Five Federal States Ask BVerfG to Review Constitutionality of Nuclear Power Extension

The five federal states of Berlin, Brandenburg, Bremen, North Rhine-Westphalia and Rhineland-Palatinate have submitted a request to the Federal Constitutional Court (BVerfG) to review the constitutionality of the extension of the operating times of the 17 German nuclear power plants.

All five states are ruled by the Social Democratic Party (SPD), which in four of the five states forms a coalition government with Alliance ’90/The Greens (Greens) or The Left. None of these states actually have operating nuclear power plants.

When the SPD/Green government ruled (1998 to 2005), an “exit amendment” (Ausstiegsnovelle) for the Atomic Power Act (AtG) was passed in 2002. The exit amendment provided for a phase-out of nuclear power that would roughly have been accomplished by 2020.

As in the case of the currently disputed 2010 AtG amendments (11th and 12th amendment), the 2002 AtG amendment was decided by the Parliament (Bundestag) without consent of the Federal Council (Bundesrat). The Bundesrat is the legislative body that represents the federal states on the federal level.

The five states believe that the 11th amendment of the AtG allocating additional generation quantities is unconstitutional. They therefore applied, in the context of proceedings that concern the abstract review of a statute (abstrakteNormenkontrollklage), for the challenged provisions to be declared void by the Federal Constitutional Court.

The states argue that the Bundesrat had to consent to the AtG amendment, since the states were responsible for the supervision of the operation of the nuclear power plants and compliance with safety regulations.The five states also argue that the extension would further strengthen the dominant position of the four nuclear power operators E.ON AG, RWE AG, EnBW AG andVattenfall Europe.

In the Bundesrat, the ruling German coalition government formed by Conservatives (CDU and CSU) and the Liberals (FDP) did not have a majority last December.

The government has been defending its position that consent by the Bundesrat was not needed. It argued that the AtG amendment did not give the states new responsibilies, but only extended their duties (only quantitative but not qualitative change of responsibilities).

The parliamentary groups of the SPD and the Greens also announced to file a further legal action against the constitutionality of both AtG amendments this week. They will reportedly also invoke an infringement of the duty of the German state to protect the lives and the health of its citizens.

In early February a constitutional complaint (Verfassungsbeschwerde) against the extension of the operating times of German nuclear power plants had already been submitted to BVerfG. The complaint by a number of individual complainants has been supported by Greenpeace.

As Frankfurter Allgemeine Zeitung points out, it is not yet clear when a decision by the Federal Constitutional Court will be taken. Representatives of the plaintiffs would be pleased if oral proceedings would take place in winter, the papers says. First, however, it had to be decided whether all three proceedings shall be handled by one of the two Senates of the BVerfG.

The constitutional challenges before the German Federal Constitutional Court are not the only legal challenges faced by the nuclear power extension. In November last year, several local utilities (Stadtwerke) also lodged a complaint with the European Commission, claiming that the extension distorted competition to the detriment of the smaller power generating companies.

Sources: SPD, Becker Büttner Held, SPD-Fraktion, Frankfurter Allgemeine Zeitung, 1 March 2011, page 13, Complaint

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