Dr. Daniela StölzgenGRS

Nuclear Phase Out and Operator’s Rights – The German Example

The Nuclear Phase out in Germany

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2002

11th Amendement of the Atomic Act:nuclear phase out

2010

12th Amendment of the Atomic Act:lifetime extension

Fukushima moratorium of seven oldest plants

2011

13th Amendment of the Atomic Act:accelerated phase out

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Claims

Moratoriumconfirmed by the Federal Administrative Court

The Operator‘s Claims

13th Amendment of the Atomic Act

International Arbitration Energy Charter Treaty

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Financial Risk for the State

‘700.000 € / day‘

‘tens of billions‘

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Claims

Moratoriumconfirmed by the Federal Administrative Court

The Operator‘s Claims

13th Amendment of the Atomic Act

International Arbitration Energy Charter Treaty

Property rights

Principle of Equality

Freedom of Occupation

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Property Rights – Does the State Have to Pay Compensation?

Article 14 of the Basic law

(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.

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Property Rights – Does the State Have to Pay Compensation?

Article 14 of the Basic law

(1) …

(2) …

(3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute concerning the amount of compensation, recourse may be had to the ordinary courts.

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Property Rights – Does the State Have to Pay Compensation?

Article 14 of the Basic law

(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) …

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Property Rights – Does the State Have to Pay Compensation?

How intense is the infringement of property rights?

Has the operators trust been violated?

Have previous costs been covered?

Menue: Einfügen > Kopf- und Fußzeile 10

Principle of proportionality

Before Fukushima: ‚residual risk‘ considered acceptable

After Fukushima: assessment of the public good has changed

Protection of

ownership

Public good

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Principle of Equality

What is equal should be treated equally What is significantly different should be treated differently

Different treatments might be justified by differences between nuclear power plants

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Freedom of Occupation

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Freedom of Occupation Operator of a nuclear power plant = independent profession?

Freedom of occupation

Public good(social

acceptability)

Social acceptability

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International Arbitration – an Additional Risk for the State

Energy Charter Treaty protects foreign investors

Rights:- Article 13 protection against expropriation without

compensation- Article 10 (1) fair and equitable treatment requirement and

duty to observe any obligations vis-à-vis an investor or investment (umbrella clause)

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Main lessons learnt

Legal and financial risks not negligable Possibility for international arbitration increases these risks

Reliable long-term planning is important Proportionality of the legal measures has to be ensured

• One option: compensation payments