RECIEL 9 (2) 2000. ISSN 0962 6797 The Enforcement of the Precautionary Principle by German, French and Belgian Courts Nicolas de Sadeleer INTRODUCTION With the precautionary principle having grmving suc- cess in the international legal order, several national legislators in Europe have followed its success by increasingly setting it out in the recitals of environmen- tal codes of law or in framework laws. In German law, the principle has for some time now implicitly followed on from sectoral laws relating to listed installations, biotechnology, nudear energy and water mamlgement. In France and in Belgium, it has been introduced more recently by framework laws which initiated the codifi- cation of environmental law. When looking for substantive indications of its exist- ence, one finds that the principle is more clearly present in national legal regimes than ODe might think. By giving incrcasing importance to uncertainty, several legislative systems have already brought the principle into play without cxpressly refen·jng to it. The doctrine acknowledges that national biotechnology laws rep- resent one of its most important advances. It is, how- CVCl', at level oflitigation that the principle has been most successful. As will be demonstrated by discussing case law from Germany, France and Belgium, some legal regimes have already made a breakthrough by integrating uncertainty into tIleir reasoning, thus apply- ing the precautionary principle without necessarily being aware of it. Since the objective of the prindple is to govern decision making under conditions of uncer- tainty in an all-encompassing manner, the principle is also advancing, in a perhaps more striking manner, in other fields of law, such as health law,' FEDERAL REPUBLIC OF GERMANY Environmental law principles play an extremely important role in German envil'Onmentallaw. 2 In Ger- 1 For further comments about the enforcement of the enVironmental law principles by national courts in Europe, cf. N. de Sadeleer, LIi1s Principes du Pol/uli1ur-p<'YIi1w, de Prevenlion el de PrecOIulion, (Bruylant/Agence Unlversitaire Frollooptlone, 1999). 'B. Bander. R. Sparwsssar and E. Engel, 'Hauptpdnlipen des UmweltrecMts', in Umwellrechl, 3rd edn, (Heidelberg, R. MUlier, 1995), many, the concepts of precaution and prevention tend to be merged into the term VOf'sorge. Nonetheless, Ger- man legal literature distinguishes between prevention (Prduention), which refers to foreseeing known dang- ers, and precaution (Vi1rs9I'ge), which does not require certainty of the occurrence of the risk which is being provided against. As we will see, this distinction has been confirmed by case law. For the administrative agencies concerned with listed installations, nuclear plants and biotechnology, Ger- man case law has succeeded in fashioning a true legal principle of precaution on the basis of texts which were not intended for this purpose. Article 5.2 of the Federal Emission Control Law (Bundesimmissionsschutz. gesetz), for instance, specifies that: 'Installations sub- ject to authorization are to be constructed and operated in such a manner that precaution is taken against dam- aging environmental effects ,.:. at 24; S. Boehmer-Christianaen, 'The Pr<lCButlonary Principle In Gar. many', in T. O'Rlordan and J. Cameron, Int9rpreling the Precautionary Principle, (London, Cameron and May, 1994), at 31; M. Bothe and H. Scharp, 'La juridiction administrative allemande empo}cha.-t·elle le de I'utlllsatlon paclflque de I'energie nucleaire,', 4 Revue J(Jrldiq(Je de l'Envlronnement (1986), 420; M. Kloepier, 'Oia Pdncipien im einzalnen', In UmWllltrecht, (MOnchen, 1989), at 74: K.- H. Ladeur. 'Zur ProzeduralisianJllg des Vorsorgebegriffs durch Rlslko- vergleiah und Prioritiitensetzung', in Jahrbuch UmWfl/t. (Heid<llberg, Technikel8, 1994), at 297; O. Murswiek. 'Dar Bund und die Schutz der natarlichen Lebensgrundlagen·. In M. Saahs Grundgesslz - Kommlilller, (Munich, Beck'selle Verlagsbuchhand- lung, 1996), at 653; E. Rahblnder, 'Vorsorge Prinzlpe und Praventiva Umweltpolitiak', in U.E. Slmonls, Prliveilllve Umwel/polilik, (1968), at 129-141: E. Rallblllder, 'Prinzipian des Umweltrechts in dar Rech/s- prechung des Sundesverwaltungsgerlch/s: des Voraorgepr;nzip als Baisptel', in B(Jrgcr·Ric/JIf>r-Slaal, Feslsclm"fl f(Jr Horsl Sendler, (MUnich, Hg. Franssen/RedekerfSchllchtellWilk<l, 1991). et 269: A. Raich. Gefahr-Rls!ko-Raslrlsiko, UmweltrechtHche Studien, No. 5, (OOsseldorf, Wemar-Verlag, 1989); G. Roller. Genshmlgungsauf- heb(Jng und Enlschlidig(Jng /m Alomrecht, (Baden-Bijden, Nomos, Frankfurter, Schrff!en zum Umwaltrecht. 1994); K. Von Moltke, 'The Vorsorgeprinzip In Wes! German Environmental Policy', in Royal Commission on Environmental Pollution, 12th Report: Best Practi- cable Environmental Option, Cmnd 310. (London, HMSO, 1966); H. Von Lesner, 'Vorsorgeprlnzlp', in Handworlb(Jch des Umwellrechts, Bd. 11, (Berlin, 1968), at 1086; G. Roller, 'Environmental Law Prin- ciples in the Jurlspruqence of German Administrative Courts', 2 ELNI News/el/rH (1999) 29. © lid. 2000. 108 Cowley ROad. OxfOrd OX4 lJF, UK and 350 Main Streel. Maiden. MA 02146, USA. 144 REC/EL 9 (2) 2000 From a perspective of precaution, the German Federal Administrative Tribunal (Bundesvcf'waltllngsgef'icht) accepts the use of administrative measures which limit freedom of action and which are btken without clear proof of a causal link between the activity being lated and the environmental damage. This case law is particularly intere&1ing in that it draws a rather fine dis- tinction between dangers, risks and residnal risks, which will be considered later in this section. In a judgment of 17 February 1978 concerning the oper- ation of a coal-fired power plant,3 the German Federal Administrative Tribunal ruled that: according to Article 5 of the Federal Emission Control Law, installations must be established and operated in such a way that hannful eff!;'.('ts on the environment a.nd other dangers, disadvantages and considerable nuisances are avoided and th!lt the necessa.ry precautions are taken against pollution, particularly by limiting emissions on the basis of best avail- able techniques. The same tribunal, in a judgment of 14 February 1984,4 specified the conditions under which it was possible to appeal to the principle: Precaution .. is indicated when there are sufficient grounds to believe that there is the danger that emissions might lead to environmental damage -- eveu if a causal link has not been proven for the CMe \lnder consideration. The precautionHry also made remarkable pro- gress in the area of nuclear law, due to the legal interpretation of Article 7 of Gernlany's Atomic Energy Law (Atomgesetz). This provides that authorization may only be granted if 'the precautions demanded by the current level of scientific and technical knowledge are taken againl>1 possible damage caused by the lishment or operation of the inl>1allation'. The Federal Constitutional Court (Bundesverfas· slmgsgericht) ruled, in a judgment of 8 August 1978 relating to the operation of the Kalkar nuclear reactor, that Article 7 of the Atomic Energy Law was consistent with the Constitution and aimed to ensure the optimal defence against dangers and the greatest precaution against risks, based on the protection afforded by fun- damental constitutional rights, including the right to the protection of health,S The Constitutional COUit also ruled, in the same case, that indeterminate concepts such as 'precaution' and 'the current level of scientific and technical knowledge' should be made more precise by administrative authorities rather than by judges, and that it was therefore legitimate to confer upon the 'BVerGE, 17 Fetlruary 1978, Bd. 55 (1978), at 250. 'BVerGE, 1"( February 1984, Bd. 69 (1985). a143. BVerGE 49, 89 (143) and 53, 30 (56156). It) BlackweJl Publishers Ltd. 2000. ENFORCEMENT OF THE PRECAUTIONARY PRINCIPLE executive the task of implementing the principles laid down by the law; Evaluation of the pl'obability of future damage due to tIle construction and operation of a nuclear installation must take account of similar situations in the past. In the absence of specific past situations, the evaluation must he based on simulations. To the extent that in this field only approxi- millions, rather than certllinties, exist, any new event as well as My ncw d('Velopment in knowledge should be takell into account as it al'ises. Thns, to require legislation definiti\'ely to exclude any impainneot of a fundnmental right (G'rjtJllf'dlln.g) would make it for the ndmiuistrat- ive authorities to grant nn authorization. It is therefore pro- per to undertake a reasonable assessment of the rtsks. As concerns injurious effects on life, health and goods, the fed- erallegislator established an assessment scale based on optimal prevention of potential dangers and risks as set out in Artide 1 and 7 of the Atomic Energy Law: anthori1.ations may not be granted unless, based on the current level of scientific Md technical knowledge, the occurrence of dam- age may be practically excluded. The contribution of the judgment is fundamental on this latter point, Precautionary measures must be adopted with reference to the latest scientific edge. If they cannot be carried out because of technical difficulties, authorization must simply be refused, based on the fact that, as the Court stressed, caution is not limited by what is technically achievable'. That said, the Constitutional Court judged that it was not the function of tribunals to substitute their judg- ment for that of political bodies, particularly in the absence of legal criteria, Moreover, ifthe legislator had to exclude all danger in order to secure fundamental rights, he would disregard the potential of human intel- ligence and would forbid practically any State authoriz- ation of technical operations. Risks shonld therefore be against a criteria of practical reasoning (Anschdtzullgen anhand praktischef' Vermmft) - that is, a reasonable assessment. Beyond the threshold of practical reason, uncertainties are inevitable; these are the residual risks (Restl'isiko) that every citizen must tolerate as a socially fair distribution of burdens (sozialaddquate Last·en). The basic ment is thus: if a residual risk must be tolef1\ted by everyone, no one has a subjedive right to contest exposure to such a risk. Despite the Constitutional Com1's judgment, the majority of German legal opinion in the early 1980s continued to consider that Article 7 of the Atomic Energy Law only covered protection from or prevention of hazards (Gefahrelwbwel!1'); that is, the adoption of policy measures needed to avoid known dangers. 111i8 provision could not cover the anticipation of risks 145