It is fundamentally unconstitutional to pass on the costs of an alternative repository search to the operators of nuclear power plants across the board. This is the conclusion reached by Prof Dr Hans-Wolfgang Arndt in his legal opinion of March 2012.

As early as last year, when politicians were first considering a new search for a final storage site, Arndt pointed out the constitutional limits of such a search for alternatives in a legal opinion. Arndt convincingly argues that Gorleben must first be explored to the end before the parties obliged to deliver, i.e. essentially the energy supply companies, can be called upon to bear the costs of exploring further sites. If the legislator begins a search for alternatives before a judgement on the unsuitability of Gorleben has been made, this search must be financed by the taxpayer.

According to Arndt, the polluter pays principle is not suitable for allowing legislators to expand the range of non-tax financing options at will. In addition, the principle of continuity and the protection of legitimate expectations would prevent the levying of additional site selection costs.

In particular, the legislator is always faced with the dilemma in the search for the best possible final repository that every search for alternatives opens the door to "the endless". At best, in the event that the state reimburses the advance payments made for Gorleben with interest, it is conceivable in principle that the parties obliged to deliver could be held liable for the costs of a new site selection - but this would not be unlimited, but only with careful consideration of the constitutional prohibition of excessiveness.

Background:

Prof Dr Hans-Wolfgang Arndt is the former holder of the Chair of Public Law and Tax Law at the University of Mannheim. Arndt was Rector of the University of Mannheim from 2001 to 2012.

According to the cross-party political will, the search for the best possible site for a final repository for heat-generating waste is now to be initiated with the involvement of a commission of enquiry. The costs of this search process are to be borne by those obliged to deliver the waste. The costs for the previous exploration of Gorleben already amount to around 1.6 billion euros, so the scale of these new costs is clear.

The German Atomic Forum e.V. (DAtF) has published its written statement to the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMU) on the "Draft Act on the Orderly Termination of Nuclear Energy Utilisation for the Commercial Generation of Electricity". The statement is part of the legislative process for the new Atomic Energy Act (AtG). Among other things, affected organisations and specialist groups are given the opportunity to comment on the draft legislation.

In the view of the German Atomic Energy Forum, the current draft bill is an acceptable compromise under the current political conditions. It corresponds to the content and spirit of the agreement initialled on 14 June 2000 and signed on 11 June 2001 between the Federal Government and the energy supply companies (EVU). In this agreement, the Federal Government is implementing its well-known basic line on energy policy. The energy supply companies give up their legal position on the basis of unlimited operating licences for the existing nuclear power plants, but in return receive economically calculable framework conditions.

The German Nuclear Forum believes that the Federal Government's conviction expressed in the draft law is wrong in terms of energy economics and climate policy. The peaceful utilisation of nuclear energy in Germany is economically successful, it is ethically responsible and contributes both to the protection of the environment and to the achievement of climate policy goals. With its politically motivated decision, Germany is following a special national path.

Many nations around the world continue to favour the use of nuclear energy. Some countries are currently even considering building new nuclear power plants. Against this backdrop, it is very important that Germany's nuclear expertise is not lost, as the high safety standard by international standards and the underlying safety philosophy are recognised worldwide. The Federal Government should therefore ensure without restriction that the economic activities of the German manufacturing and supply industry on the national and international nuclear technology market are not hindered. Nor should there be a technological break in the field of science and research. Future generations should thus be given the option of continuing to utilise nuclear energy in Germany.

The German Atomic Energy Forum and the companies represented in it assume that the final bill will also fulfil all points of the agreement and that all parties will subsequently act in the spirit of the agreement. If, on the other hand, the amendment to the law does not correspond to the agreement reached, this would be considered a cancellation of the basis for the agreement.

GERMAN NUCLEAR FORUM E.V.