The Basic Law (Grundgesetz) lays down provisions on the competences of the Federal government and the Länder regarding the use of nuclear energy (Articles 73 no. 14, 87c, 85). According to these provisions, the Federal government has the exclusive right to legislate in this area. The Länder, as the competent licensing and supervisory authorities, execute nuclear law on behalf of the Federal government. The Federal government exercises oversight of legality and appropriateness and can, where it considers it to be necessary, take on technical competence. The Länder remain in any case responsible for external administrative actions.
The Basic Law establishes essential principles that also apply to nuclear law. With the fundamental rights, in particular the objective and legal duty of all state authority to protect human dignity pursuant to Article 1 (1) second sentence, and the right to life and physical integrity pursuant to Article 2, the Basic Law determines the benchmark to be applied to protective and precautionary measures at nuclear power plants. In its Kalkar I decision (BVerfGE 49, 89), the Federal Constitutional Court specified that the state is obliged "to undertake every effort to identify potential hazards at an early stage and to counteract them with the necessary constitutional means. […] The provisions of nuclear protection law and radiation protection law show that the legislator is aware of this duty. They are geared towards a comprehensive and interlocking system of standards aimed at ensuring complete sovereign control and monitoring of all practices and installations for the peaceful use of nuclear energy."
Atomic Energy Act
The Atomic Energy Act (Atomgesetz - AtG) was promulgated on 23 December 1959 after the Federal Republic of Germany officially renounced all use of nuclear weapons. Since then, it has been amended several times. The purpose of the Atomic Energy Act is to protect life, health and real assets against the hazards of nuclear energy and the harmful effects of ionising radiation and to provide compensation for damage caused, to phase out the use of nuclear energy for the commercial generation of electricity in a controlled manner and to ensure orderly operation up until the date of termination. It also aims to prevent danger to the internal or external security of the Federal Republic of Germany from the application of nuclear energy. The Atomic Energy Act also enables Germany to meet its international obligations in the field of nuclear energy and radiation protection.
The German Bundestag adopted the 13th Act amending the Atomic Energy Act on 30 June 2011. The amended provisions regulate the end of the use of nuclear energy for commercial electricity generation in Germany. This Act entered into force on 6 August 2011. As a consequence, nuclear power generation in Germany will be phased out gradually by the end of 2022 at the latest.
The Atomic Energy Act contains the fundamental national regulations on protective and precautionary measures, radiation protection and the disposal of radioactive waste and spent fuel in Germany and is the basis for the associated ordinances.
As well as the purpose and general provisions, the Atomic Energy Act also comprises supervisory provisions, general provisions regarding the competences of administrative authorities, liability provisions and provisions on administrative fines.
To ensure protection against the hazards posed by radioactive materials and to supervise their use, the Atomic Energy Act requires that the erection and operation of nuclear installations is subject to licensing. It specifies prerequisites and the procedure for granting licences and carrying out supervision, including provisions on consulting authorised experts (section 20 AtG) and charging costs (section 21 AtG).
However, most of these provisions are not conclusive and are further substantiated by ordinances and subordinate legislation regarding procedures and substantive legal requirements.
According to section 7 of the Atomic Energy Act, a licence is required for the erection, operation or otherwise holding of a stationary installation for the production, treatment, processing or fission of nuclear fuel, or for essentially modifying such an installation or its operation. A licence is also required for decommissioning.
This licence may only be granted if the licensing prerequisites listed in section 7 (2) of the Atomic Energy Act are fulfilled, in other words when
- there are no known facts giving rise to doubts as to the reliability of the applicant and of the persons responsible for the erection and management of the installation and the supervision of its operation, and the persons responsible for the erection and management of the installation and the supervision of its operation have the requisite qualification (number 1)
- it is assured that the persons who are otherwise engaged in the operation of the installation have the necessary knowledge concerning the safe operation of the installation, the possible hazards and the protective measures to be taken (number 2)
- the necessary precautions have been taken in the light of the state-of-the-art of science and technology to prevent damage (number 3)
- the necessary financial security has been provided to comply with the legal liability to pay compensation for damage (number 4)
- the necessary protection has been provided against disruptive acts or other interference by third parties (number 5)
- and the choice of the site of the installation does not conflict with overriding public interests, in particular in view of its environmental impacts (number 6).
The undefined legal terms chosen by the legislator such as "the necessary precautions in the light of the state-of-the-art of science and technology to prevent damage" were chosen to facilitate a dynamic development in precautionary action in line with the state-of-the-art. The Federal Constitutional Court specified that by referring to the state-of-the-art of science and technology, the legislator is exercising even greater pressure to ensure "that the legal provision keeps pace with scientific and technological developments. To prevent damage, precautions have to be taken that are considered necessary in line with the latest scientific findings."
The Act therefore has left it to the executive body to determine the type and, in particular the scale of risks that can or cannot be accepted, whether by means of an ordinance in accordance with the relevant authorisations or case-by-case decisions taking account of the subordinate legislation. The Act itself does not specify detailed provisions about the procedure for identifying such risks.
The Federal Constitutional Court also adopted a position as to the licencing prerequisites of the Atomic Energy Act in its Kalkar I decision. According to this, the legislator has "..as far as hazards to life, health and real assets are concerned… established a benchmark, through the principles of the best possible emergency response and precaution against risks as laid down in Section 7 (2), that only permits licences to be granted if it can be practically ruled out in line with the state-of-the-art of science and technology that such hazards will occur. Uncertainties beyond this threshold of practical rationality would be rooted within the limits of human cognition; They would be inescapable and would therefore have to be borne by all citizens as a socially acceptable burden."
Today, this prerequisite for a licence is only relevant for modifications to or the decommissioning of existing installations as, pursuant to section 7 (1) second sentence of the Atomic Energy Act, no further licences may be issued for the erection and operation of nuclear power plants and reprocessing facilities.
Licensed installations are subject to continuous government supervision pursuant to section 19 of the Atomic Energy Act.
Other important pieces of legislation are the Act establishing a Federal Office for Radiation Protection (BAStrlSchG) and the Act establishing a Federal Office for the Safety of Nuclear Waste Management (BfkEG). These acts allow for certain tasks in the field of radiation protection, the safety of nuclear power plants and the safety of nuclear waste management to be assigned to these offices to support the government’s nuclear regulatory authority.