Amendments to the Atomic Energy Act

The nuclear aftermath 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 federal states with nuclear power plants decided to review the safety of all nuclear power plants in Germany and reassess the risks of the use of nuclear power in dialogue with civil society and involving 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 (AtG) of 31 July 2011 to put an end to the use of nuclear power at the earliest possible date. The additional electricity volumes granted with the 11th Act amending the Atomic Energy Act of 8 December 2010 were cancelled. The Act introduced individual end dates for electricity production for each nuclear power plant in a residual period up to 31 December 2022, setting a fixed date for ending the peaceful 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, the legislative ordinances based on it and the Site Selection Act (Standortauswahlgesetz) adopted by the German Bundestag in June 2013 already covered many of the provisions of the EU Directives. Additional provisions were transposed with the entry into force of the 14th Act amending the AtG on 26 November 2015 and of the 15th Act amending the AtG on 10 June 2017. 

The 16th Act amending the AtG was issued to remove the constitutional deficits of the 13th Act amending the AtG identified in the judgment of the Federal Constitutional Court of 6 December 2016. The Court had confirmed that the 13th Act amending the AtG essentially complied with the constitution, finding a need for correction only in marginal areas of the Act. It was left to the discretion of the legislator to rectify the provisions in question, e.g. by providing for fair financial compensation or extending the lifetime of certain nuclear power plants.

As a result, the legislator adopted the 16th Act amending the AtG, removing the constitutional objections with a provision on fair financial compensation. In its decision of 29 September 2020, the Federal Constitutional Court found that the 16th Act amending the AtG had not entered into force effectively and furthermore that even if it were to become effective subsequently, material contraventions would prevent the Act from eliminating the constitutional deficits identified by the judgment of 6 December 2016. Consequently, the legislator was still obligated to reform the Act in order to remove the constitutional objections already identified with the judgment of 6 December 2016.

The 17th Act amending the AtG focused on nuclear security. This Act strengthened legal certainty on how to lay down requirements and measures for the security of nuclear power plants, interim storage facilities and transports. Proving the safety of a nuclear power plant is the sole responsibility of the licensee, for instance energy companies (for nuclear power plants) or the state (for interim storage facilities). The security of these installations – against external impacts – must be achieved through protective measures by the state and security measures by the licensee. In the field of nuclear security, protection against acts of terrorism is primarily a task for the state. Due to the high potential risk of nuclear power plants and related activities, the Atomic Energy Act also obligates licensees to implement supplementary protective measures against disruptive actions and other third party interference.

The 18th Act amending the AtG aimed to eliminate the adverse effects the 13th Act had on the affected energy companies and to settle for good and in mutual agreement all the related legal issues that had been controversial among the stakeholders, with the aim of bringing ultimate legal certainty to all parties in relation to 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 volumes pursuant to Annex 3 column 2 of the Atomic Energy Act that can no longer be used. This amendment redresses the violation of basic rights identified by the Federal Constitutional Court judgment of 6 December 2016. This Act entered into force on 31 October 2021.

The 19th Act amending the AtG provided for the temporary continued operation of the last three nuclear power plants generating electricity – Emsland, Isar 2 and Neckarwestheim 2 – until 15 April 2023, beyond the previously established end date of 31 December 2022. This was done to ensure additional generating capacity in the German electricity grid for the winter of 2022/2023 in an effort to secure overall energy supply and maintain grid security. Only fuel elements already available in each reactor were allowed to be used to generate electricity during this limited continued operation. The corresponding provisions prohibited the use of new fuel elements.

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.