Habeck’s ban on oil and gas heating is illegal!

By Luisa Volkhausen

But the big question: is Habeck allowed to do that at all? Can the Economics Minister tell us how to heat our houses and apartments?

No, say constitutional experts – at least not as planned!

“The planned ban on oil and gas heating is an unconstitutional restriction of property rights,” explains constitutional expert and professor at the University of Oldenburg, Volker Boehme-Neßler (60).

The basic rule is: everyone can treat their property as they wish – that means: everyone can heat their own home as they wish. “The legislature may, however, restrict ownership by other laws. The specification of how I have to heat my house or apartment can be such a restriction,” explains Boehme-Neßler.

BUT: “The restrictions must be proportionate. That means there must be no less severe intervention with the same effectiveness.”

But there would be in this case, argues Boehme-Neßler: “The market-based instrument of CO2 emissions trading already exists.” This means that the more pollutants a heating system emits, the more the owners have to pay for it.

The legislature is already providing incentives to install less polluting heating – without banning it entirely.

SAY: The ban would not have to be!

The constitutional expert emphasizes: “Prohibition policy should only be used as a last resort if nothing else works.” But green environmental policy obviously sees things differently, he criticizes: “The bans currently always come first. This is dangerous for our democracy.”

Approval from Josef Franz Lindner (56), professor at the University of Augsburg. He considers Habeck’s heating hammer in its current form to be disproportionate and therefore unconstitutional – since CO2 emissions trading is an equally suitable, milder means.

In addition, consumers who have only recently installed a new oil or gas heating system would have to be protected.

“reasonable threshold” exceeded

“Especially with a view to the EU level”, the heating ban is a problem, emphasizes Lindner. BECAUSE: Come to Habeck’s heating hammer the new minimum standards for the energy efficiency of buildings passed by the EU Parliament on Tuesday. Means: Renovation compulsion – which would also apply to the owners!

“Projects at EU level must be coordinated with Habeck’s national projects,” demands Lindner. “The EU Commission and the German Ministry of Economics cannot uncoordinated burden the citizens twice.”

For the lawyer it is clear: “Compulsory renovation plus heating bans exceed the reasonable threshold.”

Experts sure: there will be resistance

The experts are certain: there will be resistance to the proposed legislation!

︎ First possibility: Politicians themselves oppose the project.

If a quarter of the members of the Bundestag consider the later law to be unconstitutional, they can have it reviewed by the Federal Constitutional Court for its constitutionality. A state government or the federal government itself could also apply for “abstract norm control”.

Lawyer: Citizens can defend themselves

▶︎ Second possibility: Those affected complain!

Lawyer Arndt Kempgens (54) explains: “If the law comes into force and the house or apartment owner is then asked by an authority to replace his heating system, he can complain to the administrative court.” The administrative court can then – if the underlying law considers unlawful – contact the Federal Constitutional Court. “Or the person concerned can complain to the Constitutional Court,” says Kempgens.