De La Salle University

A Comparative Analysis on the Nuclear Energy Policies of France and Germany

Using the EU Energy Policy as a Benchmark

Submitted to Mr. Lorenzo de los Santos

In Partial Fulfillment of the Requirements

For the Completion of the Course THSISEA

By

Portillo, Patricia Bianca N.

Sangual, Cara Marie S.

Malate, Manila

04/15/14

Abstract

The aim of this thesis is to provide a comparative analysis on the recent turn in the

nuclear energy policies of France and Germany using the EU energy policies as a benchmark. In

the first part, the paper provides an overview and the evolution of the energy policies of EU,

France and Germany. Second, the researchers have gathered data on the specific nuclear policies

of the three institutions. The data is then used by the researchers to analyze how France and

Germany have come up to their decision to either continue or withdraw from nuclear energy.

In conclusion, the thesis argues that, using the theory of historical institutionalism, the

rationale behind the shift on nuclear policies of the two countries is because of three factors:

history, public opinion, and political institutions. It is also concluded that the EU energy policies

is not strong enough for the states to be bound by the law on nuclear energy.

This thesis hopes to offer students from De La Salle University necessary information on

the nuclear policies of France and Germany, especially that to date, there is no existing thesis

regarding this subject matter in the university.

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Table of Contents

Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Introduction

Background of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Variables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Scope and Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Review of Related Literature

History of Energy Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Overview of the European Union Energy Policy . . . . . . . . . . . . . . . . . . . . . . . . . 5

EU Nuclear Energy Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

French Energy Policy Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Account of the German Energy Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Nuclear Power Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

Understanding the Status Quo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Comparative Analysis on the Recent Turn in French and German Energy Policies . . . . 21

The 1973 Oil Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Three Mile Island Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chernobyl Catastrophe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fukushima Disaster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Theoretical Framework

Historical Institutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Core Assumptions of Historical Institutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Application of the Theory to the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Operationalization of Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Theoretical Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Conceptual Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Methodology

Research Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Data Gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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Data Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Evolution of EU Energy Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Road to a More Integrated Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Call for a Nuclear Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Data Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

EU Specific Policy Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Energy Policy Developments in the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Harmonization of Nuclear Liabilities in the EU . . . . . . . . . . . . . . . . . . . . . . . . . 48

The Nuclear Liability Patchwork in the EU member states . . . . . . . . . . . . . . . . 49

EURATOM and the Nuclear Liability Framework . . . . . . . . . . . . . . . . . . . . . . . 50

Current EU Energy Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Nuclear Policies between Chernobyl and Fukushima, and beyond . . . . . . . . . . . 53

Nuclear Policies of France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Institutional and Industrial Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

The French Energy Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Legal Framework for Nuclear Waste Management . . . . . . . . . . . . . . . . . . . . . . . 59

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National Legislatives and Regulatory Activities . . . . . . . . . . . . . . . . . . . . . . . . . 61

Licensing and regulatory infrastructure . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Nuclear security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Nuclear safety and radiological protection . . . . . . . . . . . . . . . . . . . . . . . 63

International co-operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Nuclear Policies of Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Energy Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Energy Package . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

National Legislatives and Regulatory Activities . . . . . . . . . . . . . . . . . . . . . . . . . 78

Radiation protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Nuclear Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Transport of radioactive material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Regulations on nuclear trade (including non-proliferation) . . . . . . . . . . . 81

State Internalization of EU policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Data Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Convergence and Divergence on Nuclear Policies of France and Germany . . . . . . . . . . 84

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History of Energy Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

The 1973 Oil Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Three Mile Island Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Chernobyl Catastrophe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Fukushima Disaster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Public Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Public opinion in France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Public opinion in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Political Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Political Institutions in France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Political Institutions in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Comparative Analysis of Political Institution . . . . . . . . . . . . . . . . . . . . . 95

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

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Acknowledgements

First of all, we would like to thank Mr. Lorenzo De Los Santos, our thesis mentor and the

ISE thesis coordinator, for guiding us throughout the process of writing our thesis proposal and

thesis proper, for providing us insightful information, and for his expert advice and

encouragement that helped us worked our way through our paper,. We also would like to thank

Ms. Tey Tana and Mr. Alvin Camba, for helping us establish the topic and theory to be utilized

in our thesis, and for teaching us the basics in writing a dissertation.

We also acknowledge the help and insights given to us by our friends/classmates, Nicole

Sze and Johana Que, despite having different topics.

Finally, we would like to thank the members of each our family for the extraordinary

support they have given us in the thesis writing process.

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Introduction

Background of the Study

Nuclear energy is considered as a contentious issue, particularly in the 20th century where

nuclear power has become fundamental in playing a role in the global community as part of the

security policy, the Nuclear Non-Proliferation Treaty, and eventually as part of the energy

policy, the European Energy Program for Recovery. This power has been used both in the

destruction and the restoration of human life. Nuclear energy is a manifestation one of the

strongest energy forms man has ever known.

It came to a point where most governments around the world have devoted to nuclear power as

significant to their national energy security programs and environmental responsibility. In doing

so, they are responding to a directive that is gaining ever greater relevance on every continent.1

The energy policies of the European Union vary significantly from each member states, and

nuclear energy only accounts for 14.4% of energy consumption. Nuclear energy became highly

contested in the European Union as public and political opinion have been very critical about the

effects of nuclear energy as it poses too high risks and too high costs to the environment and to

the people. Regardless the EU is likely to pursue nuclear energy as its goal is to restructure into a

low-carbon economy.2 There are critical factors that will impact and shape the future of nuclear

energy within the European Union. The essential factor is a persistent safe operation of the

existing nuclear facilities. The second is the appeal of energy, most especially in electricity. The

1 Fabrizio Nocera, The Legal Regime of Nuclear Energy: A Comprehensive Guide to International Law and European Union Law (Mortsel: Intersentia nv, 2005).

2 Susanne Langsdorf, EU Energy Policy: From the ECSC to the Energy Roadmap 2050 (Heinrich Boll Stiftung, 2011)

1

third is the aptness of the nuclear sector to meet and share the need of nuclear energy in a

competitive way.3

However, following the Chernobyl accident and the recent Fukushima crisis, several

countries have thought of dismantling their nuclear power facilities, and these countries,

particularly Germany, have eventually decided to fully back away on their nuclear power

programs and pursue a nuclear phase-out.4 By the disagreement of President Angela Merkel,

Germany, through the popular vote of the people, have pushed to appeal as the first state to

completely abolish nuclear power plants and to plan on transferring its interest into renewable

energies such as solar energy. Germany is first of the consequent propositions of a nuclear phase-

out. On the other hand, France is deemed as an exception since it has invested a lot in nuclear

energy. Therefore, a declination in the support for nuclear power would bring about extensive

consequences in the domestic as well as in the international level.5 France has not considered

following Germany's decision on a nuclear phase-out during the term of President Sarkozy’s

presidency not until the recent 2012 election where Francois Hollande has been elected.

Hollande regime has formulated a proposal for a nuclear phase-out, and several debates have

emerged on whether or not this should be pursued, but eventually the people outweighed the

interests of the president and France continues to expand the lifespan of its nuclear reactors.

As the EU strives to promote sustainable energy through a nuclear energy policy, there are

comparable differences in the recent turn in nuclear energy policies of France and Germany as a

3 Fernando De Estebal et al., The Future of Nuclear Energy in the European Union (Brussels, 2002)

4 Nina Netzer and Jochen Steinhilber, eds., The End of Nuclear Energy? (Berlin: The Friedrich-Ebert-Stiftung, 2011).

5 Philip Ball, “France’s Nuclear Power Program Continues in Force,” MRS Bulletin 36, no. 6 (2011): 418-421.

2

response to a number of accidents which can be analyzed using the EU energy policy as a

benchmark

Statement of the Problem

The researchers would like to determine and analyze the differences between the policies

of France and Germany concerning their nuclear energy after the different events that happened

in the nuclear power plant history which affected their interests and led to a shift in their nuclear

policy decision-making process.

The corollary questions are:

1. What are the past events that triggered for a turn in the nuclear energy policies of

France and Germany?

2. How can these nuclear policy reforms be analyzed using the EU policy as a

benchmark?

Variables

The dependent variable is whether maintaining or dismantling the nuclear power facilities

in France and Germany after a number of events which had a huge impact on the nuclear energy

policies of the States. The independent variables include the events prior to the policy reforms,

the stands of different organizations which challenge the status quo of nuclear policies and the

public opinion concerning the said matter.

3

Scope and Limitation

After the events, such as the Three Mile Island, Chernobyl, and Fukushima accident,

have led to different perceptions about nuclear energy, different States have also implemented

diverging policies concerning their own nuclear facilities. This paper aims to provide a

comparative analysis on the nuclear energy policies of France and Germany, two States that have

separated in their path of pursuing nuclear energy. The researchers will perform a case study of

the strategic strengths of the French nuclear power industry as it stands, and how Germany was

able to challenge the nuclear policy status quo and to successfully withdraw from the realms of

nuclear energy. This study aims to discuss the decision-making of both States regarding their

nuclear energy starting from the birth of the EU energy policy, to the number of events that

occurred in the account of nuclear energy, which have influenced the actors’ behavior today and

how it contributed to the present revisions of their policies. This also serves as an overall

evaluation of the energy policies in the 21st century.

This study is analyzed using the EU energy policy as a benchmark. There would be

problems on time constraints the researchers have to work in. Since the main focus is on Europe,

the researchers would also be limited in finding resources, particularly first-hand sources as well

as understanding literatures written in French or German.

4

Review of Related Literature

The review of the literature for this study focuses on the different occurrences and

amendments in France's and Germany's nuclear energy policies in the aftermath of several

nuclear incidents such as the Chernobyl and the Fukushima accident. These will be analyzed

using the EU energy policy standards. It would also be possible to look at different organizations

which have taken a position on nuclear power – some are proponents, and some are opponents –

in order to understand how nuclear energy can be beneficial to a state, or otherwise detrimental.

This chapter focuses on the political costs it brings in maintaining nuclear energy. By

definition, political costs are costs that groups external to the firm might be able to impose on

that firm as a result of political actions. Basically, these can be political interventions made by

EU to the nuclear firms of the states, particularly through policy regulations. Then, the status quo

of both countries will be discussed wherein primary and secondary state actors such as private

industries, organizations, companies and individuals will be looked at. Lastly, this chapter will

be conducting a case study of the nuclear power in France and Germany using the EU as a policy

benchmark.

History of Energy Policies

Overview of the European Union Energy Policy

To endure the widespread paucity of a common energy in the 1950s, the six founding

states of the European Union (West Germany, France, Italy, Belgium, the Netherlands, and

Luxembourg) looked at nuclear energy as a means of achieving energy independence. Since a

5

single state could not afford the costs of investing in nuclear energy, the founding States united

to establish the European Atomic Energy Community (EURATOM).6

The EURATOM has a significant function in civilian nuclear activities within the EU.

There have been no major changes to the treaty since it entered into force. The fundamental goal

of the treaty is to contribute to the formation and development of Europe's nuclear industries, so

that all member states can benefit from the progress of nuclear energy, and to guarantee security

of supply.7 The treaty also ensures high safety standards for the public and prevents nuclear

materials intended primarily for civilian use from being used in military purposes.8

There were several attempts to create a common energy policy throughout the

development of the EU, but the success is only definite. The vital reason for its failure was

because member states are hesitant to consolidate sovereignty in this extremely sensitive policy

area.9 Although EU has legislated in the area of energy policy for several years, the notion of

introducing a compulsory and inclusive European energy policy was only approved on

October27, 2005 at the meeting of the European Council at Hampton Court.10 The Treaty of

Lisbon legally includes harmonization of energy supply and revisions to the energy policy within

the EU. Before, EU energy legislation was based on the EU jurisdiction in the area of the

common market and environment. However, in practice many policies vis-à-vis energy stay at

6 European Commission, Europa, http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_euratom_en.htm (accessed Nov. 20, 2013).

7 International Energy Agency, IEA: European Union 2008 (Paris: IEA Publication, 2008).8 EC, Europa.9 Francis McGowan, ed., European Energy Policies in a Changing Environment(New York:

Springer, 1996).10 Paul JJ Welfens, ed., Energy Policies in the European Union: Germany's Ecological Tax Reform (New

York: Springer, 2001).

6

the national member state level, and advancement in policy at European level requires voluntary

cooperation by member states.11

Now that these energy policy goals are enshrined in the Lisbon Treaty, it aims to make

possible the progress towards policy coherence. The anticipated result of this new governance

structure is definitely to decrease existing conflicting signals between the EU and its member

states' policies, which is one of the biggest concerns for the EU.12

EU energy policy has three key elements: market competition, sustainability and security.

Energy networks within the EU have traditionally been formulated and conducted on a national

ground by vertically integrated monopolies, generally in full or partial state ownership, with the

state’s interest utilized either by central or regional governments.13 Each member state’s energy

policy must be assessed in terms of these objectives. Therefore, energy policy has been largely

nationally based, with restricted cross-border trading. The EU’s interest in reinforcing

cooperation and integration of EU-wide energy networks has grown since the 1980s.14

EU Nuclear Energy Policy

Nuclear energy is, at present, the largest source of low-carbon electricity in the EU,

which is 14% of the EU total energy supply. There are 146 nuclear power plants (NPPs)

operating in 15 member states and in 2007, these provided 31% of the total electricity produced

in the EU. European NPPs are among the most efficiently operated reactors in the world.15

11 Ibid.12Francesc Morata and Israel Solorio Sandoval, eds., European Energy Policy: An Environmental Approach

(Cheltenham: Edward Elgar Publishing, 2012).13 Julia Black, “European Union energy regulation”, in International Regulatory Co-operation: Case

Studies (Paris: OECD Publishing, 2013).14 Ibid.15 International Energy Agency, IEA: European Union 2008.

7

Nuclear power remains a contentious issue and the EU nuclear reactors are getting old.

EU nuclear generating competency will begin to decline, unless a considerable investment is

imminent in the near future for plant lifetime extensions and the replacement of facilities

reaching the end of their operating lives. Without this investment, this low-carbon source of

electricity generation could go down from 31% to 21% of the total electricity generated in the

EU in 2020. Diminished electricity generation in NPPs will make the ambitious EU goal of a 20-

30% decrease of carbon dioxide emissions by 2020 even more difficult to achieve.16 NPPs in the

EU were originally constructed and managed by private and national government-owned

utilities. Privatization since the 1980s has led to more NPPs being owned and controlled by

private-sector utilities. The activities of these private utilities are often multinational in scope.

Some utilities that own and administer NPPs located in member states with nuclear phase-out

legislation or policies are investing in NPP operation and creation in EU countries that support

the use of nuclear power to generate electricity.17

Nuclear power develops EU security of energy supply since uranium is extensively

spread and about 50% of global mine production comes from reliable, politically stable trading

partners. While every EU member is free to decide upon their own energy mix, the

Commission’s policy should continue to support those member states that choose to use nuclear

energy as a part of their electricity generation mix.18

States without nuclear phase-out legislation or policies are, to a greater extent,

acknowledging that nuclear energy has a significant role to play in producing low-CO2

electricity. This is changing future expectations for nuclear power and the way in which

16 Ibid.17 Ibid.18 Ibid.

8

investment partnerships in nuclear power projects are organized, but it is impeded by negative

public view of nuclear technology in many member states of the EU. Since public perception of

nuclear power has an essential economic and environmental consequences today and in the

future, it is important that public opinion is shaped on factual information. The Commission

should therefore consider increasing awareness of the functional history of nuclear reactors in the

EU and the impact that this technology has had and can have in future efforts to reduce

emissions of CO2.19

Nuclear regulation is a national responsibility. Regulatory agreement processes for NPPs

are usually long and contribute to investor skepticism, and they vary from one country to

another. Construction time is usually more than five years. While regulation will remain a

national responsibility, there are measures for greater cooperation internationally such as the

Multinational Design Evaluation Program, a multinational proposal to expand innovative

approaches to pull the resources and knowledge of the national regulatory authorities who are

currently or will be tasked with the evaluation of new reactor power plant designs; and the

activities of the Western European Nuclear Regulators’ Association, an association of agencies

or regulatory agencies in the field of nuclear countries of Western Europe. The EU is encouraged

to expedite this cooperation so that the new designs of reactors marketed today, developed in

recent years to improve safety and operational efficiency, are available for construction under an

effective and efficient regulatory system. Furthermore, developing a blueprint for advancing

power uprates and new build should also be taken into account.20

19 Ibid.20 Ibid.

9

Notwithstanding the improving point of view for nuclear power and the transboundary

partnerships formed today to invest in plant restoration, power uprates, life extensions and new

build, EURATOM is encouraged to continue to assess its role to ensure that its activities are

continuing to serve member states, in particular those with a positive policy towards nuclear

power generation.21

French Energy Policy Records

France is known as one of the leading countries in the world today with regarding the

production of electricity from nuclear power. It has undertaken a distinctive role for itself in the

modern, postcolonial world; the French people as well as the leaders eagerly embraced large

technological projects in general and nuclear power in particular.22 Even before, nuclear research

has already been tied to France, starting with the discovery of natural radioactivity by Henri

Becquerel in the 1890s which has been continued by Pierre and Marie Curie, famous nuclear

scientists.

French energy policy over the past decades has been characterized by a centralized

approach with strong government involvement. This key approach has not changed

significantly. However as with all EU27 member states, France’s energy policy is more and

more governed by EU directives. For example, energy policies and measures in France have

been recently driven by the introduction of competition into the electricity and natural gas

sectors and by the growing regionalization of the energy sector in Europe as it moves towards a

single market. The four key principles of French energy policy have not changed since the last

21 Ibid.22 Gabrielle Hecht, The Radiance of France: Nuclear Power and National Identity after World War II

(Massachusetts: MIT Press, 2009).

10

IEA review: security of energy supply; competitive energy supply; sustainable energy

development; energy service to all territories and all citizens.23

In the aftermath of the Second World War, France suffered from the death of millions of

people besides the damage done by the German troops inside the country. France’s power and

prestige were both stolen from them as well as their title as one of the world’s leading nations in

the post-war era.24 French nuclear effort has conquered an eminent position in the country's

national identity. It could even be claimed that a French exit from civilian nuclear power could

become a serious possibility after that identity would be envisaged once again and after France's

nuclear impediment would be reconsidered. Nuclear research took on a larger role when

President Charles de Gaulle established the Commissariat à l’Enérgie Atomic (CEA) to boost the

development of a nuclear armament.25 De Gaulle was one of the forerunners of the nuclear

initiative. After the wartime effects, immediate action was taken place in conducting an

alternative to regain the lost glory the French had. The solution offered by technocrats and

scientists was technological prowess through which nuclear programs were ensued. This served

as an indicator that France would rebuild its economy, restore its role as a world leader, and

develop national independency by technological developments.26

In 1946, the French Government nationalized the production, transport, distribution, and

the import and the export of electricity and natural gas and created Electricité de France (EDF).

France’s energy policy has three main pillars – security of supply, respect for the environment,

and dedication to properly managing radioactive waste. Nuclear power in France has made EDF

23 International Energy Agency, IEA: France 2009 (Paris: IEA Publication, 2009).24Ibid, 1.25 Anthony Hartley, Gaullism: The Rise and Fall of a Political Movement (New York: Taylor &

Francis, 1972).26 Hecht, The Radiance of France.

11

the highest electricity producing corporation in European Union, and the biggest exporter of

electricity in Europe.

For the French people, nuclear weapons are widely considered as instrument of influence,

guarantee of international status, and potentially crucial means of providing security against

attempted coercion or aggression.27 In fact, technocrats, scientists, and engineers are widely

respected in the country. According to Mitterrand, nuclear force is the pivot of French strategic

policies.28 Nuclear weapons are deemed to be symbols of national sovereignty, independence,

and accomplishment.29 De Gaulle eagerly pushed for the creation of nuclear weapons (the force

defrappe) primarily to gain military power, economic independence from the United States, and

to pursue its own French foreign policy.30 This was also one way in order for his country to play

a major role in the European policies and ensure its superiority over Germany.31

The Account of the German Energy Policy

In 1954, Werner Heisenberg, a German physicist and a Nobel laureate had the U.S.

government convinced in Washington that nuclear research could be taken up in Germany. A

year later a civil nuclear program was instituted. It was granted full national sovereignty after

the Federal Republic of Germany (FRG) had abdicated producing, engaging and being in

possession of nuclear weaponry.32 Nuclear research centers and a ministry for atomic issues was

established that were equipped with research reactors. Operations began as the experimental

27 John Hopkins and Weixing Hu, eds., Strategic Views from the Second Tier: The Nuclear WeaponsPolicies of France, Britain, and China (New Jersey: Transaction Publishers, 1995).

28 Ronald Tiersky, The Mitterrand Legacy and the Future of French Security Policy (Pennsylvania: Diane Publishing, 1995).

29 Hopkins and Hu, eds., Strategic Views from the Second Tier.30 Christian Nuenlist, Anna Locher and Garret Martin, eds., Globalizing de Gaulle:

InternationalPerspectives on French Foreign Policies (Plymouth: Lexington Books, 2010).31 Hartley, Gaullism.32Tina Flegel, “Public Protests Against Nuclear Power in Germany,” Turkish Policy Quarterly 9, no. 2 (2010): 105-115.

12

nuclear power plant with a capacity of 16 MW was conducted in 1960.33 In the late 1950s,

majority of the German citizens still associate the recent establish nuclear industry with atomic

bombs and its hazardous effects. However, because the people have insufficient knowledge

about radiation, the potentially dangerous issue of explosion and the memories of the war in

Germany were sources of fear as an initial response to the atomic community. The anti-nuclear

protests were focused on the military use and were expressed by the peace movement.

Germany has been using nuclear power since 1960, when the first nuclear power plant

went critical. However, following the Chernobyl accident, skepticism began to grow and the

government concluded the first agreement on a nuclear phase-out in 2000.34

The German government's energy policy mainly relied for many years on regulatory

policy, which defined certain technological minimum standards.35 As Germany is organized as a

federal state, the execution of federal laws lies in principle within the responsibility of the federal

states, the Länder, unless otherwise specified. The regulatory body is, therefore, composed of

federal government and Länder government authorities. The Länder perform their nuclear

regulatory activities on behalf of the federal government. By organizational decree, the federal

government names the Federal Ministry for the Environment, Nature Conservation and Nuclear

as the supreme regulatory authority in charge of nuclear safety and radiation protection. The

BMU is responsible for federal oversight of the lawfulness and expediency of the actions of the

Länder, including the right to issue binding directives. The subordinate authority to the BMU is

the Federal Office for Radiation Protection. This supports the BMU technically and

scientifically, especially in the execution of federal oversight, the preparation of legal and

33International Atomic Energy Agency, Country Nuclear Power Profile: Germany (IAEA, 2003).34 International Energy Agency, IEA: Germany 2013 (Paris: IEA Publication, 2013).35Welfens, ed., Energy Policies in the European Union.

13

administrative procedures, and in intergovernmental co-operation.36 According to the Atomic

Energy Act, the respective Länder governments determine their own supreme authorities in

charge of the licensing and supervision of NPPs. For technical matters in the licensing procedure

and the supervision of nuclear facilities, the regulatory authorities of the Länder are supported by

independent technical support organizations, in general the nuclear departments of the technical

support organizations. In 2010, adoption of the 12th Act amending the Atomic Energy Act, not

only implemented the EU Directive 2009/71/EURATOM establishing a community framework

for the nuclear safety of nuclear installations, but also added new provisions introducing

additional safety precautions. The aim of these new provisions is to implement additional

security precautions that serve to increase safety margins and to ensure that NPPs achieve the

highest possible levels of safety.37

Nuclear Power Debate

There is a debate concerning the use of nuclear energy in process. The Environmentalists

for Nuclear Energy, the World Nuclear Association, and the International Atomic Energy

Agency (IAEA) are some of the proponents of nuclear power. They argue that nuclear power is a

safe and adequate source of energy that decreases carbon emissions. On the other hand,

opponents, such as Greenpeace International and Sortir du nucléaire in France, argue that nuclear

power is a danger to the citizens as well as the environment. In an investigation, it has been

certified that there is less number of lives lost per unit of energy produced in nuclear power than

the other major sources of energy.

36 IEA, IEA: Germany 2013.37 Ibid.

14

The nuclear power debate is about the controversy which has surrounded the deployment

and use of nuclear fission reactors to generate electricity from nuclear fuel for civilian purposes.

The debate about nuclear power peaked during the 1970s and 1980s, when it "reached an

intensity unprecedented in the history of technology controversies", in some countries.

Proponents of nuclear energy claim that nuclear power is a sustainable source of energy

which lowers carbon emissions and can develop energy security if its use eliminates a reliance

on imported fuels. Proponents promote the idea that nuclear power generates virtually no air

pollution, contrary to the major applicable substitute of fossil fuel. They also believe that nuclear

power is the only feasible system to acquire energy independence for most Western countries.

They point out that there is only little risk of accumulating waste and it can be further decreased

through modern technology in newer reactors, and the operational safety record in the Western

world is great when compared to the other major kinds of power plants.

Opponents argue that nuclear power is hazardous to the citizens as well as the

environment. The dangers include health risks and environmental damage from uranium

excavation, transformation and transfer, the risk of nuclear weapons generation or destruction,

and the unaddressed problem of radioactive nuclear waste. They also argue that reactors

themselves are extremely complicated machines where a lot of things can and do go wrong, and

there have been several severe nuclear accidents. Critics do not believe that these risks can be

decreased through modern technology. They claim that when all the energy-concentrated stages

of the nuclear fuel series are taken into account, from uranium excavation to nuclear withdrawal,

nuclear power is not a low-carbon electricity source.38

38 Benjamin K. Sovacool, “The costs of failure: A preliminary assessment of major energy accidents,” Energy Policy 36, no. 5 (2008): 1802-1820.

15

In Germany, the debate spurs from a wide array of the public who is concerned with

nuclear power plants and reactors – its effects in the environment, the people and their

businesses. Environmentalists suggest that the nuclear lead structural conditions conducted a

concentration of economic power and as a consequence public regulative influence has been

demeaned. Nuclear power ushers new challenges for the safety at work. With this, the local

economy is in jeopardy by nuclear facilities: the farmers are deprived of their soil and dairy

products, winemakers are intimidated by losing the quality of their products due to local climate,

the fishermen are afraid of losing a huge amount of fish due to the increasing temperature of the

water and lastly, tourism agencies lose its potential in its customers because of the fear of nuclear

activities around the area.39

The debate on nuclear energy in Germany also concerns the governments’ interests on

the matter. There are proponents and opponents that focus on three factors that affect the phase-

out or the non-nuclear phase-out of Germany by 2020.

First, nuclear proponents argue that nuclear energy source does not emit carbon dioxide

and that nuclear power is important in order to prevent a deficit in the country’s electricity

supply as it is also one of the largest producers of nuclear energy as electricity.40 On the other

hand, opponents express their concern on the overall figures for the reduction of greenhouse gas,

insisting on the fact that carbon emissions from the generation of electricity have been on the rise

since 1999. According to Environment Minister Gabriel, in 2007, utility emission increased as an

outcome of the offset in having an offline nuclear plant and as well as having more electricity

produced by a higher carbon dioxide emitting coal fired plants in response to an uprising in

39Flegel, “Public Protests.”40Brigitte Knopf et al., Scenarios for Phasing Out Nuclear Energy in Germany (Bonn: Friedrich-Ebert-

Stiftung, 2000)

16

natural gas prices. Opponents also state that the two key elements in electricity; higher energy

efficiency and more renewables provide for energy needs that reduce greenhouse gas emissions

without the help of nuclear power. In accordance, there is also an agreement that investment will

be necessary to develop not only renewable sources but also in adapting the electricity

transmission grid and in creating storage technologies in accommodating the irregular electricity

flow from sources like wind farms and solar energy.41

Second, proponents in the German government, the pro-nuclear Christian Democrats

called for a passing of a resolution to extend the lifespan of operating nuclear reactors but

opposing to build new reactors. According to Ronald Pofalla, they do not want to build nuclear

power plants. He says that nuclear power will only provide as a bridge in order to maintain the

energy until the transition sets place with the new renewable technologies already developed.

Proponents argue that the immediate shut down of nuclear plants will result in an unacceptable

electricity shortage in Germany. It continues that nuclear power is cheaper. However, nuclear

opponents oppose to the extension of the lifetimes on the nuclear reactors. They fear that longer

operating times will be for the benefit of the utilities that profit, more nuclear waste to be

disposed when the country currently do not have any permanent repository for high-level waste,

an increase in accidents, and a decrease in investment for renewable energy. According to Bjorn

Klusmann, the managing director of the umbrella Association for Renewable Energy, there is no

enough grid capacity for a lengthening of the reactors while simultaneously expanding the

renewables.42

41Jens Kersten, Frank Uekoetter and MarkUs Vogt, Europe After Fukushima: German Perspectives on the Future of Nuclear Power (Federeal Ministry of Education and Research, 2012)

42Kersten, Uekoetter and Vogt, Europe after Fukushima.

17

Thirdly, nuclear energy proponents are questioned on the prospect of nuclear power

plants and reactors being safe as well as the management of their waste disposal to continue their

nuclear legacy. Nuclear proponents assure the public that all of their reactors have the same

‘genetic pool’ with regards to its technology and safety. It insists that the old reactors are up to

par with the new nuclear plants having invested more than $1.4 billion to modernize the reactors.

Utilities vie that the similar DNA of the county’s reactor inflate their safety, nuclear opponents

say that this make the risk more prevalent.43As the evidence, they point to accidents in June 2007

at the two reactors in northern Germany in concert owned by utilities E.ON AG and Vattenfall

and operated by the latter, a subsidiary of Sweden’s Vattenfall AB. The 806-megawatt

Brunsbutte reactor to be turned off on June 28 and that the day the fire broke out in the

transformer building at the 1 402-megawatt Krummel reactor. The plants are located at

Schleswig-Holstein who is ministered by GitaTrauernicht where the accidents had not directly

affected the public but exhibited the “vulnerability of complex nuclear technology.”44

Understanding the Status Quo

In March 11, 2011, Fukushima was shaken by a 9.0 magnitude earthquake lasting three

minutes resulting to a fifteen meter tsunami that disabled three of its nuclear reactors. This led to

the nuclear accident that started the awareness against nuclear energy all over the world. Major

nuclear power holders such as Germany have decided on a nuclear phase-out succeeding the

nuclear accident.45 France, being the world's largest net exporter of electricity has been reluctant

to pursue a nuclear phase-out despite widespread anti-nuclear protests. A nuclear power phase-

out is termination of observance of nuclear power for energy production that includes shutting

43Ibid.44Ibid.45David Elliott, Fukushima: Impacts and Implications (New York: Palgrave Macmillan, 2012).

18

off nuclear power plants in accordance to an alternative renewable energy and other fuels. In

subsequent to the election proceeds a national debate with President Nicolas Sarkozy supporting

nuclear power and against it, François Hollande suggesting a significant decrease in nuclear

power’s electricity contribution inside the country.

Former President Nicholas Sarkozy can be considered as a proponent of nuclear energy

as he continually tried and persisted to extend the life of the nuclear reactors. President Sarkozy

stated that there is no better alternative to nuclear power as of recent. Instead of completely

abolishing its nuclear power, France has chosen to reevaluate and strengthen its safety in the

generation of its nuclear power. According to Sarkozy, France will invest a total of €1billion, or

roughly $1.5 billion, in nuclear technology as the government’s response in its energy industry in

the aftermath of the nuclear crisis in Japan. The said amount is inclusion of the funds for a new

generation of power plants and research on nuclear safety.46 However, the newly elected French

President, Francois Hollande has been open to pursue a new energy policy for France; an energy

transition from nuclear energy to renewable energy - wind energy and solar power. Apart from

the nuclear accident that occurred in Fukushima, what prompted Hollande to set aside nuclear

energy is also the alleviation of climate change, the preservation of natural resources and the

reduction of greenhouse gas emissions. In his efforts, budgetary cuts for nuclear energy are

attempted to decrease France's dependence on nuclear power as he vowed to reduce atomic

reactors by fifty percent. In contempt of Hollande, there is currently a rise in popular support for

nuclear power against recommendations on a new energy policy for France. Recent poll shows

that the proportion of people in support of Hollande’s proposal to diminish nuclear energy

because of the dangers it projects is declining.

46Yuka Fukushima,Implication of the Determinant of Energy Policy: The Case Study of Nuclear Power in Germany and France(Tokyo: 2011).

19

Since the radioactivity drifted in Germany during the 1986 Chernobyl catastrophe,

nuclear power in the country has been widely out favored. Despite Germany being the fourth

largest producer of nuclear power, the social acceptance deficit for the former nuclear leader

Chancellor Gerhard Schroder was insufficient in validating the law enactment of nuclear phase-

out power by 2021. Nevertheless, Chancellor Markel spent a significant amount of political

capital in conferral to Schroder’s decision only a few months before the Fukushima crisis. This

extended all the lifespan of seventeen reactors in Germany by roughly twelve years. The policy

change was the most important in Merkel’s second term in office. The reversal represented her

unchanging commitment to make nuclear power an important component of Germany’s energy

plans for the future.47

After the recent crisis in Fukushima, the German government’s response was to execute a

three-month moratorium on plans of nuclear extension and to shut down its two oldest reactors in

the country. Exactly two weeks since the accident, Angela Merkel of the conservative party was

to face three important state elections.48 With Germany being a pre-existing country that

practices caution towards nuclear energy, Fukushima undoubtedly started the transition of power

to the anti-nuclear Green Party. Across Germany, 100,000 demonstrators from different towns

and cities crowded the streets in protest of nuclear energy promptly after the crisis. For the sake

of her party, Merkel had to show the voters that her extension plans would be reconsidered.

The Ethics Commission on Safe Energy Supply was also organized in evaluation of

Germany’s next nuclear strategy as a reaction to Fukushima alongside the moratorium. Although

47John Moore, “How Much Precaution is Too Much: Evaluating Germany’s Nuclear Phaseout Decision in Light of the Events in Fukushima,” Public Sphere Journals, no. 1 (2007): 42-53.

48Moore, “How Much Precaution is Too Much,” 52

20

the moratorium was only to provide assurance of the Germans as a campaign tactic, the Ethics

Commission proves to be more interesting. It provides solitary proof of the issue on nuclear

power that became salient in Germany that the closure of the early reactors was its only available

option.

The Ethics Commission, composed of seventeen representatives from research, industry

and politics, advocates to permanently shut down the country’s seven oldest reactors and

returning to Chancellor Schroder’s 2021 nuclear phase-out timeframe after two and a half

months after the crisis.49 “The phase-out is necessary” reads the Commission’s last report. It was

suggested to rule the out risks posed by nuclear power in Germany in the future.50

Comparative Analysis on the Recent Turn in French and German Energy Policies

France and Germany are the two countries playing a huge role in the energy policy of the

EU, but they ironically lack in cooperation in the area of nuclear energy policy.They have held

onto different stands regarding the said area while the EU energy policy remained symbolic. The

rationale behind this difference in behavior is because of the increasing level of security

demands, a learning process which materialized the consequence of risks and time lengths, even

before Fukushima.

The 1973 Oil Crisis

Energy policies have been marked by the recent oil crises,51 catastrophic accidents such

as the Three Mile Island and Chernobyl, not to mention the impacts of the recent Fukushima 49Ibid. 50 Dr. Klaus Töpfer et al, “Germany’s Energy Transition: A Collective Endeavor for the Future,” Ethics

Commission for a Safe Energy Supply (30 May 2011), 1.51 Howard Stein, “The Neoliberal Policy Paradigm and the Great Recession,” Panoeconomicus59, no. 4

(2012): 421-440.

21

nuclear accident.52 The 1973 oil crisis started on October 16, 1973 when the members of OAPEC

proclaimed and oil embargo raising the oil price by 70%.53 The embargo is inconsistent in

Europe. France has received steady supplies while Germany only faced partial decline. The price

increase had a much greater impact in Europe than the embargo.54 Part of the decrease in prices

comes from the shift from oil consumption to alternate energy sources.55 OPEC had relied on the

limited price inelasticity of oil demand to maintain high consumption but had underestimated the

extent to which other sources of supply would become beneficial as the price increased.

Electricity generation from nuclear power reduced the demand for oil.56 The two countries had

pursued different actions following the oil crisis in 1973, with France investing heavily in

nuclear energy to reduce its dependence on fossil fuel compared with up to only 25% in

Germany.EU has not come up with a strong plan on energy security since the 1973 oil crisis,

which gave an idea on how vulnerable the EU members are.57

Three Mile Island Accident

The Three Mile Island accident was a partial nuclear meltdown which occurred in one of

the two Three Mile Island nuclear reactors in Pennsylvania on March 28, 1979 when the reactor

was operating at 97% power. It involved a relatively minor malfunction in the secondary cooling

circuit which caused the temperature in the primary coolant to rise. This in turn caused the

reactor to shut down automatically. Shut down took about one second. Then, a relief valve failed

52 Stephen Thomas et al., The Economics of Nuclear Power (Amsterdam: Greenpeace International, 2007).53Ferenc L. Toth and Hans-HolgerRogner, "Oil and Nuclear Power: Past, Present, and Future,”Energy

Economics 28, no. 3 (2006): 1 – 25.54Barbara Slavin, Milt Freudenheim and Willian C. Rhoden, "The World; British Miners Settle for Less,"

The New York Times.55 Patrick L. Anderson, et al., "Price Elasticity of Demand," The Universal Tuition Tax Credit: A Proposal

to Advance Parental Choice in Education 11, no. 1 (1997): 13-17.56 Ibid.57 Stein, “The Neoliberal Policy,” 433.

22

to close, and so much of the primary coolant drained away that the residual decay heat in the

reactor core was not removed. The core suffered severe damage as a result.58 This was

supplemented by communication problems which caused conflicting information to the public,

contributing to the public's fears.59 This was actually said to be the worst accident in the nuclear

history of US. The operators were unable to assess or respond accurately to the unplanned

automatic shutdown of the reactor. Lack of control room for machineries and insufficient

emergency response training proved to be root causes of the accident. A small amount of

radiation was released from the plant but it was not serious and has no health hazards. It

produced a significant, long-term improvement in the performance of all nuclear power plants,

although public confidence in nuclear energy, particularly in USA, strongly declined.60

Chernobyl Catastrophe

This disparity of the two countries vis-à-vis nuclear energy was clearly determined after

the Chernobyl accident in Ukraine on April, 26, 1986.61 The accident was the result of a damaged

reactor design that was operated with inefficiently trained personnel. It was the first major

nuclear power plant accident that resulted in a large-scale fire and subsequent explosions,

immediate and delayed deaths of plant operators and emergency service workers, and the

radioactive contamination of a significant land area.62 The resulting steam explosion and fires

released at least 5% of the radioactive reactor core into the atmosphere and downwind. Two

58 J. Samuel Walker, Three Mile Island: A Nuclear Crisis in Historical Perspective (Berkeley: University of California Press, 2006)

59 Mike Gray and Ira Rosen, The Warning: Accident at Three Mile Island (New York: W.W. Norton, 2003).60 Ibid.61 Frank Barnaby, "Chernobyl: The Consequences in Europe," Ambio 15, no. 6 (1986): 332-334.62 Ibid.

23

Chernobyl plant workers died on the night of the accident, and a further 28 people died within a

few weeks as a result of acute radiation poisoning. Radioactivity was released over a 10-day

period which resulted in millions of Soviets, and other Europeans, being exposed to significant

levels of radioactive fallout.63 Although there was an increase in the number of thyroid cancers

victims, there is no evidence of a major public health impact a priori to radiation exposure

twenty years after the accident. For France, the accident was seen as an irrelevant accident that

would not have an effect on the French territories – which was later proved to be incorrect –

while Germany has strongly begrudged its impacts from the start which reinforced the anti-

nuclear movement.64

Fukushima Disaster

Following the accident at Three Mile Island in 1979 and at Chernobyl in 1986,

Fukushima will be remembered as the third major accident in the history of civilian nuclear

power reactors. Yet Chernobyl was and remains the worst trauma in this history as a result of

which nuclear developments slowed down significantly.65 The Fukushima incident was caused

by a tsunami in Japan which produced equipment failures, and without this equipment a loss-of-

coolant accident followed with nuclear meltdowns and releases of radioactive

materials.66Although the aftermath of the Fukushima accident has established the need for a new

nuclear policy, it was not the cause for change since it took place after Germany and France have

followed different options.67 Even before the incident, Germany has already planned the phasing-

63 Harold M. Ginzburg and Eric Reis, "Consequences of the Nuclear Power Plant Accident at Chernobyl," Public Health Reports 106, no. 1 (1991):32-40.

64Barnaby, "Chernobyl: The Consequences in Europe," 332.65 Selma Kus, "International Nuclear Law in the 25 Years between Chernobyl and Fukushima and Beyond,"

Nuclear Law Bulletin 87, no. 1 (2011): 7-26.66 Eliza Strickland, “What Went Wrong in Japan's Nuclear Reactors,” IEEE Spectrum 16, no. 3

(2011): 17-24.67Kus, "International Nuclear Law," 19.

24

out68 while France was only considering a partial phase-out, lowering nuclear production of

electricity from 75% to 50% by 2020. The same shift to decrease nuclear dependence, although

non-binding, was recommended at the EU level.69 This incident has stimulated a new turn to

respond to the risks of future huge disasters that can come in numerous ways, and avoid the

colossal costs of decommissioning reactors.70

Although an immediate solution is not available, EU encourages its members to divert to

renewable sources of energy. It is more of a long-term objective, but a short-term solution to the

rising problem of energy access.71 There have been a few coordinated moves at the EU level to

boost the rate of renewable energy in all member states; but this takes time since it is a lengthy

process.72 A solid EU policy which would set the energy policies of France or Germany should

be enforced; otherwise, a feeble EU policy would arise directly from the policies of these two

leading countries.73

It seems that nuclear energy is not fully-developed to achieve the shift in energy sources.

The fact that nuclear reactors have been established in the last decade in developing countries is

more problematic.74 A global administrative issue to avoid new huge accidents is likely to

appear. A possible solution is a successful energy transition mostly based on renewable sources.

This is a very ambitious path with the need to adapt the framework, to rationally utilize the

68Thorstein Veblen, Imperial Germany and the Industrial Revolution (New York: Cosimo Classics History, 2006).

69 Gary A. Dymski, “Limits of Policy Intervention in a World of Neoliberal Mechanism Designs: Paradoxes of the Global Crisis,” Panoeconomicus58, no. 3 (2011): 285-308.

70 M. V. Ramana, "Nuclear policy responses to Fukushima: Exit, voice, and loyalty," Bulletin of the Atomic Scientists 69, no.2 (2013): 66-76.

71 Dymski, “Limits of Policy Intervention in a World of Neoliberal Mechanism Designs.”72 Ibid.73JakubHandrlica, "Harmonisation of Nuclear Liability in the European Union: Challenges, Options and

Limits," Nuclear Law Bulletin 84, no. 2 (2010): 35-64.74Dymski, “Limits of Policy Intervention,” 292.

25

remaining fossil fuel sources and to develop profound energy saving ways of life and

production.75 It seems that strong common European policy is essential to endure this problem.

The future energy transition policies will have to depend on energy saving on a large scale,

suggesting a remarkable financial effort that can only be made at the regional level. It does offer

a new opportunity for a strong cooperation between Germany and France in an EU context.76

Theoretical Framework

This paper uses the historical institutionalism approach as the main theory in analyzing

the role of institutions and the policy behavior of the leaders, particularly how past events

contributed to the recent turns in nuclear energy policy of France and Germany.

This chapter will begin with a brief history of the said theory, its key concepts, and the

relationship among those concepts. It shows how it is characterized from the other types of

theories. It will be followed by its core assumptions and how are these applied to the decision-

making process and policies of the EU, France and Germany. Finally, concepts that are unique to

the theory would be defined; and some of these concepts would be found in the theoretical and

conceptual diagram, that would be further expounded.

75 Ibid.76Handrlica, "Harmonisation of Nuclear Liability in the European Union," 41.

26

Historical Institutionalism

The ‘new institutionalism’ is a term that is now prominent in fields of political science

and international relations. It is a theory that aims to look at institutions sociologically — the

way they interact and the way they affect society.77 Three schools of thought are recognized as

new institutionalism – historical institutionalism, rational choice institutionalism (different from

rational choice theory), and sociological institutionalism.78

In order to precisely illustrate historical institutionalism, it is wise to set this approach in

a historical and metaphorical context, presenting the roots of this approach and its distinction

from other approaches in the social sciences.79 Although the term ‘historical institutionalism’ was

conceived in the 1990s, this theory was created to respond to the behavioral outlooks that were

influential during the 1960s and 1970s and it seeks to shed light on the role that institutions play

in the backbone of social and political outcomes.80 Some of the major proponents are Theda

Skopcol, Kathleen Thelen, Sven Steinmo, Ellen Immergut, and Peter Hall.

In a nutshell, historical institutionalism intercedes between the rational choice and

sociological institutionalism approach by looking at the effects of institutions over time.81 It

examines the long-term implications of institutional decisions made at a particular time.

According to this theory, when institutions are established and developed, there is a tendency

that ‘locking in’ of states will happen in which states are constrained by the institutions.82 Present

77 Peter A. Hall and Rosemary C. R. Taylor, Political Science and the Three New Institutionalisms (Cambridge: Cambridge University Press, 1996).

78 Ibid.79 Sven Steinmo, “What is Historical Institutionalism?” in Approaches in the Social Sciences, ed. Donatella

Della Porta and Michael Keating (Cambridge, Cambridge University Press, 2008).80 Ibid.81 Mark Pollack, “The New Institutionalisms and European Integration,” in European Integration Theory,

ed. Antje Wiener and Thomas Diez (Oxford: Oxford University Press, 2009).82 Ben Rosamond, Theories of European Integration (London: Palgrave Macmillan, 2000).

27

behavior of states is constrained by the locking into place of past decisions, consequently

creating a path dependency that can be ceased only by a critical juncture.

The three approaches of new institutionalism agree that institutions can be seen as rules

that shape behavior. However, the key difference which sets out historical institutionalism from

the rest is over their knowledge of the nature of the beings whose actions or behavior is being

formed. The rational choice school argues that human beings are rational individualists who

measure the costs and benefits in the choices they face. Rational choice institutionalists assume

that institutions are essential merely because they structure the individual’s strategic behavior.

They argue that individuals obey rules because humans are strategic actors who want to

maximize their individual gain.83 On the other hand, sociological institutionalists claim that

human beings as primarily social beings. They believe that humans are ‘satisficers’ who act

consistently, rather than being self-interested or rational as the rational choice institutionalists

would have it. Institutions are not just rules in which they act, but they also structure the way

individuals view their world. Sociological institutionalists do not just find every possible option,

but they look for the most appropriate one. The significant institutions or rules in this approach

are social norms that regulate everyday life and social interaction.84

Historical institutionalists take up a position between these approaches where they

believe that human beings are both norm-abiding and self-interested rational actors. Behavior

depends on the actor, on the circumstances, and on the rule. They don’t believe that humans are

just rule followers or that they are solely strategic actors who use rules to maximize their

interests. What they want to know is why a certain choice was made and/or why a certain

83 Steinmo, “What is Historical Institutionalism?”84 Ibid.

28

outcome occurred. They are mostly interested in finding out the impetus of a decision and the

underlying causes of a certain outcome. Any momentous political outcome is best understood as

a product of both rule following and interest maximizing. Historical institutionalists would then

investigate historical records in order to find out which behavior has more significance.85

The debate on power can be tracked down in the theory of historical institutionalism as

an approach to the study of politics, and the distinguishing view of this theory on institutional

development and change is characterized by the power-distributional struggles.86 This alternative

approach on institutional change emphasizes the significance of structural incentives and

constraints, whereas it also permits the agency to participate in the assessment of change.87 This

gives us a hint on the fact that institutions and rules naturally provide gaps that actors can abuse

in the undertaking of their own interests and in their political struggles for benefits on current

constraints.88

Political actors are constrained by institutions, and yet also develop and alter institutions.

Another crucial feature of this theory is on the issue of preference formation. For the rational

choice institutionalists, preferences serve as a given. On the other hand, historical institutionalists

assume that self-interests of individuals are problematical.89 Institutions not only constrain the

strategies of actors, but also essentially frame their preferences, interests, and goals in more

broad ways. Sine preferences are unsteady; ideas play a huge role by influencing how individuals

85 Ibid.86 Kathleen Thelen, “Beyond Comparative Statistics: Historical Institutional Approaches to Stability and

Change in the Political Economy of Labor,” in The Oxford Handbook of Comparative Institutional Analysis, ed. Glenn Morgan, et al. (Oxford: Oxford University Press, 2010), 43.

87 Ibid, 53.88 Ibid, 57.89 Sven Steinmo, Kathleen Thelen and Frank Longstreth, Structuring Politics: Historical Institutionalism in

Comparative Analysis (Cambridge: Cambridge University Press, 1992).

29

pursue their interests. Actors may be strategic, but position their goals in a historically situated

manner based on existing and contingent understanding of social situations.90

In sum, historical institutionalism focuses on the long-term feasibility of institutions and

their expansive repercussions. It is more interested on how these institutions, as well as other

factors such as ideas and interests create preferences, and also how they develop over time.91

Core Assumptions of Historical Institutionalism

Historical institutionalism has four essentially distinguishing aspects. First, historical

institutionalists analyze the relationship between institutions and individual behavior comparably

in broad terms. Two approaches – the ‘calculus approach’ and the ‘cultural approach’ – are used

to determine the behavior of actors and the actions of the institutions. The calculus approach

assumes that individuals behave strategically through using all possible means in fulfilling

ultimate satisfaction in order to expand the attainment of goals given by a specific preference.

Institutions affect individual action and alter the certainty of actors on their present and future

behavior by shifting the expectations of an actor on the actions that other individuals are likely to

take in response to his own action.92

90 Thelen, “Beyond Comparative Statics,” 68.91 Elizabeth Sanders, "Historical Institutionalism ," in The Oxford Handbook of Comparative Institutional

Analysis, ed. R.A.W Rhodes, Sarah A. Binder, and Bert A. Rockman (Oxford: Oxford University Press, 2006), 43.92 Hall and Taylor, Political Science and the Three New Institutionalisms.

30

On the other hand, cultural approach assumes that behavior is limited by an individual's

conception of the world, rather than completely strategic. Although it recognizes the rationality

of human behavior, it also asserts that individuals undertake known patterns of behavior to

achieve their objectives. It sees individuals as satisficers, meaning they act to satisfy the

minimum requirements for achieving a goal, rather than benefit maximizers, and their action

depends on the interpretation of a situation rather than calculation. In this approach, institutions

give out a righteous pattern for interpretation. Historical institutionalists use both of these

approaches where it can be seen in several works of proponents such as Immergut and Hattam.93

Secondly feature of this theory is that historical institutionalists stress the inequalities of

the relations of power play in the performance and progression of institutions. This theory

focuses on the mechanisms of the institutions in the unequal distribution of power across social

groups. It assumes that institutions provide groups imbalanced access to the decision making

process and tend to emphasize that some groups lose while others win.94

Thirdly, historical institutionalists are also likely to have a view of institutional

development that focuses on ‘path dependence’ and unintended consequences. This theory

assumes that decisions that have been made in the past would generate a huge impact on the

actors’ present and future decisions. Institutions are deemed to be enduring features of the

historical context and one of the key factors pushing historical development along a set of paths.

Historical institutionalists focused on the problems on ways institutions create these paths such

as encouraging groups to adopt policies that are costly to shift which results to unintended

consequences and inefficiencies. They also break down the series of historical events into

93 Ibid.94 Ibid.

31

periods of persistence emphasized by 'critical junctures', and seek to address the problem of

determining the underlying causes of such.95

Lastly, they are mostly attentive in consolidating the institutional analysis and the efforts

that other kinds of factors, such as ideas, can make to political outcomes. Historical

institutionalists argue that institutions allow other factors to manifest their roles, rather than the

institutions being the only causal force in politics.96

Application of the Theory to the Study

With path dependency that is articulated with critical junctures that may change an

agency's outcome, increasing the returns that further induce the path, and 'lock-in' that thrives

despite different policy regimes; institutions are developed. These institutions influence the

preferences of state actors and on one hand, sprout unintended consequences that further define

the institutions.

The nuclear renaissance in France started after the Second World War when it was at its

lowest. Nuclear power was a way to regain its lost title by means of technological prowess, but

this may soon reach its peak due to the nuclear incident at Fukushima, Japan. France's energy

policy must seek to find an advantageous effect and importance of nuclear energy that despite

the administration of President Francois Hollande, the people may be able to realize and

recognize the power of nuclear energy and not pursue a nuclear phase-out. Nuclear power

institutions such as the Electricite de France (EDF) and the Atomic Energy Commission (CEA)

are led by the Corps des Mines, scientist and engineers elites that help influence the government

95 Ibid.96 Ibid.

32

in decision-making with regard to nuclear energy policies. Despite that, unexpected

consequences take into effect when the technocrats dominate the government and decide on

matters of energy. This is actually a benefit to nuclear institutions since it is harder for it to be

penetrated by the government because of much opposition.

Operationalization of Concepts

Concepts Definition Operational definition

Path dependency

The order in which things

happen affects how they

happen; the trajectory of

change up to a certain point

itself constrains the trajectory

The recognition of nuclear

power as a source of energy

and its establishment in the

European Union as well as its

member states despite the

33

after that point; and the

strategic choices made at a

particular moment eliminate

whole ranges of possibilities

from later choices while

serving as the very condition

of existence of others97.

Chernobyl accident and the

recent Fukushima crisis.

Critical juncture

Relatively short periods of

time during which there is a

substantially heightened

probability that agents’

choices will affect the

outcome of interest98.

The nuclear accident in

Fukushima, Japan involving

the dismantling of three of its

nuclear reactors inherently

raised awareness on the

dangers and disadvantages of

having nuclear power plants

across the world and on the

probable yielding of nuclear

energy programs.

Institutions

Institutions are ‘regimes’ or

‘systems of social interaction

under formal normative

The main organization

involved is the European

Union overseeing policy

97Colin Hay and Daniel Wincott, "Structure, Agency and Historical Institutionalism." Political Studies 16, no. 3 (1998): 955.

98 Giovanni Capoccia and R, Daniel Kelemen. "The Study if Critical Junctures Theory, narrative, and Counterfactuals in historical institutionalism."World Politics 59, no. 4 (2007): 343.

34

control’ in which actors follow

the rules because they are not

only enforceable but also

legitimate, imbued with

authority by the society and

the actors who act within

them99.

regulations with regards to

nuclear energy as well as

being the policy benchmark

for both France and Germany.

State Actors

Actors appropriate

strategically a world replete

with institutions and ideas

about institutions. Their

perceptions about what is

feasible, legitimate, possible

and desirable are shaped both

by the institutional

environment in which they

find themselves and existing

policy paradigms and

worldviews100.

State actors concerned are the

prominent members of the EU

namely France and Germany

that are the known to use

nuclear energy as its primary

energy source.

Preferences

Preferences are caused by

historical processes; that is,

the theory attempts to suggest

State preferences that include

France and Germany’s

response to the recent

99Hay and Wincott, "Structure, Agency and Historical Institutionalism," 956.100KourisKalligas. "A Historical Institutionalist Analysis of the Security and Defence of the European

Union" Department of Politics and International Studies 14, no. 2 (2006): 11.

35

how historical developments

cause a particular set of

preferences held by a given

actor101.

Fukushima Crisis on whether

to pursue a nuclear phase-out

or a non-nuclear phase-out.

Increasing Returns

Increasing returns means that

“the probability of further

steps along the same path

(dependency) increases with

each move down that path”102

With regards to Germany’s

shift from nuclear energy to

renewable energy and their

plans for complete nuclear

phase-out by 2020.

'Lock-in'

The concept of ‘lock-in’ refers

to a situation where an

institution or a policy structure

will remain intact regardless

of a sizeable alteration to its

political environment103.

Although series of events have

occurred to prove the dangers

of nuclear energy, France

remains to pursue nuclear as

its primary source having

planned to lengthen the

lifespan of its reactors.

Unintended Consequences Unintended consequences

occur because even though

actors can design an institution

or a policy structure, they

cannot hope to foresee the

Inevitably outcomes from

pursuing a nuclear phase-out

may occur such as global

warming as nuclear energy

decreases carbon emissions.

101 Ira Katznelson and Barry R, Weingast. Preferences and situations: points of intersections between historical and rational choice institutionalism (New York: Russell Sage Foundation, 2007), 3.

102 Mycle Scneider. Nuclear France Abroad History, Status and Prospects of French Nuclear Activities in Foreign Countries (Ontario: Centre for International Governance Innovation, 2009).

103 Scneider, Nuclear France Abroad, 7.

36

eventual development of their

own actions104

Theoretical Framework

Path Dependency

104 Ibid, 10.

37

Critical Juncture Institutions UnintendedConsequences

Preferences

State Actor State Actor

Lock In IncreasingReturns

Conceptual Framework

Path Dependency

38

Fukushima Crisis European Union

GlobalWarming

NuclearEnergy Policies

France Germany

Non-NuclearPhase-out

NuclearPhase-out

Methodology

Research Design

This study is focused mainly on comparing the recent turn in nuclear energy policies of

France and Germany and analyzing their differences using the EU energy policy as a benchmark.

The research is classified as a basic research in which it is stated by a fixed plan geared to

acquire the understanding of the fundamental aspects and observable facts or greater intelligence

in the absence of identified applications in the direction of processes or products in mind. It is a

research providing the foundation for technological progress.105 The data used in this research is

qualitative in nature since it describes social phenomena as they occur naturally, and the impact

of these events on different actors.106 Finally, the data collected is descriptive, and at the same

time comparative, in which the researchers gathers information about the present existing

conditions in France and Germany, particularly the present domestic and regional role of nuclear

energy. The researchers collect data in order to determine the differences between nuclear

policies of the two countries and the rationale behind their policy reform.

105 Department of Defense’s administration and support of basic research under the Code of Federal Regulations. 106 Beverly Hancock, An Introduction to Qualitative Research (Leicester: Trent Focus Group, 2001).

39

Qualitative method is used in gathering data, and these data are used to develop concepts

and theories, particularly the historical institutionalism theory, in order to fully understand the

social world. The researchers seek to understand the behavior of actors, the formation of their

opinions and attitudes, the effects of a particular phenomenon to their decision-making, and the

differences of these actors.107

The priority method for the researchers to use is a case study. It illustrates a description

of a single event, as well as analyzes a social situation over a period of time. It traces events

involving the same actors over a period of time which enables the analysis to reflect changes.108

Data Gathering

The researchers need data on the decision-making processes of previous French and

German administrations with regards to energy policies and specifically, the utilization of the

countries’ nuclear energy. The researchers seek to collect data with the complete details of

nuclear accidents, together with its impacts on different states. Moreover, the researchers will

need data on the theory used in this study which is historical institutionalism. It is important to

gather resources which can help in the application of this theory to the present situation in

France.

As stated in the scope and limitations, the study will be limited to secondary sources

which is why this research primarily utilizes books (hard copy or electronic) and journals.

However, there are instances where primary sources – such as government documents and

official websites – which are directives are also utilized. Most of the books used are obtained

107 Ibid.108 Ibid.

40

from the De la Salle University Library and Google Books, while journal articles are gathered

from JSTOR, EBSCO, and Cambridge Journals. The most useful sources that the researchers

utilized can be retrieved from the OECD library.

The sources have met the following criteria: credibility, authenticity, representativeness,

and meaning. Authors of books and journals are acknowledged and usually experts in their

fields. Sources are real and not edited. Also, they also speak as whole and are not biased.

Data Analysis

The research primarily used documentary analysis to organize the data into concepts and

verify the data collected. Then, the analysis of the data itself is conducted through inductive

analysis where the researchers get into the full details and specifics of the data to discover

important pattern, themes, and interrelationships. It begins by exploring, then confirming,

guided by analytic principles.109

It analyzes the patterns of behavior exhibited by actors after the Chernobyl and

Fukushima accidents which affected the energy policies of different states. The thesis aims to

make an analysis relating to the differences of these policy provisions using the EU energy

policy as a benchmark. The researchers also tried to determine the impacts – domestically and

regionally – of nuclear energy.

109 Burke Johnson and Larry Christensen, Educational Research: Quantitative, Qualitative, and Mixed Approaches, 2nd ed. (Los Angeles: Sage Publications, 2008), 362.

41

Evolution of EU Energy Policy

Post-war policies in Western Europe are based on the principle that it must reserve as

much fuel as possible in the domestic level through the expansion of the coal industry. The

aspiration to promote this objective has led to the creation of the ECSC – the stepping stone

toward European integration.110 When it became clear by 1957 that coal production could not be

radically expanded, proposals for a massive nuclear power program emerged; although two

events at the end of that year established a demand for more comprehensive energy policy. In

spite of the aggravated competitive pressures, the coal market started to decline roughly. This

made the member states of ECSC agree to establish two new communities – the EEC and

Euratom, which has a more extensive course than ECSC.111 Assuming that there will be an

overextended responsibility for energy policy among the communities, ECSC decided to work

with the others to develop a policy. Consequently, a number of proposals have emerged from

different joint committees established by the three communities, but the member states have not

arrived at a final agreement. The fundamental problem is that the states are not willing to support

110 M. A. Adelman, “Oil Prices in the Long Run,” Journal of Business 37, no. 7 (1964): pp. 143-161.111 Richard L. Gordon, “Energy Policy in the European Community,” The Journal of Industrial Economics

13, no. 3 (1965): 219-234.

42

the level of security for coal promoted in these proposals.112 It suggests that this inclination

emerged from the central role given to ECSC with its direction toward coal. The other

communities, especially EEC, have taken a more liberal approach, but the final reports made

profound acknowledgment to ECSC mindset.

Road to a More Integrated Policy

The idea of an integrated energy policy indicates that it is necessary to take into account

all sources of fuel rather than just European coal. At the outset, ECSC anticipated that it is

practical to have an independent coal policy. In 1957, the need for a more extensive vision was

officially recognized. The member states and ECSC signed an agreement which allowed ECSC

to cooperate with the EEC and Euratom in developing a coordinated policy. A number of reports

have been made by the communities, but so far, only the vast principles of such a policy have

been authorized. The details have proved to be relatively contentious.113

It should be acknowledged first that ECSC and the other European institutions have

constantly determined the goal of such a policy with a broad notion of an economic optimum.

The content of this optimum can be found in fundamentally the same terms in either the ECSC

Treaty or the 1962 statement of the European Parliament on Energy Policy; both emphasized the

expansion of an integrated market which produces abundant, low-cost, stable supplies, freedom

112 Ibid.113 Richard L. Gordon, “Coal Price Regulation in the European Community,” Journal of Industrial

Economics 10, no. 2 (1962): pp. 188-203.

43

from public and private policies which alter competition, and a minimum displacement of

labor.114

Call for a Nuclear Policy

The EU nuclear policy was only manifested through the Euratom Treaty of 1957. In

1955, the Messina Declaration by European Heads of State and Government called for more

abundant energy at a cheaper price to be put at the disposal of the European economies.115

The communities advanced their efforts to develop this policy through various reports

starting in 1959. These reports all acknowledged the rapid decline of coal and the need for

policies that assisted coal in a way that minimized intervention with the market. However, the

earlier reports were vague about the level of difficulty and were given limited distribution.116

DATA CHAPTERS

EU Specific Policy Proposals

114 Ibid.115 IEA, IEA Energy Policies Review: The European Union (Paris: IEA, 2008).116 Ibid.

44

The 1960 plans for establishment of target prices for energy were the initial specific

policy proposals of the EU. These target prices would provide an outline for long-term planning

and could be situated at either the expected free-market level or at some higher price that would

allow more coal to be sold valuably. In the latter case, trade limitations would offer the necessary

security. However, this mechanism failed to obtain the consent of the member states. On one

hand, it took so long for them to decide on the particulars of the policy and the states were not

able to agree upon them. On the other hand, the states were a bit doubtful about the feasibility of

the approach. Not only are prices merely unpredictable, but the estimates that were made also

seemed to minimize the strength of oil competition.117

Since there is no specific article on energy in the ratified EU treaties at present, energy-

related legislation has been introduced to this point under the following legal basis –

Environment (Art. 175); Approximation of laws (Art. 81-97); Trans-European networks (Art

154); Difficulties in the supply of products (Art 100); Research (Art 166); and External relations

(various articles in the treaties).118

Recognizing that some aspects of energy policy are critical to the member states, EU

energy policy measures adhere to two principles: first, that member states are ultimately

responsible for their national energy mix; and secondly, that indigenous energy resources are

national, not European, resources. Despite this, member states have previously accepted legally

binding, although non-enforceable EU targets for specific energy sources, such as renewables,

and are negotiating legally binding, enforceable, national targets within the framework of the

draft Renewables Directive. Significantly, the EU has for more than a decade given consent on

117 Ibid.118 Ibid.

45

the legal provisions for liberalizing energy networks within the internal energy market and

promoting cross-border partnership, interconnection and energy flows.

An external energy policy was also established by the EU where it operates in fields of its

own competence, such as economic, technical and financial cooperation, with agreements

covering trade, investment, infrastructure development and use (e.g. Energy Community Treaty,

Energy Charter Treaty), etc. The structure of political cooperation under the EU’s Common

Foreign and Security Policy (Title V, Treaty on European Union) also discusses energy issues.

While the CFSP to some extent has been engaged, most of the Commission’s external ability is

drawn from the EC Treaty.

The legal framework for EU energy policy will be authenticated and reinforced by the

new Lisbon Treaty, once it has been ratified by all member states. A general legal basis for

energy policy in Article 176a is included, which validates and expands the EU’s specific

competences in issues concerning the implementation of the internal energy market, to security

of energy supply, energy efficiency, the development of renewable energy and the

interconnection of energy networks. It also promotes unity among member states in energy

matters.

Energy Policy Developments in the EU

The evolution of energy policy at the EU expanded in 2005 when a new political force

has surfaced among the member states to cooperate more closely in the fields of energy and

reinforce the common policy in some areas. This was first conveyed at the G8 Summit at

Gleneagles in July 2005 in an action plan which covers climate change, clean energy and

46

sustainable development, and this matter was taken up during the UK presidency of the EU in

the mid-2005. Consequently, it took a larger stride during the informal summit of EU leaders at

the Hampton Court in October 2005, when heads of EU states and governments asked

Commission to immediately arrange how the EU could collaborate in the fields of energy.

Global geopolitics, climate change and the implementation of the internal energy market were

the vital factors of these political changes.119

Unity in matters of energy supply and energy policy reform within the EU is included

under the EU Treaty of Lisbon of 2007. Before the Lisbon Treaty was ratified, EU energy

legislation was only based on the control of the EU in the field of the common market and

environment; although many policy competencies vis-à-vis energy actually remain at the state

level and development in policy at European level are not legally binding to the member states.

Harmonization of Nuclear Liabilities in the EU

There have been current discourses which have recognized gaps in the existing nuclear

liability regimes in a more targeted way.120 The so-called nuclear renaissance or nuclear new

build cannot be restricted to merely the reproduction of nuclear power plants. It must occur along

with the formation and reinforcement of legal frameworks for nuclear safety and radiation

protection, security and defense.

Currently, negotiations on the harmonization of nuclear liability regimes have opened at

the EU level. While indifferent on this matter during the decades subsequent the signing of the

Euratom Treaty in 1957, the thoughts of the European institutions towards EU nuclear liability

119 Gordon, “Coal Price Regulation in the European Community.”120 Jakub Handrlica, “Harmonization of Nuclear Liability in the European Union: Challenges, Options and

Limits”, Nuclear Law Bulletin 2, no. 14 (2010): pp. 35-64.

47

mechanisms changed significantly after the 2004 and 2007 enlargements. In 2005, a patchwork

situation discourse concerning nuclear liability has also opened under the auspices of the

European Commission which was later cut short because of the tough disagreement from the

new Central and Eastern European member states.121

On the event of the International Nuclear Law Association (AIDN/INLA) biannual

meeting held in Brussels in October 2007, the European Commissioner for Energy, Andris

Piebalgs, described the nuclear liability framework as extremely inadequate from the

Commission’s standpoint. Commissioner Piebalgs proclaimed supplementary activities at the

level of the European Community towards an integrated nuclear liability regime. Later, in

December 2007, the Commission adopted a Spanish law firm to develop and issue a survey

analyzing the views of EU member states and EU industry on the existing nuclear liability

regimes, with a view towards harmonizing Community law in that area.122

The Nuclear Liability Patchwork in the EU member states

There is no legal framework on nuclear liability at the EU level. The context of nuclear

liability in the Community is essentially ruled by existing multilateral treaties in this area and the

legislation differs from one member state to another, depending on which treaty or treaties, if

any, it has signed and ratified.123

Prior to the 2004 enlargement, the plan of the Community appeared to correspond with

the plan of the contracting parties to the 1960 Paris Convention on Nuclear Third Party Liability

121 Ibid.122 Ibid.123 Norbert Pelzer, “On Global Treaty Relations – Hurdles on the way towards a Universal Civil Nuclear

Liability Regime,” Zeitschrift für Europäisches Umwelt- und Planungsrecht 13, no. 2 (2008): p. 273.

48

as revised in 1964 and 1982 (Paris Convention). This changed when several contracting parties

to the 1963 Vienna Convention on Civil Liability for Nuclear Damage (1963 Vienna

Convention) joined the Community during the 2004 and 2007 enlargements.124

EURATOM and the Nuclear Liability Framework

At present, European secondary law is restrained vis-à-vis nuclear third party liability.

Therefore, the legal framework for nuclear liability in member states is that provided for under

the international convention to which they have held on.

I. Article 98 Euratom Treaty on facilitating the conclusion of insurance contracts covering

nuclear risks.

When signing the Treaty establishing the European Atomic Energy Community (Euratom

Treaty) on 25 March 1957, the member states agreed to:

“Take all measures necessary to facilitate the conclusion of insurance contracts covering

nuclear risks. Within two years of the entry into force of this Treaty, the Council, acting

by a qualified majority on a proposal from the Commission, which shall first request the

opinion of the Economic and Social Committee, shall, after consulting the European

Parliament, issue directives for the application of this Article”125

124 Ibid.125 Handrlica, “Harmonization of Nuclear Liability in the European Union.”

49

The interpretation of this provision suggests the following observations and consequences

for nuclear liability in member states:

(1) Article 98(1) of the Euratom Treaty requires member states to take all actions

necessary to facilitate the termination of insurance contracts constituting nuclear risks. This

requirement is due to the fact that the contracting parties to the treaty were already aware in 1957

that nuclear insurance is an essential element of a suitable framework for nuclear liability.

(2) By 1954 to 1955, since the nuclear industry is not able to pay the damages taking

place from a nuclear accident, it was apparent that it would not be able to expand without a

special liability. On the other hand, operators were aware of the fact that installations, in which

they had invested large sums of money, could also be totally damaged or destroyed in an

accident. At the same time, insurers started to rule out nuclear damage from the standard

coverage because of the colossal risks associated with industrial use of nuclear energy; and they

formed a special insurance system for the nuclear industry. Article 98 of the Euratom Treaty

considered this development and requires member states to engage in the conclusion of insurance

contracts.

(3) The Euratom Treaty does not mention any definite responsibility of member states

regarding the features of a nuclear liability framework. Therefore, it is impartial on the general

principles by which nuclear liability is to be enforced.

Ongoing discussions regarding new nuclear power plants or nuclear renaissance suggest

difficult issues related to public acceptance. The establishment of a legal framework on nuclear

liability is one of the fundamental pillars of the acceptance. The development of peaceful uses of

50

nuclear energy cannot be reduced to the growth in number of nuclear power plants, but must also

include the formation of an appropriate legal framework which covers all parts of the peaceful

uses of nuclear energy.126

To some extent, harmonization within the Community could be achieved if all member

states would comply and ratify the existing amended conventions which, relating to the current

lack of legal instruments in the European Community, assume a political compromise among all

member states. This decision would require strong political motivation and is, from the

Community’s standpoint, somehow static even though it requires action on the part of individual

member states, in particular new member states.

Current EU Energy Policies

Despite having energy as one of the central issues in the EU, the 7th Framework Program

(FP7) only allocated a fair amount of funding for energy research. Much of the FP7 energy

funding is also committed to fusion research, a technology that is unable to help meet European

climate and energy objectives until past 2050. The European Commission tried to address this

deficit with the SET plan.127

On 2008, the Steering Group on the implementation of the Strategic Energy Technologies

Plan (SET Plan) have laid down the outline for an EU energy technology policy. It will develop

the harmonization of national and European research and innovation efforts to place the EU

ahead in the low-carbon technologies markets.

126 Ibid.127 Jan Frederik Braun, “EU Energy Policy under the Treaty of Lisbon Rules: Between a new policy and

business as usual,” Politics and Institutions, EPIN Working Papers 4, no. 1 (2012): p. 14

51

The SET plan initiatives are: Solar Europe Initiative, which focuses on extensive

demonstration for photovoltaic and concentrated solar power; European Wind Initiative, which

centers on large turbines and large systems validation and demonstration (significant to on and

off-shore relevance); European CO2 Capture, Transport and Storage Initiative, which centers on

the whole system requirements, including efficiency, safety and public acceptance, to verify the

feasibility of zero emission fossil fuel power plants at industrial scale; Bioenergy Europe

Initiative, which focuses on the succeeding generation of biofuels within the framework of an

overall bio-energy use strategy; Sustainable Nuclear Fission Initiative, which focuses on the

progress of Generation IV reactors technologies; and European Electricity Grid Initiative, which

focuses on the expansion of the smart electricity system, including storage, and on the

establishment of a European Center to execute a research program for the European

communication network.128

Nuclear Policies between Chernobyl and Fukushima, and beyond

Despite the fact that the 1986 incident uncovered considerable gaps in the international

legal framework, it was not really after the Chernobyl accident that an international cooperation

and legislative agenda have begun.129 As early as 1928, the International Committee on

Radiological Protection has been established, the major international organizations for

intergovernmental cooperation were instituted in the 1950s, and international mechanisms had

been adopted in the realms of non-proliferation of nuclear weapons, physical security, radiation

defense and risk for nuclear harm. However, Chernobyl was a cautionary light for the

128 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions - A European strategic energy technology plan (SET-plan) - 'Towards a low carbon future' {SEC(2007) 1508} {SEC(2007) 1509} {SEC(2007) 1510} {SEC(2007) 1511

129 Selma Kus, "International nuclear law in the 25 years between Chernobyl and Fukushima and beyond," Nuclear Law Bulletin 1, no. 87 (2011): 7-26.

52

international nuclear community and promoted international cooperation in the long run in areas

that were until then rigorously guarded by individual nations as incorporated under their

sovereign authority, such as emergency organization, nuclear safety and radioactive waste

management. Also after this incident, there was a significant development in the international

third party liability mechanisms which is why the Fukushima incident in March 2011 was very

compared to the Chernobyl.130

Subsequent to the Chernobyl accident was the accomplishment of what was thought of as

unachievable in the field of crisis readiness and response since the 1960s. In fact, it was attained

only in the span of four months. Based on existing non-legally binding guidelines, the

international community, under the support of the IAEA, adopted two legally binding

conventions – the Convention on Early Notification of a Nuclear Accident (Notification

Convention);131 and the Convention on Assistance in the Case of a Nuclear Accident or

Radiological Emergency (Assistance Convention).132

Both conventions provide the legal basis for the notification by a state of nuclear

accidents to the IAEA and other states party to the convention, and also provide assistance at the

request of the state in which the nuclear accident or radiological tragedy occurred. The extent of

the two conventions is limited to the period of time subsequent to the accident without delay,

which is why the later negotiated and adopted Convention on Nuclear Safety includes a

provision on emergency measures. Article 16 of that convention requires contracting parties to

have their on- and off-site emergency arrangements checked regularly and to take the proper

130 Rautenbach, J., Tonhauser, W., Wetherall, A., “Overview of the International Legal Framework Governing the Safe and Peaceful Uses of Nuclear Energy – Some Practical Steps –”, International Nuclear Law in the Post-Chernobyl Period, p. 7.

131 INFCIRC/335, 18 November 1986.132 INFCIRC/335, 18 November 1986.

53

measures to ensure that their own residents and the fit authorities of states in the area of the

affected nuclear equipment are provided with accurate information for emergency preparation

and response. Finally, at the European level, two Council mechanisms deal with radiological

emergencies – one on the procedures for the rapid exchange of information in case of a

radiological emergency, and another on informing the general public about health protection

measures and steps to be taken in the case of a radiological emergency.

The main focus of the international cooperation since the Chernobyl accident has been

the safety of nuclear power plants. The 1994 Convention on Nuclear Safety (CNS) embodies a

high point in this period. It is the foundation of the international legal framework on nuclear

safety. It is a legally binding international instrument which does not require exhaustive safety

standards but rather, essential safety principles for land-based nuclear power plants. The 1997

Joint Convention represents a further milestone mechanism in international nuclear law when it

comes to safety. Finally, with Council Directive 2009/71/Euratom establishing a Community

framework on the Nuclear Safety of Nuclear Installations, the third legally binding safety means

was recognized at the European level. Moreover, there are countless safety conducts, standards,

assistance programs and conferences initiated and held correspondingly under the support of

international and regional organizations in order to set up, preserve and develop a high level

safety society within participating states.133

Nuclear Policies of France

Institutional and Industrial Framework

133 Kus, "International nuclear law in the 25 years between Chernobyl and Fukushima and beyond."

54

A number of ministries contribute to the characterization of the French nuclear policy,

specifically the ministry in charge of energy and of the environment (MEEDDM), and the

ministry in charge of higher education and research (MESR). Remarkably, the government itself

does not control the compliance with safety and radiation protection rules. The Nuclear Safety

Authority (Autorité de sûreté nucléaire, ASN), an autonomous organization, executes this

operation.134

The ASN is responsible for ensuring compliance with the rules and regulations regarding

the activities under its jurisdiction, offering advice to the state on draft declarations and

governmental decisions and circulating information to the public, including when an emergency

occurs. In this event, the ASN is responsible for notifying the public about the safety condition of

the installation concerned and any emissions into the environment and hazards to human health

and the environment. The ASN will play a crucial role in the development of the French nuclear

sector since it decides on the commissioning, the operational safety and the lifetime extension of

nuclear plants.135

The Institute for Radiation Protection and Nuclear Safety (Institut de radioprotection et

de sûreté nucléaire, IRSN), an independent public organization, is the key public basis for

research and expertise on nuclear and radiological hazards in France. IRSN also contributes to

public policies vis-à-vis nuclear safety and protection of human health and environment vis-à-vis

ionizing radiation. One of its primary responsibilities is to offer technical support for the public

authorities, including ASN, and reports to the MEEDDM and four other ministries.136

134 IEA, IEA Energy Policies Review: France (Paris: IEA, 2009).135 Ibid.136 Ibid.

55

In 1945, the Commissariat à l’énergie atomique (CEA), a public association, was

established to be able to perform and maintain all progress and utilizations in both military and

civilian uses of nuclear energy. It is a plays a significant role in research, development and

innovation in the fields of low-carbon energy (nuclear, new energy technologies), health

technologies, information technologies and communication, and defense. Its procedures include

giving recommendations to the French government in matters of foreign nuclear policy and

representing France in international nuclear organizations such as the International Atomic

Energy Agency (IAEA). The CEA is also a major player in drawing different nuclear reactor

designs in France and is now responsible of the R&D needed for developing the fourth

generation of reactors. It has been recently announced that the CEA will become the Atomic and

Alternative Energy Commission in order to point up the development of its activities in low-

carbon energy.137

The National Agency for Radioactive Waste Management (Agence nationale pour la

gestion des déchets radioactifs, ANDRA) is the national organization for radioactive waste

management. Electricité de France (EDF) is the chief owner and operator of all the commercial

nuclear power plants in France. Finally, AREVA is a world leader in nuclear energy and the only

vertically integrated company that encompasses all facets of the fuel cycle, from mining through

to waste treatment.138

The French Energy Policy

The construction of an ambitious nuclear power program in France, coupled with a closed

fuel cycle, was compelled by the political will to attain a significant stage of energy

137 Ibid.138 Ibid.

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independence in a nation inadequately bestowed in fossil fuels and having local uranium

resources accessible in limited amount.139 The energy independence objective given to nuclear

power has been accomplished. Since the early 1990s, nuclear power has been completing

roughly three-quarters of the electricity demand in France, which is a substantial contribution to

the diminishment in energy imports by €16 billion in 2006; and an important further benefit is

keeping away from the emission of C02 by about 126 Mt in 2006.

Based from the 2005 law establishing guidelines for France energy policy and security,

the state makes sure that nuclear power supplies a significant part of the electricity mix. A new

generation reactor must be available by 2015 on a commercial basis in order to keep the nuclear

preference open after 2020. The agenda of this 2005 Global Energy Act is also to formulate a

research policy that will carry out the expansion of innovative energy technologies constantly

with the French climate plan aspiring to reduce the emission of greenhouse gases. A number of

major steps is included in this protocol. First is the implementation and testing of a first of a kind

GENERATION I11 (EPR) reactor in order to settle on for a chain by 2015. Second is a R&D on

upcoming nuclear systems (GENERATION IV fission reactors, fusion reactors). Lastly are new

energy technologies (including hydrogen economy, innovative fuels for transport sector) and

energy efficiency.140

The role of nuclear power to the French energy policy was further underpinned with the

following major proposals: President Chirac declared in January 2006 the creation of a

Generation IV prototype reactor by the CEA to be accomplished in 2020; Launching of an

autonomous safety authority where its operation was defined in a new law on nuclear

139 IAEA, "The back-end of the fuel cycle in France: Status and prospects" in Spent Fuel Reprocessing Options, ed. M. Giroux et al. (Vienna: IAEA, 2008).

140 Ibid.

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transparency and security ratified by the French parliament on June 13, 2006; and in June 2006,

two major new laws regarding its nuclear sector was ratified by France. The Act on

Transparency and Security in the Nuclear Sector was the one that established the ASN, alongside

with another body, a High Committee for Transparency and Information on Nuclear Security,

(Haut comité pour la transparence et l’information sur la sécurité nucléaire (HCTISN)).

A national policy for the management of radioactive wastes and materials was defined by

the 2006 Planning Act regarding the Sustainable Management of Radioactive. ANDRA is

responsible for the long-term functions for radioactive waste management under this act. A

National Plan for the Management of Radioactive Materials and Waste (Plan national de gestion

des matières et des déchets radioactifs (PNGMDR)) was also formed under this Planning Act so

to be able to establish a broad outline for managing all kinds of radioactive waste and materials.

The Planning Act also emphasizes that the waste producers should be liable for the nuclear

wastes; and they will also be accountable for funding the costs of waste disposal. In this context,

what is in the interest of some is the disposal of drawn out high-level nuclear waste of French

origin, for which the law denotes a reference management solution, that is erratic disposal in

deep geological structures.141

Legal Framework for Nuclear Waste Management

The legal framework for managing High-level wastes was defined in the Waste

Management Act of 1991. It systematized the R&D focusing on: Division and alteration (with

CEA and CNRS as major contributors); Disposal in deep geological layers (R&D led by

ANDRA); Long-term (sub)-surface storage (R&D led by CEA).

141 OECD, Nuclear Legislation in OECD Countries: Regulatory and Institutional Framework for Nuclear Activities: France, (Paris: OECD, 2003).

58

In 2005, a report on the status of concerning the evaluation of the most favorable R&D

methods was passed to French authorities. Therefore, the legal framework for the waste

management in France was revised and generated two important laws, both ratified in 2006:

- A new autonomous safety body ASN was created by the Law on Nuclear Transparency

and Security established. The ASN is led by a college of 5 members appointed for 6 years. It

ensures the control of nuclear safety and radiation protection to protect workers, patients, the

public and the environment from risks related to the use of nuclear technology.

- The Programme Act on the sustainable management of radioactive materials and wastes

concerns all kinds of radioactive waste (not only long-term high-level waste). It provides three

key standards vis-à-vis radioactive waste and substances: deep geological disposal, short-term

storage of radioactive substances and ultimate waste, cutback of quantity and toxicity. Deep

geological storage that can easily be regained remains to be the most significant solution for

long-term and high level waste under the law. By 2015, the potential blueprints of the disposal

site will once again be discussed by the French parliament; and by 2025 a national disposal

center might be regulated depending on the approval of the Parliament. In France, it is not

allowed to dispose foreign brightened fuel or radioactive waste. The law also identifies financial

provision for research, nuclear plants decommissioning costs, supplementary taxes on nuclear

facilities to fund research programs. It also gives clear definitions for radioactive materials and

waste and denotes that management is the key to decrease the radiotoxicity and volume of

nuclear waste. The conception of a national management plan providing the solutions, the

objectives to reach and the research actions to be commenced to achieve these objectives is the

essential point of this law. Based from the Law on Nuclear Transparency and Security, this plan

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is updated every three years and published. The law is promoting transparency and democratic

control.142

Aside from this legal framework, France has also adopted several national legislatives

and regulatory activities. These are as follows:

Licensing and regulatory infrastructure

Decree No. 2012-1248 of 9 November 2012 authorising the ITER Organisation to create the

"ITER" basic nuclear installation in Saint-Paul-lez-Durance (Bouches-du-Rhône).143

This decree provides consent on the establishment of a basic nuclear installation

(installation nucléaire de base – INB) for carrying out nuclear fusion reaction experiments using

tritium and deuterium plasmas. The function of the International Thermonuclear Experimental

Reactor (ITER) facility will be to show the scientific and technological viability of fusion

energy.144

Specifically, the decree regulates the operation of the installation, the qualities of the

installation, the central safety functions, the anticipation of disasters, and the protection of the

installation against dangers – whether internally or caused by the environment.

A 25-year phase within which the facility is to be constructed was also launched in this

decree. The timing for the submission of an application for long-term operation was established

142 Ibid.143 Décret n° 2012-1248 du 9 novembre 2012 autorisant l’Organisation international ITER à créer une

installation nucléaire de base dénommée “ITER” sur la commune de Saint-Paul-lez-Durance (Bouches-du-Rhône), Journal officiel lois et décrets [Official Journal of Laws and Decrees] (J.O.L. et D.), 10 November 2012, p. 17847, Text No. 14.

144 OECD, “National Legislative and Regulatory Activities”, Nuclear Law Bulletin 3, no. 91 (2013): pp. 115-129.

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in the national regulatory framework.145 Fundamentally, there are two different approaches to the

licensing of sustained operation of nuclear power plants: some OECD member countries grant

operating licenses that have fixed period of validity (fixed license term), while others issue

licenses that have indefinite validity (indefinite license term). France has the latter.

The consent to manage a nuclear reactor in countries with a fixed license term is issued

for a limited period of time, at the end of which the operator must formally apply for a license

renewal; while in countries with an indefinite license term, the legality of the operating licenses

is not limited in time, however the sustained safe operation of the plant and fulfillment of

regulatory requirements are subject to sporadic review. The operator is not required to formally

apply for a license renewal since the license remains valid. The nuclear power plant can operate

as long as the divergent is decided by the operator or the fit authority.

Both license terms are essentially legal and exhibit organizational concepts rather than

safety ones. The conformity of plants with the safety standards, license conditions, regulatory

requirements, and applicable legislation will constantly be managed by the regulatory authority,

regardless of their location in a country with a fixed license term or in a country with an

indefinite license term.

145 Sam Emmerechts, Christian Raetzke and Benjamin Okra, “Legal and Regulatory Aspects of Long-term Operation of Nuclear Power Plants in OECD Member Countries,” Nuclear Law Bulletin 1, no. 87 (2011): pp. 45-71.

61

Nuclear security

Law No. 2012-1473 of 28 December 2012 authorizing the approval of the Amendment to the

Convention on the Physical Protection of Nuclear Material146

The Convention on the Physical Protection of Nuclear Material (CPPNM), particularly

creating rules in the area of international transport of civilian nuclear materials, was drafted in

1979 under the support of the IAEA and was implemented in 1987.

This French law gave consent to the authorization of the Amendment to the Convention

on the Physical Protection of Nuclear Material which was adopted in Vienna on July 8, 2005 to

be able to expand the range of the CPPNM and reinforce its major provisions.

Nuclear safety and radiological protection

Complementary safety assessments; Follow-up of the stress tests carried out on French nuclear

power plants; Action Plan of the French Nuclear Safety Authority (Autorité de Sûreté Nucléaire

– ASN) – December 2012

This national action plan illustrates a sense of balance on the actions decided by the

French nuclear safety authority after stress tests were carried out on French nuclear power plants

in the form of harmonizing safety assessments in 2011.

146 Loi n° 2012-1473 du 28 décembre 2012 autorisant l'approbation de l'amendement à la convention sur la protection physique des matières nucléaires, J.O.L. et D., 29 December 2012, p. 20786, Text No. 3.

62

International co-operation

Decree No. 2012-1178 of 22 October 2012 publishing the Cooperation Agreement between the

government of the French Republic and the government of the Republic of Tunisia for the

development of peaceful uses of nuclear energy, signed in Tunis on 23 April 2009147

This decree issued the cooperation agreement concluded between France and Tunisia for

the expansion of peaceful uses of nuclear energy. This Franco-Tunisian cooperation agreement

was concluded for a period of 20 years and may exercise cooperation in fields such as basic

research; biology or medicine, the training of workers; the application of nuclear energy to the

production of electricity; the development of nuclear energy applications in agronomy; the

drafting of legislation and regulation in the nuclear field; nuclear safety, radiation safety and the

protection of the environment; and nuclear security.

Decree No. 2012-1180 of 22 October 2012 publishing the Cooperation Agreement between the

government of the French Republic and the government of Mongolia in the field of nuclear

energy (with annex), signed in Ulaanbaatar on 14 October 2010148

This decree issued the cooperation agreement concluded between France and Mongolia

in the area of the uses of nuclear energy for non-explosive purposes. This cooperation was

concluded for a period of 10 years and may exercise cooperation in fields such as the

exploration, extraction and processing of mineral resources; basic research; biology or medicine,

the training of workers; the application of nuclear energy to the production of electricity; the

147 Décret n° 2012-1178 du 22 octobre 2012 portant publication de l'accord de coopération entre le Gouvernement de la République française et le Gouvernement de la République tunisienne pour le développement des utilisations pacifiques de l'énergie nucléaire, J.O.L. et D., 25 October 2012, p. 16584, Text No. 3.

148 Décret n° 2012-1180 du 22 octobre 2012 portant publication de l'accord de coopération entre le Gouvernement de la République française et le Gouvernement de la Mongolie dans le domaine de l'énergie nucléaire, J.O.L. et D., 25 October 2012, p. 16589, Text No. 5.

63

development of nuclear energy applications in agronomy; the drafting of legislation and

regulation in the nuclear field; nuclear safety, radiation safety and the protection of the

environment; and the prevention and response to crisis situations resulting from radiological or

nuclear accidents.

Nuclear Policies of Germany

The adoption of the Act on the Structured Phase-out of Nuclear Power for the

Commercial Production of Electricity on April 2002 marked the transformation of Germany’s

law of deciding on a nuclear phase-out.149 An establishment of rules by the legislation enabled

the termination for the commercial production of electricity of German nuclear power plants.

The amount of power remaining was taken into consideration. The total amount of power

that will be produced corresponds to the said amount throughout the average operational lifespan

thirty-two years. Once the decided quantity of power is reached, power plants will be turned off

as predetermined by law.

The energy concept was implemented by the federal government in autumn 2010. In

anticipation of the usage of renewable energy, the Energy concept verifies that nuclear power is

to function as a bridge in order for full transition.150 Renewables are capable of having more

contribution in the supply of electricity; and to achieve this, an infrastructure is being

established. On December 2010 the 11th Act Amending the Atomic Energy Act was taken into

effect. It is rooted from the Energy Concept that eventually extended the life spans Germany’s 17

149 Axel Vorwerk, “The 2002 Amendment to the German Atomic Energy Act Concerning the Phase-out of Nuclear Power” (PhD diss., University of Chicago, 2008).

150 Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, Energy Concept for an Environmentally Sound, Reliable and Affordable Energy Supply (Berlin: Federal Ministry of Economics and Technology, 2010), 3-4.

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nuclear plants through the increase of maximum remaining power amounts that is allowable to

produce by the nuclear power plants.151

On the aftermath of the Fukushima tragedy in March 2011, the federal government

agreed on the reevaluation of the probable liabilities set forth in the continual use of nuclear

power. There has been a settlement on the cooperation with the Minister-Presidents of the

Länder, where the nuclear power plants are in full operation, to direct an extensive safety review

to all German nuclear power plants. A component of the safety review shows that eight nuclear

power plants were either taken offline or have not been turned on. The Reactor Security

Commission with the participation of proficient nuclear regulatory authorities conducts the

safety review for all German nuclear power plants. A comprehensive analysis of the dangers

affiliated with German nuclear power plants was submitted on May 2011. In addition, the federal

government set up an independent ethics commission, the Ethics Commission for a Safe Energy

Supply, which in May 2011 submitted a comprehensive opinion on issues relating to Germany’s

future energy supply. The findings of these commissions served as guidelines for the energy

policy decisions that needed to be taken. On 30 June 2011, the Bundestag decided by a large

majority that, no later than the end of 2022, Germany will fully terminate the generation of

power by German NPPs. This 13th Act amending the Atomic Energy Act took effect on 6

August 2011.

151 International Energy Agency, Energy Policies of IEA Countries: Germany 2013 Review (France: OECD/IEA, 2013), 171.

65

Energy Concept

In September 2010, the Energy Concept was introduced by the Federal Government. It

sought out and was determined to pursue ambitious goals for energy and climate policy. First, in

comparison to levels on 1990, an 80% cut will be issued on emissions of greenhouse gases by

2050. Second, a large quantity of the German energy will be supplied by renewables in the

future. And third, energy efficiency is to be augmented and energy expenditure be decreased

notably.

With the unveiling of the Energy Concept last September 2010, central challenges of

energy and climate policy have arisen in the Federal Government. While the demand of energy

globally continues to increase, particular fossil fuels have been decreasing. This is projected to

claim long-term risks for supply security and energy prices. Moreover, most of the fossil fuels

are collected from only few regions in the world and part of it are politically unstable. Germany

is largely dependent on its energy imports with 88% from gas need and 98% of its oil needs.

Additionally, climate change is imperative for its energy policy. Germany's consumption of

energy accounts for approximately 80% of greenhouse gas emissions.152

This is where the Energy Concept by the Federal Government was built upon. An

extensive approach composing of the areas of heat, transport and electricity, the Energy Concept

is founded on four pillars: ambitious goals, concrete measures, a funding concept and regular

monitoring.

152 Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, Energy Concept.

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Having a 40-year trajectory, the Energy Concept has a goal and a long-term focus to give

a precise degree of investment security and planning for the pervasive investments that are

necessary. Nonetheless, it is technology-neutral to reduce the risk of any barriers to newfound

technologies that are entering the market. This Concept gives a good balance amidst flexibility

and planning security.

Greenhouse gas emissions are planned to cut out by 40% on 2020, and at a minimum of

80% in 2050 by the Energy Concept as established by industrialized countries. To become the

pillar of energy supply, renewables will be developed. The objective is to expand their share in

gross final energy consumption to 60% in 2050 from about 10% in 2010. It is to increase by

2050 to as high as 80% in the share of renewable in electricity supply. In addition, over the years

the government is determined to decrease energy consumption. On 2050, there should be a

decrease in the main energy consumption compared to 2008 levels. This requests a 2.1% increase

annually in energy efficiency in relation to the final energy consumption averagely. It is

imperative that by 2050 electricity consumption is to decrease by 25% on levels compared to

2008, and should already be decreased by 10% at 2020. In the transportation sector final energy

consumption should be decreased by 40% at 2050 in comparison to 2005 levels. Moreover, the

rate of energy modifications annually for projects is to be doubled from current rates, from a

ratio of 1:2 of existing buildings per year.

Therefore the energy supply in Germany will be subjected to undergo an important

transition. If Germany is to persist as a vying business location, it should simultaneously be

essential to achieve a secure and affordable energy supply in the future. The groundwork for this

new era of energy was laid down by the Federal Government in the summer of 2011 alongside

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the approval of an extensive legislative package known as the “Energy Package”. The Bundestag

and Bundesrat, the Federal Government and Germany's upper and lower houses respectively,

constituted one ordinance and six laws for the period of only six months. Other than the

continuous decrease of nuclear power by 2022, the laws passed are mainly on the grid expansion

and the progressive development of renewable energy.153

Energy Package

In the aftermath of the recent unfortunate disaster in Fukushima, Germany

unquestionably decides to give up the use of nuclear energy by 2022. The Krümmel nuclear plant

and the seven oldest nuclear power stations are now permanently off the grid since spring 2011.

And progressively, the other nine remaining nuclear power plants will be cease to exist by 2022.

This disengagement from nuclear power plants is faster and compels a swifter implementation of

the nearly impossible feat defined in the Energy Concept to reconstruct the energy system.

To this end, the Federal Cabinet, the Bundestag and the Bundesrat authorized the

comprehensive Energy Package. The said package consist of six laws and one ordinance, each

one of one is focussing on different areas such as renewable energy, grid expansion and

upgrading and also ways to fund the transition to a new energy era154.

A key issues paper was approved by the Cabinet. It was on the subject of energy

efficiency that acts as the justification for the amendment to the Energy Savings Ordinance

(Energieeinsparverordnung) in 2012. The proposal to supply sufficient tax relief for energy

153 OECD, OECD Green Growth Studies: Energy (OECD, 2011154 The Federal Government, National Sustainable Development Strategy (Germany: 2012).

68

modifications in residential buildings is presently being taken into account by the Länder (states

of Germany).

The Energy Package established significant circumstances for investments and

implemented fundamental measures of the Energy Concept. The Energy and Climate Fund is

also available as a form of financing model. This special fund is sustained by the emissions

trading revenue. This means that price of CO2 emissions dictates the precise volume of the fund.

A range of areas are supported by the Energy and Climate Fund which includes electric mobility,

building modernisation and national, international climate protection projects, and an Energy

Efficiency Fund. Due to emission costs, an arrangement of remunerative payments for power-

intensive businesses to balance out the increase in electricity prices is being planned from 2013

onwards.

Act to Restructure the Legal Framework for the Promotion of Electricity Generation from

Renewable Energy Sources (Gesetz zur Neuregelung des Rechtsrahmens für die Förderung der

Stromerzeugung aus erneuerbaren Energien, EEG), including the 2011 firsthand report on the

Renewable Energy Sources Act

The resolution by the federal government, the energy concept, points the way to the age

of renewable energies. For this purpose, the proportion of electricity is to be increased

continuously from renewable sources by 2020 with increase to at least 35 percent, by 2030 at

least 50 percent, by 2040 to at least 65 percent and by 2050 to at least 80 percent. The

achievement of these objectives requires the expansion of renewable energy in Germany to be

consistent and ambitious. This can only succeed if it is sustainable and efficient. At the same

time, the necessary decisions are needed to be made to interpret the energy supply system to

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these high shares of renewable energies. The Renewable Energy Sources Act (EEG) must

therefore be developed further, that the transfer of renewable energy in the electricity sector to an

expected market share of 35 to 40 percent is guaranteed within the current decade.

For the attainment of the above policy objectives, the EEG is being amended. This amendment

provides a central building block for the transformation of the energy supply and for entry into

the age of renewable energy to the appropriate recommendations to the EEG. In particular, this

market integration of renewable energy as a new column in the EEG is recorded, and in the

introduction of a market premium, an important new incentive will be set which will help to

ensure that more electricity is sold directly from renewable energy in the energy market. It will

be on biogas plants with a capacity of more than 500 kilowatts of the market premium is made

mandatory from 2014.155

Act on Measures to Accelerate the Expansion of the Electricity Grid (Gesetz über Maßnahmen

zur Beschleunigung des Ausbaus der Elektrizitätsnetze, NABEG)

The rapid expansion of the share of renewable energy in electricity generation, the

optimal economic use of conventional power plants and the increased cross-border trade in

electricity made the rapid expansion of high-voltage transmission network in Germany urgently

needed; but also in the distribution and especially in the 110 kilovolt high voltage level features

significant expansion. The aim of the law is an acceleration of the expansion of the power grids

of the high voltage level.

The law provides for lines of the transport of electricity with a European or supra-

regional importance, and a nationwide examination of the spatial impact and plan approval by

155 Deutscher Bundestag. Entwurf eines Gesetzes zur Neuregelung des Rechtsrahmens für die Förderung der Stromerzeugung aus erneuerbaren Energien. (Berlin: H. Heenemann GmbH & Co., 2011).

70

the Federal Network Agency involving all relevant in these proceeding statutory provisions,

notably those regulations that the environmental and other space planning and nature

conservation law concerns.156

Act to Restructure Provisions of the Energy Industry Act (Gesetz zur Neuregelung

energiewirtschaftsrechtlicher Vorschriften, EnWGÄndG)

The conditions under which particular transport networks can enable as a neutral

marketplace more competition in the upstream gas and electricity markets were improved. In

particular, the existing separation between the power companies in competitive areas. In addition

to these organizational generic requirements, the objective is to further step towards a single

European energy market with harmonized market rules that requires the development of

infrastructure and stranded investments, which would be a burden for both businesses and

consumers that simultaneously avoid needless costs. With increasing competition as well as the

increase choices available to the consumer, high transparency should be made possible. At the

same time increases in competition also increases the risk of disputes between consumers and

businesses. Therefore, a fast and non-bureaucratic dispute settlement which has not previously

existed must be created. In addition, consumers have had no or little opportunity to actively

participate in the energy market due to the fundamental importance of energy to be devoted to

the special protection of critical infrastructures. This is done by including the EU Directive on

the designation of European critical infrastructures. This is to be implemented in the Member

States. The same is true also for ensuring the security of gas supply. Limited gas supplies in

Europe have shown in the past that functioning crisis mechanisms are required to ensure security

156 Deutscher Bundestag. Gesetz über Maßnahmen zur Beschleunigung des Netzausbaus Elektrizitätsnetze. (Berlin: H. Heenemann GmbH & Co., 2011).

71

of supply in both national and European. In the interest of energy conservation, environmental

protection and the achievement of climate change objectives, the share of combined heat and

power generation is expanding.

The law directives are transposed 2009/72/EC and 2009/73/EC. There are in particular

the unbundling rules for the transport networks change, to strengthen the network companies.

The guidelines provide three equivalent unbundling options, all of which are implemented in the

design. In addition, the Federal Network Agency (FNA) receives additional skills in order to

enforce the obligations necessary.

With the bill coordinated, common network expansion planning of all transmission and

transmission system operators will be guaranteed for the first time. This contributes to one of the

special structures of the network operator landscape in Germany that accounts and avoids the

other planning errors that may arise in an individual. The planned rules will not be the public's

concern. It is produced by the rules for public participation and the fullest possible transparency

with the goal of achieving greater acceptance for the line extension.

Consumer rights are strengthened by short deadline changes of supplier, and clear rules

for agreements in invoices for more transparency. In addition, an independent arbitration service

is created, which is available to consumers in the energy sector as a contact person and to bring

about amicable solutions in disputes between consumers and businesses.

The rules for the introduction of the so-called smart metering systems provide the

foundation for a more active participation of the consumers in the energy market while

preserving its privacy.

72

To ensure the requirements of the Directive on European critical tables infrastructure, a

method is provided which in light of the responsibility for the system of transmission system

operators under the Energy Industry Act - the regular identification of European critical

infrastructures and the regular review of security plans and security officers in the area of power

supply allows.

As part of the implementation of Regulation (EU) No 994/ 2010 will be met by

jurisdictional rules in the field of security of gas supply. In accordance with Article 3, paragraph

2 of Regulation (EU) No 994/ 2010, the Federal Republic of Germany is obliged to 3rd formally

designate on December 2011, a competent authority which ensures implementation of the

provisions laid down in Regulation. This should be the Federal Ministry of Economics and

Technology. At the same time provide the legal basis' created which allows the Federal Ministry

of Economics and Technology to adopt by ordinance rules for data reporting to ensure security

of supply and to transfer the Agency if necessary to other tasks according to the EU regulation .

In addition, it can exempt those arising under the Federal Ministry of Economics and

Technology, in particular the Federal Office for Civil Protection and Disaster Assistance and the

Federal Office for Security in Information Technology, and other personnel requirements in

subordinate authorities.

Finally, the Directive 2008/114/EC will be implemented through European critical

infrastructures. In addition, the Combined Heat and Power Act is amended to allow the

promotion for systems with a start-up after 2016 and 2020. Based on a modified scheme, to use

73

flexible hours conditioning control strategies are allowed. Other laws may be revised in 2011

from the intermediate review pursuant to §12 of the Combined Heat and Power Act.157

Act Amending the Act to Establish a Special Energy and Climate Fund (Gesetz zur Änderung des

Gesetzes zur Errichtung eines Sondervermögens “Energie- und Klimafonds”, EKFG-ÄndG)

Fourth Ordinance amending the Ordinance on the Award of Public-sector Contracts

The Fourth Ordinance amending the Ordinance on the Award of Public-sector Contracts.

Due to the accelerated phase-out of nuclear energy, considerable investment and research

activities will be required in the coming years to ensure the energy supply in Germany by fossil

and renewable energy. This objective can be implemented only on the basis of a long-term

secured funding for the Energy and Climate Fund. So far, the fund came mainly from the levy of

additional profits of energy companies from the term extension and, from 2013, the expected

revenues from the auctioning of emission allowances. By shortening the maturities, no further

revenues from the levy of additional gains are expected in the future, so that appropriate tax

losses have to be compensated.

With the bill, the fund from 2012 provided all revenue from emissions trading for the

accelerated phase-out of nuclear power, for the promotion of environmentally friendly, reliable

and affordable energy supply and for action in the field of international climate and

environmental protection available. In addition, future estimates by an extension of the purpose

of the fund's assets are previously distributed on four departmental sections of the federal budget

157 Deutscher Bundestag. Entwurf eines Gesetzes zur Neuregelung energiewirtschaftsrechtlicher Vorschriften. (Berlin: H. Heenemann GmbH & Co., 2011).

74

program investment for the development of future market electric mobility centrally in the

economic plan of the energy and climate fund, and thus a transparent estimate of the expenditure

in this market of the future will be assured.158

13th Act to Amend the Atomic Energy Act (13. Gesetz zur Änderung des Atomgesetzes, AtomG)

The nuclear effects of the earthquake disaster in Japan meant an incision for the peaceful

use of nuclear energy in Germany. In light of these events, the federal government with the

prime ministers of the countries where nuclear power plants are operated, checked the safety of

all German nuclear power plants by the Reactor Safety Commission, in close cooperation with

the competent nuclear regulatory authorities of the countries and also by an ethics committee

“Secure Energy Supply”. A social dialogue was conducted on the risks of nuclear power and the

possibility of an accelerated transition in the age of renewable energies. The federal government

has decided taking into account the results of the Reactor Safety Commission and the Ethics

Commission “Secure Energy Supply” and the absolute primacy of nuclear safety to end the use

of nuclear energy at the earliest opportunity. For this purpose, the quantities of electricity are to

be revoked in Appendix 3 and column 4. Additionally, authorizations of nuclear power plants for

power operation with a view to ensuring the security of supply, compliance with national and

international climate protection goals and ensuring praiseworthy and socially sustainable

development of electricity prices for the period necessary nor staggered in time to 31 December

2022 be introduced as a temporary and a fixed end date for the peaceful use of nuclear energy for

the commercial generation of electricity in Germany.

158 Deutscher Bundestag. Entwurf eines Gesetzes zur Änderung des Gesetzes zur Errichtung eines Sondervermögens „Energie- und Klimafonds“ (EKFG-ÄndG). (Berlin: H. Heenemann GmbH & Co., 2011).

75

Through an amendment of §7, paragraph 1, sentence 1 and 2, the permissions of the

nuclear power plants for power operation are limited in time. These are contained in Appendix 3

Column 4 inserted with the Eleventh Act to amend the Atomic Energy Act quantities of

electricity accounts.159

Act Strengthening Climate-Friendly Measures in Towns and Municipalities (Gesetz zur Stärkung

der klimagerechten Entwicklung in den Städten und Gemeinden)

The coalition agreement between the CDU, CSU and FDP of 26 October 2009 provides

to strengthen climate protection and internal development in planning law. In addition, the Land

Use Ordinance is to be fully tested. This is due to the World Climate Report of the United

Nations (UN). It has become clear that the fight against climate change and adapting to climate

change, sustainable future tasks are also includes the cities and towns. These objects also have an

urban dimension. The municipalities should bear the requirements for the local land use bill. In

addition, the energy concept of the Federal Government, established on 28 September 2010, is

for the expansion of wind energy use on land and in the construction and planning rules, that is

necessary and appropriate to secure the repowering and the replacement of old wind turbines.

Due to the nuclear disaster on 11 March 2011 in Japan, the establishments of the wind turbines

will be accelerated. The list includes the planning law. For this reason, the order of the coalition

agreement will initially be implemented in the context of climate change.

Through the present bill, Germany seeks to strengthen the climate inserted inter alia, a

climate protection clause that is expanding on the use and exploitation of renewable energy

159 Deutscher Bundestag. Entwurf eines Dreizehnten Gesetzes zur Änderung des Atomgesetzes. (Berlin: H. Heenemann GmbH & Co., 2011).

76

sources and from combined heat and power generation. It introduced special rules for the use of

wind energy and facilitates the use in particular of photovoltaic systems in buildings.160

Germany has also adopted several national legislatives and regulatory activities. These

are as follows:

Radiation protection

General administrative rules on Section 47 of the Radiation Protection Ordinance (2012)

Based on Article 85, paragraph 2, sentence 1 of the Basic Law (Constitution –

Grundgesetz) in conjunction with Section 47, paragraph 2 of the 2001 Radiation Protection

Ordinance as last amended on 24 February 2012,161 the Federal Government issued on 28 August

2012 General Administrative Rules on Section 47 of the Radiation Protection Ordinance.162 The

Rules apply to the estimation of the radiation exposure pursuant to Section 47 paragraph 2 of the

Ordinance. The result of the estimation determines whether the facility is planned in a way such

that the radiation exposure resulting from the discharge of radioactive substances into air and

water does not exceed the dose limits provided for in Section 47 paragraph 1 of the Ordinance.

The General Administrative Rules shall ensure the uniform application of laws by the

authorities and are binding upon them. The Rules do not enjoy general applicability vis-à-vis

every individual in the same way that laws do. However, because regulatory bodies must base

their decisions on these rules, they have legal relevance also for those to whom administrative

decisions, e.g. licenses, are directed. In those cases the rules have a direct external effect and 160 Deutscher Bundestag. Entwurf eines Gesetzes zur Stärkung der klimagerechten Entwicklung in den

Städten und Gemeinden. (Berlin: H. Heenemann GmbH & Co., 2011). 161 BGBl. 2012 I, pp. 212, 249. See also Nuclear Law Bulletin, No. 89 (2012/1) OECD/NEA, Paris, p. 120.

162 Bundesanzeiger AT (5 September 2012), B1, p. 1.

77

concretize the norms which the license is based upon. For that reason, the Federal Administrative

Court ruled that those General Administrative Rules which concretize the norms on the license

must be published.163

Nuclear Safety

Safety requirements for nuclear power plants (2012)

The Federal Ministry for the Environment, Nature Conservation and Reactor Safety and

the nuclear regulators of the Länder (states) agreed to amend and to update the Safety Criteria for

Nuclear Power Plants of 21 October 1977164 and the Incident Guidelines of 18 October 1983.165

They also agreed to invalidate the Bases for Safety Management Systems at Nuclear Power

Plants of 29 June 2004.166 The Federal Ministry and the Länder regulators decided to issue the

new Safety Requirements for Nuclear Power Plants of 22 November 2012.167 The German

regulators will apply the new safety requirements and measure the nuclear safety of commercial

nuclear power plants against these requirements.

The requirements contain principal and overarching safety requirements within the non-

legally binding, “sub-statutory”, framework. They are designed to ensure that the necessary

precautions against damage required to be taken by the operator of a nuclear installation in

accordance with Section 7, paragraph 2 no. 3 of the Atomic Energy Act comply with the state of

the art in science and technology. They will also be applied if safety assessments take place in

163 Judgement of the Bundesverwaltungsgericht of 25 November 2004, BVerwG 5 CN 1.53. 164 Bundesanzeiger No. 206 (3 November 1977).165 Bundesanzeiger No. 245a (31 December 1983).166 Bundesanzeiger No. 138 (27 July 2004), p. 16275. 167 Bundesanzeiger AT (24 January 2013), B3, p. 1.

78

the course of government supervisory activities pursuant to Sections 17 and 19 of the Atomic

Energy Act.

Section 49, paragraph 1 of the Radiation Protection Ordinance168 defines the structural

and other technical protective measures against design basis accidents in or at a nuclear power

plant. According to sentence 3 of this paragraph, “the licensing authority may consider these

precautions to have been taken, particularly when the applicant for the design of the facility has

used those design basis accidents as a basis that must, in accordance with the published safety

criteria and guidelines for power plants, determine the design of a nuclear power plant.”

Compliance with the new safety requirements confirms that the precautions taken are

appropriate.

The regulators agreed to update the Safety Requirements for Nuclear Power Plants at

regular intervals.

Transport of radioactive material

International Transport of Dangerous Goods by Road (2010, 2012)

The 22nd Ordinance of 31 August 2012 to Amend the Annexes A and B to the ADR

Agreement, as agreed in Geneva on 26-29 October 2010, 3-5 May 2011, 8-11 November 2011

and 8-10 May 2012, was published in Bundesgesetzblatt 2012 II p. 954. The Ordinance made

effective the amendments to Annexes A and B to the European Agreement of 30 September

1957 on the International Transport of Dangerous Goods by Road in the version published on 25

168 Verordnung über den Schutz vor Schäden durch ionisierende Strahlen (Strahlen schutz verordnung - StrlSchV), BGBl. 2001 I, p. 1739.

79

November 2010169. The version of the Annexes which was made effective by the 21st Ordinance

of 7 October 2010 was repealed. The 22nd Ordinance entered into force on 1 January 2013.

Regulations on nuclear trade (including non-proliferation)

Export List (2013)

The 110th Ordinance to Amend the Export List – Annex AL to the Foreign Trade

Ordinance of 15 January 2013 was published in Bundesanzeiger AT 22 January 2013 V1p. 1.

Part I Section C of the list contains the European Union’s List of Dual-use Items and Technology

category 0 of which lists “Nuclear material, facilities and equipment”.

State Internalization of EU policies

Since the 1973 oil crisis, there has been no compelling EU plan on energy security, which

is quite unexpected.170 Recent increases in oil prices have cautioned against the pressure that the

rate of depletion of oil placed on the market price. The 2000s showed that the emergence of

some major economies like China, India and Brazil put a pressure surge on oil and gas energy

prices. The global downturn that followed the financial crisis of 2008 did not release this

pressure. The danger is still there even if there are existing thoughts on new energy sources.

Shale gas has been considered in the more recent years as one of these new sources that could

return the trend to higher energy prices. Many observers believe that it will actually put a strong

downward pressure on energy prices, especially if large economies like the US will fully exploit

this source. However, this exploitation also exhibits environmental risks. For an instance, it is 169 BGBl. 2010 II, p. 1412; BGBl. 2011 II, p. 1246. See also Nuclear Law Bulletin, No. 85, (2010/1),

OECD/NEA Paris, p. 106.

170 Pascal Petit, "France and Germany Nuclear Energy Policies Revisited: A Veblenian Appraisal," Panoeconomicus 7, no. 5 (2013): pp. 687-698.

80

forbidden in France, for instance. Reserves are also disappointing at times, as in Poland where it

was deemed for a while as a new main energy resource, but eventually turned out to be

somewhat secondary. Much of the buzz around shale gas is linked with the special conditions of

its extraction in the United States – a large country where the gas extraction comes with some

valuable oil products while a relatively dense circuit of pipelines aid distribution. Private

ownership of land decentralized exploitation decisions, while the comparatively low

environmental apprehension helps to minimize the risk of pollution of water sources and

damages of methane leaks (a gas 25 times worse than C02 in terms of greenhouse gas effect)

often accompanying extraction. It is estimated to be as high as 9% of shale gas extracted. These

negative externalities should, in due time, significantly limit the exploitation of shale gas in other

countries and in the US. The use of shale gas in the US and the consequent decrease in energy

prices could disrupt the energy market for some time, with sometimes startling substitution

effect. Thus, the increasing use of shale gas in the US lowers the price of coal in the US, which is

finally used in Germany to cope with risks and setbacks in the production of renewable energy

sources. Overall, though, this windfall is unlikely to release the long term pressure on energy

access at reasonable prices. In that sense, shale gas is not an alternative.171

Even though a solution is yet to be obtained, what is more important is that the EU

supports the transition to renewable energy (wind, solar or water). Planned actions have been

made by the EU to continue increasing the members' participation with regards to renewable

energy; however as this is considered a long term process, an immediate shift is not possible.

Also, because this is a time consuming objective skepticism arises on grand plans such as the

Germanled Desertec project (the production of solar energy to be transmitted to Europe from the

171 Ibid.

81

Sahara desert) and the UK development of wind farms. These in many instances are not

continued and are objectively shut down due to the costly expenditure and the implementation

process.

Ultimately, climate preservation is always understood to be the reduction of greenhouse

gas emissions and other uses. Although the one to lead this action is the European Union itself,

to achieve the goal of a 20% reduction in the consumption of the overall energy by 2020 is still

undeniably modest and is not likely to affect the energy prices. In the current circumstances of

slow growth, energy savings is unlikely to happen where facilities and equipments are not

invested upon because of their primary difficulty and when the same goal of energy savings is

not implied on non-EU competitors. In cases like the Kyoto Protocol, where countries are

committed to reduce significant amounts of greenhouse gas emissions from 2008-2012, was not

renewed mostly by non-EU partners pose a challenge on the capability of the EU to move

forward. Furthermore, the renewal of countries from 2013-2020 accounts for only 14% of

greenhouse gas emissions globally. Therefore for the next two decades, the EU cannot have a

policy that could decrease the cost of energy sources; although there is a reason for a low key

strategy. Any other possibility of accomplishing this feat would need an industrial policy that is

strong with proceeding actions to coordinate the supply and restrict use. Although standard

market mechanisms has already been reduced from former EU central coordination systems. The

European Commission conducted the new energy plan with the core to be confident that the deal

for non-EU energy producing countries by the EU member states is transparent. The only means

if adjustment that is recognized by the EU is market transparency. In facing the challenges of

energy security, the establishment of the Coal and Steel European Community by means of

interventionism could not be repeated today. Finally, on supposition that the EU policy is not as

82

strong as to bind the energy policies of France and Germany respectively, the opposite may have

enough evidence to point out that the lack of severity of the EU policy on the energy policy

would originate from the policies of France and Germany.

DATA ANALYSIS

Convergence and Divergence on Nuclear Policies of France and Germany

History of Energy Policies

This study is foreseeing the current shift in French and German policies concerning the

production of nuclear energy. France will apparently decrease the share of nuclear energy in the

production of electricity from the Factors that Pushed the Agenda of France and Germany

Forward present 75% to 50% by 2025 while Germany chose to pursue a complete nuclear phase

out from nuclear energy by 2022. These two countries had very different opinions after the oil

crisis of the 1970s with France's investments in nuclear power stations to increase up to 75% of

its electricity production compared to Germany with only 25%. The change in policy took place

when Europe faced a two point challenge: (1) the essential access to secure energy sources at

sensible prices in a time where we are looking at the consumption of nonrenewable sources is

pushing prices to increase; (2) the necessity to decrease greenhouse gas emissions in accordance

with the Kyoto Protocol that Europe has been advocating to prevent a sudden striking climate

changes in the near future. The change is also equivalent to the dismantling of nuclear power

stations established at the wake of the 1980s. It is questionable that there is such change when

nuclear energy is appropriately a part of the solution to the challenges invoked. The nuclear

accident in Fukushima, Japan is a perfect example of the need for a different nuclear policy,

83

although it was not the cause for change as it occurred after Germany and France chose their

paths; it pushed forward their seemingly different causes. Interestingly enough, the balance

between Germany and France in the functioning of the economy is surprisingly similar as the

two are regarded as coordinated economies in the written works on diversity of capitalism (see

Peter Hall and David Soskice 2001; Bruno Amable 2003).

The absence of cooperative effort between Germany and France's energy policies does

not come solely on the limited capability of the cooperation between the two countries.

Distinctions of nuclear energy are accountable for a large sum of the moves, to a great extent the

rate of the danger and time of the involved projects as it was gradually revealed. These suggests

that the European Union will hastily return the motivation for an energy policy that needs more

engagement and compliance to succeed in dealing with the challenges it faces.

Since the Fukushima accident, an official inspection was issued by the EU on the safety

and security of all power stations in the absence of the requirement of these tests that are

accountable for the risks of terrorism or the safe management of waste, all of which allow an

accurate perception that the nuclear technology is far from being a safe technology. Even after

increasing the safety measures to unparalleled levels that affected the economic justification of

constructing the new reactors did not bring confidence to the populations that are still terrified of

the extent of probable danger. A repetition of perhaps the Chernobyl accident occurring in a

power station near Paris would clearly impose an evacuation of the whole region for decades. At

this stage, safety is implied as the controlling power of the central state in a totalitarian regime.

Germany and France are clearly apart, and where France is even compelled to withdraw

from its much too anticipated nuclear option. A debate would be useful but timely as a large

84

number of power stations have already reached the termination period of activity and will be

deactivated. The progression thereafter is costly and there are many peremptory requests of

deferral despite the fact that the general direction of developed countries is more in a relation to

reduction of the share of nuclear energy.

Ultimately, nuclear energy and its use for all the reasons already mentioned seem to be in

a preliminary phase which has been put to use ahead of time. This is aggravated by the fact that

nuclear reactors has been functioning for already two decades in the environment of a free

market where producers have attempted to cut costs at the liability of maximum safety which has

been continuously underestimated.

Enforcing this progression of alteration or movement and establishing its empirical nature

gives the impression of the belief that new development of nuclear reactors shall be confirmed to

bring a feasible, inexpensive, lasting source of energy. It justifies that a numerous set of the

members of the EU are taking part in a large international research project ITER which aims to

advance a new stage of nuclear power, specifically nuclear fusion that will bring an enduring

source of energy, with only a small amount of waste to be managed, but identical risks in the

concept of radioactivity in instances of accidents. This costly research project has been rather

doubtful because of always postponing the sphere of its inevitable success.172

These current specific policies of France and Germany are analyzed by the researchers

using Historical Institutionalism as a theory. The researchers primarily look at history such as the

events that have occurred in the past that might have affected the decisions of actors in shaping

its existing policies. Secondly, the researchers consider the public opinion and assess how it also

172 Pascal Petit, “France and Germany Nuclear Energy Policies Revisited: A Veblenian Appraisal,” Panoeconomicus 7, no. 5 (2013): pp. 687-698.

85

affects the state’s decisions. Lastly, political institutions of the two states are determined and

how it contributes to the decision-making process of the states is also viewed.

The 1973 Oil Crisis

Energy policies have been marked by the recent oil crises,173 catastrophic accidents such

as the Three Mile Island and Chernobyl, not to mention the impacts of the recent Fukushima

nuclear accident.174 The 1973 oil crisis started on October 16, 1973 when the members of

OAPEC proclaimed and oil embargo raising the oil price by 70%.175 The embargo is inconsistent

in Europe. France has received steady supplies while Germany only faced partial decline. The

price increase had a much greater impact in Europe than the embargo.176 Part of the decrease in

prices comes from the shift from oil consumption to alternate energy sources.177 OPEC had relied

on the limited price inelasticity of oil demand to maintain high consumption but had

underestimated the extent to which other sources of supply would become beneficial as the price

increased. Electricity generation from nuclear power reduced the demand for oil.178 The two

countries had pursued different actions following the oil crisis in 1973, with France investing

heavily in nuclear energy to reduce its dependence on fossil fuel compared with up to only 25%

in Germany.EU has not come up with a strong plan on energy security since the 1973 oil crisis,

which gave an idea on how vulnerable the EU members are.179

173 Howard Stein, “The Neoliberal Policy Paradigm and the Great Recession,” Panoeconomicus59, no. 4(2012): 421-440.

174 Stephen Thomas et al., The Economics of Nuclear Power (Amsterdam: Greenpeace International, 2007).175Ferenc L. Toth and Hans-HolgerRogner, "Oil and Nuclear Power: Past, Present, and Future,”Energy

Economics 28, no. 3 (2006): 1 – 25.176Barbara Slavin, Milt Freudenheim and Willian C. Rhoden, "The World; British Miners Settle for Less,"

The New York Times.177 Patrick L. Anderson, et al., "Price Elasticity of Demand," The Universal Tuition Tax Credit: A Proposal

to Advance Parental Choice in Education 11, no. 1 (1997): 13-17.178 Ibid.179 Stein, “The Neoliberal Policy,” 433.

86

Three Mile Island Accident

The Three Mile Island accident was a partial nuclear meltdown which occurred in one of

the two Three Mile Island nuclear reactors in Pennsylvania on March 28, 1979 when the reactor

was operating at 97% power. It involved a relatively minor malfunction in the secondary cooling

circuit which caused the temperature in the primary coolant to rise. This in turn caused the

reactor to shut down automatically. Shut down took about one second. Then, a relief valve failed

to close, and so much of the primary coolant drained away that the residual decay heat in the

reactor core was not removed. The core suffered severe damage as a result.180 This was

supplemented by communication problems which caused conflicting information to the public,

contributing to the public's fears.181 This was actually said to be the worst accident in the nuclear

history of US. The operators were unable to assess or respond accurately to the unplanned

automatic shutdown of the reactor. Lack of control room for machineries and insufficient

emergency response training proved to be root causes of the accident. A small amount of

radiation was released from the plant but it was not serious and has no health hazards. It

produced a significant, long-term improvement in the performance of all nuclear power plants,

although public confidence in nuclear energy, particularly in USA, strongly declined.182

Chernobyl Catastrophe

180 J. Samuel Walker, Three Mile Island: A Nuclear Crisis in Historical Perspective (Berkeley: University of California Press, 2006)

181 Mike Gray and Ira Rosen, The Warning: Accident at Three Mile Island (New York: W.W. Norton, 2003).

182 Ibid.

87

This disparity of the two countries vis-à-vis nuclear energy was clearly determined after

the Chernobyl accident in Ukraine on April, 26, 1986.183 The accident was the result of a

damaged reactor design that was operated with inefficiently trained personnel. It was the first

major nuclear power plant accident that resulted in a large-scale fire and subsequent explosions,

immediate and delayed deaths of plant operators and emergency service workers, and the

radioactive contamination of a significant land area.184 The resulting steam explosion and fires

released at least 5% of the radioactive reactor core into the atmosphere and downwind. Two

Chernobyl plant workers died on the night of the accident, and a further 28 people died within a

few weeks as a result of acute radiation poisoning. Radioactivity was released over a 10-day

period which resulted in millions of Soviets, and other Europeans, being exposed to significant

levels of radioactive fallout.185 Although there was an increase in the number of thyroid cancers

victims, there is no evidence of a major public health impact a priori to radiation exposure

twenty years after the accident. For France, the accident was seen as an irrelevant accident that

would not have an effect on the French territories – which was later proved to be incorrect –

while Germany has strongly begrudged its impacts from the start which reinforced the anti-

nuclear movement.186

Fukushima Disaster

183 Frank Barnaby, "Chernobyl: The Consequences in Europe," Ambio 15, no. 6 (1986): 332-334.184 Ibid.185 Harold M. Ginzburg and Eric Reis, "Consequences of the Nuclear Power Plant Accident at Chernobyl,"

Public Health Reports 106, no. 1 (1991):32-40.186Barnaby, "Chernobyl: The Consequences in Europe," 332.

88

Following the accident at Three Mile Island in 1979 and at Chernobyl in 1986,

Fukushima will be remembered as the third major accident in the history of civilian nuclear

power reactors. Yet Chernobyl was and remains the worst trauma in this history as a result of

which nuclear developments slowed down significantly.187 The Fukushima incident was caused

by a tsunami in Japan which produced equipment failures, and without this equipment a loss-of-

coolant accident followed with nuclear meltdowns and releases of radioactive

materials.188Although the aftermath of the Fukushima accident has established the need for a new

nuclear policy, it was not the cause for change since it took place after Germany and France have

followed different options.189 Even before the incident, Germany has already planned the

phasing-out190 while France was only considering a partial phase-out, lowering nuclear

production of electricity from 75% to 50% by 2020. The same shift to decrease nuclear

dependence, although non-binding, was recommended at the EU level.191 This incident has

stimulated a new turn to respond to the risks of future huge disasters that can come in numerous

ways, and avoid the colossal costs of decommissioning reactors.192

Although an immediate solution is not available, EU encourages its members to divert to

renewable sources of energy. It is more of a long-term objective, but a short-term solution to the

rising problem of energy access.193 There have been a few coordinated moves at the EU level to

boost the rate of renewable energy in all member states; but this takes time since it is a lengthy 187 Selma Kus, "International Nuclear Law in the 25 Years between Chernobyl and Fukushima and

Beyond," Nuclear Law Bulletin 87, no. 1 (2011): 7-26.188 Eliza Strickland, “What Went Wrong in Japan's Nuclear Reactors,” IEEE Spectrum 16, no. 3

(2011): 17-24.189Kus, "International Nuclear Law," 19.190Thorstein Veblen, Imperial Germany and the Industrial Revolution (New York: Cosimo Classics

History, 2006).191 Gary A. Dymski, “Limits of Policy Intervention in a World of Neoliberal Mechanism Designs:

Paradoxes of the Global Crisis,” Panoeconomicus58, no. 3 (2011): 285-308.192 M. V. Ramana, "Nuclear policy responses to Fukushima: Exit, voice, and loyalty," Bulletin of the Atomic

Scientists 69, no.2 (2013): 66-76.193 Dymski, “Limits of Policy Intervention in a World of Neoliberal Mechanism Designs.”

89

process.194 A solid EU policy which would set the energy policies of France or Germany should

be enforced; otherwise, a feeble EU policy would arise directly from the policies of these two

leading countries.195

Public Opinion

France and Germany are both democratic countries. If the German population is greener

than their French counterpart, it could be a plausible explanation why Germany abandoned

nuclear energy. However, it is impossible to compare the public opinion of France and Germany.

To only put into comparison the public polls is not equivalent in doing the same to public

opinion. Even through close investigation, there is no public poll that asked the same set of

questions for both countries. The questions asked in the poll are firstly very sensitive. And even

though the theme of the questions asked are the same, if the questions are asked in a different

manner, the result of the poll will also be different. But looking closely at both countries' public

poll on nuclear energy there are some findings.

Public opinion in France

On behalf of France, EDF took the public opinion poll concerning public acceptance of

nuclear power. After a close examination on all public opinion polls lead by the EDF, it suggests

that majority of the French people take nuclear energy as an economic reality that is widely

accepted. After the constant reminder of nuclear energy producing larger electricity share, 63%

favored the energy policy by the French government in December 1996.196 Ultimately, the public

194 Ibid.195JakubHandrlica, "Harmonisation of Nuclear Liability in the European Union: Challenges, Options and

Limits," Nuclear Law Bulletin 84, no. 2 (2010): 35-64.196 EURELECTRIC, Survey of Different Approaches.

90

opinion poll shows that nuclear energy acceptance is high in France. Nonetheless, another

opinion poll conducted by the IAEA shows that in some years there are oppositions to nuclear

energy that reached closely 50% in poll.197

Public opinion in Germany

There are rarely occurrences of institutions that take a public poll with regards to the

public acceptance of nuclear energy in Germany. However, there are still some institutions who

take the poll. Institut für Demoskopie in Allensbach carried out an independent survey across

Germany, inquiring on the public's opinion concerning the use of nuclear power on 1992.

Surprisingly, the majority of the results show that Germans predict nuclear power to continue

existing as a major energy source in the near future, with just 5% of the public foreseeing a

nuclear phase-out and the complete dismantling of current nuclear power plants. As for the

people's personal opinions, results show that rather than expecting nuclear energy to be

decommissioned, it became apparent that opposition to nuclear power has reduced. Those in

approval of a nuclear phase-out amounted to only 22%, the lowest record over the two decades.

In total, 81% were in favor of nuclear power plants to continue operating or for new ones to have

a license for full operation. To confirm these circumstances, Vereinigung

DeutscherElektrizitätswerke e.V. (VDEW) published a newer public opinion poll. As of July

1998 those who are interested for a nuclear phase-out were only 21%.198

Political Institutions

197 IAEA, Country Nuclear Power Profiles. 2009.198 EURELECTRIC, Survey of Different Approaches Utilized to Aid Public Acceptance of Nuclear Energy.

(1999)

91

International Political Economy (IPE) has been discussing on the topic of political

institution as one of the factors that is liable for the political consequences of international

commitment or economic policy. Other literature mentions the nuclear industry of France is the

result of the outcome in French political institutions. On the other hand, there are no literature

discussing the concern of the causal relationship between political institutions and the energy

policy as well as the association of the two.199 However, there is a significant role of the green

parties in both France and Germany in the history of its energy policies. From this an assumption

is granted; the election system, degree of decentralization of power, and the political institution

system have a causal interrelationship with the result of energy policy.

Political Institution in France

France’s election system is also known as a small district system. For the presidential and

legislative elections, the two-round system is followed. For the election of the president, only the

top two candidates are the ones allowed to run on the second ballot while in the election of the

legislators the candidates need a support of at least 12.5 per cent of registered voters in the first

round in order to be eligible for the second. There is a basic rule for both elections it must take a

majority to be considered on the first ballot and a second ballot is only required if that particular

circumstances are not satisfied.200

The power of the president in France is incomparable to older governments and to other

European countries. It includes the power to assign a prime minister and the authority to dissolve

an assembly, demand for a referendum and activate powers in cases of emergency. The French

199 Magali Delmas and Bruce Heiman , “Government Credible Commitment to the French and American Nuclear Power Industries,” Journal of Policy Analysis and Management 20, no. 3 (2002): 433–456.

200 Andre´ Blais and Peter John Loewen, “The French Electoral System and its Effects,” West EuropeanPolitics 32 no. 2,(2009): 345–359.

92

president handles all issues in diplomacy and is also the commander in chief of the military with

the final say on all issues concerning the armed services. After the development of the nuclear

deterrent in France on 1960, presidential power expanded considerably. As well as the regard of

local jurisdiction by decentralization of government, France has always been a unitary state.

Political Institution in Germany

Proportional representation is what classifies the system of election in Germany.

Specifically, it is called as a personalized proportional representation where the people would

have to vote for both parties and electorate. The basic rules are as follows: first, the 656 seats

will be distributed accordingly to the parties considering the party vote. Only the parties that

have won at minimum three constituency seats based on the candidate votes can be accepted or

those that have won at least five percent on the second voting in the whole of Germany. Second,

the German Bundesrat is elected through direct voting in only 328 constituencies. Third, the

other 328 constituencies will be through the election of the German Bundestag by way of the

candidate list provided by the parties in the proportional representation. The order in the list of

candidates is predetermined by the parties themselves in advance and is permanent.201

Implementing the parliamentary system in Germany; the president has the power which is

called chancellor prime minister. However, the administrative affairs of the federal state of

Germany belong to the state government. The lawmaking right of the federal government is

limited as the field diplomacy, nationality, currency and so on. In other words, state government

has the lawmaking power.202

201 Kato Shigeru Jiro, Western Europe Comparing Politics. (Ichigei-sha, 2002).202 Mikiko Iwasaki, Comparative Politics. (Iwanami Shoten, 2005)

93

Comparative Analysis of Political Institution

There is a considerable amount of difference between Germany and France's political

institution. Germany follows a federalism government while France has an Unitarianism

government. Centralization is more apparent in France. Decentralization of power is an

important variable in deciding the energy policy of each country. Nuclear power in France would

be easily accepted rather than in Germany. When the German government introduced and passed

the law on nuclear power, the state government easily circumvented the law as they have the

higher authority. Because of this, federalism in Germany allowed the lack of compelling force as

a result more nuclear energy power plants are dismantled in Germany than that of France.

Furthermore, seeing the election system, Germany has more of an advantage in

representing their minority opinion as they follow a propositional election system where there is

comparatively high possibility of coalition. This kind of system of election was inevitably

beneficial to the green party.

The party that strongly disagrees with the usage of nuclear power and played a significant

part in both France and Germany is the Green party. The coalition government under the green

party decided that Germany should abandon nuclear power. The participation of the Green party

in the French government also influenced the decision of France to slow down the progression of

nuclear power in the government. It is important to note that the green party justifiably played a

role in decision-making process concerning the energy policy.

Germany has a more beneficial system of election for the Green party, a minor party and

federalism realizes a characteristic that makes a federal government harder to progress by own

pace, the liability of the German government became higher that ultimately lead in abolishing

94

nuclear power. On the other hand, as France proclaims a unitary government, it poses as a

disadvantage for the Green party therefore they were able to enhance their nuclear energy

policy.203

CONCLUSION

The researchers would like to determine and analyze the differences between the policies

of France and Germany concerning their nuclear energy after the different events that happened

in the nuclear power plant history which affected their interests and led to a shift in their nuclear

policy decision-making process.

The thesis has focused on the obstacles of the development in the areas of the energy

sector in both France and Germany and the external energy relations with the European Union

respecting the fragmented character of the EU energy sector. After that, the paper proceeds to the

analysis of the Member States, France and Germany and their respective formulation of an

energy policy appropriate for their country.

The history of the energy policies in France and Germany established and the conducted

the concern of the specific laws that outline France and Germany's energy policy today. This

laws project the divergence of both countries in the energy sector and their future aspirations as

well as their plans.

This paper has shown, among all others that France and Germany had very different

responses on the variables that affected their decision on proclaiming their very own energy

policies on whether to pursue or not a nuclear phase-out in the energy sphere. Both, France and

203 Fukushima Yuka, “Implication of the Determinant of Energy Policy: The Case Study of Nuclear Power in Germany and France.” (PhD diss., University of Tokyo, 2007).

95

Germany, have used economic reasoning in terms of their attitude towards fulfilling as well the

commitment on the reduction of greenhouse gas emissions. Instead, they individually preferred

to strengthen their energy sector without much influence from the EU.

Furthermore, policy change in the integration of the internal market within both countries

occurs when particular energy crisis happens such as the oil crisis, the Chernobyl accident, and

the Fukushima disaster. However, we can assess that although public opinion on energy is

important, it does not necessarily correlate to the results of the energy policy in every country.

Moreover, there is also an assumption that the structure of France and Germany's political

institutions plays a very important role on the decision-making process.

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