The Case against Germany’s Nuclear Phase-Out

Overview


The energy concern Vattenfall is claiming EUR 4.4 billion in damages against Germany. Soon an international arbitration tribunal will render its decision.

“While Kernkraftwerk Krümmelwas standing still, in October 2016, around 6,500 km away in a conference room in Washington, dozens of highly paid lawyers were litigating over Krümmel’s fate. And debating whether the German Government has done an injustice to Vattenfall with the nuclear phase-out. The specific question is as follows: has the company suffered damage which the German Government – or to be more precise, the German taxpayer – must make good?

The atmosphere is tense, almost hostile. One does not have to travel to Washington to see that, one can also watch it from one’s sofa at home. This is because the proceedings are being broadcast live over the internet. The parties’ hours-long opening and closing statements, including the PowerPoint presentations that were shown, can be watched on YouTube. Such transparency would be inconceivable for German judicial proceedings in which, although they are public, neither film recordings nor audio recordings are allowed. The parties in Washington had agreed on the unusual course of action in order to avoid the criticism that the arbitral tribunal is a non-transparent “secret tribunal”.

A woman in a red blazer stands out in the grey sobriety of the hearing. Sabine Konrad, a partner of the international law firm McDermott, is representing the German Government with cool, cutting arguments in an English which has a slight British inflection. Her rejection of the opposing side’s position, whether it be professionally or even personally motivated, is obvious. According to her, the matter is clear-cut: Vattenfall, in her view, was responsible for a string of glaring human and technical errors in Krümmel and is now attempting to shift its own failings on to the German taxpayer. Vattenfall, she claims, has not suffered any appreciable damage, at least not as a result of the nuclear phase-out. And still less has the power producer E.ON suffered any, which, as a Germany company, is in fact not even allowed to take action against the German Government before the arbitral tribunal, but is now trying, as the co-owner of Krümmel, to sneakily obtain damages amounting to 1.8 billion euros.”

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