Definition and explanation of the principle of prevention
Der Principle of prevention is a fundamental principle in German and European law, particularly in environmental law and hazard prevention law. It obliges private individuals, and especially public authorities, to identify dangers to important legal interests such as life, health, environment, and public safety at an early stage and to prevent them from occurring through appropriate measures. The aim is to avoid harmful events in advance, rather than reacting only after they have occurred.
The principle of prevention comes to the forefront especially where danger situations cannot be predicted with absolute certainty or where waiting could lead to irreversible damage. The principle is closely related to the principle of hazard prevention, but it goes beyond it, as it addresses not only present but also future, not yet concretely defined risks.
Legal sources and basis
National law
In German law, the principle of prevention is an explicit and inherent component of numerous legal fields:
- Federal Immission Control Act (BImSchG): Section 5 BImSchG obliges operators of installations requiring approval to prevent harmful environmental effects according to the state of the art.
- Federal Nature Conservation Act (BNatSchG): Here the principle is reflected in the obligations to provide for the protection of nature and landscape.
- Hazard prevention law: The police laws of the federal government and the states anchor the preventive defense against dangers as a major pillar.
European law
In European law, the principle of prevention is particularly emphasized in Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) in environmental law: “The Union’s environmental policy is based on the principles of precaution and prevention, rectifying environmental damage at source and the polluter pays principle.”
International influences and other legal fields
International agreements, such as the Rio Declaration on Environment and Development (UNCED, 1992), as well as numerous sectoral laws such as the Water Resources Act (WHG), also integrate the principle of prevention.
Systematic classification and distinction
Relationship to other legal principles
Hazard prevention and precautionary principle
The principle of prevention is closely related to the precautionary principle which plays a central role especially in environmental law. While the principle of hazard prevention aims at defending against concrete dangers, the principle of prevention targets abstract dangers, i.e., risks that have not yet materialized or cannot be specifically identified. The precautionary principle goes a step further by obliging the avoidance of even potential sources of danger, even when a scientifically certain risk prognosis is not yet possible.
Principle of proportionality
The principle of prevention must be applied in the light of the principle of proportionality Measures for hazard prevention must be suitable, necessary, and appropriate.
Objectives
A key objective of the principle of prevention is the preservation and safeguarding of central legal interests such as life, physical integrity, environment, property, and public order through timely risk identification and minimization.
Areas of application of the principle of prevention
Environmental law
The principle of prevention is a defining feature of Environmental law on both the national and European level. Here, it obliges the early adoption of measures against environmental hazards and plays a significant role in the development of preventive environmental regulations, such as environmental impact assessments, emission limit values, and requirements for permits for industrial plants.
Hazard prevention and police law
Im Hazard prevention law the principle of prevention enables authorities to take action as soon as a dangerous situation is foreseeable, even if the danger is not yet concrete or imminent. Police laws expressly set out the obligation to prevent dangers to public safety or order.
Health and occupational safety
The principle of prevention also has an impact in employment and health & safety law. Employers are required by the Occupational Health and Safety Act (ArbSchG) to take appropriate precautions to proactively counter workplace accidents and health hazards (§ 3 ArbSchG).
Technology and product liability law
In technology and product safety law, the principle is found in the preventive obligations for manufacturers and distributors. Before placing products on the market, risks must be identified and minimized in accordance with technical standards.
Legal consequences, enforcement and limits of the principle of prevention
Obligations of Addressees
The main obligation is to take measures for hazard identification and prevention. The requirements range from organizational procedures (e.g. risk management) to technical equipment up to comprehensive permit requirements and monitoring duties by authorities.
Legal enforcement
The implementation of the principle of prevention is carried out particularly through:
- Administrative requirements and permit obligations
- Orders and prohibitory notices
- Establishment of monitoring systems for early detection
- Regular inspections and controls
Limits and proportionality
The principle of prevention is normatively designed to balance conflicts between the need for prevention and individual freedoms. Compliance with the principle of proportionality is essential here. Disproportionately burdensome measures, which are not justified in view of the prevailing danger, are not legally permissible. The specific requirements vary according to the potential for harm, the likelihood of occurrence, and the social significance of the asset to be protected.
Interactions with the polluter pays principle
The principle of prevention is often applied hand-in-hand with the polluter pays principle according to which the party that causes the risk or danger must bear the costs of preventive measures.
Significance in case law
The courts, in particular the Federal Administrative Court and the Federal Constitutional Court, recognize the principle of prevention as a central element of the state’s duty of protection. Numerous judgments have clarified that authorities must take appropriate protective measures in advance, if significant legal interests are at stake, even where there is uncertainty about the likelihood of damage.
Summary
The principle of prevention is an important cross-sectional principle of German and European law that is applied in numerous legal areas. It forms the basis of preventive measures for the protection of fundamental legal interests and, through early risk identification and minimization, ensures effective hazard prevention. Its implementation always requires careful balancing with other legal principles, especially the principle of proportionality. Within permitting procedures, general administrative actions, and private law duties, the principle of prevention thus constitutes a key element in protecting society from future and abstract risks.
Frequently asked questions
When does the principle of prevention apply in German law?
The principle of prevention is applied in particular in environmental law and occupational health and safety law. Its legal origin lies in international treaties such as the Treaty on the European Union (Art. 191(2) TFEU) and is concretized by national laws such as the Federal Immission Control Act (BImSchG), the Water Resources Act (WHG), or the Environmental Impact Assessment Act (UVPG). The principle obliges authorities and companies to avoid possible environmental damage or endangerment to third parties as far as possible before they occur. This is achieved through planning, approval procedures, and continuous risk assessments. In German law, the principle of prevention is also an essential interpretation criterion for indeterminate legal terms such as “necessary measures” or “appropriate precautions” as found in many protective laws. Moreover, it acts as a limit to official discretionary decisions and demands proactive risk management by responsible parties.
What legal obligations arise from the principle of prevention?
The principle of prevention results in differentiated obligations of review and action for various legal actors. Authorities are required, even at the stage of approving installations, planning infrastructure projects, or granting permits, to examine whether there are risks for humans and the environment associated with the project and whether all necessary preventive measures have been taken. Businesses and private persons, within the scope of their duty of care, must take all technically and economically reasonable precautionary measures to prevent avoidable damage. Infringement of these obligations may result not only in civil liability but also in extensive administrative measures and even criminal liability. The specific design of the obligations is determined by the respective specialized statute, such as BImSchG, the Circular Economy Act (KrWG), or the Product Safety Act (ProdSG).
How does the principle of prevention affect official discretion?
The principle of prevention limits official discretion in that authorities must minimize or eliminate certain risks even if a specific danger is not yet foreseeable. This means that when applying indeterminate legal terms, such as “necessary precautions to protect against harmful environmental effects”, authorities must be guided by the current state of science and technology and, in case of doubt, order preventive measures. The aim is not only to react to damage that has already occurred, but to anticipate and prevent possible harm. However, the judicially reviewable threshold of reasonableness applies so that measures must be proportionate, suitable, necessary, and appropriate.
What role does the state of science and technology play in relation to the principle of prevention?
The state of science and technology is a central benchmark for interpreting and applying the principle of prevention in German law. Particularly in environmental law (e.g., Section 3(6) BImSchG), operators and authorities are required to consider the current, generally recognized state of the art in order to identify risks early and address them appropriately. The state of science refers to the current state of research, while the state of technology encompasses the tried and tested methods and procedures in practice. In case of high uncertainty, the state of science is decisive for risk assessment and for preventive measures, even if these involve increased effort.
How are uncertainty and knowledge gaps in hazard prevention legally evaluated?
Uncertainties and knowledge gaps regarding potential dangers result in a shift of state protection duties under the principle of prevention. Authorities and companies are required, already in cases of well-founded suspicion, and especially where risks have not yet been conclusively clarified scientifically, to take preventive measures. This is implemented in national and European law as the so-called precautionary principle, and has been confirmed by case law (e.g., Federal Administrative Court, BVerwG 7 C 8.18). In practice, this means that proof of absolute safety is not required; rather, scientific uncertainty is sufficient to justify preventive measures, as long as these are proportionate.
What is the difference between the principle of prevention and the principle of hazard prevention?
The principle of prevention and the principle of hazard prevention are fundamentally distinct under German hazard prevention law. While the principle of hazard prevention aims at defending against concrete, already existing or imminent dangers, the principle of prevention anchors itself at the mere possibility of a danger arising, i.e., before a harmful event occurs. This means that even potential risks and uncertainties must be included in the risk assessment and measures to prevent damage must be taken before an acute danger exists. The principle of prevention requires a proactive approach, while the principle of hazard prevention requires a reactive one.
What judicial review is carried out in the application of the principle of prevention?
Judicial review focuses on whether the competent authority has duly observed the principle of prevention and properly exercised its discretion. The administrative court examines whether all relevant danger situations have been identified, the state of science and technology taken into account, and the measures taken were proportionate, suitable, and necessary. If obligations to take precautions are violated, judicial review may result in the annulment or amendment of administrative decisions. Relevant expert opinions and the latest scientific findings are regularly used in the proceedings to review the appropriateness of the authority’s precautionary measures.
