The legal issues concerning the "Moratorium" and others

As I already said in my first post on May 7th the German Gov't enforced a so called Moratorium. That means in opposite to their law of 2010 which would extend the use of nuclear energy for more than 30 years the CDU/FDP decided to shut down several nuclear powerplants for at least 3 month. All of these things happenend in connection to the natural catastrophe in Japan. But however as mentioned in the first text this Moratorium does not seem to be legal.

In an interview chancelor Angela Merkel said refering to nuclear-energy: "Security is above all, therfore everything needs to be checked." As a result to this statement seven nuclear powerplants will be checked right now if they could be a danger for the country. Guido Westerwelle (Vice-Chancelor) said that the Gov't never warranted for those powerplants to run forever. Merkel added that after the "Moratorium" the situation will be a different one then how it has been before.

But is it legal?

Even the Moratorium is more or less critical. "The current law (AtomGesetz/ NuclearLaw) does not support those actions by the Gov't" expressed Gerhard Roller a professor for nuclear law. "

1. Such a bevaviour is however a clear violence of Art. 14 GG (the law of property) against the nuclear-firms. They would be faced with massiv losses.

2. The Gov't recalls § 19 Abs. 3 AtomG ( Nuclear-Law) for its actions.

This § 19 Abs. 3 says in its first part that the committee may order that a certain state is removed that interfers with the "AtomG". This is the so called "special case". The Gov't would have to prove the explicite danger from each of the powerplants that they intend to shut down. And they would also have to explain why those dangers did not play a role in 2010 when they in forced a law which would extend the use of nuclear energy for another 30 years.

Those difficulties are only to discuss concerning the Moratorium.

It even would become worse when the Gov't would want to shut down a powerplant forever.

1. § 17 Abs. 5 AtomG requires a specific threat which the powerplant causes towards the workers in the powerplant or other people.

However the Gov't could create a "scientific-report" which would state that in the catastrophe in Japan new facts were found which evidently show that those powerplants are a danger for other people. But this report sounds easier than it is. The Gov't would specificly have to prove those facts.

For example the Gov't could mention the scenario what would happen if a plane would crash into one of the powerplants.

However no matter which scenario the Gov't would create the energy-companies could respond that they would try to fix the problems.

As a result it is very hard for the the CDU/FDP to get out of this situation. For right now the companies have not expressed that they intent to sue the Gov't. But if the CDU/FDP would for example try to change the nuclear law they could easily bring an action to the german courts and probably win.

It will be very interessting to see what will happen next. For right now the Gov't has established a commettee which will try to find a way out of this situation.

Julian Eslami

Subturma 1