The safety margin of 30 per cent on the payments which the owners of nuclear installations must contribute to the Decommissioning Fund and the Disposal Fund, introduced by the Federal Council in 2015, is lawful. This is the conclusion the Federal Administrative Court has come to, rejecting the appeal filed against it.
The Nuclear Energy Act (NEA) earmarks a Decommissioning Fund and a Disposal Fund (lower court). Both funds aim to ensure the financing of the decommissioning and the disposal of radioactive waste of disused nuclear installations. The owners of Swiss nuclear power stations and other nuclear installations are obliged to make contributions to both of these funds. The regulation of details is incumbent upon the Federal Council in accordance with the NEA. The Council established the assessment basis for levying contributions in the Decommissioning and Disposal Funds Ordinance (DDFO), which has been in force since 2008.
New flat-rate safety margin
An amendment to the DDFO came into effect at the beginning of 2015, stipulating that an additional flat-rate safety margin of 30 per cent shall now be paid as well as the costs calculated to date. This sets out to reduce the risk of the Swiss Confederation ultimately having to bear a portion of the decommissioning and disposal costs. To that effect, the lower court determined the final annual contributions for 2015 and 2016 on 5 August 2016. Axpo Power AG, BKW Energie AG, Kernkraftwerk Leibstadt AG and Zwilag Zwischenlager Würenlingen AG filed a joint appeal against this to the Federal Administrative Court (FAC). They considered the safety margin to be unlawful.
No breach of the principle of legality
In its judgment, the FAC concluded that the NEA contains sufficient legal basis to introduce the safety margin. The Federal Council also did not exceed the legislative powers delegated to it.
No violation of the principle of proportionality
The safety margin is a suitable, necessary and reasonable means for the owners of the nuclear installations liable for contributions to reduce the liability risk of the Swiss Confederation. However, it is not the role of the FAC to express an opinion on the financial or political appropriateness of the safety margin. As the further complaints are also unfounded, the FAC is rejecting the appeal.
This judgment may be appealed to the Federal Supreme Court.