Constitution and laws

The Basic Law (Grundgesetz) lays down provisions on the competences of the German federal government and its federal states (Länder) regarding the use of nuclear energy (Articles 73 no. 14, 87c, 85). According to these provisions, the Federation has exclusive legislative power over "the production and utilisation of nuclear energy for peaceful purposes, the construction and operation of facilities serving such purposes, protection against hazards arising from the release of nuclear energy or from ionising radiation, and the disposal of radioactive substances". As the competent licensing and supervisory authorities, the Länder implement the nuclear energy legislation, acting on federal commission (Bundesauftragsverwaltung). The federal government exercises oversight of legality and expediency and can, where it considers it to be necessary, take on technical competence. The Länder remain responsible for administrative action with external effect.

The German Atomic Energy Act (Atomgesetz – AtG) was promulgated on 23 December 1959 after the Federal Republic of Germany had officially renounced any use of nuclear weapons. It has since been amended several times. The purpose of the Atomic Energy Act is to protect life, health and real assets against the hazards of nuclear energy and the harmful effects of ionising radiation and to compensate for damage caused, to phase out the use of nuclear energy for the commercial generation of electricity in a controlled manner and to ensure orderly operation up until the date of termination. Accordingly, the Bundestag adopted the 19th Act amending the Atomic Energy Act of 9 December 2022, bringing the commercial generation of electricity from nuclear energy in Germany to a complete end on 15 April 2023. It also aims to prevent danger to the internal or external security of the Federal Republic of Germany from the use of nuclear energy. The Atomic Energy Act also enables Germany to meet its international obligations in the field of nuclear energy and radiation protection.

The Atomic Energy Act contains the fundamental national regulations on protective and precautionary measures and the disposal of radioactive waste and spent fuel in Germany. It is the basis for the associated ordinances.

As well as the purpose and general provisions, the Atomic Energy Act also comprises supervisory provisions, general provisions regarding the competences of administrative authorities, liability provisions and provisions on administrative fines.

To ensure protection against the hazards posed by radioactive materials and to supervise their use, the Atomic Energy Act requires that the construction and operation of nuclear installations is subject to licensing. It specifies prerequisites and the procedure for granting licences and carrying out supervision, including provisions on consulting authorised experts (section 20 Atomic Energy Act) and charging costs (section 21 Atomic Energy Act).

However, most of these provisions are not definitive and are further substantiated by ordinances and subordinate legislation regarding procedures and substantive legal requirements.

According to section 7 of the Atomic Energy Act, a licence is required for the erection, operation or otherwise holding of a stationary installation for the production, treatment, processing or fission of nuclear fuel, or for essentially modifying such an installation or its operation. A licence is also required for decommissioning.

This licence may only be granted if the licensing prerequisites listed in section 7 (2) of the Atomic Energy Act are fulfilled, in other words when

• there are no known facts giving rise to doubts as to the reliability of the applicant and of the persons responsible for the erection and management of the installation and the supervision of its operation, and the persons responsible for the erection and management of the installation and the supervision of its operation have the requisite qualification (number 1)
• it is assured that the persons who are otherwise engaged in the operation of the installation have the necessary knowledge concerning the safe operation of the installation, the possible hazards and the protective measures to be taken (number 2)
• the necessary precautions have been taken in the light of the state-of-the-art of science and technology to prevent damage (number 3)
• the necessary financial security has been provided to comply with the legal liability to pay compensation for damage (number 4)
• the necessary protection has been provided against disruptive acts or other interference by third parties (number 5) and
• the choice of the site of the installation does not conflict with overriding public interests, in particular in view of its environmental impacts (number 6).

The undefined legal terms chosen by the legislator such as "the necessary precautions... in the light of the state-of-the-art of science and technology to prevent damage" were chosen to facilitate dynamic development in precautionary action in line with the state-of-the-art. In its Kalkar I decision (BVerfGE 49, 89), the Federal Constitutional Court specified that by referring to the state-of-the-art of science and technology, the legislator is exercising even greater pressure to ensure "that the legal provision keeps pace with scientific and technological developments. All necessary precautions in line with the latest scientific findings must be taken to prevent damage. If these precautions are not yet technically possible, the licence cannot be issued; thus, the necessary precautions are not limited to what is currently technically possible."

The Act therefore leaves it to the executive branch to determine the type and in particular the scale of risks that are or are not accepted, whether by means of an ordinance in accordance with the relevant authorisations or case-by-case decisions taking account of the subordinate legislation. The Act itself does not specify detailed provisions about the procedure for identifying such risks.

In its Kalkar I decision, the Federal Constitutional Court also adopted a position on the licensing requirements of the Atomic Energy Act. According to this, the legislator has “...as far as hazards to life, health and real assets are concerned… established a benchmark, through the principles of the best possible emergency response and precaution against risks as laid down in Section 7 (2), that only permits licences to be granted if it can be practically ruled out in line with the state-of-the-art of science and technology that such hazards will occur. Uncertainties beyond this threshold of practical rationality would be rooted within the limits of human cognition; They would be inescapable and would therefore have to be borne by all citizens as a socially acceptable burden."

Today, these conditions for receiving a licence are only relevant for modifications to or the decommissioning of existing installations as, pursuant to section 7 (1) second sentence of the Atomic Energy Act, no further licences may be issued for the erection and operation of nuclear power plants and reprocessing facilities.

Licensed installations are subject to continuous government supervision pursuant to section 19 of the Atomic Energy Act.

A further key legal basis is the Act establishing a Federal Office for the Safety of Nuclear Waste Management (BfkEG) which transfers certain tasks of radiation protection and nuclear waste management safety to this office – established on 1 January 2020 as the Federal Office for the Safety of Nuclear Waste Management (BASE). The aim is to support the government’s nuclear regulatory authority.