“Atomic energy moratorium” contrary to the constitution?

The decision to decommission the oldest German nuclear power plants for a period of three months has provoked constitutional law criticism. Some people even claim that the moratorium is contrary to the constitution. Is this true? Guber │ PUBLIC LAW says: No. In fact, the decision of the parliament to extend the operating lifetime of nuclear power plants can only be canceled by the parliament. But this does not apply to a mere moratorium.

According to § 19 paragraph 3 sentence 2 No. 3 of the Atomic Energy Act, a temporary suspension of the power plant operation can take place among other things for the purpose of eliminating a status “which can result in dangers for life, health or property arising from ionising radiation”. The German Supreme Constitutional Court has ruled many times that - in the light of the nature and severity of possible dangers in the peaceful use of nuclear energy- "all it takes is a remote probability of their occurrence" to activate a state duty to protect. According to the ruling of administrative courts, it is primarily the responsibility of the executive branch, but not of the courts, to assess nuclear risks. Therefore, it is not objectionable by law, if the competent authorities take the disaster in Japan to carry out a reassessment.

The legal protection on basis of good faith, the operators rely on, is only a very weak legal position because of the extreme dangers of atomic energy. As far as can be seen, operators never succeeded in their claim for damages in Germany. Probably the most comprehensive lawsuit of this kind concerned the shutdown of the NPP Mülheim-Kärlich. The operator RWE finally waived claims for damage in line with “the withdrawal from nuclear energy” in 2001, but was allowed to transfer the remaining amount of electricity to other NPP.