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

2. 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

3. 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

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

5. 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

6. 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.

7. 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.

8. 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. …

9. 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?

10. 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

11. 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

12. Freedom of Occupation

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

14. 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)

15. 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