Refinancing of the search for a repository and of the repository for heat generating radioactive Waste. Pt. 2

Part I of this article, which appeared in the preceding issue, described in general terms the background to the search for a disposal site and the result of the exploration to date of the repository, which would appear to be suitable from a mining standpoint according to the present knowledge. According to the rules in effect up to now, the exploration and construction would be financed by advance payments on the contributions of the waste producing companies, in particular the utility companies. The working draft of an 'Act on the search for and selection of a site for a repository for heat generating radioactive waste' (Gesetz zur Suche und Auswahl eines Standortes fuer ein Endlager fuer waermeentwickelnde radioaktive Abfaelle) from autumn 2012 provides for a new version of section 21b Atomic Energy Act, under which the costs for 'carrying out a repository selection procedure pursuant to the Repository Selection Act (Standort-auswahlgesetz)' would be allocated to the future users of the repository who are obliged to make contributions as a 'necessary expense'. Part II evaluates this provision of the working draft on the basis of the financial constitutional law. A comparison of sites is not a measure that could be allocated to the future users of the repository who are obliged to make contributions as a 'necessary expense'. Moreover, there is a lack of responsibility for the financing and of a legally relevant advantage that would be conferred by a cumulative alternative repository search for the later users of the repository who are obliged to provide the pre-financing. The costs can therefore not be allocated to the later users as either a contribution or a special charge, not even by way of an association with mandatory membership (Zwangsverband). They must be borne by the state. Consequently, the allocation stipulated by provision would constitute an impermissible charge under financial constitutional law. (orig.)