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The European Union’s policy

In these cases the state need not wait for certainty but can respond in accordance with the principle of proportionality to that which is giving rise to the concern. The precautionary principle does not lay out how the state is to do this in detail. The legislators must rather decide how to translate the precautionary principle into law and how to instrumentalise it. The spectrum of possible responses ranges from measures aimed at obtaining information to those which prohibit a particular activity or, for example, ban certain hazardous substances. The precautionary principle can thereby lower the standard of proof and make it possible to shift the burden of proof: For the state to act, the conviction that a risk is actually real and present is not required. Plausible or serious indications of a risk to the environment is instead sufficient. If this exists, it is then incumbent on the causer to refute the substantiated indications of specific cause-and effect relationships and to shatter the assumptions which have given rise to the concern.

The legislators have enshrined the precautionary principle as a legal provision in environmental law by means of various regulations, rendered it specific and implemented it as an instrument. It has at the same time created the necessary legal basis for the state to encroach on the rights of individuals in its pursuit of precautionary measures. Examples of explicit implementation are:

  • section 5 para. 1 no. 2  of the Federal Immission Control Act (Bundes-Immissionsschutzgesetz), which obliges the operators of plants for which approval is required to take precautions against harmful environmental impacts and
  • the special precautionary duty in section 5 para. 2 of the Federal Water Act (Wasserhaushaltsgesetz) which obliges those who are potentially at risk from floods to take their own precautionary measures against deleterious consequences.