The new heating law, given final approval shortly before the summer recess, rests on shaky legal ground. According to a recent assessment by the Bundestag's Research Service, "constitutional doubts" continue to surround the so-called Building Modernisation Act (Gebäudemodernisierungsgesetz, GModG). The law could also breach EU requirements such as the buildings directive, the assessment finds. Green MP Michael Kellner said the conclusions were "highly embarrassing" for the conservative CDU/CSU and the SPD.
The Research Service had already determined in a June assessment that the federal government's draft of the GModG at the time could violate the constitution. The central issue was climate protection: the federal government is obliged to protect the climate in the interests of future generations and, other than in exceptional cases, may therefore not weaken rules that are already in force.
With the GModG, the federal government aimed to abolish the unpopular heating law introduced by the previous "traffic light" coalition, along with its requirements for the installation of new heating systems. Under the law as now adopted, installing heating systems that run on fossil fuels remains permitted. In return, gas and oil boilers are to be operated with rising shares of alternative fuels.
Partly because of the constitutional doubts, an end date was added as the bill passed through parliament: by 2045, only climate-neutral fuels are to be permitted for sale. According to the parliamentary experts, this amounts to "a legal (operating) ban on fossil-fuel boilers". The adopted law, however, contains no more than an instruction to the federal government to create the necessary legal basis in a further piece of legislation by 1 December.
The Research Service now concludes that such a clause cannot be binding within a law, because an obligation to introduce legislation, written into a law, would violate the principle of the separation of powers. The constitutional doubts raised in June therefore remain in place. Environmental organisations such as Deutsche Umwelthilfe have already announced legal action against the GModG.
On top of this come fundamental doubts as to whether the rules on the increasing use of alternative fuels in heating systems can work at all, given the uncertain supply of green oils and gases. The concerns raised in June that EU law would not be complied with have likewise not been fundamentally altered by the subsequent changes made to the law during the parliamentary process, the assessment states.
"MPs from the CDU/CSU and the SPD should get red ears reading this report," said Green MP Michael Kellner, who had commissioned the study. Kellner pointed to remarks made by Chancellor Friedrich Merz (CDU) at the weekend during his visit to the wildfire area in North Rhine-Westphalia: "Friedrich Merz says we must do everything to push back climate change. He is right, and he could follow his words with actions by correcting the obvious flaws in the heating law."
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