V. Consequences for the Precautionary Principle as Applied
1. The Phases of Risk Administration
Risk administration is rooted in the traditional rules on danger preven- tion.152 However, while danger prevention deals with the prevention of recognizable dangers, risk administration involves the task of taking de- cisions on the basis of uncertainty, which has clear consequences for the decision-making process.153 From a scientific point of view, three stages of risk analysis can be distinguished: risk assessment, risk management and risk communication.154 While risk communication is “the exchange of information and opinions concerning risk and risk related factors”
and thus presents an aspect which is relevant to all phases of risk ad- ministration,155 risk assessment and risk management constitute differ- ent phases of risk administration and will therefore be discussed in greater detail in the following section.
a) Risk Assessment
The first step of risk assessment is risk analysis, which is regulated by specific provisions usually providing for far-reaching duties of coopera- tion imposed on the enterprises concerned and a right of information granted to the authorities.156 Second, the authorities need to assess the
152 M. Brenner/A. Nehrig (note 19), 1027.
153 M. Brenner/A. Nehrig (note 19), 1027.
154 U. Gundert-Remy/K. Henning (note 7), 122 et seq.; for a likewise differ- entiation by the EU-Commission see S. Werner (note 4), 338 et seq.
155 Definition given by the FAO/WHO 1998 Application of Risk Commu- nication to Food Standards and Safety Matters, Report of the Joint FAO/WHO Expert Consultation, Rome, Italy, 2-6 February 1998; U. Gundert-Remy/K.
Henning (note 7), 125.
156 M. Brenner/A. Nehrig (note 19), 1027.
analysed risk.157 Due to the principles of equality and proportionality, the administration is held to rely on all obtainable sources of recogni- tion158 and to carry out a comparative risk assessment.159 The yardstick for comparison can be different technical concepts, types of installa- tions, energy sources or materials, etc.160 Uncertainty and lack of infor- mation lead to rather complex processes of information gathering and assessment, as well as to difficult problems of balanced decision- making, causing an increasing challenge for the administration.161 Risk administration also has to deal with the danger of overlooking ex- isting dangers. The increasing dependence of administrative decisions on scientific assessments has led to the creation of specific scientific au- thorities serving the administration of cooperative decision-making sys- tems.162 They are supposed to integrate external know-how into the de- cision-making procedure and to focus the flow of information.163 One recent example is the setting up of the Federal Institute for Risk As- sessment, which assesses and communicates risks in the areas of con- sumer protection and food security.164 The related Federal Agency for Consumer Protection and Food Security considers options for action under its mandate.165 Similar competencies are vested in the Federal Agency for Pharmaceutical and Medical Products, the Federal Agency for Protection against Radiation, the Federal Agency for Protection in the Workplace and Labour Medicine and the Federal Health Office, all of which have functions of central coordination, assessment and deci- sion-making and are inter-positioned between the regular authorities and private actors embarking on potentially hazardous activities.166 This allows feeding external knowledge of private companies and scientific and technical experts into the administrative procedure. A further in- strument of connecting expertise and administrative decision-making is
157 M. Brenner/A. Nehrig (note 19), 1027.
158 U. Di Fabio (note 2), 820 et seq.
159 M. Brenner/A. Nehrig (note 19), 1027; U. Di Fabio (note 2), 824 et seq.
160 M. Brenner/A. Nehrig (note 19), 1027; U. Di Fabio (note 17), 566, at 573.
161 M. Brenner/A. Nehrig (note 19), 1027.
162 M. Brenner/A. Nehrig (note 19), 1028.
163 M. Brenner/A. Nehrig (note 19), 1028.
164 M. Brenner/A. Nehrig (note 19), 1028.
165 M. Brenner/A. Nehrig (note 19), 1028.
166 M. Brenner/A. Nehrig (note 19), 1028.
the development of so-called safety philosophies, such as the above-de- scribed concept existing for atomic energy law.167
b) Risk Management: Wide Margins of Appreciation and Discretion Risk management means taking a decision on how to deal with the as- sessed risk.168 Since the statutory provisions often contain undefined le- gal terms and sometimes a whole array of possible legal consequences, they leave the administration with a lot of scope both as to the ascer- taining and assessment of facts (margin of appreciation) and the choice of the adequate decision (margin of discretion).169 In order to be able to make vague provisions operative in the individual case, a high degree of scientific and technological knowledge is required.170 The executive thus resorts increasingly to the sub-statutory regulation of risk-standards, i.e. administrative regulations putting the statutes in concrete form (normkonkretisierende Verwaltungsvorschriften).171 These are standard- ising administrative regulations, which – as opposed to other regula- tions that constitute mere internal administrative law without external effect – are meant to be binding for the courts within their confine- ments, so that the administration and the courts merely have to check whether these standards are still up to date.172 Thus, judicial supervision of these norms is limited to the correct application of the regulation, without extending to its contents.173
167 A. Roònagel (note 63), 79 et seq.
168 U. Gundert-Remy/K. Henning (note 7), 124 et seq.
169 M. Brenner/A. Nehrig (note 19), 1029; Stoll (note 3), 325; A. Roònagel (note 63), 79 et seq.; BVerfGE 49, 89, at 135; BVerwGE 61, 256, at 263; 72, 300, at 316; 80, 207, at 217.
170 M. Brenner/A. Nehrig (note 19), 1028.
171 M. Brenner/A. Nehrig (note 19), 1029.
172 M. Brenner/A. Nehrig (note 19), 1029, who mention the example of an administrative regulation passed on the basis of § 48 BImSchG such as the tech- nical instruction concerning air (TA Luft); on the binding effect of norm-speci- fying administrative regulations see K. Faòbender, Neues zur Bindungswirkung normkonkretisierender Verwaltungsvorschriften, UPR 2002, 15 et seq.; R.
Uerpmann, Normkonkretisierende Verwaltungsvorschriften im System staatli- cher Handlungsformen, Bay.VBl. 2000, 705 et seq.
173 M. Brenner/A. Nehrig (note 19), 1029.
A further means of filling gaps left in statutory regulation is to establish decision-making procedures relying on experts’ opinions, or to institu- tionalise methods and pluralist interests.174 Judicial review of the result- ing decisions is, according to one view, again limited in that it has to al- low a margin of appreciation by the administration.175 The exact limits of a reduced judicial review, however, are highly disputed in German administrative law und require a case-by-case analysis.176 Since the Whyl decision of the Federal Administrative Court it has become clear at least for atomic energy law that the authorities bear the responsibility for risk assessment.177 This concerns in particular its content, while ju- dicial review may check the data gathering and the question whether the assessment has been sufficiently careful.178 In other fields, e.g. the law on pollutants control, the legal situation is considerably less clear.179