BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND
Inadmissible
Christos Rozakis
The applicants are Ursula Balmer-Schafroth, Ueli Balmer-Schafroth, Ursula Wanner and Rainer Zur Linde, all Swiss citizens who live in Wileroltigen and Detligen in Switzerland. They are represented before the Court by Mr Rainer Weibel, a lawyer practising in Bern. The applicants were among the ten applicants in the previous Balmer-Schafroth and Others v. Switzerland case (see judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, pp. 1346 et seq.). The applicants live in the alarm zone 1 within a radius of between four and five kilometres from the nuclear power station at Mühleberg in Switzerland. On 14 December 1992, the Federal Council (Bundesrat) granted to the Mühleberg nuclear power station the operating licence for a limited period, i.e. until 31 December 2002. This decision of the Federal Council was contested before the Court and led to the judgment in the Balmer-Schafroth and Others case (cited above). In 1996 the company which operated the nuclear power station, the Bernische Kraftwerke AG, maintaining economic reasons, filed a request to cancel the limitation of the period of operation, and to obtain a licence for an unlimited period. The application was published in the Federal Gazette (Bundesblatt), whereupon 1,170 persons and four organisations filed objections thereto. The Federal Department of Transport and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement) then requested the Technical Examination Board TÜV, a German association, to examine in particular the relevance of certain cracks in the inner nuclear casing (Kernmantel) of the nuclear power station. In its expert opinion of 29 January 1998, numbering 178 pages, the TÜV concluded that the cracks endangered neither the possibility to turn off, or to cool, the reactor. The calculations of the growth in the cracks disclosed that in the coming years the security would only insignificantly be reduced. Moreover, the producer had considered all possible accident combinations. The report also noted that the control programs and methods were such that they could detect such cracks and determine their size, and to do so within a time-limit before the cracks became dangerous. Following this expert opinion, various persons applied to the Federal Council for a complete examination of all welded joints of the nuclear casing. The “Mühleberg association”, an association aiming at the closure of the Mühleberg nuclear power station, requested Mr C.K., a physicist, to comment on the TÜV expert opinion. In his reply, dated 30 April 1998, the expert C.K. concluded that the “size of the cracks may [have been] substantially underestimated”, and that so far the effects of the cracks in the nuclear casing upon the security of the nuclear power station had only insufficiently been examined. By decision of 28 October 1998 the Federal Council dismissed the various objections and prolonged the operating licence for a period of ten years, i.e. until 31 December 2012. The decision considered that due to various modernisations the Mühleberg nuclear power station had meanwhile become more secure than when it had been constructed. There were no defaults of a technical nature which would exclude a secure operation of the station. The Federal Nuclear Safety Inspectorate (Hauptabteilung für die Sicherheit der Kernanlagen) had given the go-ahead, and the TÜV expert opinion concluded that the cracks found did not impair the security. The decision also noted that the Federal Nuclear Energy Act (Atomgesetz) did not grant a right to an unlimited period of operation. In view of a popular consultative referendum in the Canton of Bern in 1992, in which the populace had in fact expressed itself against the Mühleberg nuclear power station, the Federal Council decided to grant a license for only a limited period of ten years. On 24 April 2000, the “Mühleberg association” wrote to the Federal Council, requesting a public hearing of the Federal Nuclear Safety Inspectorate as to the conditions for a possible closure of the Mühleberg power station. By letter dated 19 May 2000, Mr M. Leuenberger, a Federal Councillor (Bundesrat), refused the request. Annexed to the letter was a statement of the Federal Nuclear Safety Inspectorate dealing, inter alia, with the issue of an earthquake in the Mühleberg area. It was considered that the probability of damage to the nuclear reactor lay between (5-10)x10-6 per year, a figure based on all accidents of nuclear power stations of the world resulting from earthquakes, and that indeed, the Mühleberg nuclear power station had been constructed to withstand earthquakes. The probability of a plane crash on the nuclear power station was negligibly small. On 8 September 2000 the applicants filed with the Federal Council a request for reconsideration of its decisions of 14 December 1992 and 28 October 1998. Under Section 4 § 1 (a) of the 1959 Federal Nuclear Energy Act, a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5 § 1 provides that a license must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights. Section 6 provides that the Federal Council or a body designated by it decides license applications. No appeal lies against its decisions. Section 8 stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision; the Federal Council and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order, in particular, to protect people, the property of others and important rights; they are also entitled to supervise compliance with these instructions. Under the Federal Court’s case-law, the safety of nuclear power plants can be considered by the Confederation only in the context of its licensing procedures (see judgments of the Federal Court (BGE [Bundesgerichtsentscheide] 119 Ia, p. 402).