214 MPs Ask BVerfG to Review Constitutionality of Nuclear Power Extension

214 members of the parliamentary groups of the Social Democrats (SPD) and Alliance ’90/The Greens (Greens) submitted a request to the Federal Constitutional Court (BVerfG) to review the constitutionality of the 11th and 12th amendment of the Atomic Energy Act (AtG), which lead to an extension of the operating times of the 17 German nuclear power plants.

From 1998 to 2005, the SPD and the Greens formed a coalition government. During that time the “exit amendment” (Ausstiegsnovelle) to 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.

With the recent 11th amendment of the AtG passed under the rule of the current government lead by Conservatives and Liberals (CDU, CSU, FDP), the German nuclear power plants were allocated additional generation quantities. These additional quantities lead to an extension of the operating times of the 17 German nuclear power plants for an average of 12 years. Nuclear power plants that started operating in or before 1980 got generation quantities that last for an additional 8 years. Newer plants received quantities that allow an extension of 14 years.

Plaintiffs argue that the AtG amendments are unconstitutional for three main reasons:

  1. The Federal Council, the legislative body that represents the federal states on federal level, did not consent (formal unconstitutionality). For the same reason five federal states lead by SPD governments (partly in coalition with the Greens) had recently filed a complaint for unconstitutionality of the 11th amendment of the AtG with BVerfG.
  2. Plaintiffs maintain that the AtG amendments are unconstitutional on the ground that the legislator did not give consideration to possible new safety requirements arising from the extension in the 17 different nuclear power plants, and did not provide the responsible public authorities with the necessary competences. Instead the new Section 7 d AtG stipulated an obligation by the operator to implement state-of-the-art safety precautions. As the AtG already contained the obligation to implement safety precautions (Section 7 para 2 no. 3 AtG), the scope of the new provision was unclear. Besides, it was even unclear if the new provision did not lower the former standard.
  3. Plaintiffs also believe that the exclusion of the right to action for potentiell parties concerned with respect to Section 7 d AtG is unconstitutional.

Including the constitutional complaint supported by Greenpeace, BVerG is now faced with three cases concerning the constitutionality of the 11th and 12th amendment of the AtG.

Source: Gaßner, Groth, Siederer & Coll. (representatives to plaintiffs)

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