Gleiss Lutz successful before the Federal Constitutional Court: prohibition on shipping nuclear fuels in the ports of the Free Hanseatic City of Bremen is not compatible with German Basic Law
A Gleiss Lutz team was successful before the Federal Constitutional Court on behalf of a consortium of plaintiffs from the energy and logistics sector. The Second Senate of the Federal Constitutional Court ruled on 7 December 2021, published on 11 January 2022, that the prohibition on the shipping (loading, unloading and reloading) of nuclear fuel in the ports of the Free Hanseatic City of Bremen under section 2(3) of the Bremen Port Operation Act (Bremisches Hafenbetriebsgesetz, “BremHafenbetrG") was incompatible with the Basic Law and declared the prohibition null and void. The reason given for the decision was that the Free Hanseatic City of Bremen lacks the legislative competence to enact a prohibition on shipment. The Federal Government has exclusive legislative power with respect to the utilisation of nuclear energy for peaceful purposes (Article 73(1) no. 14 German Basic Law). Section 2(3) BremHafenbetrG concerns, at least in its main focus, the subject matter of the peaceful use of nuclear energy, but the City has no competence to legislate on such matters.
With an amendment to the BremHafenbetrG of 31 January 2012, the Bremen Parliament had added paragraphs 2 and 3 to section 2 of that Act, which stipulated that in the interests of an overall economy that is geared towards sustainability and renewable energies, shipment of nuclear fuels was generally to be excluded.
As Gleiss Lutz had unsuccessfully applied to the Free Hanseatic City of Bremen on behalf of several plaintiffs, companies from the energy and logistics sector, for the granting of special permits for the shipping of nuclear fuel in the Bremen ports, it therefore brought an action before the Bremen Administrative Court. The Administrative Court stayed the proceeding pursuant to Article 100(1) Basic Law and referred the question to the Federal Constitutional Court for a ruling as to whether Article 2(3) BremHafenbetrG is incompatible with Article 71 and Article 73(1) no. 14 of the Basic Law and the principle of federal loyalty.
The Federal Constitutional Court has thus made a decision of fundamental significance on the distribution of legislative competence with regard to the peaceful use of nuclear energy. It found that such competence lies exclusively with the Federal Government and cannot be undermined by the right to dedicate state ports, through which in particular the possible uses would be determined. Not only does this decision establish with legal certainty that the States will not be able to take any measures in the future that circumvent this federal competence, but it is also of relevance beyond that. As a result, this means that the States and municipalities will have to observe this principle with regard to other legal matters for which the Federal Government has exclusive legislative competence as well, even if they are of a different political opinion.
The following Gleiss Lutz team worked on the proceedings before the Federal Constitutional Court, as well as before the Bremen Administrative Court: Dr Marc Ruttloff (partner, lead), Matthias Hahn, Dr Lisa Freihoff (all Public Law/Energy, Stuttgart).