Ban on the handling (loading, unloading and transshipment) of nuclear fuel in the ports of Bremen is incompatible with the Basic Law

Press Release No. 1/2022 of 11 January 2022

Order of 7 December 2021
2 BvL 2/15

In an order published today, the Second Senate of the Federal Constitutional Court declared that the ban on the handling (loading, unloading and transshipment) of nuclear fuel in the ports of Bremen imposed by § 2(3) of the Bremen Port Operations Act (Bremisches Hafenbetriebsgesetz – BremHafenbetrG) is incompatible with the Basic Law and void. In its reasoning, the Court stated that Bremen – in its capacity as a Land – does not have the legislative competence to adopt such a ban. The exclusive power to enact legislation on the utilisation of nuclear energy for peaceful purposes lies with the Federation (Art. 73(1) no. 14 of the Basic Law, Grundgesetz – GG). Given that § 2(3) BremHafenbetrG deals primarily with the peaceful use of nuclear energy, Bremen (as a Land) is not authorised to legislate on this matter. The proceedings are based on a referral from the Bremen Administrative Court (Verwaltungsgerichtder Freien Hansestadt Bremen).

Facts of the case:

The Act Amending the Bremen Port Operations Act of 31 January 2012 added a new second and third section to § 2 of the amended Act. Under these new provisions, the handling of nuclear fuel is prohibited in the interest of an overall economic strategy that promotes sustainability and renewable energy. The amended Act also states that the Bremen government may grant general and individual exemptions.

The events leading to the amendment started with the Bremen parliament adopting a resolution on 11 November 2010, calling upon the Bremen government inter alia to exhaust all the legal and factual possibilities to prevent nuclear fuel from being transported through the ports of Bremen or via other transport routes in the Land. In particular, the Bremen government was asked to immediately take all legal steps at its disposal to block the ports of Bremen and other transport routes through Bremen and Bremerhaven from being used for the transport of nuclear fuel. Furthermore, the resolution called on the Bremen government to exert its influence, in its function representing shareholder interests in companies under public sector control, to strongly discourage such companies from participating in the transportation and handling of nuclear fuel. The stated reason for this resolution was that the Federal Government’s utterly misguided and irresponsible decision to extend the lifespans of nuclear power plants would have a devastating impact on Bremen. Not only would the Land territories of Bremen and Bremerhaven be exposed to the considerable risks associated with old nuclear power plants for decades to come, they would also be massively affected by the fact that nuclear fuel (and its waste products) would continue to be transported over a long period and – according to the Federal Government’s plans – would be loaded at the Bremen ports among other places.

The plaintiffs in the initial proceedings before the referring Administrative Court each possess a transport licence issued by the Federal Office for Radiation Protection (Bundesamt für Strahlenschutz) in accordance with the Atomic Energy Act (Atomgesetz – AtG). These licences expressly permit transportation via the ports of Bremen. The plaintiffs unsuccessfully applied to the Bremen authorities for exemptions from the ban on the handling of nuclear fuel in the ports of Bremen, following which they sought recourse to the courts. The Administrative Court suspended these proceedings under Art. 100(1) GG and referred the question to the Federal Constitutional Court as to whether § 2(3) BremHafenbetrG is incompatible with Art. 71 and Art. 73(1) no. 14 GG and with the fundamental principle of loyalty within the federal order (Bundestreue). In the Administrative Court’s view, the provision violates the division of competences set out in the Basic Law because it constitutes legislation on matters of atomic energy law – an area for which the Federation has exclusive legislative competence under Art. 73(1) no. 14 GG.

Key considerations of the Senate:

§ 2(3) BremHafenbetrG is incompatible with Art. 71 and Art. 73(1) no. 14 GG and is void.

I. The Basic Law provides for a division of legislative competences between the Federation and the Länder. This allocation of competences is in principle exhaustive. The Federation has the right to legislate insofar as the Basic Law expressly confers legislative competence on the Federation. In all other cases, the Länder are authorised to legislate.

II. The Land legislator does not have the legislative competence to enact § 2(3) BremHafenbetrG.

1. According to Art. 73(1) no. 14 GG, the Federation has exclusive legislative competence with respect to the production and utilisation of nuclear energy for peaceful purposes, the construction and operation of facilities serving such purposes, protection against hazards arising from the release of nuclear energy or from ionising radiation, and the disposal of radioactive substances. Art. 73(1) no. 14 GG is to be understood as having comprehensive and exhaustive meaning; it extends to all matters relevant to nuclear energy, also covering provisions on the transport and handling of nuclear fuel. In terms of its spirit and purpose, Art. 73(1) no. 14 GG is designed to reserve for the Federation the power to deal with all matters relevant to nuclear energy. With a view to potential overlaps in legislative subject matters, this competence clause is meant to take precedence. The utilisation of nuclear energy for peaceful purposes necessarily requires the transport of radioactive materials. The scope of legislative competence under Art. 73(1) no. 14 GG thus extends to provisions governing the transport of such materials. As a result, provisions governing loading procedures and the handling of nuclear fuel – necessary and integral aspects of transport – traditionally fall within the legislative competence assigned with respect to the utilisation of nuclear energy for peaceful purposes.

2. The Länder, on the other hand, have the competence under Art. 70(1) GG to enact legislation governing their public property or governing ‘public purpose assets’. In this area, the use designation assigned to specific assets determines the nature and scope of their status under public law and the permissible scope of their utilisation. With ports, the Länder are in principle free to determine the scope of their designated use; the Länder are not obliged to establish and operate ports with particular infrastructure or with use designation of a certain scope. The Länder are also in principle free to subsequently limit that scope by partially restricting the use designation. The (original) designation may be restricted to specific categories of vehicle or vessel, certain types of handling, or individual zones and facilities within the port. However, the Länder are not permitted – under the guise of use designation under public law – to create provisions which in substantive terms essentially amount to legislation in the areas covered by Art. 73 GG and which interfere with the legislative competence of the Federation. It follows that neither the division of competences set out in the Basic Law nor the Atomic Energy Act prevent a Land from partially restricting a port’s designated use or even closing a port on the basis of Art. 70 GG, provided that the decision is not primarily concerned with a subject matter for which the Federation has exclusive competence.

3. On its face, § 2(3) BremHafenbetrG partially restricts the designated use of the Bremen ports – namely with respect to the handling of nuclear fuel. Substantively, however, the provision is not simply a partial restriction of designated use under public law. Rather, it amounts to a specific ban on the handling of nuclear fuel. It thus violates the Federation’s exclusive legislative competence in matters of atomic energy law under Art. 73(1) no. 14 GG.

a) § 2(3) first sentence BremHafenbetrG prevents nuclear fuel within the meaning of § 2(1) AtG from being handled in the Bremen ports by partially restricting designated public purpose use. In terms of objective legislative content, however, this handling ban does not qualify as a provision governing the use of public purpose assets. Rather, it amounts to a provision of atomic energy law within the meaning of Article 73(1) no. 14 GG.

b) § 2(3) BremHafenbetrG directly precludes a specific transportation activity – namely the handling of nuclear fuel in the Bremen ports – even though the necessary infrastructure is still in place. This ban does not simply concern matters incidental to nuclear fuel transport. It addresses an activity that is permissibly governed by federal law in the Atomic Energy Act. The fact that the Bremen government may grant general and individual exemptions does not change this. Furthermore, in banning the handling of nuclear fuel, the partial restriction of the use designation under public law creates special law contradicting § 4 AtG, which states that the transport of nuclear fuel is in principle permissible, subject to compliance with strict safety provisions and after a licence has been issued. § 2(3) BremHafenbetrG disregards this. The main purpose of preventing transports of nuclear fuel from using the ports of Bremen was to make the point that the Federation’s nuclear policy, which the Bremen parliament regarded as being inadequate at the time, was not (or no longer) supported. The handling ban was not introduced for operational or infrastructural reasons, but – as the wording of the legislation makes clear – in the (sole) interest of furthering the Land’s overall economic strategy of promoting sustainability and renewable energy. This is not directly related to the use designation of Bremen’s all-purpose ports but (merely) asserts the general approach pursued by the Land Bremen in terms of its economic and, in particular, energy policy. In this respect, § 2(3) BremHafenbetrG attempts to undermine the basic decision made in § 4 AtG regarding the permissibility of nuclear fuel transport on the basis of a different risk assessment.

c) § 2(3) BremHafenbetrG also specifically qualifies as a provision of atomic energy law in terms of its effects. It ensures that transports of nuclear fuel cannot (or can no longer) be handled by the Bremen ports even if the other requirements for issuing a transport licence under § 4 AtG are satisfied.

III. Yet the exclusive competence for issuing licences for the handling of nuclear fuel lies with the Federation. The Länder are precluded from enacting any legislation on this matter unless they have been granted the necessary authorisation under federal law (Art. 71 GG). No such authorisation has been granted here.