In a ruling handed down on 6 December 2016, the First Senate of the Federal Constitutional Court held that the provisions of the 13th Act Amending the Nuclear Power Act (dated 31 July 2011 - ‘13th Amendment to the Nuclear Power Act’) were partly unconstitutional and that the German legislator was liable to pay compensation to nuclear power plant operators. The Court acknowledged that E.ON’s property rights, enshrined in Article 14(1) German Basic Law, and its associated legitimate expectations had been violated.
Background of the case: In December 2010 the legislator extended the average operating life of German nuclear power plants by 12 years (to a total of 44 years; international standard: 60 years). Extension of the operating permits was justified with the function of nuclear power as a bridging technology, allowing for sufficient time to make the switch to renewable energy sources. The extension was retracted after the events of Fukushima in August 2011. Reversing the previous legal position, a definitive date was then set by which the operation of nuclear power plants was to case. In November 2011, Gleiss Lutz filed a constitutional appeal against the 13th Amendment to the Nuclear Power Act on behalf of E.ON.
In its ruling, the Court held that some of the provisions unjustifiably violated property rights worthy of protection and restricted the use of the affected power plants. In particular, they did not provide for any compensation for investments made in reliance on the extension agreed in 2010 and that were made entirely redundant only a few months later. The German legislator has to amend the Atomic Energy Act until 30 June 2018 with a constitutional solution that provides for corresponding compensation.
In the case before the Federal Constitutional Court E.ON was advised by the following team of Gleiss Lutz lawyers: Prof. Dr. Christoph Moench (lead, partner), Prof. Dr. Rupert Scholz (of counsel, both Berlin), Prof. Dr. Michael Uechtritz (partner, Stuttgart), Dr. Marc Ruttloff (all public law, Berlin).
Gleiss Lutz regularly assists E.ON. In view of the complexity and scope of the subject matter, the number of parties involved and the issues in dispute, the constitutional appeal proceedings regarding accelerated nuclear phase-out are among the most significant in the history of the Federal Constitutional Court. Energy providers RWE and Vattenfall had also filed a constitutional appeal.
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