1. Conceptual Issues
As expressed by Art. 20a GG, the precautionary principle is put into operation mainly through statutory provisions dealing with specific ar- eas.58 As a general concept, environmental legislation is oriented to- wards the traditional structure of police law, thus being based on the terms of danger prevention, causal link and responsible disturber (ver-
50 D. Murswiek (note 41), 230.
51 BVerfGE 49, 89, at 182.
52 BVerfGE 77, 170, at 214 et seq.; 79, 174, at 202.
53 BVerfGE 49, 89, at 140 et seq.
54 M. Brenner/A. Nehrig (note 19), 1027.
55 M. Brenner/A. Nehrig (note 19), 1027.
56 BVerfGE 49, 89, at 143; BVerfGE 53, 30, at 59; BVerwGE 72, 300, at 316.
57 M. Brenner/A. Nehrig (note 19), 1027; for the most prominent German court decisions on the precautionary principle see S. Marr/A. Schwemer (note 1), 142 et seq.;N. de Sadeleer (note 22), 144 et seq.
58 U. Di Fabio (note 17), 571.
antwortlicher Stửrer).59 As a consequence, the doctrinal construct of a preventive prohibition with an authorization option (prọventives Ver- bot mit Erlaubnisvorbehalt) was coined and used in this field. The re- quirement of a legal basis for individual rights limitations is provided through general authorization clauses in the various police laws of the German Lọnder.60
Limitations exceeding the scope of danger prevention require a specific legal basis.61 In order to deal with situations that can only be captured by instruments of risk precaution, new approaches had to be devel- oped.62 A principal aspect of these approaches is to integrate external scientific and technical knowledge into the process. On the statutory level the integration of external knowledge is managed through so- called technology clauses, by dynamic referrals and the determination of threshold values; on the level of administrative procedure the prob- lem of uncertainty is mainly addressed by granting a margin of appre- ciation and discretion.63 In order for the administration to be able to re- act flexibly to the speed of technological development and to the corre- sponding proliferation of risks, the relevant norms need to provide a sufficient degree of abstraction.64 The law of risk administration thus resorts to undefined legal terms (unbestimmte Rechtsbegriffe), contain- ing vague elements which require an assessment or even a prognosis in the individual case to be put into concrete terms.65
59 C. Calliess (note 1), 154.
60 C. Calliess (note 1), 154; the Lọnder are the German State entities below the level of the federation (Bund).
61 C. Calliess (note 1), 155.
62 On the deficits of risk regulations and risk communication see M. Bửhm (note 3), 610 et seq.; on the function of administrative authorizations in the light of the precautionary principle see R. Wahl/G. Hermes/K. Sach, Genehmigung zwischen Bestandsschutz und Flexibilitọt, in: Wahl (ed.), Prọvention und Vor- sorge – Von der Staatsaufgabe zu den verwaltungsrechtlichen Instrumenten, 217 et seq.
63 M. Brenner/A. Nehrig (note 19), 1028; A. v. Bora, Mehr Optionen und gesteigertes Risiko – Zur Stellung des Rechts in der Risikogesellschaft, 1999, 16;
A. Roònagel, Risikobewertung im Recht, in: Bizer/Koch (eds.), Sicherheit, Viel- falt, Solidaritọt. Ein neues Paradigma des Verfassungsrechts, 1998, 76 et seq.
64 M. Brenner/A. Nehrig (note 19), 1028.
65 M. Brenner/A. Nehrig (note 19), 1028; for the difficulties of risk assess- ment see A. Roònagel (note 63), 75 et seq.
2. Relevant Rules of Administrative Procedure and Administrative Court Procedure relating to the Burden of Proof
§ 24 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG) lays down the principle of public investigation, according to which it is the task of the competent authorities to settle the question whether a situation may result in damage, if necessary by resorting to a scientific expert’s opinion.66 In case of an administrative procedure, the courts, according to §§ 86, 108 (1) 1 of the Administrative Court Pro- cedure Act (Verwaltungsgerichtsordnung – VwGO), have to investigate a case and to hear and assess the necessary evidence.67 As a matter of principle, the burden of proof is divided according to the existing mate- rial legal basis and the traditional definitions and rules.68 The courts thus examine the case by using scientifically approved knowledge and experience concerning the question whether a danger or a suspected danger exists.69 Merely asserted dangers without any options to provide evidence for them are usually not considered.70 Generally, the State has to be able to prove the existence of a danger.71
However, there are new tendencies concerning the division of the bur- den of proof in several court decisions, in particular concerning gene technology and so-called electro-smog due to emissions from mobile telecommunication poles.72 Some courts have lowered the standard of probability applied for the purpose of danger prevention by stating that the effects of electro-smog constitute a potential danger for human health or at least a considerable molestation – even though a definite as- sessment and fixing of a threshold are currently not possible, and scien- tists claim that further research is desirable.73 Other courts have solved the problem by maintaining that an undisputed necessity of further re-
66 C. Calliess (note 7), 1728.
67 C. Calliess (note 7), 1728.
68 C. Calliess (note 7), 1729.
69 C. Calliess (note 7), 1729; see for example OVG Lüneburg, NVwZ 1995, 917 (918); VGH Kassel, NVwZ 1995, 919, 921.
70 C. Calliess (note 7), 1729; OVG Lüneburg, NVwZ 1995, 917, at 919.
71 C. Calliess (note 7), 1729.
72 C. Calliess (note 7), 1729; C. Calliess (note 1), 226 et seq.; S. Marr/A.
Schwemer (note 1), 144 et seq.; see further A. Wahlfels, Mobilfunkanlagen zwi- schen Rechtsstreit, Vorsorge und Selbstverpflichtung, UPR 2003, 653 et seq.
73 C. Calliess (note 7), 1729; VG Gieòen, ZUR 1994, 146 (147).
search leads to a situation of uncertainty and thus to unclear evidence, thus constituting a non liquet situation.74 Applying the precautionary principle for new, potentially dangerous technologies, courts shifted the burden of proof at least partly to the operating companies and added a kind of safety buffer on top of the internationally recognized legal threshold values.75 In its decision on gene technology, the Higher Ad- ministrative Court in Kassel pursued an even further-reaching ap- proach, which was later used by other courts dealing with electro- smog: It claimed that new technologies are prohibited – as long as the legislator does not pass specific statutes taking due account of the risks emanating from them – according to fundamental protective duties and an established doctrine stating that substantial decisions have to be taken by the legislator itself (Wesentlichkeitstheorie).76 Thus, in relying on the protective duty resulting from Art. 2 (2) 1 GG, the courts con- strued a preventive prohibition with an authorization option.77
However, this approach is rather disputed both in the case law and in scholarly opinion. The strongest precautionary approach would be con- stituted by a complete shift of the burden of proof at the expense of economic freedom, which is expressed by the formula “in dubio pro se- curitate” and based on the fundamental protective duties.78 The major- ity of scholars, however, deal with this question in a more differentiated way:79 They propose a shift of the burden of proof concerning empiri- cal evidence that a risk source is capable of causing damage. Thus, the operator of an installation causing a chemical, physical or other inter- ference with ecosystems or the biosphere has to prove to a certain de- gree of certainty that this interference is harmless. The precondition is
74 C. Calliess (note 7), 1730; VGH Kassel, NVwZ 1997, 89 and NVwZ 1995, 1010, at 1014; likewise OVG Lüneburg, NVwZ 1994, 390 and OVG Münster, NVwZ 1993, 1116.
75 C. Calliess (note 7), 1730; VGH Kassel, NVwZ 1995, 1010, at 1014 et seq.;
different though VGH München, NVwZ 1994, 919, at 921.
76 C. Calliess (note 7), 1730; VGH Kassel, NJW 1990, 336 et seq.; VG Gel- senkirchen, ZUR 1993, 119 et seq.; different though VGH Kassel, NVwZ, 1995, 1010 (1014 et seq.).
77 C. Calliess (note 7), 1730; R. Wahl/J. Masing, JZ 1990, 553.
78 C. Calliess (note 7), 1730; K. Schachtschneider (note 38), 81, at 120 et seq.;
T. O’Riordan/J. Cameron/A. Jordan, The Evolution of the Precautionary Prin- ciple, in: O’Riordan/Cameron/Jordan, Re-interpreting the Precautionary Prin- ciple, 2001, 9, at 20.
79 See C. Calliess (note 7), 1731 with further references.
that there are concrete and plausible hypotheses about the causal rela- tionship concerning individual risk sources. In a nutshell, a legal doc- trine has evolved containing a rebuttable presumption of dangerousness (widerlegbare Gefọhrlichkeitsvermutung), which the causer of a risk has to rebut in order to be granted an authorization.80
3. The Draft of a General Environmental Code
Apart from the above mentioned definition of the precautionary prin- ciple, the legal expert draft of a General Part of an Environmental Code (UGB-AT), which has, however, not entered into force, introduces risk as a legal term.81 According to § 1 UGB-AT, the statute aims at the pro- tection of the environment including the mitigation of environmental risks and the defence against environmental dangers. § 2 (6) UGB-AT defines an environmental risk as the possibility of an occurring envi- ronmental degradation, as far as it is not excluded as a matter of com- mon sense. Environmental danger is the environmental risk which, when taking account of the probability of its occurrence and the poten- tial damage, is not acceptable. § 72 UGB-AT contains a general clause for administrative action according to which the authorities may take measures if an environmental danger or an environmental risk exists.
While the administration is obliged to act in cases of an existing danger, it is merely authorized to do so in the case of an environmental risk.
Risk as a legal term includes both situations where the necessary prob- ability is not achieved and situations of uncertainty.82
4. The Federal Pollutants Control Act
The idea of precautionary action is strongly manifested in the provi- sions on pollutants control, in particular in §§ 1, 4 (1) 1 and 5 (1) Nr. 2 of the Federal Pollutants Control Act (Bundesimmissionsschutzgesetz –
80 C. Calliess (note 7), 1731; E. Rehbinder, Grenzen und Chancen einer ửkologischen Umorientierung des Rechts, 1989, 10 et seq.;A. Reich, Gefahr – Risiko – Restrisiko. Das Vorsorgeprinzip am Beispiel des Immissionsschutz- rechts, 1989, 201 et seq.;G. Lübbe-Wolff (note 2), 47, at 64 et seq.
81 C. Calliess (note 1), 166.
82 C. Calliess (note 1), 166 et seq.
BImSchG).83 § 1 BImSchG names precaution against harmful effects on the environment as one of the central purposes of this statute. § 4 (1) 1 BImSchG requires permissions for installations which by their struc- ture or operation are particularly capable of generating harmful envi- ronmental effects, or of endangering, causing disturbance or consider- able inconvenience to the public or neighbourhood. § 5 (1) Nr. 2 for- mulates a precautionary requirement for the field of clean air, which has to be safeguarded when setting up and operating installations, in par- ticular by measures of emission control on the basis of the technical status quo.84 This provision has been amended by the so-called Artikel- gesetz dealing with precaution against “various dangers” and an obliga- tion to prevent accidents that do not qualify as dangers.85 § 5 (1) Nr. 1 BImSchG contains an absolute protective duty against the expected emissions within the range of an installation.86 This is put into concrete terms by the Technical Instruction concerning Air (TA Luft).87 The ad- ministration has to take these criteria into consideration when granting operation permits.88 However, it appears to be quite undisputed that § 5 (1) 1 Nr. 1 BImSchG is rather dealing with dangers than with precau- tionary measures, since the wording covers “harmful effects and other dangers”, while Nr. 2 expressly deals with “precaution”.89 § 3 (6) BImSchG defines the technical state of the art as a state of advanced procedures, installations or modes of operation.90 The Federal Consti- tutional Court considers the yardstick concerning what is allowed or mandatory to have shifted towards the frontier of technical develop- ment, whereas the aspects of a general recognition and practical suit-
83 See for example G. Günther (note 4), 36 et seq.; S. Marr/A. Schwemer (note 1), 136; on the mentioning of the precautionary principle in the regula- tions (Bundesimmissionsschutzverordnungen) that put the statute in concrete terms see for example A. Wahlfels, (note 72), 653 et seq.;A. Begemann/J.Vogel, Auswirkungen der novellierten Verordnung ỹber Groòfeuerungs- und Gastur- binenanlagen auf bestehende Raffineriestandorte, NVwZ, 2005, 632 et seq.
84 C. Calliess (note 1), 182.
85 S. Marr/A. Schwemer (note 1), 137.
86 S. Calliess (note 1), 182 et seq.
87 C. Calliess (note 1), 182 et seq.; S.Marr/A. Schwemer (note 1), 138; R.
Wahl/I. Appel (note 3), 147 et seq.
88 S. Marr/A. Schwemer (note 1), 136.
89 S. Marr/A. Schwemer (note 1), 137.
90 C. Calliess (note 1), 182.
ability of a technology alone are not decisive for determining the state of the art.91
The BImSchG does not only deal with risk precaution, but also with re- source preservation, expressing the idea of an economical use of re- sources. The Federal Administrative Court considers the precautionary principle to be a long-term concept geared towards a uniform and equi- table implementation, thus stressing the idea of planning and economic use.92 It is questionable whether the precautionary principle includes a duty of risk minimization, but there is certainly no unlimited duty of that kind.93 The TA Luft mostly applies emission standards according to the technical state of the art, while a test of risk proportionality is par- ticularly used on dangerous substances.94 The Federal Administrative Court has ruled that the mere allocation of narrowly defined individual emission targets contravenes the precautionary principle: Emission standards must, through their equitable application on all emitters, en- force air quality standards, which, notwithstanding concrete emission situations, generally justify the expectation to avoid dangerous situa- tions potentially creating harmful environmental effects.95
5. The Atomic Energy Act
The precautionary principle is furthermore dealt with by the Atomic Energy Act (Atomgesetz – AtG).96 According to § 7 (2) Nr. 3 AtG the authorization for a nuclear power plant may only be granted if neces- sary precautionary measures against damage potentially resulting from the setting up and the operation of an installation are taken.97 Before the Whyl decision of the Federal Administrative Court, an authorization concerning nuclear power plants was granted on the basis of the notion
91 BVerfGE 49, 89, at 135; C. Calliess (note 1), 182.
92 BVerwG, NVwZ 1995, 994, at 995; as a further decision on § 5 I Nr. 1 see VGH Baden-Wỹrttemberg, DệV 2002, 871 et seq.
93 C. Calliess (note 1), 185.
94 C. Calliess (note 1), 185.
95 C. Calliess (note 1), 185.
96 G. Roller, „Auslegungsüberschreitende Ereignisse“ und atomrechtliche Schadensvorsorge, VA 2004, 63 et seq.
97 C. Calliess (note 1), 186; for the debate on the exact meaning of the scope
“precaution against damages” see G. Günther (note 4), 42 et seq.
of danger prevention instead of risk precaution.98 A well-determined concept of possible cases of emergency exceeding the capacity of the in- stallation (Auslegungsstửrfọlle) was created and established on the sub- statutory level.99 Since then, it has been firmly established that § 7 (2) Nr. 3 AtG in fact deals primarily with precaution against damages.100 While the provision does not distinguish between danger prevention and precaution, it differentiates between compulsory precaution includ- ing classical danger prevention and discretionary precaution for optimi- zation purposes.101
The Federal Administrative Court has explicitly rejected the application of the danger terminology as emanating from police law.102 In the Stade decision the Federal Administrative Court still ruled that the precau- tionary principle as laid down in atomic energy law only protects against probable dangers and risks.103 By contrast, in the Whyl decision the Court decided: “Precaution” as used in § 7 (2) Nr. 3 AtG does not allow delaying protective measures until a given current situation will, according to the doctrine of causality, lead to other harmful situations and events.104 The administration must not rule out potential damage simply because certain causes and connections can neither be confirmed nor negated, so that they do not constitute a danger, but rather a sus- pected danger or a potential for concern (Besorgnispotential).105 How- ever, the legislator is not required to enact laws precluding an endanger- ing of individual rights with absolute certainty, as long as these dangers or risks may be precluded on the basis of common sense and thus need to be accepted as socially acceptable burdens by all citizens.106 This was
98 G. Roller (note 96), 64 et seq.
99 G. Roller (note 96), 65.
100 C. Calliess (note 1), 186.
101 C. Calliess (note 1), 187; S. Marr/A. Schwemer (note 1), 139.
102 G. Roller (note 96), 67; BVerwGE 72, 300, at 315; a different stance was taken by the lower instance court, VGH Mannheim, DVBl. 1982, 967.
103 BVerwGE 61, 256, 264 et seq., 267; E. Rehbinder, Prinzipien des Umwelt- rechts in der Rechtsprechung des Bundesverwaltungsgerichts: das Vorsorge- prinzip als Beispiel, in: Franòen, Everhardt et al. (eds.): Bỹrger – Richter – Staat – Festschrift fỹr Horst Sendler, Prọsident des BVerwG zum Abschied aus sei- nem Amt, 1991, 269 et seq., 274.
104 BVerwGE 72, 300, at 315 et seq.; see further E. Rehbinder (note 103), 274.
105 BVerwGE 72, 300, at 315 et seq.
106 BVerwGE 72, 300, at 315 et seq.
confirmed in the Krümmel decision by the Federal Administrative Court which confirmed a permit on the ground that the potential leu- kaemia risk in the surroundings of the power plant was too remote.107 Finally, the Court ruled that as opposed to § 5 (1) Nr. 2 BImSchG, § 7 (2) Nr. 3 AtG entails locus standi even for claimants not directly af- fected by a decision.108
The administration had to implement the above mentioned case law by adapting its safety concept through various forms of sub-statutory pro- visions.109 The result of this is a four-level concept, level one and two dealing with interference prevention, level three dealing with interfer- ence control and level four with risk reduction concerning accidents ex- ceeding the capacity of the installation.110 Since all four levels deal with danger and risk precaution, it appears very difficult to draw a clear line between the two terms.111
6. The Gene Technology Act
The Gene Technology Act (Gentechnikgesetz – GenTG) deals with the risk potential of gene technology and the release of organisms modified through it. § 1 Nr. 1 GenTG stresses the necessity of precautionary measures for the protection of life and health of human beings, animals and plants against potential risks. § 6 (1) GenTG adds that precaution- ary measures have to be applied on the basis of a risk assessment. While
§ 6 (1) and (2) GenTG differentiate between risk precaution and danger prevention,112 this distinction is not always upheld in the other provi- sions such as §§ 7 (1) and § 16 (1) Nr. 3 GenTG.113 For example § 7 (1) simply distinguishes between “no risks, small risks, moderate risks and high risks”.114 As a consequence of an assessment by a commission of experts on biological safety a high precautionary standard was estab-
107 S. Marr/A. Schwemer (note 1), 142.
108 S. Marr/A. Schwemer (note 1), 139.
109 G. Roller (note 96), 70 et seq.;Ossenbühl (note 9), 65.
110 G. Roller (note 96), 70.
111 G. Roller (note 96), 82 et seq.
112 S. Marr/A. Schwemer (note 1), 140.
113 C. Calliess (note 1), 189; G. Günther (note 4), 38 et seq.
114 S. Marr/A. Schwemer (note 1), 140 et seq.
lished granting (as opposed to the Federal Pollutants Control Act) locus standi even to claimants not directly affected by a measure.115
7. The Environmental Impact Assessment Act
§ 1 of the Environmental Impact Assessment Act (Gesetz über die Um- weltvertrọglichkeitsprỹfung – UVPG) states that certain projects re- quire, for purposes of environmental protection, an assessment of their effects on the environment at an early stage and in an all-encompassing way. According to § 2 (1) 2 UVPG, all effects of projects concerning human beings, animals and plants, soil, water, air, climate and landscape (including the interactions of each of those) have to be assessed. The environmental impact assessment (Umweltvertrọglichkeitsprỹfung) must be integrated into existing administrative procedure thus consti- tuting a part of all decision-making processes on the admissibility of specific projects (§ 2 (1) 1 UVPG).116 The approach of integrated envi- ronmental protection is based on the notion of a stable ecosystem and specific systems contained in it, such as water, air, etc.117 The UVPG is strongly influenced by European law, e.g. by Directive 86/337 EEC on the assessment of the effects of certain public and private projects on the environment as modified by Directive 97/11 EC.118
8. Consumer Health Protection
The field of consumer health protection is strongly dominated by European law, i.e. by Regulation 178/2002 EC dealing with food (to be applied by the national authorities and courts since 1/1/2005), Directive 88/378 EEC dealing with the safety of toys, and Directive 2001/95 EC dealing with the safety of products (both implemented by the Act on Tools and Products Safety in 2004).119 Additives for food are regulated
115 S. Marr/A. Schwemer (note 1), 140 et seq.
116 C. Calliess (note 1), 189.
117 C. Calliess (note 1), 190.
118 G. Schmidt-Eichstaedt, Die Umweltvertrọglichkeitsprỹfung vor der Re- form: die Folgen für das Bau- und Planungsrecht, UPR 11+12 2000, 401 et seq.
119 U. Gundert-Remy/K. Henning (note 7), 116 et seq.; see furthermore Regulation 1642/2003.
by Directive 89/107 EEC, while sweeteners and colourings are specifi- cally dealt with by Directives 94/36 and 96/8 EC.120 Regulation 178/2002 was implemented by the creation of a new Food and Feed Products Code (Lebens- und Futtermittelgesetzbuch).121 All the perti- nent regulations and directives, as well as the measures implementing them in German law, deal with the mitigation of risks, dangers and haz- ards to consumer health, e.g. by licensing or notification procedures, by prohibitions, standard-setting, threshold values and by limited authori- zations.122 Thus Regulation 178/2002 contains elements of risk analysis and, in Art. 7, it establishes the precautionary principle.123 Furthermore, duties of notification, warning and withdrawal of products are men- tioned.124 From a scientific point of view, the requirements of proof should be much lower in cases of risks that may lead to a severe, some- times even irreversible damage to human health.125 In such cases the precautionary principle needs to be stressed in a particular way.
9. The Chemicals Act
§§ 1 and 17 of the Chemicals Act (Chemikaliengesetz – ChemG) deal with precautionary action. Producers of new substances are obliged to register and, under §§ 6 and 7 ChemG, to pass on information concern- ing various issues such as the description of substance features, proce- dures of evidence, potentially harmful effects emanating from the use of substances or other known effects on human beings or the environ- ment.126 By the passing of the Chemicals Act in 1980 the legislator had consciously decided against an authorization procedure and in favour of a mere registration procedure, thus balancing responsibility between
120 U. Gundert-Remy/K. Henning (note 7), 117.
121 W. Schroeder/M. Kraus, Das neue Lebensmittelrecht – Europarechtliche Grundlagen und Konsequenzen für das deutsche Recht, EuZW, 2005, 423 et seq.
122 U. Gundert-Remy/K. Henning (note 7), 117 et seq.; for a definition of the term “hazard” see Gelbert (note 22), 25 et seq.
123 For the exact requirements see W. Schroeder/M. Kraus (note 121), 424.
124 W. Schroeder/M. Kraus (note 121), 426.
125 U. Gundert-Remy/K. Henning (note 7), 127.
126 M. Brenner/A. Nehrig (note 19), 1027.