Kalkar Case I (1978)
49 BVerfGE 89.
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Donald P Kommers
[Section 7 (I) of the Atomic Energy Act provides that any person who constructs or operates an installation for the production or fission of nuclear fuel requires a license. Authorities may grant such a license wider section 7 (2) only if the licensee “takes every necessary precaution in the light of existing scientific knowledge and technology to prevent damage resulting from the construction and operation of the installation.” On December 18, 1972, licensing authorities granted a first partial construction permit for the SNR-300 fast breeder nuclear power station in Kalkar.
The owner of a farm within a mile of the station sued to have the reactor’s license revoked because the plant failed to follow certain administrative procedures under section 7 (2). A local administrative court denied his claim, and rejected the argument that these acts of omission invaded his rights to life and personality. In view of the awesome implications for public safety and the rights of citizens involved in the production and recycling of plutonium, however, the North Rhine-Westphalia Administrative Court felt that parliament had a duty to establish more concrete criteria for the construction of fit breeder reactors than those provided in the Atomic Energy Act. The court of appeals referred this question to the Constitutional Court.
Judgment of the Second Senate. . . .
B. II. Section 7, paragraphs I and 2, of the Atomic Energy Act are compatible with the Basic Law.
I. (a) The Basic Law does not confer on parliament total priority in fundamental decision making. By insisting upon separation of powers it imposes limits on parliament’s authority. The Basic Law relegates far-reaching decisions, particularly those of a political nature, to other supreme constitutional organs. Examples include the chancellor’s power to determine general policy guidelines (Article 65 [I]) and the presidents authority to dissolve the Bundestag (Article 68) and declare a state of legislative emergency (Article 81)…. The Bundestag may check the exercise of such powers by electing a new chancellor and bringing down the federal government…. A monistic theory of power, incorrectly deduced from the principle of democracy, which would confer a monopoly of decision-making power on Parliament must not undermine the concrete distribution and balance of political power guaranteed by the Basic Law. Other institutions and organs of political authority do not lack democratic legitimacy [merely] because parliamentary delegates are the only officials elected by direct popular vote. Legislative, executive, and judicial organs derive their institutional and functional democratic legitimacy from Article 20 (2) of the Basic Law… Nevertheless, we are able to deduce from the principle of parliamentary democracy that parliament and its decisions do have priority vis-à-vis other branches [of government]. We hold this to be a principle of interpretation transcending all concrete allocations of authority…
(b) The case at bar deals with legislation, an area where the Basic Law specifically allocates authority to the Bundestag. It follows from the principle of legality that executive acts which significantly affect the freedom and equality of citizens must be based on law.
2. Section 7, paragraphs I and 2, of the Atomic Energy Act do not violate this principle….
(a) Separation of powers is not specifically mentioned in the Constitution. Its validity, however, follows from the terms of Article 20 (3). The interpretation of this principle has undergone change in recent years, especially in the light of its democratic component. Today our established case law makes clear that the legislature is obligated… to make all crucial decisions in fundamental normative areas, especially in those cases where basic rights become subject to governmental regulation…. To determine those areas in which governmental acts require a basis in law, [one must] consider the subject matter and “intensity” of the planned or enacted regulation, particularly taking into account the fundamental rights granted by the Basic Law.
[One] must also use similar criteria to judge whether the legislature has established the essential legal standards for the matter to be regulated as the constitutional requirement of a specific enactment mandates and has not left this for the administration to determine. [The principle of constitutional requirement of specific enactment (Gesetzesvorbehalt) means that only the legislature may enact statutory restraints upon fundamental rights contained in the Constitution where the language of the Constitution expressly provides for such restraints.]
(b) The normative decision whether to permit the peaceful uses of nuclear energy in the Federal Republic of Germany is a fundamental and essential decision in the sense that a specific enactment is constitutionally required. This is so because of [the decision’s] far-reaching effects on citizens, in particular on their sphere of freedom and equality, as well as on their general living conditions; and because of the kind and intensity of regulation necessarily connected with it. Only the legislature has the authority to make such a decision. The same applies to regulations fixing the licensing of nuclear installations within the meaning of section 7 (I) of the Atomic Energy Act….
The legislature has decided to promote the peaceful use of nuclear energy by means of a formally enacted law – the Atomic Energy Act. This decision includes fast breeder reactors….
Contrary to the opinion of the court below, the legislature was not bound to include in the act a provision declaring that it was ready to accept the risks possibly resulting from such a reactor. The legislature bears the political responsibility for the consequences of its decision….
… In direct relation to [whether this norm is unconstitutional because it is too vague and thus fails to meet the substantive constitutional requirement of specific enactment] is whether section 7 of the Atomic Energy Act contains essentials precise enough to permit the licensing of the fast breeder. We must answer in the affirmative. Sections 7 (I) and 7 (2) regulate all essential mid fundamental questions of the licensing procedure and fix with sufficient precision the requirements for the construction, operation, and modification of nuclear installations, including fast breeder reactors.
(c) . . . If the legislature enacts a policy on the basis of which new, unanticipated developments have been called into question, the Constitution may oblige the legislature to re-examine whether the original policy is to he be upheld in the light of changed circumstances….
It is constitutionally unobjectionable that the legislature has not yet examined the fast breeder technology and its possible consequences – for instance, the issue of atomic waste disposal. As the federal government has always emphasised, the reactor to be built in Kalkar is only a prototype. The construction and operation of this reactor do not mean a decision to use it on a large industrial scale. [The reator’s purpose is rather to help to prepare for the decision which [the legislature] will make in the 1990s at the earliest. [We] cannot now foresee whether the court is correct in assuming that the industrial use of the fast breeder may lead to dangerous constraints and consequences. Suitable means may be available [in the future] to counter the dangers to individual freedoms which the lower court fears.
Taking evidence on these questions would serve little purpose since these are mainly related to possible political developments of the most general nature.
Only the future will show whether this decision to implement breeder technology will be useful or harmful. In this necessarily uncertain situation the legislature and the government primarily have the political responsibility for making what they consider pragmatic decisions within the confines of their respective authority. Under these circumstances, it is not the function of the courts to substitute their judgment for that of the political branches when assessing the situation, because legal criteria for such decisions do not exist.
Where reasonable doubts are possible – whether or not the dangers feared by the court below materialise – all organs of the state, and thus the legislature as well, have the constitutional duty to make every effort to recognise possible dangers in time and to counter them by constitutional means. If, in the future, some probability of these dangers exists – in the judgment of the . . . responsible political organs – the legislature would again have a duty to act….
3. Sections 7 (I) and 7 (2) of the Atomic Energy Act do not violate the constitutional requirement that laws be drafted with sufficient precision.
(b) . . . The provisions of the statute in question make use of undefined legal terms such as “reliability” and “necessary knowledge” [unbestimmite Rechtergriffe] – terms which are not precisely defined. [The analysis centers on whether such terms should be void on account of their vagueness.] The use of these terms is constitutionally permissible. The degree of precision required depends on the nature of the matter to be regulated and the intensity of the regulation ….. [In any case, such terminology] has been traditionally subject to interpretation by the legislature, executive, and judiciary…
Section 7 (2), no. 3, is also sufficiently precise. This provision relates to the field of technical safety. Any legislative regulation of this field … must confront the particular difficulties which reside in the nature of the matter to be regulated.
When fixing norms which keep abreast of scientific and technological developments, legislature has a number of options available for making these development legally binding. These norms have one common feature: by using undefined legal terms [the legislature] shifts the difficulties involved in giving these terms specific binding content and adjusting them to scientific and technological developments to the administrative and – should litigation arise – the judicial levels. Thus, administrative authorities and courts have to make up the ‘regulatory deficit incurred by the legislature.
The law may, for example, refer to “generally recognised technical rules”. In this case, agencies and courts may limit themselves to ascertaining the majority opinion among practising technicians when deciding whether or not the technical work materials may be brought into the stream of commerce. This criterion has the disadvantage of lagging behind developing technology.
[One way to] avoid this drawback [is] to refer [instead] to the “state of the art which does not require general recognition and practical confirmation but makes it more difficult for courts and agencies to establish and assess relevant facts.
Section 7 (2), no. 3, of the Atomic Energy Act goes a step further by referring to ‘existing scientific knowledge’, which requires the legislature to make even stronger efforts to keep regulations abreast of scientific and technological developments.
It is within the legislature’s discretion to use either undefined legal terms or precise terminology. Good reasons support the, use of undefined legal terms in section 7 (2), no. 3. The wording of section 7 (2), no. 3, of the Atomic Energy Act, which is open to future developments, serves as a dynamic protection of fundamental rights. It furthers the protective purpose of section I, no. 2, of the Atomic Energy Act in the best possible way currently available. To fix a safety standard by establishing rigid rules, if that is even possible, would impede rather than promote technical development and adequate safeguards for fundamental rights. Setting up rigid rules would be regression at the expense of safety. [We must] tolerate some uncertainty of the law, at least where the legislature would otherwise be forced to adopt impractical regulations at all. Both [alternatives] would eventually impair the protection of fundamental rights….
These considerations apply equally to the so-called residual risk which [one] must consider in the context of section 7 (2), no. 3. While this provision does not allow for residual damage resulting from the construction or operation of a nuclear installation, it permits licensing even if the probability of future damage cannot be precluded with absolute certainty. The law leaves it to the executive to determine… the kind and extent of the risk which may or may not be accepted. With regard to the vagueness doctrine, which has the primary constitutional function of defining when the executive is to act vis-à-vis the legislature, Section 7 (2) does not violate the constitution – especially in the light of the subject matter to be regulated.
It follows from the protective purpose of section I, nos. 2 and 3, as well as section 7 (2) and other provisions of the Atomic Energy Act, that the legislature wants all damage, danger, and risk specific to the installation and operation [of the reactor] to be considered and that the probability of an accident, which may be accepted when licensing an installation, must be as low as possible. Indeed, this probability must be lower as the type and consequences of harm become more serious. By referring to existing scientific knowledge and technology, the law forces the executive [agency] to observe the principle of the best possible protection against dangers and risks. The legislature was not bound, however, to define with precision the possible kinds and factors of risk. . The assessment of risks resulting from a nuclear installation depends upon a multitude of circumstances, many of which are constantly evolving…. In the interest of flexible protection of life and property the executive must assess and constantly adjust safety measures – a task it is better equipped to perform than the legislature. The unavoidable degree of uncertainty in assessing such risks resides in the nature of human knowledge.