Occupational Health and Safety in Germany: A Risk-based Approach?

This dissertation explores to what extent Germany’s occupational health and safety (OHS) regime adopts risk-based strategies. It also investigates the factors which shape the uptake of risk-based arguments in Germany. The study’s second objective is to investigate the factors which shape the uptake of risk-based arguments in Germany. Hence, it focuses on the way institutional structures shape regulatory components, thereby influencing risk-based thinking and activities.

Occupational Health and Safety
in Germany:
A Risk-Based Approach?
Sarah Haunert
This dissertation is submitted as part of a MSc degree in Risk
Analysis at King’s College London
August 2012

2

3
Table of Contents
List of Figures ..............................................................................................................
Abbreviations.................................................................................................................
Abstract .........................................................................................................................
Acknowledgements ......................................................................................................
Occupational Health and Safety in Germany: ..........................................................
A Risk-based Approach? .............................................................................................
CHAPTER 1: Introduction ...........................................................................................
CHAPTER 2: Literature Review ..................................................................................
2.1. Defining Risk and Risk-based Regulation .............................................................
2.2. Risk-based Regulation: A Matter of Different Worldviews? ..................................
CHAPTER 3: Methodology ..........................................................................................
3.1. Methods ................................................................................................................
3.2. Weaknesses and Potential Biases of the Methodology ..........................................
CHAPTER 4 – Occupational Health and Safety in Germany ..................................
4.1. Organisation and Structure ..................................................................................
4.4.1. EU Framework Directive ................................................................................
4.4.2. Occupational Health and Safety Act ...............................................................
4.4.3. Federalism ......................................................................................................
4.4.4. Dualism ...........................................................................................................
4.2. OHS in Practice.....................................................................................................
4.2.1. General Approach and Methods .....................................................................
4.3. Special Case of Carcinogenic Substances: The Risk Concept ..............................
4.4. Tolerability of Risk Framework ............................................................................
CHAPTER 5: Analysis ..................................................................................................
5.1. Risk-based Approach ............................................................................................
5.1.1. Science-based Assessments ............................................................................

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5.1.2. Quantification of Risk .....................................................................................
5.1.3. Cost-Benefit Analysis ......................................................................................
5.2. Risk Acceptance ....................................................................................................
CHAPTER 6: Discussion ..............................................................................................
6.1. To What Extent is Germany Risk-based? ..............................................................
6.1.1. Hazard-based v. Risk-based Regulation ..........................................................
6.2. Institutional Factors ..............................................................................................
6.2.1. Outcome-based v. Process-based ....................................................................
6.2.2. Other Shaping Factors and Shortcomings ......................................................
CHAPTER 7: Conclusion..............................................................................................
APPENDIX 1: Forms ....................................................................................................
Geography Research Screening Form .........................................................................
Ethical Approval Notification .......................................................................................
Geography Risk Assessment Form ...............................................................................
APPENDIX 2: Codes for Interview Participants ......................................................
APPENDIX 3: Glossary .................................................................................................
Reference List ..............................................................................................................

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List of Figures
Figure 1: Overview of the German OHS System ...........................................................
Figure 2: The Risk Concept for Carcinogenic Substances ............................................
Figure 3: HSE’s ToR Framework ...................................................................................
Abbreviations
AGS Ausschuss für Gefahrstoffe (Committee on Hazardous Substances)
AGW Arbeitsplatzgrenzwerte (Occupational Exposure Limits)
ALARP As low as reasonably possible
ArbSchG Arbeitsschutzgesetz (Occupational Health and Safety Act)
ASiG Arbeitssicherheitgesetz (Safety at Work Act)
BAuA Bundesanstalt für Arbeitsschutz und Arbeitsmedizin (Federal Institute of Occupational
Health and Safety)
BDA Bundesvereinigung der Deutschen Arbeitgeberverbände (Confederation of German
Employers' Associations)
BMAS Bundesministerium für Arbeit und Soziales (Federal Ministry for Labour and Social Affairs)
CBA Cost-Benefit Analysis
DGB Deutscher Gewerkschaftsbund (The Confederation of German Trade Unions)
DGUV Deutsche Gesetzliche Unfallversicherung (German Statutory Accident Insurance)
EU European Union
EU-OSHA European Agency for Safety and Health at Work
GDA Gemeinsame Deutsche Arbeitsschutzstrategie (Joint German Occupational Safety and
Health Strategy)
GefStoffV Gefahrstoffverordnung (Hazardous Substances Regulation)
HSE Health and Safety Executive
LASI Länderausschuss für Arbeitsschutz und Sicherheitstechnik (Commission for occupational
safety and safety engineering of the federal states)

6
LSV Landwirtschaftliche Sozialversicherung (Agricultural Social Insurance Fund)
MEL Maximum Exposure Limits
OES Occupational Exposure Standard
QRA Quantitative Risk Assessment
ToR Tolerability of Risk
TRK Technische Richtkonzentrationen (technical guidance concentrations)

7
Abstract
Risk-based regulation is often hailed as leading to more efficiency and rationality by o
limitations of state intervention and by allocating resources according to where proba
is the greatest. Due to this apparent appeal, many suggest that risk-based regu
potential to turn into a universal and homogeneous form of governance. By foc
Germany’soccupationalhealthand safetyregime,this studyattemptsto challengesuch
assumptions. It explores to what extent Germany’s OHS follows a risk-based approach
on empirical research, the study shows how normative institutions shape the acceptan
based arguments in Germany.
Acknowledgements
I am grateful to my supervisor Professor Henry Rothstein for his encouragemen
guidancewhilstundertakingthe research.In addition,I am greatlyindebtedto all the
participants, for their enthusiasm in agreeing to participate in this study and for their
insights and comments. Many thanks also go to my father for his invaluable support th
the project.

Sarah Haunert (1151941)
8
Occupational Health and Safety in
Germany:
A Risk-based Approach?
CHAPTER 1: Introduction
Risk-based strategies have increasingly gained in popularity in a number of countries.
promoted as leading to greater efficiency in the management of resources and
quality and rationality in regulation (Braithwaite et al., 2007). These risk-based
consist of a wide array of implementation and enforcement activities, thereby taking t
risk-based regulation. They involve different players, both private and public (Braithw
2007; Döhler & Wegrich, 2010). With the emergence of risk-based strategies w
witnessing the rise of the ‘regulatory state’, a new institutional and policy style
government interferes with social processes and corrects market failures so as
minimise adverse consequences to health (Hood et al., 2001).
In its idealised form, risk-based regulation provides an evidence-based means of mana
use of resources and it prioritises action towards the highest risks in a transparent, sy
defensible approach (Black & Baldwin, 2010). In this regard, the international ‘better
movement’ seeks to establish an efficient use of resources to generate enhance
performance, which recognises the complexity of modern risks and challenges thereby
‘better’ regulation (Döhler & Wegrich, 2010). The OECD, for example, claims that a ri
approach “can help to ensure that regulatory approaches are efficient, effective and a
risk/risk trade-offs across policy objectives (…)[It] can improve the welfare of citizens by
providing better protection, more efficient government services and reduced costs for
(OECD, 2010, p. 11).

Sarah Haunert (1151941)
9
In the UK, all those involved in regulatory affairs are required to develop and
frameworks across all policy domains (Black & Baldwin, 2010). The UK is not the only
to incorporate risk-based approaches. In other countries, such as the US, Australia, Ca
the Netherlands, risk has also turned into a central concept for organising regulatory
(Hutter, 2002). The seemingly universal interest in ‘rational’ risk-based approaches su
there may be a convergence in the way governance problems are dealt with in differen
contexts. Effectively, efforts are increasingly made on the international level wit
creating risk-based frameworks in order to govern harms of a cross-boundary nature (
et al., 2011). Activities by organisations such as the EU and the OECD are cases in poi
2006). It appears as if these efforts are built on the assumption that risk-based regulat
set of common concepts, tools and approaches which can be readily applied wi
national regulatory institutions. However, ideas can often travel more easily than the c
regulatory instruments and having the same idea does not necessarily mean that conv
occur (Radaelli, 2005).
Polesapartfrom risk beinga universalform of governance,the interpretationof, the
understandings of, and the reactions to risk are shaped by institutional rules, contexts
cultures (Rothstein et al., 2011). The divergence in the adoption and implemen
based ideas represents the starting point of this study. Even though a broad ra
focus on risk-based regulation in the UK (Power, 1997; Hood et al., 2001; Roth
Bartle, 2008), little research has been done on how risk-based strategies are implemen
European countries. Hence, there is a lack of evidence which could underline the assu
that there exists variation in the adoption of risk-based strategies across different cou
This study attempts to make a step towards filling this gap by focusing on risk-based r
in Germany. More specifically, departing from the core characteristics of risk-based re
the studyattemptsto answerthe followingresearchquestion:to whatextentdoes the
occupational health and safety (OHS) regime in Germany adopt risk-based strat
context, it attempts to show that there exists a variation in risk-based regulatio
different countries, which do not always apply the main characteristics of risk-based r
uniformly. The study’s second objective is to investigate the factors which shape the u
risk-based arguments in Germany. Hence, it focuses on the way institutional str
regulatory components, thereby influencing risk-based thinking and activities. Special
given to how institutional norms such expected standards of state behaviours, responsibiliti
and objectives determine regulatory action.

Sarah Haunert (1151941)
10
The study opens with a literature review which outlines the theoretical framework (ch
This is followed by a description of the methodology in chapter 3 and a portrayal of th
of Germany’s occupational health and safety system in chapter 4. Chapter 4 also focu
management of carcinogenic substances as this holds a special position within the Ger
This chapter also introduces the British Tolerability of Risk (ToR) framework, which se
point of comparison to Germany’s approach with regards to carcinogenic substances.
interviews with health and safety experts chapter 5 investigates the OHS regulation (c
Finally, in chapter 6 the findings will be linked back to the theoretical framewo
answer the research questions.

Sarah Haunert (1151941)
11
CHAPTER 2: Literature Review
2.1. Defining Risk and Risk-based Regulation
In its most simple definition risk is understood as the probability of bad outcom
1993). Closely linked to the concept of ‘risk’, is the one of ‘hazard’, which is
intrinsic property or condition that has the potential to cause harm or costs to human
(Hood & Jones, 1996). Yet, the two concepts are not mutually exclusive. As such the U
and Safety Executive (HSE) defines risk “as the chance that someone or something tha
will be adversely affected in a stipulated way by the hazard” (HSE, 2001, p. 16). Accor
The Federal Institute of Occupational Health and Safety in Germany (Bundesage
Arbeitsschutz und Arbeitsmedizin, abbr. BAuA) (2010) risk represents the probability
severity of a hazard to cause potential harm. The two concepts are interlinked, especia
field of Europeanoccupationalhealthand safety.The EuropeanFrameworkDirective
89/391/EEC requires employers to undertake and document risk assessments of
identification of hazards plays a crucial part.
The way regulation is enacted, will strongly depend on which of these two concepts is
to. Hazard-based regulation, guided by a consideration of intrinsic hazard, does not ut
assessments or exposure assessments, which include considerations of the likelihood a
of a hazard leading to harm (Nordlander et al., 2010; Löfstedt, 2011b). Withou
assessment of actual risk, hazard-based regulation is accused of being precautionary a
inhibiting activities which do not carry risk and may even be beneficial for society and
(Löfstedt, 2011a). Proponents of risk-based regulation claim that risk-based appr
evidence-based and that they can help to better understand actual risks of harm. Unlik
based approaches which only rely on the intrinsic property of an object or a substance
harm, proponents of risk-based regulation argue that risk-approaches go a step
including assessments of likelihood (Nordlander et al., 2010). As such a risk-b
entails the use of technical risk-based tools and it is based on three core aspects: scien
assessments and quantifications (‘objective’ risk calculations); cost-benefit analys
probable damage by monetary units); and probability theory to reduce uncertain
the probability that adverse events occur over a given period of time (like qua
assessments(QRA), whichcalculatethe magnitudeof potentialharmfuleffectsand the
probability of their occurrence) (Hutter, 2005; Renn; 1998).

Sarah Haunert (1151941)
12
The three main elements of risk-based approaches are very contentious and are at the
major debates within the governance field of risk regulation. The debates reflec
world-views (Hood & Jones, 1996) and indicate that there is no universal adoption of r
approaches.
2.2. Risk-based Regulation: A Matter of Different Worldviews?
Central to contemporary reflections on governance is the question as to what principle
govern the identification, measurement and regulation of risk (Hood et Jones, 1
normative rationale for risk-based approaches rests on the idea that by setting
directing efforts to the highest risk, governance performance can be improved
used more efficiently (Klinke & Renn, 2002; Black & Baldwin, 2010). The desired resu
based governance is not to reduce all risks to zero, but to minimise them to an accepta
using risk management and cost-benefit analysis (Klinke & Renn, 2002). By des
reduction policies according to the severity of potential harm, one avoids what
refers to as ‘tunnel vision’ (overregulation of small/trivial risks, often more harmful tha
random agenda selection (driven by personal interest rather than by rational ap
inconsistency of measures across government.
Risk tools have become attractive for regulatory agencies and governments in t
manage societal risks and to respond to potential criticism on the legitimacy of
(Hutter, 2005). The potential for criticism and the increased public scrutiny have led t
accountabilityand transparency(Rothsteinet al., 2011).Increasedtransparencyand
accountability reveal the limitations of regulation. Certain degrees of regulatory failur
acceptable because risk-based regulation is based on probabilities (not on certa
offering a justification in case of undesired outcomes (Rothstein et al., 2006). Y
public scrutiny can augment the potential for blame and can consequently lead
blame-games(Hood, 2002).In their attemptto shun blame,individualregulatorsor
organisationsmay resortto ‘defensiverisk management’,whichput emphasison blame
avoidance, often to the detriment of attending to societal risks. What becomes evident
above accounts is that risk emerges as an organising principle for decision-making an
influences regulatory activity (Rothstein et al., 2006).

Sarah Haunert (1151941)
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Nevertheless, despite the universal appeal of risk-based approaches, the adoption of r
logics is institutionally shaped and varies not only between countries but even within r
The European Union, for instance, does not present a united front with regard
regulation; in some areas it is risk-based whereas in others it adopts a more h
precautionaryapproach(Vogel,2001;Nordlanderet al., 2010).In some countriesrisk
considerations are confined to only a few policy domains. It even occurs that a same re
regime encompasses different regulatory logics: for example, risk-based application m
to gather evidence, but policy-making and rule enforcement may follow differen
(Hood et al., 2001; Rothstein et al., 2011).
If we accept that institutions shape behaviour through the ‘logic of appropriateness’, w
members of an institution act in conformity to the norm of that institution, then they e
shape the world views of the ones working within them (March & Olsen, 1984; Peter,
These worldviews are reflected in current debates about the principles of risk-based r
namely cost-benefit analysis, the scientific assessments and representing risks a
which are also referred to as technical risk tools.
Trying to assess the risk through scientific assessments is undertaken by most countri
quarrels usually do not arise over differences in methodology, measurements or dose-r
functions, but over how to interpret the data and over whether or not to quantify it (Kl
Renn, 2002). QRA, which calculates the magnitude of a potential loss of a harmful eve
probability of its occurrence, is celebrated by its proponents as the backbone o
management. Opponents question the rationality and objectivity of such quantific
are sceptical of claims that one can quantify risks with high degrees of certainty and c
statements for creating a false sense of security. Quantifications are based on simplist
and the inherent uncertainty makes it almost impossible to quantify risk (Hood & Jone
They contend that such quantifications are influenced by value judgements of experts
best only subjective approximations of reality, often different to actual experien
(Cohen, 1996; Jasanoff, 1993).
The results of QRA are used to inform the setting of standards, hence QRA plays an im
part in what Hood et al. (2001) term the ‘cost-benefit analysis culture’, in which additi
measures are weighted against potential benefits. Such balancing of costs is usually d
through value-of-life calculations and it is claimed that it allows for an efficient
resources(Renn,1991;Graham;2008). The combinationof QRA and CBA enables
governments to effectively prioritise actions and resources accordingly. Challenging v

Sarah Haunert (1151941)
14
that such an approach removes risk judgements from their social context (Horlick-Jone
It is difficult to determine the costs of a specific risk, especially since the concept of ri
oriented. Moreover, the ones who incur the costs are often very different to the ones w
the benefits (Hunter & Fewtrell, 2001). Opponents to CBA thus claim that the determi
cost-benefit trade-offs is essentially a political decision, which calls into questions the
objective nature of technical risk-based tools.
The question which arises is by what standards should one determine risks? In other w
are (un)acceptable risks or costs? Proponents of technical risk assessments hold that t
as CBA and QRA can help determine acceptable balances of harms (Horlick-Jones, 199
a quantitative perspective on risk redefines the goals of regulation from preven
defining acceptable levels of potential adverse effects (Rothstein et al., 2011). T
classificationof risks into acceptableand unacceptablebecomesinsufficient.Such a
considerationimpliesthe existenceof an intermediatearea,the tolerablearea.Whereas
acceptable risks are defined as small and adequately controlled, tolerable risks are ris
tolerated in order to secure certain benefits (Rimington et al., 2003). Neverthel
have very different perceptions on what ‘acceptable’ and ‘tolerable’ risks are to them
Fewtrell,2001)and ‘rational’risk-basedapproachesare often counterintuitiveto public
perceptions (Renn, 1991).
To take into account the plurality of risk acceptability, the Health and Safety Executiv
the UK developed the tolerability of risk (ToR) framework which it set out in i
document ‘The Tolerability of Risk from Nuclear Power Stations’ published in 1
1988). HSE’s framework is guided by the ALARP (as low as reasonably practicable) pr
which combines cost-benefit considerations and technical feasibility in reducing risks
2007). The adoption of a principle like ALARP indicates the realisation that safety may
the expense of other goals (Horlick-Jones, 1996). Some people, however, oppose such
and reject that risks to human life, organisations and the environment should be tolera
(Hutter, 2005). Many authors highlight that decisions on the acceptability of ris
political in nature (Fairman, 2007; Hutter, 2005; Cohen, 1996; Le Guen, 2007) and em
underlying processes of negotiation (Horlick-Jones, 1996), which are shaped by the wo
of the negotiators (Renn, 1998).
A few authors attempted to explain the variation in ideas about risk by grouping organ
and societies according to common characteristics. Some scholars differentiate betwe
five different cultural groups, such as egalitarians, entrepreneurs or individualis

Sarah Haunert (1151941)
15
hierarchists (Douglas, 1990; Thompson et al., 1990; Rayner & Cantor, 1987). Entrepre
instance are described as perceiving risk as an opportunity to stimulate innovat
increase the standard of living. They prefer analytical and rational methods to
problemsand rely on cost-benefitanalysisto legitimateand organisedecision-making.
Egalitarians on the other hand refuse to undertake trade-offs between risks and
matter how plausible and efficient such an approach may be. They usually seek to ach
levels of safety, are particularly concerned about equity and rely on consensual
problem-solving (Renn, 1991; Renn, 1992; Hood, 1998; Lodge et al., 2010). Oth
differentiatein theirclassificationsbetweenthe groupswho favourtechnicalrisk-based
approaches and the opponents of such approaches. Jasanoff (1993) distinguishes
adherents to ‘soft’ or non-quantitative approaches and the adherents to ‘hard’ q
methods. In a similar vein, Hood and Jones (1996) oppose quantificationism and qualit
where proponents of the latter doctrine maintain that proper weight should be
unquantifiable factors in risk regulation.
These classifications and differentiations are meant to explain and map out the contou
risk debate, and should not be understood as reflections of reality. Only rarely would g
people perfectly fit into such classifications, usually more attenuated approaches adop
hybrid attitudes can be observed (Hood, 1998). Moreover, regardless of the strategy o
chosen, the aim is always to turn an unacceptable risk into an acceptable one.
sections will explore which of the above attitudes and strategy of risk can be found in
occupational health and safety regime. This is preceded by a description of the method
this study.

Sarah Haunert (1151941)
16
CHAPTER 3: Methodology
3.1. Methods
The primary aim of this research consists of finding out to what extent the German occ
health and safety regime follows a risk-based approach. The second aim is to explore h
based arguments or practices are used within this regime and how institutional factor
them.In orderto understandhow underlyingprocessesshapethe uptakeof risk-based
approaches and thinking in Germany’s health and safety regime, a qualitative methodo
chosen (Mayoux, 2005). Thus, data collection took the form of semi-structured intervie
were selected for flexibility and the ability to generate deeper meanings and raise issu
may not have been anticipated by the researcher (Longhurst, 2003; Valentine, 1997).
The participants for this study were chosen according to their involvement and
German health and safety. The researcher made contact with the participants v
invited them to participate in the study. However, as it was difficult gain access to app
participants, a snowballing technique was adopted. This technique refers to usin
who suggests another contact, who in turn can recommend a further contact. Such an
has the advantage of overcoming obstacles, such as a high refusal rate. It also
researcher capture interviewees with particular fields of expertise and backgrou
1997).
19 participants were interviewed and included two employees from Länder administra
one employeefrom a regionaladministration,one industryrepresentative,an expertin
occupational hygiene, an employer’s representative, two employees from statutor
insurances, one consultant, one employees representative, two employees from federa
one government official, one person from a higher federal authority, one member of a
states committee, one member of a research association and a researcher at an non-go
research institute. Two British health and safety experts were jointly interviewe
explore to what extent their rationalisations differ from the German ones. Parti
assured that their names and the names of their respective work locations wou
anonymous. The interviews were coded according to the participants’ profession
Appendix 2).
Initially, potential respondents were given the option to choose between face-to
telephone interviews. As all of the initial respondents preferred the latter option, only
interviewswereconducted.Even thoughqualitativeresearchoften relieson face-to-face

Sarah Haunert (1151941)
17
interviews, some studies have established that telephone interviews are equally suitab
& Hanrahan, 2004; McCoyd & Kerson, 2006; Novick, 2008). They even have th
advantage that both the interviewer and interviewee are in their familiar surrou
increases comfort and ensures a more natural behaviour (McCoyd & Kerson, 2006). M
during telephone interviews people are more willing to disclose more sensitive
(Opdenakker, 2006). Whereas some questions sought to obtain general informat
occupational health and safety is organised and managed other questions encouraged
to express their own opinions and perspectives. The interview length averaged approx
minutes, with the shortest lasting 30 minutes and a couple lasting over 60 minutes.
All of the recorded interviews were transcribed verbatim. Two interviews were not rec
instead notes were taken by the interviewer. Data analysis consisted in identify
themesand in comparingfindingsfrom interviewswith existingliteratureon risk-based
regulation.
3.2. Weaknesses and Potential Biases of the Methodology
A common criticism of qualitatively based research is that it is not representative or g
(Cloke et al., 2004). In this study this criticism is compounded by the relatively short s
of interviewees. It would have been beneficial to have had conducted more interviews,
would have allowed for a more in-depth understanding of people’s opinions on
regulation and how such opinions are reflected in practice. Yet, interviews are time co
with regards to preparation, transcription and analysis. The numbers of intervie
restricted to what could be realised in the assigned time frame. Some shortcom
methods and techniques employed can be identified.
Even though the snowballing technique overcame the obstacle of gaining access
respondents, the technique involves a drawback. The aim of qualitative research meth
hear different accounts, meanings and perceptions so as to understand and find comm
in these differing ‘subjectivities’ (Mayoux, 2005). However, the snowball technique ris
to the recruitment of informants from a very narrow circle, due to people’s propensity
researcher into contact with like-minded people (Cloke et al., 2004). It is possible that
to a certain bias in responses. The researcher tried to mitigate this issue by using seve
contact points (Valentine, 1997) and by trying to reach people without using th
approach.

Sarah Haunert (1151941)
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A problem associated with the use of telephone interviews is that the interviewer cann
interviewee. Hence body language, such as facial expressions or gestures which
provided additional information could not be used (Opdenakker, 2006). Next to
verbal data, the absence of visual cues can lead to difficulty in establishing a
probing, and can lead to misinterpretation of responses (Novick, 2008). To som
however, the voice and intonation of the interviewee can make up for the lack of visua
can lessen the negative consequences arising from it.
All but one interview were conducted in German. Even though the researcher h
command of the German language, some terminology issues emerged. The issues were
difficulties of translation. The problem revolved around the distinction between
‘hazard’. ‘Hazard’ in German is often translated with Gefährdung. Yet, the risk
workplaces, which is a mandatory requirement in every EU member state, has been tr
Germany into Gefährdungsbeurteilung. A literal translation of Gefährdungsbeurte
would be hazard assessment. This led to some confusion during the first interviews. Ye
having done more literature-based research and analysed the answers, it became clea
when the terms of ‘risk’ and ‘hazard’ are used in Germany’s occupational healt
regime and in following interviews this confusion could be overcome.

Sarah Haunert (1151941)
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CHAPTER 4 – Occupational Health and Safety in Germany
This chapter provides an overview of how the German occupational health and safety
organised and structured. The OHS regime reflects a typical German administra
including a complex mix of European legislation, federal legislation and enforcement a
carried out by the Länder. The overview is followed by an account of how general area
are regulated. Chapter 4 closes with an account of how hazardous substances and in p
carcinogenic substances are regulated. The ‘Risk Concept’ (Risikokonzept) which is us
decision-making on carcinogenic substances in Germany will be juxtaposed to the ‘Tol
of Risk’ framework (ToR) of the Health and Safety Executive in the UK so as
means of comparison and highlight major differences in risk-based regulation and thin
4.1. Organisation and Structure
4.4.1. EU Framework Directive
To date occupational health and safety is the only area of social policy where harmoni
law has occurred among member states of the European Union. With the adoption of t
Framework Directive 89/391/EEC many European countries, including Germany, expe
a paradigm change with regards to health and safety (Larisch, 2009). The dire
adopt a holistic approach in ensuring health and safety of workers at work. It contains
such as the prevention of risks, the protection of safety and health, the assessment of
elimination of risks or the training of workers (EU-OSHA, no date, a). Risk assessment
part of the EU’s ‘health and safety package’ and represents the cornerstone of
approach to improving health and safety at work. The 89/391 directive had to b
into national law. Member states are free to introduce more stringent provisions to
protection of their workers (EU-OSHA, no date, b). In Germany the directive h
transposed into German legislation through the adoption of the German Occupational
and Safety Act (Arbeitsschutzgesetz, abbr. ArbSchG).
4.4.2. Occupational Health and Safety Act
The transpositions of the directive’s requirements led to a more comprehensive OHS l
replacing many limited and diverse laws (Frick, 2004). Larisch refers to the Occupatio
and Safety Act (Arbeitsschutzgesetz, abbr. ArbSchG) as the ‘constitution’ of Ger
regulation (2009, p.36). Its objective consists in assuring and improving the pro

Sarah Haunert (1151941)
20
workers’ health and safety through targeted health and safety measures. With the tran
the EU directive, German OHS was extended to include small and very small business
public services. The Act sets out employers’ core duties, amongst which feature the ex
and documentation of risk assessments (Gefährdungsbeurteilung) (Larisch, 2009)
assessment is intended to assist employers in their general duty of ensuring the safety
of workers and it should enable the employer to take necessary measures for guarante
safety and health of workers (EU-OSHA, no date, c). During the transposition o
directive, special attention had to be given to both the principle of federalism and the
the OHS system.
4.4.3. Federalism
On national level (federal and Land level), health and safety legislation is decreed by t
(the lower house of parliament) with the approval of the Bundesrat (the upper
parliament). Regulations on the other hand are enacted by the Bundesregierung (exec
they also require approval of the Bundesrat before coming into effect. The Federal Mi
Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, abbr. BMAS) pr
bills and regulations usually in consultation with important stakeholders (Hotopp
These stakeholders include the federal states represented by the Länderausschuss für
und Sicherheitstechnik (LASI), the umbrella organisation for trade unions (DGB)
associationof the employers(BDA), the umbrellaassociationsof the accidentinsurance
institutions (DGUV and LSV), and professional associations (Fachverbände). The inclu
all these stakeholders exhibits the consensual style of decision-making in the German
safety system, where every crucial decision involves the participation of all major stak
The Ministry for Labour and Social Affairs is assisted in its general duties by the Fede
of Occupational Health and Safety (BAuA, 2005).
Even though administrative arrangements may vary among the Länder, they all have t
that national laws and provisions are upheld, in other words they act as oversight bod
enforcement. In to order live up to this responsibility, each Land has its own state insp
(Gewerbeaufsichtsamt). The specific duties of the inspectorates include monitorin
employers are compliant with the law, providing consultative services to employers to
them in the implementation of necessary health and safety measures and in some case
to intervene and impose necessary measures to safeguard employers’ health and safet
2005).

Sarah Haunert (1151941)
21
The federal system results in a very fragmented OHS structure on the Länder level. To
this situationa ‘coordinationstrategy’was implemented,the so-calledJoint German
Occupational Safety and Health Strategy (Gemeinsame Deutsche Arbeitsschutzstr
GDA). The GDA is a type of operation, supported by the statutory insurance institution
Bund (federal state) and the Länder. The objective of the GDA consists in reac
coordinated approach in enforcing common health and safety goals and in impr
coordination and cooperation between the inspectorates of the Länder and the
insurance companies (BAuA, 2012a).
4.4.4. Dualism
The German occupational health and safety system rests on an essential princip
dualism. The dualism refers to the two pillars of the system: the statutory occupationa
insurance and the state-run system described above. The statutory insurance fo
German Unfallversicherungsträger or Berufsgenossenschaften) consists of insuran
for industry, providers for agriculture and providers for the public sector (BAuA
firms and public sectororganisationsare requiredto be memberof one of these
Berufsgenossenschaften. This is to assure that all employees are covered by insurance
an occupational accident or occupational disease. As such statutory insurance is part o
law (Sozialrecht) and it is regulated by the Social Code VII (Sozialesgesetzbuch VII). D
functions statutory insurance is considered to form part of OHS legislation and is often
to as autonomous OHS legislation (autonomes Arbeitsschutzrecht). It has the authority
accidentpreventionregulationswhichrequirethe approvalof the FederalMinistryin
consultation with the competent authorities of the Länder. Next to providing rehabilita
compensation, prevention efforts also form part of the responsibility of statutory
organisations (Larisch, 2009). The Berufsgenossenschaften, in a similar way as the ins
Länder, provide consultative services to the insured and monitor businesses for compl
Figure 1).

Sarah Haunert (1151941)
22
Figure 1: Overview of the German OHS System (Seidel et al., 2007)
4.2. OHS in Practice
4.2.1. General Approach and Methods
The primary aim of the German OHS is the prevention of accidents and occupational d
and the commitment of prevention is enshrined in several laws and regulations
2007). The Gefährdungsbeurteilung (risk assessment) represents an integral part
obligation of systematic prevention. The execution of the risk assessment is the respon
the employer, as the employers holds the duty of proof, meaning that he has to demon
all necessary and required safety measures have been implemented (Wegrich, 2
assessment includes seven steps among which figure: (1) assignment of tasks, (2) iden
hazards, (3) evaluation of risks, (4) deciding on measures, (5) evaluating the eff
measures, (6) implementation of measures and (7) reviewing the assessment and upda
Federal Occupational Health and
Safety Law
of the Federal Republic and of the
16 Länder
Law-making
Federal State and Länder:
Acts, regulations, approval of
accident prevention regulation
Monitoring
compliance with federal
prescriptions through state-run
inspectorates or state-run
departments for OHS
Occupational Health and
Safety System in the Federal
Republic of Germany
Autonomous OHS legislation
of statutory insurance institutions
Law-making
agreement of accident prevention
regulation during representative
meetings of representatives of
statutory insurance organisations
Monitoring
compliance with accident prevention
regulation through technical
inspectorates
Cooperation and exchange
of information
EU regulation
and directives

Sarah Haunert (1151941)
23
necessary (Kirchberg et al., 2010). These steps are based on common-sense, a
qualitative than quantitative. Since employers often lack the expertise to effectively im
the diverserange requirements,they are obligedunder the Safetyat Work Act
(Arbeitssicherheitsgesetz, abbr. ASiG) to appoint occupational doctors and specialised
who consult and support them with regards to OHS requirements (ASiG, 1973).
As mentioned above, Germany has translated risk assessment into Gefährdungsbeurte
its literal translation means hazard assessment. The choice of terminology is lik
implications for how the assessment is enacted. Focusing on hazards, means that one’
measures are guided by the potential of harm. Such an approach requires atte
potential hazard with the aim of eliminating, to the extent possible, the hazard source
the risk) (Kirchberg et al., 2010). However, if one focuses on risks, such as is the case
in the UK, the scope of action becomes more targeted. Actions are then guided by the
of a harm occurring, where the primary aim is not the elimination of every potential ha
where the aim has been redefined in terms of reducing risks to acceptable levels. Inte
based on a prioritisation of risks, attending first to the highest risks (Black & Baldwin
Some risks might be so low that no action is required (Nordlander et al., 2010). In the
scope of action is further concentrated by the ALARP principle (Rimington et al., 2003
6 will analyse this issue in greater depth.
With regards to carcinogenic substances, Germany has developed the so-called ‘Risk C
(Risikokonzept), which as the term indicates focuses on risks.
4.3. Special Case of Carcinogenic Substances: The Risk Concept
In 2007 the Committee on Hazardous Substances (Ausschuss für Gefahrstoffe o a
honorarycommitteewhichadvicesthe BMASand in whichsocialpartners,the Länder
authorities, insurance organisations and ‘science’ is represented approved a new concept to
assess and manage risks arising from occupations with carcinogenic substances.
effect limits can be determined for most non-carcinogenic substances, this is often not
for carcinogens. The AGW (Arbeitsplatzgrenzwerte) are health-based limit values, whi
non-carcinogenic substances. If these limits are met no health risks are expected. It is
derive such limits for carcinogens, especially for genotoxic carcinogens (BAuA, 2012b
with this challenge a Risk Concept has been introduced to replace the old con

Sarah Haunert (1151941)
24
technical guidance concentrations (technische Richt-Konzentrationen, abbr. TRKs), wh
abolishedwith the adoptionof the new hazardoussubstancesregulationin 2005
(Gefahrstoffverordnung,abbr.GefStoffV)(Wriedt,2008).The TRKs weredeterminedin
accordance with the best available technology or state of the art and only marginally r
health criteria (Renn, 2010). They provided no information about the extent of the resi
or about the probability of incurring cancer through exposure at the workplace, thus t
in transparency (Kalberlah et al., 2005).
The new concept, which is still in a trial period, attempts to address these sho
developing a unifying approach to govern risks of carcinogenic substances and to justi
risks. It attempts to increase transparency and to become more comprehensive by det
general risk-based limits applicable to all carcinogenic substances. Accordingly,
and relies on quantitative risk assessments (Wriedt, 2008). The model is divided into t
zones: high risk (red zone), medium risk (yellow zone) and low risk (green zone) (see F
Red: Stop!
The health risk is no longer
tolerable-use no longer allowed
or strict exposure minimisation
required
Tolerability Threshold 4 x 10-3
Yellow: Caution!
health risk is undesirable-need to
engage in active risk management
increasing
health risk
Acceptability Threshold 4 x 10-4 (10-5 as of 2018)
Green: Go!
Health risk is acceptable-due
diligence remains
Figure 2: The Risk Concept for Carcinogenic Substances (BAuA, 2012b)

Sarah Haunert (1151941)
25
Any activity or practice giving rise to risks falling in that area have to be aba
measures can be taken to reduce the risk so that it falls into the medium risk zone. Th
between the high and medium risk areas is referred to as tolerability risk. Thi
threshold is set at a risk of 4:103, meaning that statistically 4 in 1000 workers risk contractin
cancer over their working life (BAuA, 2012b).
Risks in the medium area are considered unacceptable, yet they are tolerated under th
that they are continually reduced, with the aim of eventually reaching the gree
2010). The limit between the yellow and the green risk zones is the acceptabil
represents a risk of 4:104, which is a transitional limit and will be reduced to 4:105 by 2018
(Wriedt, 2008; BAuA, 2012b). Risks in the low area are comparable to everyda
general environmental pollution outside the workplace. Risks in the green area do not
reduced but minimisation is still encouraged (Wriedt, 2008). The whole concept is dyn
that it requires employers to follow the obligation of minimisation by continually reduc
throughoutthe concept.It is also a prioritisingsystemwhichstartswith reducingthe
concentrations in the red zone, then the yellow and finally (but not mandatory)
concentrations in the green zone. Next to the minimisation employers have to follow th
substitution, which means that whenever possible a hazardous substance should be re
substance with a lower hazard potential. The AGS has established a catalogue of meas
guidance for employers, which follows a graded approach, requiring more stringent in
for higher risks (Renn, 2010).
Is it acceptable to expect someone to work in an environment which causes a cancer r
1000, or 1 in a 10 000? Such a question requires more than a purely scientific
determining the acceptance and tolerance level the AGS sought to reach a soc
consensus by involving relevant stakeholders such as employers and employees repres
(Renn,2010).The tolerabilityrisk level was derivedby comparingstatisticsof deadly
occupational accidents, by calculating the mean risk for such accidents. For the lower
general life risk was used as a benchmark (Wriedt, 2008). To ensure transparency reg
occupational risks, employers are expected to communicate the respective risks and th
measures to their employees (Renn, 2010). It is important to note that the concept is b
calculations of individual risk and not population risk.1 The rationale for this approach rests on
1 Individual risk v. population risk: A risk of 4:1000 means that the risk for an individual to contract can
However, if 1000 people are exposed to a substance with that level of risk, it means that 4 of them will c
cancer. Thus from an economic perspective the impact or harm will be greater if many people are in co
such a carcinogenic substance, as if it was only a rarely used chemical (Kalberlah et al., 2005).

Sarah Haunert (1151941)
26
the objective that the determined risk levels ‘imposed’ on an individual worker
determined independently of whether a substance is used in many workplaces or only
ones (Kalberlah et al., 2005). Unlike its British counterpart, the Risk Concept excludes
considerations.
4.4. Tolerability of Risk Framework
The approach outlined by the British Tolerability of Risk concept is very similar to the
Risk Concept. However, some crucial differences exist which will be developed in the
Unlike the German concept, the ToR concept is not restricted to carcinogenic substan
informs the Health and Safety Executive’s decision-making process regarding all
work environments it overseas (Bandle, 2007).
The ALARP principle represents an essential part in the HSE’s ToR concept (se
Usually HSE relies on good practice, which is considered to be the minimum acceptab
Figure 3: HSE’s ToR Framework (HSE, 1988, p. 8)
Unacceptable Region
Risk cannot be justified save in
extraordinary circumstances
The ALARP or Tolerability
region (risk is undertaken
only if a benefit is desired)
Tolerable only if risk reduction is
impracticable or if its cost is
grossly disproportionate to the
improvements gained
Tolerable if cost of reduction
would significantly exceed
improvements gained
Broadly acceptable region
(No need for detailed
working to demonstrate
ALARP)
necessary to maintain assurance
that risk remains at this level
Negligible risk

Sarah Haunert (1151941)
27
(Rimington et al., 2003). The aim consists in continuously improving good practice, es
the general region of tolerability. However, in doing so each new risk reduction measu
be subjected to the ALARP principle (Bandle, 2007). The ALARP principle implicitly re
that even after all practicable and reasonable precautions have been taken, there is st
level of residual risk (Rimington et al., 2003). Yet, according to the rationale o
principle residual risks in the tolerable region (see Figure 3) are only tolerable
reduction would be impracticable or if it was grossly disproportionate in effort,
(Topping, 2001).
This rationale indicates that cost-benefit analyses form an important part of the
principle. When undertaking risk reduction measures, there should be an explicit valu
benefit of reducing the risk (HSE, 2001). Duty-holders are required to adopt ‘practicab
measures and can only refrain from risk reduction measures if they can demonstrate t
of doing so would be grossly disproportionate to the benefit achieved. However, the hi
risk, or the closer it moves to the intolerable area, and the greater the disproportional
costs and benefits, the lesser inclined the HSE would be to recognise it as bei
disproportionate’ (Bandle, 2007). Quantitative risk estimates are carried out to inform
determining the likelihood and the impact of a potential adverse event. The inclusion o
and the calculation of probabilities stand in stark contrast to the German approach wh
computations are not undertaken.
With regards to the regulation of hazardous substances, ALARP and the related QRA a
are also applied. The occupational exposure standard (OES) is like the AGW and repre
a negligible risk. The maximum exposure limit (MEL) is set for substances for which a
level cannot be derived. They cannot be exceeded and are located in the upper bounda
tolerable region. Furthermore, exposure should be reduced so far as is reasona
(Topping, 2001).
In the UK, risk limits were established in a similar way than in Germany, invo
comparisonof risks,considerationof societalconcernsand the involvementof relevant
stakeholders. Yet both countries came up with different risk limits. The upper limit in
concept, namely the one between the tolerable and the unacceptable region, di
between the general population and workers. An annual risk of death to members of th
in excess of 1:104 is regarded as intolerable, whereas for workers an occupational risk of d
exceeding 1:1000 is considered intolerable (HSE, 2001). Where the German concept
differentiate between the general public and employees, the HSE justifies this distinct

Sarah Haunert (1151941)
28
fact that the public include especially vulnerable members, and that workers usually v
takeup an employmentwhichthey are adequatelytrainedand receivecontributionfor
(Rimington et al., 2003). The lower boundary, the limit between the broadly acceptabl
tolerable region represents a risk of death of 1:106. This represents a higher limit than the current
4:104 risk limit in Germany. Another difference which needs pointing out is that the risk
German concept is expressed in terms of cancer risk and not as risk of death used in t
concept. The reason for this difference and how it compares to the German co
elaborated in chapter 6.
Although some similarities can be perceived, they are crucial differences betwee
concepts. These differences exhibit the extent to which the two countries differ
application of risk-based principles. In the next chapter the findings of the interviews w
light on the different rationales underlying the approaches and will specifically
German case.

Sarah Haunert (1151941)
29
CHAPTER 5: Analysis
This chapter outlines the findings of the interviews, which are analysed by dra
literature presented in chapter 2. Respondents’ quotes will be used as much as possib
that the analysis is closely tied to the collected data. As the interviews were conducted
the quotes were translated into English by the researcher. The interviews are coded a
the participants’ job roles (see Appendix 2).
5.1. Risk-based Approach
To recapitulate, risk-based approaches to regulation include three core compone
based assessments, cost-benefit analyses and quantitative risk assessments or the calc
risk probabilities. In the following section, each element will be separately analysed.
5.1.1. Science-based Assessments
The results suggest that Germany carries out scientific assessments in several a
ergonomics, noise and most notably to determine exposure limits for hazardous substa
SAI1; HFA). The determination of health-based occupational exposure limits (AG
scientific basis has already been undertaken a few decades ago (LI1; HRA). An employ
federal higher authority (HFA) claimed that once exposure-risk-relationships (Exp
Risiko-Beziehungen)wereundertakenit becameapparentthat previousexposurelevels,
determined by technical guidance concentrations, were unacceptable for some c
substances and exposed workers to intolerable risks. The same respondent mentioned
the Risk Concept exposure-risk-relationships have been calculated for 40 years of wor
hours/day and remarked “this is very conservative, because who is working 40
with carcinogenic substances and this for 8 consecutive hours?” Another respon
claimed that “[such an exposure] does obviously not reflect reality”. This precautionar
approach at the scientific stage is also reflected in risk quantifications.
5.1.2. Quantification of Risk
Concerningthe quantificationof risks,respondents’repliesexhibiteda high degreeof
consistency. A general scepticism was expressed, for example:
“[Quantifications] are problematic and this is why people reveal a fundamental sce
towards them.” (R1)

Sarah Haunert (1151941)
30
“In Germany we only use risk quantifications for carcinogenic substances. I can
numbers are very uncertain (…). They seem precise, but whether they really re
being questioned.” (HRA)
The risk quantifications which are part of the Risk Concept are the exception (IC). Eve
regards to the Risk Concept there is a general tendency towards avoiding the
limits, and instead one prefers to mention the different colours of the model. Some res
stressed that the values of 4 in 103 and 4 in 104 do not represent reality and that safety factors had
been included in the calculations. Hence these numbers do not mean that necessarily
will contract cancer over the span of their working life. Consequently as an em
statutory insurance (SAI1) stated “we do not wish to unsettle people with these numbe
A UK health and safety official (UKHS2) on the other hand explained that risk quantifi
form an essentialbut not exclusivepartof the decision-makingprocessregardingOHS
measures. The respondent conceded that other factors such as societal concern are al
turning the approach into a semi-qualitative one. An official of a Land inspect
thought that the general approach to occupational risks in Germany was qualitative ra
quantitative. This difference between the German and UK approach is reminisce
distinction between quantificationists and qualificationists drawn by Hood and Jo
whereGermanycould be consideredas more qualificationistand the UK as more
quantificationist.
A respondent from a federal committee (FC) said that because there are no th
carcinogenic substances, the OHS system is somewhat forced to adopt a risk-based ap
Yet, he argued that such quantifications are not part of the German culture. A
representative (ER) argued in a similar vein and emphasised that trade-offs, such as re
by risk quantifications of the Risk Concept “are contrary to our philosophy of our occu
health and safety”. The averseness towards accepting trade-offs is also a major
Germany’s OHS system to not engage into cost-benefit analyses.
5.1.3. Cost-Benefit Analysis
All respondents unanimously rejected the application of cost-benefit analyses. One res
said that CBA is a taboo in Germany (SAI1). Another respondent (FA1) exclaim
CBA. You just can’t balance health against costs or any kind of benefit. This is related
passage of the Constitution which states that human dignity is inviolable, everyone ha

Sarah Haunert (1151941)
31
to physical integrity. You can’t buy this physical integrity of someone regardless of the
Many other interviewees referred to these lines in the German Constitution, for examp2
“The dignity of a person has to be protected. Yet, this is not guaranteed anymore if yo
CBA.” (EmR)
“The human dignity and integrity are anchored in our constitution. If harm occ
inevitably lead to costs. But what costs are we talking about? What benefit are we talk
We talk about constitutionally protected values and the question which arises u
perspective would be ‘who is more entitled to this constitutional protection?’“ (RI)
Linked to sections of the Constitution, claims were made which echoed an egalitarian
government official (GO) claimed with regards to the Risk Concept “CBA does not play
at all. We focus on the individual risk an employee is exposed to, and we do not differe
whether five or 50,000 employees work with a substance, but all substances are treate
One employees representative (EmR), comparing Germany to the UK, claimed t
Germany the UK undertakes CBA, which is criticised by Germany, as it focuses on the
and not the individual risk. According to Renn (1991) egalitarians are very con
equity and therefore refuse to undertake cost-benefit analyses, since such an aggregat
would not properly take into consideration the individual. Respondents’ rejection
corresponds to this egalitarian stance: they reject CBA because it entails trade-offs, w
sufficiently take into account the individual and which can lead to unequal outcomes.
Cost-benefit analysis is often claimed to be useful for the efficient allocation of
(Graham, 2008; Hood & Jones, 1996). A UK health and safety expert (UKHS2)
without calculating probabilities and applying CBA there is potential for a misa
resources. The UK with its use of CBA and QRA would belong to what Renn (1991) cal
‘entrepreneurs’, who focus technical methods to regulate risks. Nevertheless, OHS in
not devoid of any economic considerations. One industry representative (IR) sai
economic considerations were taken into account at all, one might as well try
occupational limits to zero exposure. Yet, economic viability and technical feasibility fo
of decision-making processes, but this happens in a more informal, indirect way (LI1).
the consensual style of policy-making, industry participates in the decision-making pro
hence points attention to cost issues and technical feasibility. One respondent (EmR) e
2 “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” (B
1949, Art.1(1)). “Every person shall have the right to life and physical integrity.(…)” (Basic Law, Art.2(2

Sarah Haunert (1151941)
32
this situation by saying that during the discussions about the Risk Concept, ind
lower risk limits and employees wanted higher ones. They then agreed on a co
applied a temporary acceptability limit of 4 in 104, to be reduced to 105 by 2018.
Some respondents, mostly occupational health and safety officials (LO; LI1; FC) emph
advantage of undertaking OHS measures. They said that employers are likely to reap e
benefits and drive forward technical innovation if they invest in OHS. One resp
mentioned that the statutory insurance bodies have developed a model which demonst
if a company invests one Euro into OHS it is likely to receive 1.3 Euros in return.
The above findings indicate that, besides scientific assessments, Germany seems to be
to adopt CBA and QRA in its decision-making process on OHS. Even though the Risk C
is based on QRA and scientific assessments, it represents only an isolated case and wa
measure of last resort for regulating substances for which no safety threshold can be e
As the rigorous rejection of CBA and QRA imply, Germany does not accept tra
strives for a high level of safety. The next section explores how the existence
nevertheless, justified and rationalised.
5.2. Risk Acceptance
Gathering from the respondents’ replies it appears that Germany’s OHS regime exhibi
low risk acceptance and willingness to engage in trade-offs, instead it strives for a hig
safety. This is exemplified by a number of conditions. First, some respondents
EMR) mentioned that it is not uncommon for Germany to resort to ‘gold-plating’ with r
to EU directives. This means that Germany often adopts more stringent measures in th
of OHS than required by the EU. The rationale for this was simply that they felt that e
directives were not precise enough or that the occupational exposure limits were too l
though respondents conceded that zero risk is essentially unattainable, one responden
pointed out that “the Germans tend to want zero risk, but that is not possible.” A resea
(R2) confirmed this and said that Germany focuses on the absolute potential of
continued by saying that “in Germany we still tend to follow a zero-risk philosophy. Th
to have no risk, whatever the costs”. Yet, this leads to a situation where residual risks
justified or minimised if possible. If risks cannot be sufficiently minimised one has to r
the TOP-principle. According to this principle risks have to be reduced first by

Sarah Haunert (1151941)
33
technical measures, if these are insufficient organisational measures have to be taken
very last come personal safety measures (SAI2).
With regards to the Risk Concept, which stands a bit in contradiction with the
engage in risk trade-offs, the existence of residual risks, especially the ones in the yell
are justified by the obligation for minimisation (SAI1). One employee of a federal agen
engaged in the elaboration of the concept claimed that the risks in the yellow
tolerated, because they do not represent a permanent condition, and at some point all
have to be minimised to the level of acceptable risk.
A difference to the British ToR framework is that the German Risk Concept states the
cancer rates and not in death rates. Two respondents gave very similar replies when a
cancer rates were expressed:
“OHS is primarily about prevention, i.e. it is about the prevention of diseases,
argument for choosing cancer cases and not death cases.” (EmR)
“We want to prevent cancer cases. The benchmark is health and not life. Heal
preserved, that means cancer cases have to be prevented and we do not want to tolera
someone falls ill with cancer...We don’t want to regulate survival, we want to regulate
(FA1)
Their replies stress the aim of ensuring high levels of safety and the reluctanc
risks. An interviewee from a higher federal authority (HFA) mentioned that at the beg
risk model was called ‘Risk Acceptance Concept’, because experts involved in its deve
could not agree on an acceptability threshold. The interviewee said that in the end the
to do away with the initial name because “the core of our model is not to accept risks
minimise them”. This anecdote shows that there is a clear refusal to accept any risks.
agency official brought the issue to the point by saying “to use risk numbers does not
one tolerates risks.”
The findings were poignant because a high level of consistency was revealed in
They show that Germany’s occupational health and safety regime rejects CBA and QRA
unwilling to accept any kind of risk. The question which arises is, to what ext
Germany risk-based? Another question which imposes itself is what are the fact
influence and shape the views on risk-based approaches within the OHS regime? Resp

Sarah Haunert (1151941)
34
frequent reference to the German constitution provides a glimpse as to which shaping
are at work.
CHAPTER 6: Discussion
6.1. To What Extent is Germany Risk-based?
6.1.1. Hazard-based v. Risk-based Regulation
The findings reveal that there is a general disinclination in the German occupational h
safety regime to undertake cost-benefit analyses and calculate risk probabilities.
outlined in chapter 2, risk-based approaches start with assessing hazards to then dete
likelihood of adverse events and their impact by applying probability calculation
(Nordlander et al., 2010; Hutter, 2005; Renn 1998). Germany quantifies risks only wit
the Risk Concept, but with a perceived reluctance and more as the result of a measure
resort. Without resorting to CBA and QRA the approach in Germany then mostly focus
hazards. The EU Directive requires that risk assessments are carried out in wo
Germanytranslatedrisk assessmentinto Gefährdungsbeurteilung,whichnecessarilyputs the
emphasison Gefährdungenor hazards.Even thoughrisk evaluationsform part of the
Gefährdungsbeurteilung, according to a respondent (R1), they play only a subordinate
Due to the translation someinconsistencyhas beenobserved amongthe repliesof the
participants, who confused hazard-based with risk-based. When asked whether they th
the OHS regulation was risk-based, many of them thought it was and mentione
evaluation of risks was an important part of the Gefährdungsbeurteilung. Yet, when th
what the situation looked like in practice, it appeared to be more hazard-based. A resp
from a statutory accident insurance organisation (SAI1) said that a Gefährdungsbeurt
look at all possible hazards, “essentially you have to tick[every hazard] off”. Another respondent
(GO) said that “you look at every possible activity and the risk evaluation which one ha
for every activity only determines whether strict or less strict measures have to be tak
respondent continued by saying that the risk evaluation is not used to prioritise certai
because one cannot ignore less risky activities. Prioritising risks so as to determine th
of resources is another crucial part of risk-based regulation (Klinke & Renn, 20
Baldwin, 2010). The fact that Germany does not prioritise activities is another indicati
focus on hazard-based approaches. As mentioned above (4.2.1.), focusing on hazards l
more holistic, all-encompassing approach. The two previous quotes confirm this compr
approach.

Sarah Haunert (1151941)
35
It appears as if risk has not been able to establish itself as a regulatory principle in the
occupationalhealthand safetyregime.A researcher(R1) claimedthat traditionallyrisk
assessments did not play a role in Germany and that the emphasis was on hazards. He
even to this day a risk orientation had still not gained any ground. This is in line with H
(2005) observation, that the language of risk is rarely used by German agencie
researcher (R1) thought that through the adoption of the EU Directive, risk has becom
more present within OHS awareness.
To what extent does the EU impact Germany’s uptake of risk-based approaches? As G
has to transpose EU directives into national law, it is necessarily influenced by the sta
adopts towards OHS. However, it is questionable whether the EU approach towards O
influence Germany to become more risk-based. One respondent (FA2) claimed that wi
to risk regulation “the EU does not represent a united front.” Another interview
sometimes the EU is more risk-based and that sometimes it is more hazard-based. Nor
al. (2010) observed that with regards to the regulation of chemicals, the EU regulates
according to a hazard-based approach, while other areas such as medicinal products a
following a risk-based basis. Vogel (2001) also claimed that the EU did not ado
approach with regards to risk regulation. He felt that the precautionary principle stron
risk policies in Europe, but that paradoxically the principle coexisted with the executio
assessments.
The precautionary principle, which allows policy-makers to take discretionary de
absenceof scientificcertaintyin orderto preventharm,emergedfrom the German
Vorsorgeprinzip (precautionary principle) (Graham & Hsia, 2002). As the principle in
of scientific certainty, it is considered to be hazard-based (Löfstedt, 2011b). Ev
Vorsorgeprinzip originated as a principle of environmental law, it now permeates man
social regulation (Rothstein et al., 2011). As such, the German OHS is also infl
precautionary thinking. A respondent from a federal authority with expertise in enviro
risks (FA1) said that the precautionary aspect is less pronounced in the German OHS,
the conservative risk limits of the Risk Concept include an element of precauti
interviewee (GO), referring to the Gefährdungsbeurteilung, argued that preventio
maxim. This maxim is also present in the duty of prevention of statutory insurance org
which involves the use of all possible means to prevent occupational accidents
(Larisch, 2009). Even though the precautionary principle does not play an explicit rol
the OHS regime, one can still detect a precautionary approach in OHS decision-makin

Sarah Haunert (1151941)
36
Risk-based thinking seems to only play a subordinate role in German OHS, which pred
concentrates on hazards. The approach adopted by Germany’s OHS regime app
qualitative than quantitative. A quantitative approach would imply making trade
risks and benefits and between different types of risks; yet this is unacceptable in Ger
few tentative explanations were provided to explain the focus on hazards. Yet,
factors which render it so difficult for risk-based approaches to gain ground in German
system? Why is there an aversion towards engaging in trade-offs? The next section att
answer these questions by focusing on how institutional variables shape the uptake of
approaches in Germany.
6.2. Institutional Factors
6.2.1. Outcome-based v. Process-based
As alreadyexploredin the findingssection,Germany’sOHS regimepresentstraitsof
egalitarianism and it is rather qualificationist than quantitative. One characteristic of
is that they want to ensure a high level of safety, even at the expense of economic effic
Moreover, egalitarians attempt to adopt a holistic when solving problems and strongly
cooperation and equity (Renn, 1991; Renn, 1998). These characteristics are found in t
OHS, where the Gefährdungsbeurteilung adopts an all-encompassing approach and w
making is consensus-based. Entrepreneurs on the other hand are more likely to put up
from activities if these activities enable them to secure certain benefits. To address pr
prefer to use technical methods and use cost-benefit rationalisations to guide decision
(Renn, 1991). They emphasise the collective and attempt to maximise outcomes
egalitarians, who are more focused on processes, entrepreneurs are more outcome-dr
its emphasis on risk-based approaches and the technical methods they entail, th
belong in the camp of the entrepreneurs.
Another distinction than the one adopted by cultural theorists is proposed here
distinction between deontologists and utilitarians, whereby Germany would be d
deontological and the UK utilitarian. This distinction is chosen as it is more in
collected data and because it better reflects the normative aspects which shape the ap
risk-based approaches in both countries. Utilitarianism holds that an act is morally rig
only if it maximises the overall ‘good’. It is said to be a form of consequential
maintains that an act is morally right if it produces a good outcome. Utilitaria
outcome-based (Sinnott-Armstrong, 2011). Deontological ethics on the other han
rightness or wrongness of an act more by the way that act has been performed, rather

Sarah Haunert (1151941)
37
outcome. What makes an act right for deontologists is its conformity with a m
Deontological ethics is sometimes also described as duty-based ethics and is pr
(Alexander, 2008). Unlike the utilitarian (or consequentialist) perspective, which focus
collective, a deontological approach perceives the individual as an end in him o
(Gutmann, 2010).
Where can the deontological or process-based approach be detected in Germany’s OH
And how does it influence risk-based approaches? The frequent mention of provisions
constitution shows that constitutional norms in Germany are not just “a genera
establishing a minimum consensus about certain principles” but they are “a political p
containing particular substantive goals” (Dyson, 1980, p. 213). According to Gutmann
dignity principle laid out by the first article (see footnote 2) has a structural function a
Germany’s legal system and discourse, but it also radically prohibits the quantification
or a utilitarianism of rights since everyone should be guaranteed the right to dignity.3 This anti-
utilitarian position explains why quantification of risks and the CBA are unacce
Germany.A respondent(EmR)expressedthis anti-utilitarianapproachby asking,“Does
utilitarianism focus on the right of individual integrity? I fear it doesn’t.” QRA
outcome-based and focus on collectives, they are rejected by the dignity principle on t
that they would lead to an objectification and sacrifice of some individuals. Add
constitution also focuses on the right to physical integrity, which has been mentioned
respondents (5.1.3.). From these constitutional rights derives the normative concept o
protection (Schutzpflicht) (Huber, 2009). This protection duty of the state applies to in
rights and not to the aggregate rights of a collective (Gutmann, 2010).
The duty of protection is visible in Germany’s high level of safety and in its focus on ha
which leads to an all-inclusive consideration of potential harms. If the individual’s inte
dignity is the benchmark for all action, then high safety standards in Germany’
necessary consequence. An interviewee’s (FA1) quote illustrates this focus on the indi
our basic law it states that everyone has the right to physical integrity. Consequently,
person is affected you have to take measures”.
3 The deontological approach and its anti-utilitarian stance is exemplified by a legal decision taken by th
Constitutional Court in 2006 concerning the authorisation to bring down planes which have bee
terrorists. The court revoked this authorisation, ruling that it was inconceivable to have a law which wou
firing of a plane carrying innocent passengers. It argued that killing innocent people to save others, wou
dignity principle and would strip passengers of their rights and would objectify them (Gutmann, 2010).

Sarah Haunert (1151941)
38
Due to the absence of a written constitution, the UK’s normative foundations are more
yet also more difficult to identify. The UK is often referred to as the regulatory state (M
2001) which is to be understood as an interventionist state, or nanny state, wh
enforces rules of behaviour. It stands in contrast with other forms of state intervention
public ownership, taxes and subsidies (Hood & Scott, 2000). Influenced by the neolibe
of the Thatcheryears (Peck, 2001) and by the emergenceof the New Public
Management which applies business management strategies to the public sector t
cost-efficiency Britain has moved from a “rules-based process driven tradition to a
based approach” (Hood and Scott, 2000, p. 15). Tightly linked to the New Public Mana
a shift towards greater accountability, which is reflected in what Power (1997)
explosion”, namely the attempt by bureaucracies to record everything so as to legitima
actions.
The orientation towards economic efficiency is essentially outcome-based and sh
UK has traits of utilitarianism. This outcome-based orientation is present in the
occupational health and safety where, ALARP, QRA and CBA aim at maximising benefi
society and of avoiding undue burdens with adverse economic consequences (H
Another example of the outcome-based focus is apparent in the different tolerability th
which have been set for workers and the general public. A British health and
(UKHS1) argued that this difference was justified by the compensation workers
taking the risk and by the fact that workers were aware of the risks. Such an
argument would probably not be accepted in Germany, since it would entail a
which would ignore the equality of rights as set out by the constitution.
Looking at the different normative foundation in Germany and the UK and at their diff
approaches towards risk, it becomes apparent that there is no universal uptake
ideas. Indeed, the process-based approach in Germany and the focus on individual inte
dignity are difficult to reconcile with risk-based approaches. Moreover, the abov
illustrates how institutions shape the behaviour of their members. According to
Olsen (1984) people’s behaviour is shaped by the ‘logic of appropriateness’. Th
appropriateness’ states that the values of an institution define what a person consider
appropriate action for a certain situation. Behaviour of individuals thus conforms to th
of the institutions and their actions are aimed towards fulfilling the duties impo
institutions (March & Olsen, 1984; Peters, 2005). With regards to Germany and
ideas are then shaped and influenced by institutional contexts. However, other

Sarah Haunert (1151941)
39
variables are also said to shape the uptake of risk-based ideas in Germany. They will b
explored in the following part.
6.2.2. Other Shaping Factors and Shortcomings
Krieger (2012) and Rothstein et al. (2011) mention other institutional variables as sha
of risk-based approaches in Germany. As such they focus on procedural aspects of Ger
style of public administration. They argue that Germany’s legal foundations are charac
rigidity. According to them, German public administration is ‘juridified’, which fits une
risk-based approaches and their inherent uncertainties. Yet, no evidence was fo
collected data of this study. Instead interviewees (LO; GO) mentioned that approaches
risk considerations, such as the Risk Concept, are not formally codified, but are includ
ordinances or regulations (Verordnungen), which are developed by the executive. Usu
regulations are more flexible; they do not have to go through the parliamentary route
passed faster than formal laws (Ossenbühl, 2007). Even though risk ideas may fit unea
the rigid administrative law of Germany, regulations enacted by the executive c
this rigidity.
Furthermore, Krieger (2012) and Rothstein et al. (2011) focus on structural cha
Germany. Rothstein et al. (2011) claim that Germany’s fragmented and multi-le
policy-making complicates risk-based decision-making; different views on how to
based approaches and contradictory interests tend to clash. The interview data,
hand, did not provide evidence for this claim. It demonstrated great consistenc
respondents’ replies, suggesting overall consent rather than disagreement conce
management.Moreover,the consensualstyle of decision-makinghelps to overcome
contradictory interests or at least it helps to reach compromises. Krieger (2012) ment
due to the fragmented nature of Germany’s polity, risk-based approaches are not need
defensive strategy to deflect blame. He argues that in this complex web, respo
shared and accountability becomes fuzzy. The potential for public scrutiny and
attribution to specific state actors is reduced. Even though this study lacks suff
properly assess Krieger’s claim, his account is likely to apply to Germany’s OHS regim
based approaches as blame deflectors appear to be of little importance in the OHS reg
only because it is very fragmented but also because employers are the first on
responsible in the case of an accident.

Sarah Haunert (1151941)
40
Nevertheless, there is a need to explore the structural and procedural arguments in m
with regards to Germany’s OHS regime. Moreover, this study only focused on
namely occupational health and safety. Yet, the approach taken by Germany’s OHS sy
necessarilyadoptedby otherregimes,such as food safetyor environmentalprotection.
According to Hood et al. (2001) differences in risk-based approaches can vary from on
to the other. Hence different regimes in Germany might follow a different appr
risk, which represents an avenue for further research.

Sarah Haunert (1151941)
41
CHAPTER 7: Conclusion
This study set out to analyse whether arguments about the universality of risk
regulation hold. Focusing on Germany’s occupational health and safety regime it demo
that risk in governance does not follow a universal pattern, but that risk ideas
conceptualised in different ways due to certain institutional influences.
Whereas risk-based regulation has asserted itself in the UK, pervading almost every re
domain(Black& Baldwin,2010),Germanyis not markedby suchan all-encompassing
endorsement of risk-based regulation. Germany’s normative foundation, which is
anchored in the principles enshrined in its constitution, strongly influences the uptake
based arguments. The focus on individual dignity and physical integrity as well as the
protection conflict with conceptualisations of risk which contain uncertainties an
damage. Whereas the UK’s utilitarian features facilitate or even demand the ado
based regulation, Germany’s essentially process-based focus is incompatible with outc
risk tools such as CBA and QRA. Even though scientific assessments are under
exampleto determineoccupationalexposurelimits,cost-benefitanalysisand probability
calculations are uncommon if not unacceptable. The trade-offs they include would viol
principles of the constitution. Nevertheless, trade-offs are done, albeit in a more indire
In the consensual tradition of decision-making trade-offs are reflected in adopted com
yet they are not as explicit as in strictly risk-based approaches.
The Risk Concept relies on a partial conceptualisation of risk, namely on scientific ass
and risk quantifications. Yet, this concept represents an exception and was adopted as
no better alternatives to managing risks from exposure to carcinogenic substances an
the concept is to eventually lead to acceptable exposure levels for all substances, thus
that the state complies with its duty of protection.
Finally, the assumed proliferation of universal risk ideas and approaches seems to be
if not restricted by impervious institutional obstacles, which rely on their normative fo
as benchmarks for governing risks. Yet, regardless of whether a risk-based approach i
or not, every country aims at reaching acceptable levels of safety.

Sarah Haunert (1151941)
42
APPENDIX 1: Forms

Sarah Haunert (1151941)
43
Geography Research Screening Form

Sarah Haunert (1151941)
44
Ethical Approval Notification
From: [e-mail]
Sent:30 May 2012 16:24
To: Haunert, Sarah
Cc: Rothstein, Henry
Dear Sarah Haunert,
KCL/11-12_1107 MSc Risk Analysis
I am pleased to inform you that full approval for your project has been granted by the
Research Ethics Panel. Any specific conditions of approval are laid out at the end of th
which should be followed in addition to the standard terms and conditions of approval
- Ethical approval is granted for a period of one year from the date of this email. You
receive a reminder that your approval is about to lapse so it is your responsibility to ap
extension prior to the project lapsing if you need one (see below for instructions).
- You should report any untoward events or unforeseen ethical problems arising from
project to the panel Chairman within a week of the occurrence. Information about the
be accessed at: http://www.kcl.ac.uk/research/ethics/applicants/sshl/panels/.
- If you wish to change your project or request an extension of approval you will need
submit a new application with an attachment indicating the changes you want to make
proforma document to help you with this is available at:
http://www.kcl.ac.uk/research/ethics/applicants/modifications.html).
- All research should be conducted in accordance with the King's College London Gui
on Good Practice in Academic Research available at:
http://www.kcl.ac.uk/college/policyzone/index.php?id=247&searched=good+practice&
rch=allwords&highlight=ajaxSearch_highlight+ajaxSearch_highlight1+ajaxSearch_hi
If you require signed confirmation of your approval please forward this email to sshl@

Sarah Haunert (1151941)
45
indicating why it is required and the address you would like it to be sent to.
Please would you also note that we may, for the purposes of audit, contact you from ti
time to ascertain the status of your research.
We wish you every success with this work.
With best wishes
Yours Sincerely,
GGS Reviewer
Conditions of approval (if blank there are no specific conditions):

Sarah Haunert (1151941)
46
Geography Risk Assessment Form

Sarah Haunert (1151941)
47
APPENDIX 2: Codes for Interview Participants
Interview Number Interviewee Job Role Code
1 Employee of Higher Federal Authority HFA
2 Researcher of Non-governmental Research
Institute R1
3 Employee of Statutory Accident Insurance
Organisation SAI1
4 Employee of Land Inspectorate LI1
5 Employee of Federal Agency FA1
6 Occupational Hygiene Expert OHE
7 Employer’s Representative ER
8 Employees Representative EmR
9 Employee of Federal Agency FA2
10 Regional Inspectorate RI
11 Government Official GO
12 Member of Federal Committee FC
13 Researcher of Research Association R2
14 Land Official LO
15 Independent Consultant IC
16 UK Health and Safety Expert UKHS1
17 UK Health and Safety Expert UKHS2
18 Industry Representative IR
19 Employee of Statutory Accident Insurance
Organisation SAI2

Sarah Haunert (1151941)
48
APPENDIX 3: Glossary
Arbeitsplatzgrenzwerte (AGW) Occupational Exposure Limits
Arbeitsschutzgesetz (ArbSchG) Occupational Health and Safety Act
Arbeitssicherheitsgesetz (ASiG) Safety at Work Act
Ausschuss für Gefahrstoffe (AGS) Committee on Hazardous Substances
Berufsgenossenschaften or
Unfallversicherungsträger
Statutory Accident Insurance Organisations
Bundesministerium für Arbeit und
Soziales (BMAS)
Federal Ministry for Labour and Social Affairs
Bundesrat The upper house of parliament
Bundestag The lower house of parliament
Expositions-Risiko-Beziehungen Exposure-risk-relationships
Gefährdung Hazard
Gefährdungsbeurteilung Risk assessment (according to EU Directive); hazard
assessment (literal translation)
Gefahrstoffverordnung (GeStoffV) Hazardous Substances Regulation
Gemeinsame Deutsche
Arbeitsschutzstrategie (GDA)
Joint German Occupational Safety and Health
Strategy
Land (singular); Länder (plural) The federal states in Germany
Länderausschuss für Arbeitsschutz
und Sicherheitstechnik (LASI)
Commission for occupational safety and safety
engineering of the federal states
Risikokonzept Risk Concept
Technische Richtkonzentrationen
(TRK)
Technical guidance concentrations
Verordnungen Regulations or ordinances

Sarah Haunert (1151941)
49
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