Dr. Daniela Stölzgen GRS Nuclear Phase Out and Operator’s Rights – The German Example Dr. Daniela Stölzgen GRS

The Nuclear Phase out in Germany 11th Amendement of the Atomic Act: nuclear phase out 12th Amendment of the Atomic Act: lifetime extension Fukushima  moratorium of seven oldest plants 13th Amendment of the Atomic Act: accelerated phase out 2002 2010 2011

The Operator‘s Claims Claims Moratorium International Arbitration confirmed by the Federal Administrative Court International Arbitration Energy Charter Treaty 13th Amendment of the Atomic Act

Financial Risk for the State ‘tens of billions‘ ‘700.000 € / day‘

Claims The Operator‘s Claims Moratorium International Arbitration confirmed by the Federal Administrative Court International Arbitration Energy Charter Treaty Property rights Principle of Equality Freedom of Occupation 13th Amendment of the Atomic Act

Property Rights – Does the State Have to Pay Compensation? Article 14 of the Basic law Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. Property entails obligations. Its use shall also serve the public good. 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.

Property Rights – Does the State Have to Pay Compensation? Article 14 of the Basic law … 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.

Property Rights – Does the State Have to Pay Compensation? Article 14 of the Basic law Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. Property entails obligations. Its use shall also serve the public good. …

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?

Principle of proportionality Protection of ownership Public good Before Fukushima: ‚residual risk‘ considered acceptable After Fukushima: assessment of the public good has changed Menue: Einfügen > Kopf- und Fußzeile

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

Freedom of Occupation

(social acceptability) Freedom of Occupation Operator of a nuclear power plant = independent profession? Social acceptability Freedom of occupation Public good (social acceptability)

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)

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