFEU and the implementing secondary legislation, i.e. it is not at the Commission’s discretion.

(2) The fact that the Federal Ministry responsible for nuclear safety and radiation protection was tasked with determining and publishing the date of entry into force is not an impermissible delegation of decision-making powers either. The Ministry is not asked to determine the date of entry into force itself. Rather, it has to make a declaratory determination and announcement of the fulfilment of the condition (cf. BVerfGE 42, 263 <288 f.>).

cc) Whether the two alternative conditions for the entry into force are phrased with sufficient clarity in accordance with Art. 82(2) first sentence GG does not require a final decision in this case.

(1) There are no constitutional concerns insofar as Art. 3 of the 16th AtG Amendment requires that the European Commission grant approval under State aid law. It is sufficiently clear and therefore constitutionally permissible to make the entry into force of a law conditional upon the granting of such approval by the European Commission.

(2) However, the meaning of the alternative condition that the European Commission communicates in a binding manner that such approval is not required is not equally clear. It is not readily discernible which type of State aid measure to be taken by the Commission this refers to.

(a) The Commission exercises its right to issue such “communication” in accordance with the Code of Best Practice for the conduct of State aid control procedures at the end of what is known as the pre-notification phase (at the time Code of Best Practice for the conduct of State aid control procedures, OJ C 136 of 16 June 2009, p. 13; hereinafter: Code of Best Practice 2009; now Code of Best Practices for the conduct of State aid control procedures, OJ C 253 of 19 July 2018, p. 14). Contacts during this pre-notification phase are meant to afford the Commission services and the notifying Member State the opportunity to discuss the legal and economic aspects of a proposed State aid project informally and in confidence prior to notification (cf. Code of Best Practice 2009, p. 13 <14 para. 10>). The Code of Best Practice, in the version applicable in the spring of 2018, reads (Code of Best Practice 2009, p. 13 <15 para. 16>, emphasis added):

“Except in particularly novel or complex cases, the Commission services will endeavour to provide the Member State concerned with an informal preliminary assessment of the project at the end of the pre-notification phase. That non-binding assessment will not be an official position of the Commission, but informal guidance from the Commission services on the completeness of the draft notification and the prima facie compatibility of the planned project with the common market. In particularly complex cases, the Commission services may also provide written guidance, at the Member State's request, on the information still to be provided.”

The Code of Best Practice requires the “provision” of an assessment [and hence a communication]. Such communication is, however, expressly informal and the Commission is explicitly not bound by it; that means that, in accordance with EU law, it is not a “binding communication”. It therefore does not fulfil the requirements set out in Art. 3 of the 16th AtG Amendment (for more detail see para. 54 ff. below).

(b) State aid law also recognises decisions as a binding form of action. Such decision would fulfil the condition for entry into force required by Art. 3 of the 16th AtG Amendment (“binding communication”) provided it had the required content. Art. 3 of the 16th AtG Amendment requires a binding communication by the Commission that an approval under State aid law is not required. There are various possible decisions that would demonstrate in a binding manner that there is no need for an approval under State aid law. Where applicable, after a preliminary examination, the Commission records its finding that the notified measure does not constitute aid by way of a decision (Art. 4(2) [of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, hereinafter: State Aid Procedural Regulation]). If, after a preliminary examination, the Commission finds that, while the notified measure does constitute aid, no doubts are raised as to its compatibility with the internal market, it decides not to raise objections (Art. 4(3) of the State Aid Procedural Regulation). Even if the Commission, after a formal examination procedure, concludes that the measure does not constitute aid, it records that finding by way of a decision (Art. 9(2) of the State Aid Procedural Regulation). If, after a formal examination procedure, it finds that, where appropriate following modification by the Member State concerned, the doubts as to the compatibility of the notified measure with the internal market have been removed, it decides that the aid is compatible with the internal market (Art. 9(3) of the State Aid Procedural Regulation).

Whether the legislator meant to include such decisions in the condition of a “binding communication” in Art. 3 of the 16th AtG Amendment cannot be said with certainty given that the law does not refer to a decision but to a communication; furthermore, the aforementioned decisions are also, at least partly, approval decisions authorising such aid under EU law (cf. Art. 3 of the State Aid Procedural Regulation) so that they already fulfil the first condition of entry into force (“approval under State aid law”). State aid law does not, however, provide for a measure or form of action referred to as a “binding communication”. The aforementioned decisions most closely resemble such a binding communication that an approval under State aid law is not required. Whether the condition chosen by the legislator is as clear as is constitutionally mandated does not require a final decision in this case because the condition has not been fulfilled in any event (see para. 52 ff. below).

(3) The legislator has ensured that the fulfilment of the condition is discernible by requiring that the Federal Ministry responsible for nuclear safety and radiation protection publishes the date of entry into force in the Federal Law Gazette.

2. The complainants’ fundamental rights have been violated because the 16th AtG Amendment has not entered into force and there is therefore no legal framework that remedies the violation of fundamental rights already objected to by the Federal Constitutional Court.

a) The violation of fundamental rights originally arose from the 13th AtG Amendment. It was the duty of the legislator and the purpose of the 16th AtG Amendment to remedy this. Given that the 16th AtG Amendment has not entered into force, the violation of fundamental rights persists because no other remedial provision has been enacted. In its judgment of 6 December 2016, by way of derogation from § 78 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the Federal Constitutional Court initially granted the legislator a grace period to enact new provisions (BVerfGE 143, 246 <248, no. 4 of the operative part of the decision>), which expired on 30 June 2018.

b) The 16th AtG Amendment has not entered into force because neither of the two conditions referred to in Art. 3 of the 16th AtG Amendment has been fulfilled. It is not disputed that the Commission has not granted any approval. Contrary to the view of the Federal Government, the alternative condition has not been fulfilled either. The letter from the Directorate-General for Competition of the European Commission of 4 July 2018 does not constitute a “binding communication” according to EU law (see aa) below). A broad interpretation of Art. 3 of the 16th AtG Amendment, which is part of German domestic law, under which a “binding communication” would include a communication that is not binding under EU law already raises doubts in terms of non-constitutional law in this instance, but above all would require a broad interpretation of the constituent element “binding” that is incompatible with constitutional specificity requirements (see bb) below). The publication by the Ministry of the (alleged) entry into force has also not resulted in the law’s entry into force (see cc) below).

aa) Under EU law, the letter from the Directorate-General for Competition of 4 July 2018 did not constitute a binding communication but merely a non-binding assessment. It seems obvious to use this EU-law interpretation of the term ‘binding’ because the condition “binding communication” within the meaning of Art. 3 of the 16th AtG Amendment refers to the binding effect of a legal act under EU law which, in substantive terms, can only be determined in accordance with principles of EU law.

(1) The letter from the Directorate-General for Competition of 4 July 2018 is referred to as an assessment and not a decision. There are no indications that the letter might amount to a decision. Rather, it is an assessment in the context of pre-notification contacts under State aid law, which the Code of Best Practice expressly refers to as informal and non-binding (Code of Best Practice 2009, p. 13 <15 para. 16>). The Code of Best Practice could hardly have stipulated binding acts because European primary law and the State Aid Procedural Regulation do not provide for a preliminary stage prior to notification and preliminary examination (Art. 4 of the State Aid Procedural Regulation) and a binding form of action attributable to that stage. Hence, there is not even a legal basis for any legally binding action on the part of the Commission. Although it cannot be ruled out that informal assessments made by the Directorate-General for Competition may also create certain legitimate expectations, this does not make them binding acts ([…]).

(2) Accordingly, the General Court and the European Commission also expressly assumed in the proceedings commenced by the complainant Vattenfall ([…]) that the letter was sent in the context of informal bilateral contacts for purposes of “pre-notification” between the Commission and the German authorities in accordance with the relevant provisions of the Code of Best Practice. It was not binding on the Commission but rather constituted informal guidance provided by its services (cf. General Court, Judgment of 11 July 2019, Vattenfall Europe Nuclear Energy v Commission, T-674/18, EU:T:2019:501, para. 39). According to the General Court, this assessment was neither called into question by the fact that the entry into force of the 16th AtG Amendment depended on a binding declaration by the Commission under State aid law, nor by the fact that the German authorities wrongly qualified this letter as “legally binding” when determining and publishing the entry into force of the law in the Federal Law Gazette. Neither the domestic legislation adopted for this purpose nor the assessment made by the domestic authorities were capable of affecting the actual nature and scope of any EU action, including the question whether it was legally binding, given that otherwise the autonomy and interpretation of EU law, which is solely a matter for EU courts, would be affected (General Court, loc. cit., para. 42 with further references).

bb) The fact that the letter from the Directorate-General for Competition is not binding under EU law does not automatically rule out a broader interpretation of the constituent element “binding communication” in Art. 3 of the 16th AtG Amendment in deviation from the terminology of EU law. Without conflicting with EU law, a “binding communication” within the meaning of Art. 3 of the 16th AtG Amendment could theoretically also be a communication that is non-binding under EU law. Such an interpretation of domestic law would not affect the autonomy of EU law given that it is a question of interpretation of Art. 3 of the 16th AtG Amendment and therefore a question of autonomous interpretation of domestic law. Ultimately – particularly for constitutional reasons – this interpretation cannot be adopted here, however.

(1) The wording of Art. 3 of the 16th AtG Amendment indicates that the interpretation should be based on the understanding of the term ‘binding’ under EU law. It would seem rather unusual to rely on an entirely German understanding of the constituent element “binding” in this case, which would reverse the meaning of the term, particularly given that the binding effect of a legal act under EU law is concerned that, in substantive terms, can only be based on principles of EU law. This assessment is not changed by the fact that Art. 3 of the 16th AtG Amendment does not refer to a “binding decision” but to a binding “communication”. Even if the wording was chosen on the basis of the terminology used in the Code of Best Practice, which provides that the Commission will endeavour to “provide” [and hence communicate] an informal preliminary assessment of the project to the Member State concerned at the end of the pre-notification phase, this is of no help. The term ‘binding’ communication chosen by the German legislator is juxtaposed, in the Code of Best Practice, with the explicit designation as an informal assessment that the Commission is specifically not bound by.

(2) A systematic comparison with provisions on entry into force of other federal laws indicates that Art. 3 of the 16th AtG Amendment does not refer to the informal form of action set out in the Code of Best Practice. In legislative practice, various techniques are used to coordinate the entry into force of a law which may constitute State aid with the requirements of EU State aid law.

Provisions that provide for an entry into force on a specific date subject to approval by the Commission are not uncommon ([...]).

There are also provisions which stipulate that a law is to enter into force on the date the Commission provides approval ([…]) or at another specific time following Commission approval ([…]).

Other laws provide that they will enter into force on the date on which the European Commission finds, by way of a decision, that individual provisions either do not constitute State aid or constitute State aid that is compatible with the internal market ([…]).

As in the present case, the Act Reorganising Responsibilities in Nuclear Waste Management (Gesetz zur Neuordnung der Verantwortung in der kerntechnischen Entsorgung ) makes its entry into force contingent on the binding communication that approval is not required, as an alternative to the granting of approval under State aid law ([…]). In that case, however, following pre-notification contacts with the Commission, a notification was still made for reasons of legal certainty, which led to a decision pursuant to Art. 4(3) of the State Aid Procedural Regulation (cf. Commission Decision of 16 June 2017, C [2017] 4249 final, para. 1).

The draft of a Coal Phase-Out Act (Kohleausstiegsgesetz ) of February 2020 contained a proviso with regard to State aid law under which certain provisions may only be applied once the European Commission has issued its approval under State aid law, where necessary, or once the European Commission has communicated that the assessment under State aid law can be completed in another way ([…]). The term ‘binding’, which is at issue here, was deliberately omitted in that case (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 19/17342, pp. 88, 172). Consequently, the legislator clearly differentiates between a binding communication and a simple communication.

The fact that the legislator uses different techniques to coordinate the entry into force of laws with State aid requirements is an argument in favour of taking the law’s wording literally if, as in this case, the legislator has chosen the alternatives of “approval” or “binding communication”.

(3) Above all, however, there are constitutional reasons that rule out a broad interpretation of the constituent element “binding communication”. The mere letter from the Directorate-General for Competition could only be regarded as a binding communication within the meaning of Art. 3 of the 16th AtG Amendment if the constituent element “binding communication” was given an extraordinarily broad meaning. To do so, this constituent element would have to include an assessment that is expressly “non-binding” and “informal” under EU law, even though the matter concerns the binding nature of an action taken specifically by the European Union. This would not be covered by the law’s wording.

Such an interpretation contra legem would not be compatible with the specificity requirements to which provisions on the entry into force of laws are subject under the principle of the rule of law. For reasons of legal certainty, it is in any event only permissible under special circumstances to make the entry into force subject to a condition other than the specification of a date referred to in Art. 82(2) first sentence GG (see para. 38 above). In that case, the condition must be phrased with such clarity that there is no uncertainty as to its meaning and the time at which the provision becomes binding is clear to everyone involved. The notion that an explicitly non-binding communication of the Directorate-General for Competition should constitute a “binding communication from the Commission” within the meaning of Art. 3 of the 16th AtG Amendment is unforeseeable and would therefore not be sufficiently clear. Such interpretation would not be foreseeable because everyone were able to discern that – as the Federal Government has suggested in its statement – there was a practical need to also allow explicitly non-binding communications of the Directorate-General to be sufficient for the law to enter into force. There is no such need. There would have been other ways to bring the 16th AtG Amendment into force. It would have been possible to either obtain a binding assessment from the Commission, but the notification required to that end was not made; or the legislator could have provided – including after enacting the law – that a binding communication from the Commission is not required (cf. para. 62 above).

cc) Following the letter from the Commission, the Federal Ministry for the Environment announced in the Federal Law Gazette that the European Commission had communicated in a binding manner that approval under State aid law was not required and that the 16th AtG Amendment had therefore entered into force effective 4 July 2018 (cf. BGBl I p. 1124). This neither resulted in the fulfilment of the condition nor in the entry into force of the law in any other way. It is a merely declaratory determination that the condition has been fulfilled, which is inaccurate in substantive terms for the reasons set out above (cf. BVerfGE 18, 389 <391>; 42, 263 <289>). If the condition is not in fact fulfilled, it cannot result in the law entering into effect.

II.

In order to remedy the violation of Art. 14(1) GG identified by the Court in its judgment of 6 December 2016, it will not be sufficient to put the 16th AtG Amendment into effect unchanged. In its judgment of 6 December 2016, the Federal Constitutional Court held, among other things, that the fixed shut down dates set out in the 13th AtG Amendment were incompatible with Art. 14(1) GG, in accordance with the reasons of the judgment, insofar as the law neither ensured that the electricity volumes allocated to each nuclear power plant in 2002 would be almost completely used up nor did it provide adequate compensation therefor (cf. BVerfGE 143, 246 <248, no. 1 of the operative part of the decision>). § 7f(1) AtG cannot remedy this violation. This follows from the judgment of 6 December 2016 even without a complete review of the law that has not entered into force. In this judgment, the Court found that the 13th AtG Amendment interferes with the fundamental right to property given that the fixed shut down dates for nuclear power plants limit the possibilities for the use of property (BVerfGE 143, 246 <326 para. 222 f.; 327 f. para. 228 ff.>). This interference is disproportionate inter alia because it was foreseeable that some of the affected companies would not be able to almost completely use up residual electricity volumes allocated to them in 2002 (cf. BVerfGE 143, 246 <357 ff. Rn. 310 ff.>). § 7f(1) AtG, which was inserted by the 16th AtG Amendment, would not ensure that this interference with the fundamental right to property would be proportionate.

[…]

III.

1. Ultimately, the complainants’ fundamental right under Art. 14(1) GG has been violated because the legislator failed to enact new provisions ensuring that the electricity volumes allocated to the nuclear power plants in annex 3 column 2 to the Atomic Energy Act would be almost completely used up or provisions ensuring that adequate compensation would be provided (cf. already BVerfGE 143, 246 <248, no. 1 of the operative part of the decision>). In particular, the 16th AtG Amendment has not entered into force.

Not only did the provisions on compensation for the inability to use up the allocated electricity volumes fail to enter into force but the entire 16th AtG Amendment failed to do so, including in particular the compensation for frustrated investments in § 7e AtG, which is not the subject of these proceedings. That means that the other violation of Art. 14(1) GG identified by the Court in its judgment of 6 December 2016 persists; this violation results from the fact that the 13th AtG Amendment does not provide for compensation for investments made in the legitimate expectation that the additional electricity volumes granted in 2010 will be honoured but which were cancelled by the Amendment (cf. BVerfGE 143, 246 <248, no. 2 of the operative part of the decision>).

The legislator therefore remains obliged to enact new provisions as soon as possible in order to remedy the fundamental rights violations identified by the Court in its judgment of 6 December 2016.

2. For the rest, the constitutional complaint is rejected. While the substance of § 7f(1) AtG also raises constitutional concerns, it is not capable of violating the complainants’ fundamental rights given that the 16th AtG Amendment has not entered into force.

IV.

[…]