Amendments to the Atomic Energy Act

The nuclear consequences of the events in Japan on 11 March 2011 represented a defining moment – for Japan and the whole world. The German government and the minister presidents of the Länder with nuclear power plants therefore decided to review the safety of all Germany’s nuclear power plants and reassess the risks of the use of nuclear energy in a dialogue involving all segments of civil society and the Ethics Commission on a Safe Energy Supply.

Having considered the findings of the Reactor Safety Commission and the Ethics Commission on a Safe Energy Supply and bearing in mind the absolute primacy of nuclear safety, legislators issued the 13th Act amending the Atomic Energy Act of 31 July 2011 (13th AtG amendment). This Act requires ending the use of nuclear energy at the earliest possible date. The new Act repealed the additional electricity volumes allowed under the 11th AtG amendment of 8 December 2010 and introduced a limitation of the operating licences of nuclear power plants to the residual period, in stages up to 31 December 2022. It thus set a fixed date for ending the use of nuclear power for commercial electricity generation in Germany.

Council Directives 2011/70/Euratom of 19 July 2011 establishing a Community framework for the responsible and safe management of spent fuel and radioactive waste and 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations, amended by Council Directive 2014/87/Euratom of 8 July 2014, had to be transposed into national law by the EU member states.

The Atomic Energy Act (AtG), the legislative ordinances based on it and the Repository Site Selection Act (Standortauswahlgesetz, StandAG) adopted by the Bundestag in June 2013, already covered many of the provisions of the EU Directives. Further provisions entered into force with the 14th and 15th AtG amendments on 26 November 2015 and 10 June 2017 respectively.

The 16th AtG amendment was issued to remove the constitutional deficits of the 13th AtG amendment identified in the judgment of the Federal Constitutional Court of 6 December 2016. The Federal Constitutional Court confirmed that the 13th AtG amendment was for the most part compatible with the Basic Law, finding a need for correction only in marginal aspects of the act. Rectifying this, for example with a provision on fair financial compensation, or extending the lifetime of particular nuclear power plants, was at the discretion of the legislature.

The 16th AtG amendment adopted by the Bundestag removed the constitutional objections with the provision on fair financial compensation. In a decision of 29 September 2020, the Federal Constitutional Court found that the16th AtG amendment failed to enter into force and furthermore that even if it were to become effective subsequently, substantive violations would prevent the act from removing the constitutional deficits identified in the judgment of 6 December 2016. Consequently, the legislature is still obligated to reform the act in order to remedy the objected violations of the Constitution upheld in the judgment of 6 December 2016.

The draft of a 17th AtG amendment focuses on nuclear security. This law strengthens legal certainty in relation to how requirements and measures relevant to the security of nuclear power plants, interim storage facilities and transports are laid down. Proving the safety of a nuclear power plant is the sole responsibility of the licencee, for instance energy companies (nuclear power plants) or the state (interim storage facilities). The security of these installations – against external impacts – must be achieved through government protective measures and security measures by the licencee. In the field of nuclear security, it must be noted that protecting against acts of terrorism is primarily a task of the state. Due to the high potential risk of nuclear power plants and related activities, licencees are also obligated under the Atomic Energy Act to implement supplementary protective measures against disruptive actions and other third party interference.

The draft of an 18th AtG amendment seeks to remedy the violations of energy supply companies’ constitutional rights arising from the 13th AtG amendment and to conclusively regulate, in mutual agreement, all the consequent legal issues disputed among the stakeholders, with the aim of finally establishing legal concord on the accelerated phase-out of nuclear power. To this end, a number of energy supply companies will receive specific financial compensation of varying amounts for devalued investment in the extended operating life and for electricity generation allowances that are unusable pursuant to Annex 3 column 2 of the Atomic Energy Act. This amendment redresses the violation of basic rights identified by the Federal Constitutional Court judgment of 6 December 2016. The Act will enter into force on 31 October 2021.

The acts that entered into force are identical with the draft acts (Bundestag publications 17/3051 and 17/3052). The justifications for the new provisions can be read in these draft acts.