Vattenfall against the Federal Republic of Germany

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Vattenfall against the Federal Republic of Germany refers to two separate legal disputes of the energy company Vattenfall against the Federal Republic of Germany before arbitration courts according to the rules of the International Center for the Settlement of Investment Disputes (ICSID) .

Lawsuit about environmental regulations in the construction of the Hamburg-Moorburg coal-fired power plant

In April 2006, Vattenfall applied for a permit to operate a coal-fired power plant in Hamburg-Moorburg in accordance with the Federal Immission Control Act and the Water Management Act. In 2007, the environmental agency issued a preliminary permit and announced that it would also quickly issue the final permit. After the state elections in Hamburg in 2008 , the environmental authority, which now fell under the responsibility of the Green Senator for the Environment, Anja Hajduk , issued the final approval under water law conditions, in particular for the extraction and re-introduction of river water for cooling purposes.

Vattenfall then sought legal protection from the administrative courts, but in April 2009 also initiated an investment arbitration procedure based on the Energy Charter Treaty . While Hamburg cited compliance with the EU Water Framework Directive , the group argued that the additional requirements would constitute a violation of the Fair and Equitable Treatment principle and an indirect expropriation.

The arbitration proceedings were ended in March 2011 with a settlement recorded as an arbitration award with the agreed wording. The proceedings are therefore discontinued insofar as a process settlement that was concluded before the OVG Hamburg in September 2008 is implemented by March 31, 2011. The comparison makes Vattenfall better than the original permit by lifting some water law requirements. Compensation was not granted, Vattenfall and the Federal Republic of Germany each bear their own costs, while both parties bear half of the costs for the arbitral tribunal.

Lawsuit against the Nuclear Phase-Out Act

Background and process flow

After the nuclear disaster in Fukushima , the Bundestag passed the 13th amendment to the Atomic Energy Act in June 2011 . After that, the license for the oldest power plants expired, including the Brunsbüttel and Krümmel power plants operated by Vattenfall . For all other power plants, including the Brokdorf nuclear power plant , in which Vattenfall has a stake, staggered duration limits have been set until 2022. E.ON , RWE and Vattenfall filed a constitutional complaint against this in the summer of 2012 .

In May 2012, Vattenfall initiated parallel arbitration proceedings, again before an ICSID tribunal under the Energy Charter Treaty. The tribunal was constituted in December 2012.

The plaintiffs are the following companies: Kernkraftwerk Brunsbüttel GmbH & Co. oHG (German), Kernkraftwerk Krümmel GmbH (German), Vattenfall AB (Swedish), Vattenfall Europe Nuclear Energy GmbH (German), Vattenfall GMBH (German), represented by the Mannheimer Swartling law firms , Stockholm and Luther, Hamburg. The defendant is the Federal Republic of Germany, represented by the law firm McDermott, Will & Emery, Frankfurt. Charles N. Brower (US citizen, named by Vattenfall), Vaughan Lowe (British, named by the federal government) and Albert Jan van den Berg ( Dutch , named as chairman) were named as arbitrators . The value of the proceedings is 4.7 billion euros. In addition, there is interest of 4 percentage points above the LIBOR reference rate, which is currently around EUR 190 million per year. In the meantime, an application by the Federal Republic of Germany to dismiss the complaint as obviously unfounded has failed. In September 2015 it became known that the EU Commission would submit an amicus curiae brief on the admissibility of the arbitration claim under European law.

Between October 10 and 21, 2016, the first hearing took place in Washington in camera. The arbitral tribunal then gave the parties the opportunity to submit further statements until May 1, 2017.

Original confidentiality of the procedure

According to the federal government, the confidentiality of the proceedings follows from the applicable ICSID arbitration rules. The jurisprudential literature doubts whether the rules actually also oblige the parties to the proceedings to maintain confidentiality. The federal government later also argued that it was not allowed to make any company or business secrets Vattenfall public. The Federal Government provides members of the Bundestag with information on the status of the proceedings in the secret protection office of the German Bundestag . Since the reports as classified information classified, no information may be disclosed from it.

In the first hearing in October 2016, the arbitral tribunal decided in accordance with the agreement of both parties to make the hearing public - while maintaining confidential or otherwise protected information. A video of the English-language hearing was streamed on the Internet. The opening and closing arguments for the first hearing are available as a video (16 hours in total) on the Internet.

Substantive legal issues

Since the documents of the procedure are not public, it is also not known which provisions of the Energy Charter Treaty Vattenfall is referring to. It is presumed that Vattenfall is justifying its lawsuit, as in the case of the Moorburg coal-fired power plant, with the Fair and Equitable Treatment standard and the obligation to pay compensation in the event of indirect expropriations according to Art. 10 Para. 1 and Art. 13 of the Energy Charter Treaty.

costs

By the time the proceedings are concluded, the federal government expects total costs for arbitration, legal advisors and other services of around 9 million euros. In addition, there are personnel costs for six employees assigned to the procedure in the Ministry of Economic Affairs of 515,000 euros per year.

Web links

Individual evidence

  1. ↑ a b c d e Krajewski: Environmental protection and international investment protection law using the example of the Vattenfall lawsuits and the Transatlantic Trade and Investment Agreement (TTIP), ZUR 2014, 396 (399)
  2. ↑ Nathalie Bernasconi: Background paper on Vattenfall v. Germany arbitration. (PDF, 555 kB) International Institute for Sustainable Development (IISD), July 2009, accessed on May 5, 2016 (English).
  3. ↑ Investment Treaty Arbitration: “Arbitration verdict on ICSID Case No. ARB / 09/6 ". Retrieved December 13, 2013 .
  4. ↑ ICSID Case Details ( Memento of the original from December 25, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / icsid.worldbank.org
  5. ^ Christian Rath: Vattenfall gegen Deutschland , Badische Zeitung of January 31, 2015
  6. ^ Nuclear phase-out: Vattenfall is suing Germany for 4.7 billion euros , Spiegel.de from October 15, 2014
  7. ↑ Juve.de of December 30, 2014
  8. ↑ Setback for Vattenfall lawsuit - A friend like an enemy , Sueddeutsche.de, September 24, 2015
  9. ↑ http://www.bmwi.de/DE/Themen/aussenwirtschaft,did=787440.html
  10. ↑ Bundestag printed matter e 17/10584 of August 28, 2012 , answer of the federal government to the small question of the MPs Sylvia Kotting-Uhl, Harald Ebner, Hans-Josef Fell, other MPs and the parliamentary group BÜNDNIS 90 / DIE GRÜNEN
  11. ↑ cf. Buntenbroich / Kaul: Transparency in investment arbitration proceedings - The Vattenfall case and the UNCITRAL transparency rules, Arbitration VZ 2014, 1
  12. ↑ a b c Bundestag printed matter 18/3721 of January 13, 2015 , response of the federal government to the minor question from the members of parliament Klaus Ernst, Hubertus Zdebel, Caren Lay, other members of the parliament and the DIE LINKE parliamentary group
  13. ↑ http://www.bmwi.de/DE/Themen/aussenwirtschaft,did=787440.html
  14. ↑ Henrike Rossbach, Vattenfall lawsuit already costs millions , faz.net from October 26, 2014