Compatibility with European law of opt-out legislation

Should consensus with the utilities not be reached. Federal Minister for th e Environment Trittin repeatedly announced to introduce opt-out legislation "by dissent". Both the constitutionality of such legislation and its compa tibility with European law are topics of controversial debate in the litera ture. The decision taken by the Bavarian cabinet on February 8 this year to use all political and legal means against shutting down German nuclear pow er plants and, for this purpose, even to approach the European Commission o n grounds of potential violation of European law, are reason enough to deal in more detail with the compatibility of an opt-out law with the Euratom T reaty and the EC Treaty. As the opt-out law does not yet exist, these consi derations can only be of a theoretical nature. However, this is the working hypothesis assumed: Reprocessing is banned as of the entry into force of t he opt-out law. This ban includes moving nuclear waste abroad for reprocess ing. The peaceful use of nuclear power for electricity generation in power reactors operated for thirty years is forbidden. Older reactors may be run only for a transition period of another three years. (This includes abandon ing the promotion purpose in the German Atomic Energy Act and a ban on buil ding new power reactors.) However, the operating life may be distributed in a flexible way. This contribution indicates that there are sound reasons a nd interesting approaches, respectively, in the literature for assuming tha t opting out by means of legislation. coupled with a ban on reprocessing, a t least constitutes a violation of the freedom for goods and/or services. H owever, this cannot be derived unequivocally from either the Euratom Treaty or the EC Treaty or from rulings by the European Court of Justice. Ultimat ely, compatibility with European law of the ban on reprocessing can be deci ded only by the European Court of Justice.