Bundestag lawyers consider energy saving obligations to be lawful

Last week, the President of the Federal Network Agency sounded the alarm: Due to the low temperatures, too much energy was being used. "This must not continue in January and February," Klaus Müller told ZDF. He recommended that citizens not heat every room if possible.

What he did not say is that the federal government could also oblige private households to do this - this is confirmed by a new elaboration by the scientific services of the Bundestag, which is available to WELT. It was examined whether Section 30 of the Energy Security Act, on the basis of which the federal government has been able to prescribe preventive energy saving measures since July, is constitutional and, in particular, to what extent private individuals can be held accountable.

In the 20-page document, the Bundestag lawyers come to the conclusion: Yes, the paragraph is constitutional. All areas of the commercial economy and large parts of private life could be affected by a corresponding measure. "For example, specifications for the maximum permissible heating of living spaces, the consumption of hot water or for the power supply in the living area in general would be conceivable," says the document.

The Oldenburg constitutional lawyer Volker Boehme-Neßler had described paragraph 30 to WELT AM SONNTAG as unconstitutional. The power to issue ordinances was worded too vaguely; moreover, the parliament and not the government should decide on such essential encroachments on fundamental rights.

The Bundestag lawyers, on the other hand, consider the current construction to be justified: the paragraph regulates a “multifaceted situation” that is characterized by “uncertainties”. To a large extent, the energy supply situation in Germany is currently dependent on political and economic international developments, but also on how much is saved voluntarily "under the impression of price developments": "On the consumer side, the weather plays a role, among other things, in the form of temperatures in winter a crucial role in 2022/2023.”

It is difficult to estimate how the situation will develop further, changes could occur suddenly. The extent of the effects on the general public in the event of an immediate threat to the energy supply is very large. "This therefore requires the possibility of rapid reactions to a large extent, with little time for the adjustment of laws," said the lawyers. Against this background, a more specific wording is not necessary either.

The federal government had already issued several energy saving regulations based on paragraph 30 in the summer. The "EnSiKuMaV" currently prohibits private pools and common areas in public buildings from being heated and public buildings and advertising systems from being illuminated at night. It also specifies maximum temperatures for work rooms.

If, as the head of the Federal Network Agency warned, one percent of the stored gas is currently being used every day, would it now be time to introduce further energy-saving measures as a precaution? WELT asked the Federal Network Agency about this, but was referred to the Federal Ministry of Economics. From there it says: “We consider the lower savings at the moment to be manageable if they remain an outlier. A lot has already been achieved, but we must not let up in our efforts." The savings target of at least 20 percent will continue to apply throughout the winter." to extend.

The energy policy spokesman for the AfD parliamentary group, Steffen Kotré, who commissioned the report from the scientific service, is also critical. Any interference with the rights of citizens should be rejected, he told WELT. The top priority is to increase the energy supply. The federal government has to ensure a reliable energy supply. “Instead, they are destroying nuclear power plants, shutting down coal-fired power plants and impeding gas supplies with a sanctions policy that is damaging to us. In order to compensate for this, the citizens should do without an adequate supply of electricity and heat.”

The argument is not convincing for constitutional lawyer Boehme-Neßler either: "Of course it is true that the political and energy-economic situation is very difficult, confusing and unpredictable," he says to WELT. But that does not justify such a far-reaching law. With this justification one could ultimately justify harsh restrictions on freedoms again and again. Because difficult, complex situations with the potential for surprises are ultimately the typical framework of politics. “The art of politics is to solve problems without restricting freedom quickly and extensively. Just because politicians are confronted with difficulties, they must not prematurely and extensively restrict fundamental rights.”