• Certainty for companies and owners

In its decision today, the German Federal Constitutional Court determined that the constitutional complaint filed by RWE Power AG against the 13th amendment to the German Nuclear Energy Act was partly justified and that the amendment was unconstitutional with regard to certain aspects of the legislation. Germany’s nuclear energy phase-out is not affected by today’s decision. Nevertheless, the court made it clear that the legal regulations governing the implementation of the nuclear exit represent an intervention in RWE Power AG’s legal rights. The 13th amendment to the German Nuclear Energy Act violates RWE Power AG’s fundamental right to property, as long-standing remaining electricity contingents for example from the “Mülheim-Kärlich” contingent were cut without compensation. Within the context of the nuclear phase-out, the company had received this electricity contingent – amongst others – in 2002 for its power plants and in return did not make use of its compensation rights from the Mülheim-Kärlich proceedings. Now that the decommissioning dates have been set for the power plants in the 13th amendment to the German Nuclear Energy Act, it is no longer possible for RWE Power AG to use this electricity contingent for its power plants. The court saw this situation as an unconstitutional intervention in property rights. RWE welcomes the fact that the court has partly followed the company’s understanding of the legal situation.

However, the court did not see the decision to abandon lifetime extensions which were only granted in 2010 as an unlawful intervention. The shortening of the lifetimes set out in the 13th amendment to the German Nuclear Energy Act was rightfully revoked according to today’s decision by the Federal Constitutional Court. Irrespective of this, investments made in the expectation that lifetimes would be extended are protected.

“With today’s decision by the highest German court, we have gained certainty for our company and its owners regarding a legal issue that is of fundamental importance for us”, says RWE Power CEO Matthias Hartung. “RWE will now review the written grounds for the decision in detail and then decide how to proceed”.

No comment can be made regarding the amount of compensation involved until the decision has been analysed in detail. It is at the government’s discretion to determine how and when the decision can be implemented constitutionally. RWE is prepared to hold talks with the German government on the implementation of the decision.

With the 13th amendment to the Nuclear Energy Act in 2011, lawmakers decided to accelerate the nuclear energy phase-out. In 2012, RWE Power filed a constitutional complaint against this decision with the Federal Constitutional Court – as did the other energy companies affected. The companies involved in the proceedings were not questioning whether the nuclear phase-out should happen, but rather on how it should be implemented. The companies wanted to have clarification (also in the interest of their shareholders) regarding whether the 13th amendment to the Nuclear Energy Act represented an unlawful intervention in constitutionally assured fundamental rights.