Legal Opinion: Passing of Search Costs for Alternative Final Repository onto Nuclear Power Plant Operators Is Unconstitutional

Berlin, 16.04.2013

The wholesale passing of the costs of searching for an alternative final repository onto the operators of nuclear power plants is fundamentally unconstitutional. Prof. Hans-Wolfgang Arndt arrives at this conclusion in his legal opinion of March 2012.

Arndt demonstrated the constitutional limits of such a search for an alternative in a legal opinion last year when politicians first aired considerations regarding a new final repository. Arndt convincingly illustrates that the exploration of Gorleben must first be concluded before those responsible for mandatory surrender, essentially the energy supply companies, can be called on to take over the costs for the exploration of further locations. If the legislative authority were to begin a search for an alternative before a judgement regarding the unsuitability of Gorleben was certain, this search would have to be financed by the taxpayer.

According to Arndt, the polluter-pays principle is no good as an argument for allowing the legislative authority to extend the instruments of non-fiscal financing options. Added to this, the precept of continuity and the protection of legitimate expectation would be an obstacle to the levying of additional location selection costs.

Above all else, in the search for the best possible final repository, the legislative authority would always be faced with the dilemma that every search for an alternative would open “the door to infinity”. In the event that, at best, the state were to reimburse the payments made for Gorleben in advance with interest, it would be conceivable in principle to call on those responsible for mandatory surrender to take over the costs involved in selecting a new location - this would not, however, be unlimited but rather only after careful consideration of the constitutional law prohibiting disproportionate measures.


Prof. Hans-Wolfgang Arndt is the former holder of the Chair for Public Law and Tax Law at the University of Mannheim. Arndt was Vice Chancellor of the University of Mannheim from 2001 to 2012.

In accordance with cross-party policy, the intention is now to open up the search for the best possible location for a final repository for heat-generating waste with the involvement of an Enquete Commission. The expectation is that the costs for the search process will be borne by those responsible for mandatory surrender. The costs incurred for the exploration of Gorleben so far already amount to approximately 1.6 billion Euros which gives a clear indication of the scope of these new costs.

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