German energy disputes between the states and industry
In this, the third article on German energy issues translated "from the German Papers"... in a bitter tussle in the courts between the German Federal states and industry involving damages for billions, the industrial giants come off second best.
THE article: the german energy wars
Remscheider General Anzeige Tuesday 5th July 2016. Klare Abfuhr in Akw-Streit fuer Eon (decided dismissal of Eon in the atomic power dispute)
The German energy industry has complained many times about the nuclear phase out. Till now the courts have shown themselves to be thoroughly dismissive.
By Rolf Schra and Heiko Lossie
Ever since the catastrophe in Fukushima on the 11th of March 2011, and the abrupt German exit from nuclear strategy, the German energy sector has sued for damages without, according to them, any success. Yesterday the 19th Zivilkammer des Landesgerichts Hannover (civil chamber of the federal court of Hannover) rejected the claim made by the energy giants for 380 million Euros compensation for shutting down the atomic plants Isar 1 and Unterwieser.
“The complainant themselves presented the fact that the atomic energy in Germany is not the same as that in Japan”
Martin Schultz : Chief justice, on the failure of Eon to lay a complaint directly after the atomic power station was closed.
A speaker of the Eon-company said: ”We’re examining the court’s decision”. Eon sees its delayed application for compensation as compliant with the supreme court rulings of theBundesgerichtshof (Federal Supreme Court), therefore the lodging of an appeal is likely, he said. Even in the preceding cases decided in 2011 on the nuclear moratorium, the courts had shown themselves as dismissive: in Essen at the end of 2015, the courts downward adjusted the compensation claim which had been made by RWE before the decisions. In Bonn the EnBW- company got a blunt refusal in February 2016.
What is Eon objecting to ?
The three month moratorium for the oldest German power plants was agreed by minister presidents of the nuclear power using provinces only days after Fukushima. Shortly after that the changing of the nuclear statutes occurred, with the definitive elimination of 8 power stations and a phase out scenario for the remaining plants by the end of 2022. Eon believes they have been dispossessed at Isar 1 and Unterweser, and claim compensation from the Federal Republic and the provinces Bavaria and Niedersachsen.
The complainant in Hannover was a subsidiary of Eon Kernkraft GMBH, renamed Preussen Elektra. They object to the temporary shut down power stations Isar 1 and Unterweeser by Bavaria and Niedersachsen in 2011: “ I expect justice” said company head Johannes Teysen earlier this year at the presentation of his financial statements accompanying the complaints. These were deep in the red because of the change in energy strategy.
What arguments are the complainants using ?
All claimants base their case on a Hessische Verwaltungsgerichtshof (higher administrative tribunal of Hessen) decision at the beginning of 2013. The court found the moratorium on both RWE power plants Biblis and Bergstrasse unlawful because RWE had not been correctly heard before the decision, and the judgment was confirmed by theBundesverwaltungsgericht (federal higher administrative court).
What do the judges say ?
In the verbal negotiations at the end of April, the presiding judge in Hannover, Martin Shulz, already expressed doubt on Eon’s position. After all, Eon did not defend themselves against the possibly unconstitutional state requirements in 2011. Because they failed to resist, the federal court did not see itself as compelled to decide on the content of compensation claims. A compensation duty falls away “when the injured party knowingly or negligently omitted to seek recompense for the damages in court”. The party who doesn’t make a claim cannot be compensated after the fact, said Schulz. This perspective also decided the judgment: Eon could have attempted to stop the moratorium with an appeal to the Verwaltungsgericht, (higher administrative court), said the court. The Chamber argued that the suspensory effect of the appeal to the Verwatlungsgerichtwould have been granted to Eon: “operating authorizations for the affected nuclear plants were presented”. Even just before the Fukushima disaster an extended operating period was decided on: “the complainant herself put forward that the situation of the German nuclear power stations was not comparable to that in Japan”. Eon could not invoke the general anti nuclear sentiment after Fukushima, that made such a step impossible, after all, nuclear power was already contentious before the catastrophe.
Constitutional court The most important case decided before the federal constitutional court was the claim made by Eon, RWE and Vattenfall in the middle of March of this year against the rapid nuclear phase out. Till now it is not known when the decision will fall. If the companies win at the highest judiciary level, then civil proceedings with claims amounting to double digit billions will follow.
Payments Observers doubt that in the case of a victory at the constitutional court level the companies will actually be paid out in billions. After all the equally prodigious cost of the nuclear phase out is pending and the energy industry urgently wants to avoid the incalculable cost burden for this. According to the suggestion of the nuclear commission at the end of April, Eon, RWE, Vattenfall and EnBW combined should transfer 23,3 billion Euros into a fund. Details are being wrestled over behind the scenes. The dropping of claims by the energy industry could become a bargaining chip in this poker game with billions at stake.
the dissent over german energy actually inspirational
Well South Africa has had its energy woes, but if the environmentalists had their way, like they do in Germany energy issues, it would be far from over. See links to the other articles in the series on German energy below:
home page for links on inspiring green ideas
green energy issues
introduction to the series "from the German Papers"
"from the German Papers" German energy policy, an article on nuclear energy in Europe
"from the German Papers" article on failure to meet climate protection targets for German energy
green electricity in South Africa ? not anytime soon
link to a scientific article on German climate protection policy