No Objection from Bundesrat for Nuclear Power Extension and Nuclear Fuel Rod Tax

The Federal Council (Bundesrat) yesterday cleared another hurdle for the recent energy package presented by the German Federal Government, including the nuclear power extension and the nuclear fuel rod tax. However, several SPD-led states (Länder) confirmed their determination to challenge the decision to extend the operating time for nuclear power before the Federal Constitutional Court (Bundesverfassungsgericht).

The Government’s energy concept remains highly controversial. As the coalition government only holds a majority in the German Parliament (Bundestag), but not in the Bundesrat, the outcome of yesterday’s vote was not clear.

The debate about the Bundesrat’s vote must be seen against the background of the constitutional role the Bundesrat in German bicameral lawmaking process. Federal laws are either so-called “objection laws” (Einspruchsgesetze) or “consent laws” (Zustimmungsgesetze). In the case of objection laws, the Bundesrat can object to a law passed by the Bundestag, but the Bundestag can ultimately override the Bundesrat’s objection. If a bill qualifies as a consent law, a bill cannot become law without the Bundesrat’s consent.

For the 11th amendment of the AtG that intends to allocate additional generation quantities to the German nuclear power plants, it is highly controversial whether the respective bill qualifies as an objection law or a consent law. The government, backed by many legal scholars, maintains that the extension is a simple objection law, not requiring the Bundesrat’s consent. Just as the shortening of the operating times of the nuclear plants as part of the “exit amendment” (Ausstiegsnovelle) of the Atomic Energy Act in 2002 (decided by an SPD/Green government), the current extension of the operating times does not require the Bundesrat’s consent. Members of the SPD/Green opposition, also backed by legal scholars, maintain that the current extension project is entirely different, and that the Bundesrat’s consent is required by the constitution.

Yesterday’s decision of the Bundesrat not to object was part of the objection law procedure, and does not preclude a constitutional challenge that the consent procedure should have been followed. Even if the Bundesrat had objected yesterday, the Bundestag, after a mediation procedure (Vermittlungsverfahren), could have voted again on the extension, thereby overriding the Bundesrat’s objection.

In addition to the constitutional dispute, several Länder had voiced their desire to get some money from the EUR 2.3 billion annually that the new nuclear fuel rod tax shall provide until 2016. As the fuel rod tax will lead to a reduction of the income tax of the operators of the nuclear power stations, several Länder had complained that this also reduced what they would get from the income tax. To appease Länder financial concerns, the government just before the Bundesrat vote agreed to look into the financial effects of the fuel rod tax again.

Before the 11th amendment of the Atomic Energy Act with the nuclear power extension can be promulgated in the Federal Law Gazette (Bundesgesetzblatt), it has to be signed into law by the Federal President (Bundespräsident) Christian Wulff. In that context, the Bundespräsident will also assess the constitutionality of the law. During Mr Wulff’s time as state premier of Lower-Saxony, his state chancellery reportedly concluded that the Federal Council had to consent. However, it would be a surprise if the Bundespräsident would reject the extension.

Source: Bundesrat

Related posts: