EnBW to (Also) File Lawsuit Claiming Damages for 2011 Nuclear Power Moratorium

EnBW plans to (also) file a lawsuit to claim damages for the 2011 German nuclear power moratorium, the company reported today. Damages are reported to have been in the range of a low triple digit million Euro figure.

In light of claims becoming time-barred after 31 December 2014, EnBW Energie Baden-Württemberg AG is planning to file its lawsuit against the Federal Republic of Germany and the State of Baden-Württemberg tomorrow at the District Court (Landgericht) in Bonn. The claim shall be based on the unlawful 2011 moratorium for nuclear power plants and shall also cover the period until the entry into force of the 13th amendment of the Atomic Energy Act (AtG) on 6 August 2011.

On 16 March 2011, the state environment ministry of Baden-Württembergische – after having been asked by and in coordination with the Federal Environment Ministry – ordered the interim shutdown of the Neckarwestheim I (Gemeinschaftskernkraftwerk Neckar, GKN I) and Philippsburg 1 (Kernkraftwerk Philippsburg, KKP 1) nuclear power plants.  Because of this, EnBW shut down the plant son 16 and 17 March.

In the press release, EnBW states that the Kassel Higher Administrative Court and the Federal Administrative Court in 2013 have meanwhile bindingly decided that the shutdown orders were unlawful. The main ground of the courts’ decisions could be transferred to EnBW.

In light of this, and as possible claims will become time-barred at the end of 2014, EnBW’s board “in particular because of stock corporation law obligations in the interest of the shareholders” looked into claiming damages. After having weighed the relevant aspects and after information of the supervisory board it was decided to file a court case for damages. The already existing lawsuits on this matter shall provide material further information and assist in a procedurally efficient handling of the case.

EnBW reports that the unlawful orders for the KKP 1 and GKN I nuclear power plants caused damages “in the range of a low triple digit million amount”.

RWE and E.ON have also filed lawsuits for damages because of the unlawful nuclear power moratorium.

A likely point of dispute in the EnBW lawsuit will be the fact that EnBW did not challenge the unlawful shutdown orders for Neckarwestheim I and Philippsburg 1. By not challenging an unlawful administrative act (like a shutdown order), the act normally becomes final and binding, regardless of legality of the decision. Under normal state liability doctrine, anyone suffering from an unlawful act by the state will have to challenge that unlawful act if he wants to claim damages later. In particular, one cannot “suffer and liquidate”, i.e. accept the unlawful decision and claim damages later.

The situation had presumably not been made easier for EnBW by EnBW’s shareholder structure, in particular the fact that EnBW is majority owned by the state of Baden-Württemberg and an association of regional districts in Baden-Württemberg. 46.75% are now held by the state of Baden-Württemberg through NECKARPRI-Beteiligungsgesellschaft mbH. A further 46.75% are held by OEW Energie-Beteiligungs GmbH (OEW), owned by Zweckverband Oberschwäbische Elektrizitätswerke, which in turn is an association of 9 districts (Landkreise) in Baden-Württemberg. And Baden-Württemberg’s minister-president is Winfried Kretschmann, from the traditionally anti-nuclear Green party.

Depending on the outcome of the lawsuit against Baden-Württemberg and the Federal Republic, the wisdom of EnBW’s earlier decision not to challenge the shutdown orders may be questioned again. And the wisdom to file the lawsuit for damages. In any event, Baden-Württemberg is commercially sitting on both sides of this lawsuit, and may also politically prefer loosing the liability lawsuit and not having to pay damages for having unlawfully closed down the two nuclear power plants during the moratorium.

Source: EnBW press release

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