Law on Nuclear Phase-out Is Tantamount to Disappropriation

Berlin, 22.02.2000

The law being planned by the German government for the complete phase-out of nuclear power is fraught with problems, in the view of Professor Fritz Ossenbühl, of Bonn, an expert on constitutional law. Together with Professor Erhard Denninger, of Frankfurt, he held a debate on the subject of "The legal problems of the phase-out of nuclear power". Professor Ossenbühl, as a legal expert, explained that although this law would represent so-called legal dispossession (dispossession with the force of law), it would at the same time throw up a large number of other legal questions. Constitutional law states that legal dispossession is only permissible if it is required for urgent reasons relating to the well-being of the general populace. The legal expert said on this point: "In light of the rising safety standards in German nuclear power plants, such reasons are not discernible." Ossenbühl also pointed out that dispossession laws "are only compatible with the Constitution if they contain provisions for compensating those who have suffered material loss".

Professor Ossenbühl also stated that the planned closure of 19 German nuclear power plants could not be used simply to change the definition of the ownership of property at a stroke. "Such a definition is impossible if for no other reason than because the proposed legislation does not reveal any abstract reorganisation of ownership."

Ossenbühl went on to explain that limiting the operational life of nuclear power plants could be "regulated both by the law and by consensus between the German Government and the utilities". If the legislative solution is chosen, the "consent of the Bundesrat would be essential".

Professor Erhard Denninger, on the other hand, took the view that "regulations to shorten the period of operation, if combined with the general decision to bring the use of nuclear energy to an end, would have to be regarded not as so-called legal dispossession but as a legislation that redefined and limited the ownership of property". Denninger stated firmly: "The basic decision to phase-out nuclear energy, and all the related and fundamental surrounding conditions for bringing existing nuclear power generation to an end, certainly cannot be left to a consensus between the government and the utilities". A "formal Act of Parliament is from the constitutional point of view not only possible but even required", he emphasised. This law to phase out nuclear power would have to contain three key elements:

1. The purpose stated in Section 1 no. 1 of the Atomic Energy Act - the development and use of nuclear energy for peaceful ends - would have to be changed in favour of the safe and orderly termination of large-scale use. Research work, including that into questions of reactor safety, would have to continue to be possible.

2. There will be no further licenses for nuclear power plants for generating electricity.

3. Provisions compatible with constitutional law for phasing out the operation of existing power plants would have to be made. The decision on the utilisation of nuclear power, he said, would affect not only power plant companies and their constitutional rights but also the totality of the citizens and their constitutional rights. Denninger: "If an Act of Parliament is therefore necessary, this would not exclude supplementary consensual regulations on the details of the phase-out."


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