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MIL OSI Translation. Region: Germany / Deutschland –

Source: The Federal Constitutional CourtPress release No. 98/2020 of November 12, 2020 Decision of September 29, 20201 BvR 1550/19

(16th AtG amendment) With a decision published today, the First Senate of the Federal Constitutional Court decided that the federal legislature would comply with its obligation, expressed in the judgment of the Federal Constitutional Court of December 6, 2016 (BVerfGE 143, 246), to eliminate certain constitutional violations in nuclear law despite the expiry of the has not yet fulfilled the applicable deadline, in particular not with the sixteenth amendment to the Atomic Energy Act (16th AtG amendment). With its judgment of December 6, 2016, the Federal Constitutional Court declared the regulations for the accelerated phase-out of the peaceful use of nuclear energy (13th AtG -Novelle) partially incompatible with the Basic Law. The reason for this was that the fixed shutdown dates of the power plants regulated there do not ensure an essentially complete conversion of the so-called residual electricity volumes previously allocated to the nuclear power plants on the basis of the nuclear consensus agreement from 2001 and no adequate compensation is granted for this. The Federal Constitutional Court set the legislature a deadline of 30 June 2018 for a new regulation. With the 16th AtG amendment, the legislature made a new regulation. According to the decision of the Federal Constitutional Court published today, it is unsuitable for remedying the violation of fundamental rights identified in the judgment of December 6, 2016. The 16th AtG amendment has not come into force because the conditions provided for by the legislature itself have not been met. The new regulation that has been made to compensate for the amount of electricity that has not been converted into electricity (Section 7f AtG) could not remedy the violation of the fundamental right of property under Article 14.1 of the Basic Law, either. As a result, the legislature is still obliged to implement new regulations as soon as possible in order to eliminate the fundamental rights violations identified in the judgment of December 6, 2016.

Facts: The constitutional complaint is directed against the Sixteenth Act amending the Atomic Energy Act of July 10, 2018 (hereinafter: the 16th AtG Amendment). In 2001, the Federal Government at the time reached an atomic consensus agreement with the energy supply companies in which one for each individual nuclear power plant The maximum amount of electricity that it is allowed to produce from January 1, 2000 (residual electricity). The law on the orderly termination of the use of nuclear energy for commercial generation of electricity of April 22, 2002 (Exit Act 2002) implemented this agreement. In response to the reactor accident at the Japanese nuclear power plant in Fukushima in March 2011, the 13th AtG amendment that came into force in August 2011 set specific shutdown dates for the individual power plants. In a ruling of December 6, 2016, the Federal Constitutional Court declared, among other things, the statutory stipulation of fixed shutdown dates by the 13th AtG Amendment to be incompatible with Article 14 (1) of the Basic Law, as the law does not allow for essentially complete electricity generation from the 2002 nuclear power plants Ensures electricity quantities and does not provide adequate compensation for this. The Federal Constitutional Court set the legislature a deadline of 30 June 2018 for a new regulation. With Art. 1 of the 16th AtG amendment of 10 July 2018, the legislature added, among other things, provisions on the compensation of non-electricity quantities to implement the judgment (§ 7f AtG) and the related administrative procedure (§ 7g AtG) in the Atomic Energy Act. With regard to its entry into force, Art. 3 of the 16th AtG amendment provides that the law comes into force on the day on which the European Commission grants the approval under state aid law or gives a binding notification that such approval is not required. The German authorities informed the European Commission about the draft of the 16th AtG amendment. A notification according to Art. 108 (3) of the Treaty on the Functioning of the European Union (TFEU) was omitted. The European Commission’s Directorate-General for Competition announced that the Commission’s services assumed that no formal notification under Article 108 (3) TFEU was required with regard to the 16th AtG-AA. The Federal Environment Ministry then announced in the Federal Law Gazette that the European Commission had given a binding notification that a permit under state aid law was not required and that the 16th AtG amendment thus came into force with effect from July 4, 2018. The complainants allege a violation of their fundamental right to property Article 14, Paragraph 1 of the Basic Law through § 7f Paragraph 1 and Paragraph 2, § 7g Paragraph 2 Clause 1 of the Atomic Energy Act added with the 16th AtG amendment, as well as the fact that the legislature failed to make a new regulation, which meets the requirements formulated by the Federal Constitutional Court. The 16th AtG amendment did not come into force because the European Commission had neither issued the approval under state aid law nor gave a binding notice that such approval was not required. The complainants’ fundamental rights have been violated because the 16th AtG amendment has not come into force and there is therefore no provision that remedies the violation of fundamental rights complained about by the Federal Constitutional Court on December 6, 2016 AtG amendment, which should be eliminated by the 16th AtG amendment. The 16th AtG amendment did not come into force, however, because none of the two conditions specified in Art. 3 of the 16th AtG amendment were met. The Commission has neither received approval, nor does the letter from its Directorate-General for Competition dated July 4, 2018 qualify as a “binding notification” within the meaning of Art. 3 of the 16th AtG amendment. The violation of fundamental rights is perpetuated because no other regulation has been made to remedy it. From the point of view of EU law, the letter from the Directorate-General for Competition dated July 4, 2018 did not constitute a binding notification, but merely a non-binding assessment. Rather, it is an assessment in the context of prior contacts under state aid law, which the Commission expressly describes as informal and non-binding in the code of conduct for the implementation of state aid proceedings. This does not preclude a priori the further understanding of the factual requirement of the “binding notification” in Art. 3 of the 16th AtG amendment, deviating from the terminology under Union law. However, for constitutional considerations, such an interpretation is out of the question because it would not be compatible with the specific requirements of the rule of law for the rules governing the entry into force of laws. 82 para. 2 sentence 1 GG gives the legislature to determine the date of entry into force. It is not absolutely incompatible with this if the legislature makes the entry into force dependent on a condition without expressly specifying a date. However, the commencement of the condition and its coming into force may not be left to any third party and the condition must be formulated so clearly that there is no uncertainty about its meaning. Basically, it is compatible with Article 82, Paragraph 2, Sentence 1 of the Basic Law to make the coming into force of the law subject to the condition of state aid measures by the European Commission. The determination of the temporal scope of a legal provision must, however, be sufficiently precisely fixed because of the often far-reaching effect so that the addressees of the norm can recognize the beginning of their entitlement or obligation. The fact that an explicitly non-binding communication from the Directorate-General for Competition should also apply as a “binding communication from the Commission” within the meaning of Art. 3 of the 16th AtG amendment is unpredictable and would therefore not be regulated with sufficient clarity. In order to put an end to the violation of Article 14, Paragraph 1 of the Basic Law already established by the judgment of December 6, 2016, it will not be sufficient to put the 16th AtG amendment into force unchanged, as this is due to § 7f Paragraph 1 of the AtG In the judgment of December 6, 2016, it was determined that the 13th AtG amendment encroaches on the fundamental right of property because it limits the possibility of property use by regulating fixed shutdown dates for nuclear power plants. This intervention is disproportionate, among other things, because it was foreseeable that some of the companies concerned would no longer be able to use the remaining electricity volumes allocated to them in 2002 to a large extent. For this, the legislature must create a balance in order to maintain proportionality. The limits of the proportionality of the encroachment on property would not be preserved even by the provisions of the newly inserted Section 7f (1) AtG. A) The manner in which Section 7f (1) Clause 3 AtG, a compensation claim according to Section 7f (1) Clause 1 AtG coupled with an obligation to make efforts to transfer electricity quantities that can be compensated to other companies under reasonable conditions is unreasonable and therefore does not constitute an appropriate compensation within the meaning of the judgment of the Federal Constitutional Court. Constitutionally, there is nothing wrong with the fact that a state compensation payment is not made if a reasonable marketing opportunity has been rejected. It is unreasonable here, however, that the complainants cannot know at the time of action which transfer conditions they have to agree to, and the regulation burdens them with either accepting potentially inadequate conditions or risking going out without compensation. B) Even those of the complainants The risk of double reduction of entitlements described with regard to the residual electricity volumes of two nuclear power plants is not to be dismissed from the outset due to the regulation of § 7f para. 1 sentences 1 and 2 AtG. Whether the quantitative limitation of the compensation claim to two-thirds or half, respectively, which is envisaged there, leads to an unconstitutional reduction in the compensation depends on how the other provisions of Section 7f (1) AtG are applied to the residual electricity volumes of the Brunsbüttel and Krümmel power plants. Apparently, the complainants, the Federal Government and PreussenElektra have fundamentally different ideas about how the issues are to be resolved that result from the joint corporate law holdings of two groups, of which only one is entitled to compensation according to the decision of the Federal Constitutional Court in 2016. How this complex factual and legal situation is to be understood in detail can remain open. Because even if the provisions of Section 7f (1) sentence 1 and sentence 2 AtG allowed an understanding of the norm, according to which in particular the problems of a double reduction of the compensation claim are avoided, this would in any case not be expressed in a sufficiently clear and operational manner. Precisely because of the special constitutional background of the compensation, the concretization of the only rudimentary compensation in the law could not be left to the companies involved. The regulation would therefore be unconstitutional in any case because of insufficient clarity.

MIL OSI

EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure not be perfect.

MIL Translation OSI