1. Material Content and Limits of the Precautionary Principle in German Law
For many years the necessity to reflect on the conditions and limits of the precautionary principle has become apparent.10 Being a binding, but rather abstract legal concept it has been adapted to many different cir- cumstances and largely depends on its concrete realization through various statutes.11 § 4 of the legal expert draft of a General Part of an Environmental Code (Umweltgesetzbuch – Allgemeiner Teil – Entwurf – UGB-AT-E) defines the precautionary principle as the requirement to strive towards precluding preventable or unforeseeable environmental degradation by adequate measures, in particular by long-term planning and by emission limitations according to the technical state of the art.12
§ 5 (1) of the Draft of the Commission on the Creation of an Environ- mental Code (UBG-KomE) in a more all-encompassing way maintains the necessity to prevent or reduce risks to the environment and human health, in particular by farsighted measures, by planning and by ade- quately applied technical measures.13 § 5 (2) states that “precaution serves the protection of sensitive constituents of the balance of na- ture”.14 Although these draft laws have not been enacted yet, they pro-
10 F. Ossenbühl (note 9), 166 et seq.;M. Kloepfer, Umweltschutz- und Ver- fassungsrecht, DVBl. 1988, 305 et seq.
11 S. Marr/A. Schwemer (note 1), 133; for an overview on the function of le- gal principles and on a typology concerning the precautionary principle see U.
Di Fabio (note 2), 813 et seq.
12 M. Kloepfer, Gesetzgebung im Rechtsstaat, in: VVDStRL, 1982, Vol. 40, 138 et seq.;W. Hoppe/M. Beckmann/P. Kauch, Umweltrecht, 2000.
13 W. Hoppe/M. Beckmann/P. Kauch (note 12), Rn. 134.
14 S. Marr/A. Schwemer (note 1), 138.
vide a good basis for understanding the nature of the precautionary principle.15
From a scientific point of view, risks are assessed by multiplying the probability of damage by the severity of that damage.16 In German law there is a discussion whether the precautionary principle should only be understood as precaution against risks or additionally as requiring pre- cautions to ensure the preservation of resources, which is related to the term “sustainable development”.17 Risk precaution basically means shifting the classical notion of danger prevention towards areas where a danger does not yet exist, although it appears very hard in practice to differentiate between the two situations.18 Some authors identify a cer- tain tendency of police law, which traditionally has dealt with dangers, to increasingly adopt the structure of risk administration.19 According to a statement of Di Fabio, “the great ‘softener’ of the precautionary principle has for a long time infiltrated the field of danger preven- tion”.20 Others state that the precautionary principle does not aim at achieving something other than danger prevention, but that it requires different instruments and follows different categories.21
However, the distinction between the two terms of risk precaution and danger prevention remains important in German law, since they are
15 M. Bửhm (note 3), 613.
16 U. Gundert-Remy/K. Henning (note 7), 122.
17 U. Di Fabio, Gefahr, Vorsorge, Risiko: Die Gefahrenabwehr unter dem Einfluss des Vorsorgeprinzips, in: Jura 1996, 566, at 570 et seq.;G. Lübbe-Wolff (note 2), 53 et seq., mentions preventive action on the basis of uncertainty and the non-exploitation of critical load thresholds as two main aspects of the pre- cautionary principle; for the aspect of resource precaution see also P. Stoll (note 3), 323 et seq.
18 P. Stoll (note 3), 322; R. Wahl/I. Appel (note 3), 72 et seq.;W. Kửck, Risi- kovorsorge als Staatsaufgabe, AửR 121 (1996) 16 et seq.;B. Stỹer (note 7), 1535;
W. Hoppe/M. Beckmann/P. Kauch (note 12), 40; U. Di Fabio (note 17), 566 et seq., who deals with the borderline situations of a suspected danger (Gefahren- verdacht), apparent danger (Anscheinsgefahr) and fictitious danger (Scheinge- fahr); see further M. Bửhm (note 3), 612, who claims that the legally necessary distinction between danger and precaution has led to substantial difficulties of differentiation.
19 M. Brenner/A. Nehrig, Das Risiko im ửffentlichen Recht, DệV 2003, 1030; R. Pitschas, Polizeirecht im kooperativen Staat, DệV 2002, 221 et seq.
20 U. Di Fabio (note 17), 566 (569); C. Calliess (note 1), 168.
21 G. Lübbe-Wolff (note 2), 51 et seq.
connected to very different ideas concerning the balancing of interests and to different yardsticks of proportionality.22 Furthermore, provi- sions containing the precautionary principle usually do not confer rights upon individuals.23 While in 1985 Murswiek still claimed that risk as opposed to danger was not a legal term, this situation has since then changed dramatically.24 Thus, many new legal statutes have incorpo- rated the term “risk”, and in administrative law manifold approaches of
“risk law” have been developed.25 While a clear-cut definition has still not been found, there is a consensus that risk may be characterized as a situation which, presupposing an undisturbed chain of events, will po- tentially lead to environmental degradation.26 In turn, a danger is de- fined as a situation which will, with a sufficient probability, cause dam- age to legally protected goods of public security, if the cause of action is not impeded.27 Thus, a prognosis or a rule of experience is applied on a subjective-evaluative basis, whereby the threshold concerning the re- quired degree of probability is lower when the feared damage is more severe, and vice versa.28 In these cases, as opposed to cases of risk pre- caution,locus standi is granted even to persons not directly affected by
22 P. Stoll (note 3), 322; N. de Sadeleer, The Enforcement of the Precaution- ary Principle by German, French and Belgian Courts, RECIEL 9 (2) 2000, 144 et seq.;W. Hoppe/M. Beckmann/P. Kauch (note 12), 40; S. Marr/A. Schwemer (note 1), 134, who call the distinction of danger prevention, risk prevention and residual risk the German three step safety concept; BVerwGE 69, 37, at 62; 72, 300, at 315; for attempts to distinguish the two notions see further J. Gelbert, Die Risikobewọltigung im Lebensmittelrecht auf internationaler, europọischer und nationaler Ebene, 2001, 19 et seq.; P. Hansmersman, Risikovorsorge im Spannungsfeld von Gesundheitsschutz und freiem Warenverkehr. – Dargestellt am Beispiel der Entsorgung radioaktiver Abfọlle, 2005, 7 et seq.
23 W. Hoppe/M. Beckmann/P. Kauch (note 12), 40; BVerwGE 65, 313 (320);
OVG Lüneburg, Decision of 28.2.1985 – 7 B 64/84 –; an exception is atomic en- ergy law, where precaution and risk precaution are interconnected in § 7 II Nr.
3 AtG, see W. Hoppe/M. Beckmann /P. Kauch (note 12), 40; BVerwGE 72, 300, at 315.
24 D. Murswiek, Staatliche Verantwortung 1985, 80; C. Calliess (note 1), 163.
25 C. Calliess (note 1), 163.
26 C. Calliess (note 1), 163; J. Gelbert (note 22), 17.
27 BVerwGE 45, 51 (57); C. Calliess (note 1), 155; J. Gelbert (note 22), 15 et seq.
28 C. Calliess (note 1), 156; see further S. Marr/A. Schwemer (note 1), 134.
an administrative authorization.29 This conception clearly reaches its limits in the field of environmental law and related fields of precaution- ary action, where a high degree of insecurity can be observed and the probability of dangers cannot always be calculated.30 While the notion of “caution” may be associated with danger prevention, “precaution”
appears to be the appropriate term for risk management.31 If one under- stands precaution as being logically prior to danger prevention, its aim may be considered as even preventing the occurrence of danger instead of the damage itself.32
2. The Limits of Precaution: the Residual Risk
The first sentence of the final report of the Commission for the Re- structuring of Procedures and Structures of Risk Assessment and Stan- dard Setting in Health Related Environmental Protection in the Federal Republic of Germany (so-called “Risk Commission”) reads: “Life without risk is inconceivable”.33 The limit of precautionary action on the basis of uncertainty is therefore, according to this opinion, the so- called residual risk (Restrisiko).34 Strictly speaking, the residual risk concerns three categories: risks beyond the limits of human recognition, risks the realization of which can be excluded on the basis of common sense, and finally risks containing an uncertainty as to the potentially resulting damage and the probability of their realization.35 As a conse- quence of the Kalkar decision of the German Federal Constitutional Court, the residual risk denominates the field below the legally required minimum standard, which is legally accepted.36 The notion of a residual risk results from the necessity to evaluate and assess in a normative way which of the numerous risks existing in a certain situation must be ac-
29 S. Marr/A. Schwemer (note 1), 134 et seq.
30 C. Calliess (note 1), 157 f; W. Kửck (note 18), 17 et seq.;K. Ladeur, Risi- kowissen und Risikoentscheidung, KritV 1991, 241 et seq., rightly states that this means arriving at decisions by taking into account the lack of knowledge.
31 F. Ossenbühl (note 9), 161, at 162 et seq.;C. Calliess (note 1), 169.
32 C. Calliess (note 1), 169.
33 M. Bửhm (note 3), 609.
34 S. Marr/A. Schwemer (note 1), 135; BVerfGE 49, 143.
35 C. Calliess (note 1), 164 et seq.
36 BVerfGE 49, 89 (143).
cepted and which ones shall be tackled.37 According to the Kalkar deci- sion, such an evaluation has to be undertaken on the basis of common sense.38 This doctrine states that one cannot demand the elimination of all risks, as that is not possible within the limits of human recognition and would render any technological progress impossible.39 If according to the current scientific and technological state of the art the occurrence of damage appears practically impossible, the residual risk has to be ac- cepted as being beyond human recognition and thus as a socially ade- quate burden.40