Berlin, 12.01.2022
The Federal Constitutional Court has ruled that the ban on handling nuclear fuel in the ports of Bremen is incompatible with the Basic Law of the Federal Republic of Germany. The supreme court decision, which was delivered on 11 January 2022, confirms the opinion of the industry association KernD e.V. and its member companies Advanced Nuclear Fuels mbH (ANF), GNS Gesellschaft für Nuklear-Service mbH (GNS) and Orano NCS GmbH, which had filed a lawsuit against the handling ban.
In its ruling, the Second Senate of the Federal Constitutional Court declared the ban on the transshipment of nuclear fuel in the ports of Bremen, which was introduced into the Bremen Port Operations Act in 2012, to be incompatible with the Basic Law and null and void. The Federal Constitutional Court clarifies that the exclusive legislative competence of the federal government for the peaceful use of nuclear energy encompasses all nuclear energy-related issues and therefore also the transport and handling of nuclear fuel. The Federal Government is therefore responsible for the risk assessment of all processes associated with the transport of radioactive materials and the determination of the resulting authorisation requirements to ensure safe transport. The federal states may not undermine the federal government's risk assessments with their own, deviating risk assessments.
KernD welcomes the decision because it ensures the necessary legal and planning certainty for the continued transport of radioactive materials. It enables the selection of ports for the handling of radioactive materials to be based on efficiency criteria again in future.
Legal background:
The ban on handling nuclear fuel in Bremen's ports was introduced in 2012 with the new Section 2 (3) of the Bremen Port Operations Act. In its ruling of 7 December 2021 (case reference: 2 BvL 2/15), the second senate of the Federal Constitutional Court has now declared the ban on transshipment to be incompatible with Art. 71 and Art. 73 Para. 1 No. 14 of the German Basic Law (GG) and null and void.
The Federal Constitutional Court confirms the view of the Bremen Administrative Court and the plaintiffs in the main proceedings that the Federal Government is assigned exclusive legislative competence for all matters relevant to nuclear energy in Article 73 (1) No. 14 of the Basic Law, including the transport and handling of nuclear fuels. The federal states may not deviate from the fundamental decisions laid down by the federal government for the safe transport of radioactive materials and may not undermine these by carrying out their own risk assessments. In its effect, the prohibition in Section 2 (3) of the Bremen Port Operations Act is a nuclear law regulation that cannot be based on the competence of the federal states for public property law.
The Federal Constitutional Court also emphasises that, according to Section 4 (2) No. 6 AtG, it is the federal government and not a state that decides whether the transport licence conflicts with overriding public interests.
The court also takes the prohibition on envelopes as an opportunity to refer to its established case law on federal loyalty. According to this, loyalty to the federal government obliges the federal and state governments to take due and reasonable account of the overall interests of the federal state when exercising their legislative powers. This includes the obligation of the federal states to "refrain from measures that exert political pressure on federal bodies to change the substantive decisions they have taken by utilising federal powers".
The decision of the Federal Constitutional Court of 7 December 2021 is of fundamental importance. It concerns not only the handling of nuclear fuel in ports, but also the use of transport infrastructure for the transport of radioactive materials in general.
The plaintiffs in the main proceedings are represented by Prof Dr Christoph Moench/SammlerUsinger and Dr Marc Ruttloff/Gleiss Lutz.
Press contact:
Nicolas Wendler
Phone: +49 172 237 91 84
E-mail: presse@kernd.de
Operating results of the nuclear power plants in Germany for 2021 (PDF, 22.64 KB)
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