Risk-based Regulation in Continental Europe?
Explaining the Corporatist Turn to Risk in German Work Safety Policies
Regine PAUL* & Michael HUBER
Law and Society Unit, University of Bielefeld, Germany
Contact Details:
Law & Society Unit, Faculty of Sociology, University of Bielefeld,
Universitätsstraße 25, 33615 Bielefeld, Germany
[email protected]; [email protected]
*corresponding author
HowSAFE Working Paper, No. 2
25 February 2015
Research for this paper was supported by a grant awarded through the Open
Research Area Programme for the Social Sciences jointly funded by the ESRC
(ES/K006169/1), DFG, ANR, and NOW (http://tinyurl.com/howsafe-project).
Regine Paul is post-doc scholar at the Department of Sociology at Bielefeld University. She holds a
PhD in social policy from the University of Bath and has published on the migration governance in
Europe, including her recent monograph The political economy of border drawing published by
Berghahn Books. Her current research compares the diffusion of risk-based regulation in Europe.
Regine is co-chair of the Council of European Studies’ research network “European Integration and the
Global Political Economy”.
Michael Huber is professor of regulation sociology at the Department of Sociology at Bielefeld
University. He worked and taught at the European University Institute in Florence, the University of
Hamburg and the London School of Economics and Political Science. His recent publications deal with
the organization of risk management, the diffusion of risk-based regulation across European countries
and issues of higher education.
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Risk-based Regulation in Continental Europe?
Explaining the Corporatist Turn to Risk in German Work Safety Policies
While having gained relevance in Anglo-Saxon scholarly and political debates, risk-based regulation
seems to be a stranger to continental European settings. The more fragmented and often corporatist
forms of decision-making in countries such as Germany have been identified as key obstacles to a riskbased rationalization of policy interventions. Based on an in-depth case study of German work safety
policies, this article nuances this account theoretically and empirically. It argues, firstly, that current riskbased regulation studies suffer from a systemic bias toward the competition-oriented forms of regulation
so widely spread in the Anglo-Saxon world. They thereby misread the dynamics and rationalities of
alternative regulatory approaches elsewhere in Europe. Secondly, as our policy analysis shows, this is
especially true of corporatist and self-regulatory forms of policy-making, which characterize the case of
German work safety. Rather than impeding the adoption of risk-based regulation, corporatist
arrangements bear distinct structural features that render risk tools attractive. This finding goes beyond
the scope of contemporary risk-based regulation scholarship. Unlike the predominant Anglo-Saxon
argument, hopes of efficiency and effectiveness are not boosters for risk-based approaches in
corporatist work safety policy arrangements. Instead, risk tools serve the structural need to sustain trust
relationships, rationalize consensus-finding, and promote solidarity within self-regulatory settings. We
conclude that a corporatist type of risk-based regulation needs to complement the existing competitionbased type to account for the spatial, functional, and ideological diversity of empirical cases of riskbased regulation. We also propose the first advances toward such a new research agenda.
Keywords: risk-based regulation, corporatism, self-regulation, Germany, work safety, policy analysis
1. Introduction
Since the 1970’s, regulatory approaches have emerged which claim that regulatory resources should be
used (more) efficiently and effectively. This entails targeting resources at the riskiest events and is
coupled with risk assessment techniques which calculate the product of the impact and probability of
potential adverse outcomes. Regulatory bodies such as the British Health and Safety Executive (HSE)
have been at the forefront of promoting ‘risk-based’ interventions. International actors like the OECD
(2010) have followed swiftly. In the Anglo-Saxon world, a growing scholarly debate has materialized
around these developments (e.g., Black 2005; Haines 2013; Hutter 2005; Baldwin and Black 2010).
However, the academic examination of risk-based regulation has only very recently looked beyond the
confines of Anglo-Saxon world. The latest attempts seek to identify whether the typical forms and
drivers identified in British, American, or Australian risk-based regulation also appear in continental
European cases. First comparative studies have concluded that countries like France and Germany are
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less compatible with risk-based approaches than the UK (Rothstein, Borraz, and Huber 2013; Krieger
2013).
This paper does not seek to question these (in-)compatibility claims per se. Risk-based concepts are
certainly mentioned less in headline laws and self-prescriptions of regulatory authorities in continental
Europe. However, we argue that directly inferring rationalities and dynamics of continental European
cases from Anglo-Saxon risk-based regulation may be missing the point. More precisely, this paper
addresses a systemic bias within the Anglo-Saxon risk-based regulation debate. That is, the
exaggerated focus on competition-based forms of regulation that pursue efficiency gain strategies and
are embedded in structures of exclusive statutory accountability and authority. To transfer these
assumptions to continental European cases seriously overlooks alternative strategies and rationalities of
regulation which are embedded, for example, in corporatist and self-regulatory forms of decisionmaking. Therefore, the article examines both theoretically and empirically how and why risk-based
regulation emerges in such settings, inquiring which structural features in such arrangements make the
adoption of risk tools attractive.
German work safety regulation serves as good exploratory case, because the domain is characterized
by strong federalism on the enforcement side as well as predominantly corporatist arrangements for
standard-setting – both factors which were hitherto diagnosed as rather impeding of risk-based
approaches. Yet, work safety regulation in Germany does apply risk-based elements and raises the
question how their emergence can be explained in a seemingly rather hostile institutional environment.
In an attempt to expand the Anglo-Saxon debate we trace specifically corporatist drivers for the
adoption of risk tools, thereby contributing to an apt cross-pollination of scholarly knowledge on riskbased regulation and long-standing insights on corporatist regulation. Beyond the hopes for regulatory
efficiency and effectiveness so widely agreed-upon in the Anglo-Saxon discussion, corporatist
arrangements prerequisite trust and consensus. This entices a unique attraction to risk-based regulation
which has so far lacked scholarly attention. We proceed in five main parts.
Section 2 reviews the Anglo-Saxon debate on risk-based regulation. We specify our research question
and case selection based on a problematization of the partially biased and hasty inferences from this
debate. Sections 3 to 5 examine German work safety regulation in depth to establish the variable
rationalities which guide the adoption of risk-based tools, first in the federalized (section 3) and then in
corporatist settings (sections 4 and 5). Three cases of risk-based regulation feature in our policy
analysis: German federal states’ inspection planning, corporatist standard-setting on carcinogen
management by the Committee for Hazardous Substances (Ausschuss für Gefahrstoffe, AGS), and the
management of public accident insurance contributions by mutual trade associations. In each of these
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sections, we first develop preliminary hypotheses about the likely adoption of risk-based tools based on
existing research and theoretical knowledge before substantiating our claims empirically with a case
study. Our qualitative analysis draws on policy documentation and semi-structured interviews with 16
experts in the field (see appendix) as well as a participant observation during an inspectors’ practitioner
workshop. We summarize our key findings in section 6 and discuss their implications for the scholarly
debate on risk-based regulation. We end by proposing a wider research agenda that deals with other
non-Anglo-Saxon cases.
2. Risk-based regulation: an Anglo-Saxon debate and its continental inferences
In Anglo-Saxon policy-making and scholarship, risk-based regulation counts as an innovative tool of
policy intervention that transcends a much older concern with risk regulation (e.g., Black 2005; Baldwin
2010; Rothstein et al. 2006). Rather than being concerned with the government of risk, that is, with the
societal control and management of situations considered dangerous, risk-based regulation enables
regulatory authorities to govern by risk. This means that risk is no longer seen as the object of
regulation, but serves as a heuristic for policy-makers to make uncertain future events calculable. Risk
has become, in Bridget Hutter’s (2005, 1) words, “a new lens through which to view the world”, including
the world of policy-making and regulation. The following briefly introduces the concept of risk-based
regulation and delineates its main drivers and applications in the Anglo-Saxon world. It asks whether the
approach seems less suited to continental European settings, and if so, why?
Risk-based regulation in the Anglo-Saxon world
Risk-based regulation first emerged in the United States and the United Kingdom in the 1990’s, but
demands for such approaches date back to the 1980’s (Viscusi 1983; Fiksel 1985). The term is often
used in a broad sense, especially in self-descriptions of regulatory agencies and refers to the rational
use of regulatory resources. Risk-based tools at their core consist of scientific risk assessment
techniques. These establish different risk levels by multiplying the probability of an adverse future
outcome by its foreseeable impact. Such differentiation then enables policy-makers to focus resources
on the riskiest events, while explicitly relieving regulation and inspection in lower risk spheres. This may
lead, for example, to a regulatory concentration on ‘slip and drip’ hazards during workplace inspections.
Even though these are hardly fatal, they cause injuries at high frequencies and therefore constitute a
higher risk than say, exposure to electric shocks. Risk-based thinking thus also stipulates the explicit exante acceptance of ‘the limits of governance’ vis-à-vis the prevention of all possible harm (Rothstein,
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Borraz, and Huber 2013). The OECD, itself a strong supporter of risk-based regulation, offers a
comprehensive definition:
“A risk-based approach to regulation explicitly acknowledges that the government cannot regulate to remove all
risks and that regulatory action, when taken, should be proportionate, targeted and based on an assessment of the
nature and the magnitude of the risks and of the likelihood that regulation will be successful in achieving its aims.”
(2010, 16)
As seen here, risk based approaches can be read as a methodological farewell to a more
comprehensive safety culture. In turn, this raises the question concerning what kind of and how much
failure is acceptable to the public and the regulator. This perspective was taken up during the 1990’s in
the UK, for instance, as a remedy for the perceived ‘regulatory burden’ on industry. It was hoped that
problems such as high compliance costs, over-regulation (and under-regulation), the unequal treatment
of similar risks, overly obsessive inspection, and enforcement practices in multiple policy domains could
be alleviated with the help of risk rationalizations. The 1974 British Health and Safety at Work Act was
the first to prioritize standard setting and later also inspection planning, in a manner that enabled riskbased rationalization later on 1, especially supported by a central regulatory agency, the Health and
Safety Executive (HSE) (Demeritt et al. 2015).
The key selling point of risk-based regulation in the Anglo-Saxon political and academic debate,
especially on administrative reform in a New Public Management (NPM) context, clearly concerns its
ability to produce more efficient and more effective regulation. Risk-based regulation, it is claimed,
enables a more beneficial allocation of scarce regulatory recourses. Indeed, as Rosa and colleagues
(2014, 2) point out, “thinking about risks helps people to select the option that promises at least a
marginal surplus benefit compared with all other available options”. Risk assessment is often associated
with cost-benefit analysis in decision-making (Hutter 2005). The Hampton Review, for instance,
suggests that business and workplace inspections in Britain could be reduced by “up to a third, which
means about one million fewer inspections”, without sacrificing effectiveness. This could be
A more recent policy review promotes risk-based inspection planning for all British regulatory agencies as “an essential
means of directing regulatory resources where they can have the maximum impact on outcomes” (Hampton 2005). Not
surprisingly then, other agencies such as the British Food Standards Agency or the Environmental Agency have adopted
risk-based inspection planning tools, too. Calls for risk-based approaches similarly surfaced in the 1980’s in the US,
especially as the Occupational Safety and Health Agency (OSHA, founded in 1971) attracted massive criticism for its alleged
inflexible standard-setting and high inspection density: “Well-designed policies should not eliminate the diversity of risks and
strive for a no-risk society, but instead should provide risk information and promote the economic incentives that will lead to
the wage-risk and price-risk combination most appropriate for different risk preferences.” (Viscusi 1983, 167).
1
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accomplished if only agencies used risk-based priority-planning systems (2005, 8). 2 In addition to
efficiency gains, risk-based regulation has also been associated with higher levels of transparency. Risk
assessment would make risks comparable and enable the equal treatment of similar risks while
justifying the unequal treatment of different risks (OECD 2010). Moreover, risk-based thinking would
render regulation and enforcement more predictable for businesses and indicate unacceptable gaps in
firms’ prevention strategies (Hampton 2005).
Limits to risk-based regulation in continental Europe
Although these gains in rationalization through risk seem persuasive, it is no coincidence that risk-based
regulation scholarship has long avoided to look beyond the confines of the Anglo-Saxon experience.
The term has simply not appeared in headline law or regulatory agendas elsewhere (Rothstein et al.
2015). More recently, comparative regulation scholars have diagnosed a certain reluctance to pick up
risk-based regulation outside the Anglo-Saxon world. A comparative study of the UK, France, and
Germany investigated institutional drivers and obstacles 3 to risk-based thinking, and found them in
institutional differences, in different styles of decision-making, and governance traditions (Rothstein,
Borraz, and Huber 2013, 219):
“[These countries are] characterized by different governance traditions that may influence their receptiveness to
risk-based approaches. The UK has a managerial orientation in public administration after years of experiments
with New Public Management and is characterized by strong transparency and accountability pressures. France,
by contrast, has a technocratic tradition of governance with a concentration of decision-making power in an opaque
executive. Germany, meanwhile, has a juridified and fragmented style of decision-making.”
While confirming the main background and motives for British risk-based regulation in a NPM context,
Rothstein and colleagues have done important groundwork for our German case. At first glance,
Germany would appear unfit for risk-based approaches. This stems from, “the struggles of the German
Rechtsstaat to cope with risk ideas; problems which are amplified by horizontal and vertical
fragmentation of policy responsibilities and accountabilities, and attempts to find solutions by drawing on
corporatist decision making traditions” (ibid, 227). Even where endeavored, risk-based decisions in the
In a similar vein, Viscusi castigates inflexible OSHA standard-setting on carcinogens in the U.S of the 1980’s – only two
categories existed for high risk and low risk substances – for its inefficiency “because it abstracts from almost all of the
variations in the costs and benefits of regulating different substances” (1983, 117).
2
3 A growing body of literature discusses the weaknesses and limits of risk-based regulation from within the Anglo-Saxon
debate. Scholars fear that the sole focus on high risks may underplay the volatility and dynamism of low risks when they are
not reviewed regularly (Black and Baldwin 2012). Others warn that risk-based inspections would constantly reduce the data
base available for future priority-planning and thereby eventually disable risk-based decisions on which firm to inspect
(Tombs and Whyte 2013).
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German context would easily “fall prey to intractable adversarial conflicts between stakeholders seeking
to protect their conflicting, but constitutionally enshrined, rights to economic activity and health
protection” (ibid, 226). Apart from barriers in the legal system, the horizontal and vertical fragmentation
of policy responsibilities and the corporatist decision-making system seems to impede comprehensive
risk-based regulation in the German case.
We have three reasons to remain somewhat unsatisfied with these predictions. Firstly, we ought not to
mistake German headline law commitments to safety as being associated with absolute goals. This is
apparent when observing the interaction between risk-based regulation and the diverting logics of
common vs. civil law systems. As a consequence, unlike in British common law where prioritization
needs to occur explicitly and upfront, German legislation usually formulates aspirational safety goals
that aren’t taken literally by courts or enforcers. In practice, they are qualified by proportionality and
reasonability considerations, especially in the more detailed norm setting and enforcement process
(Rothstein et al. 2015). In German legal studies, this mechanism is well acknowledged. While the
legislator “refrains from settling the details and must be satisfied [with] formulating the principles and the
big guidelines” (M.P. Huber 2009, 15), it usually delegates the elaboration of these broad legal
principles to stakeholders. Overall, the German legal system seems less averse to risk-based thinking
than first impressions may propose. We might therefore want to target our analytical efforts on the role
of those actors who carve out legal principles in practice.
Secondly, federalism seems only partially convincing as a key obstacle. Other federalized countries
such as the US or Australia have made use of risk-based regulation, centrally as well as within specific
federal states (on the latter case see: Haines 2011). One important variation, of course, is German
federalism’s lower competition-orientation when compared to the above mentioned countries. Rather
than instigating competition between federal entities, it revolves around an overarching coordination
approach — famously labeled as ‘consensus democracy’ by Arendt Lijphardt (1984). Comparatively
high coordination efforts among federal states (and federal states with the central state) may decrease
the likelihood for risk-based approaches to emerge as a unifying frame after a compromise is reached.
However, German federalism does not render risk-based tools fully impossible either. We need to
examine the conditions under which they do emerge.
Thirdly, and most importantly for the argument proposed in this paper, corporatism may not inevitably
act as a hindrance to risk-based regulation. Rothstein et al.’s evaluation of corporatist arrangements in
Germany is slightly undecided on the overall fit of risk-based thinking in the German setting, but
suggests (in the second part of the quotation below) that trust-based negotiations and consensual
decision-making – two key ingredients of corporatist settings – tend to be incompatible with risk:
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“Germany’s corporatist traditions have played an important role in trying to find solutions through negotiations
between stakeholder representatives … Such approaches may go hand-in-hand with risk-based rationales if they
assist stakeholders in achieving their various objectives. However, such approaches may equally work against riskbased rationales when they strongly rely on established relationships of trust, strategic bargaining and an
emphasis on consensual solutions, all of which resist formulaic justifications.” (Rothstein et al. 2013, 226)
The second part of the quotation implicitly negates the possibility that corporatist negotiation settings
may use risk tools in different ways and for different rationales than those implied in the Anglo-Saxon
debate: competition and efficiency gains. It seems unlikely, from this viewpoint, that risk tools can be
designed to enhance trust and consensus as to structurally support corporatist forms of decisionmaking. Yet, a detailed empirical analysis is not offered so far: while Rothstein et al. (2014) have
recently nuanced the role of continental legal systems corporatist turns to risk are very much underexplored in the Anglo-Saxon debate.
We suggest that it is time to empirically substantiate the claims made by the comparative risk-based
regulation literature. Our policy analysis will uncover in detail the conditions under which risk tools and
their underpinning drivers emerge in the German setting. In order to explore the research puzzle of
when and why corporatist arrangements are likely to adopt risk tools, we propose a case study of
German work safety regulation. This is a good case for two reasons. Firstly, it is possibly one of the
most fragmented domains in German policy-making. Inspections are tasks for Lander and a multitude of
sectoral mutual trade associations. The corporatist social insurance and accident prevention regimes
are also involved in regulating work safety. Secondly, despite this fragmentation and the lack of a
central regulatory agency, our data indicates the use of risk tools across the regime.
We proceed with a (brief) consideration of German Lander turns to risk as a ‘typical case’ confirming the
Anglo-Saxon debate above, before turning to our key object: the seemingly ‘untypical’ corporatist cases
of risk-based regulation. This argumentative bridge enables our analysis to counter any peril of national
essentialism: we neither fully confirm nor fully reject the dominant Anglo-Saxon rationalities of adopting
risk tools, but seek to offer a nuanced account of the variable rationalities of risk-based regulation
across different institutional settings – the corporatist one so far not well understood – within the same
country and policy domain.
3. Confirming Anglo-Saxon expectations: Risk-based Lander work safety inspections
The modern work safety regulatory regime in Germany dates back to the 1891 Industrial Code
(Gewerbeordnung, GewO). Besides establishing employer duties to protect workers (more in section 4),
the code introduced a mandate for legitimate state intervention in cases of work safety infringements
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and created state inspectorates. Enforcement was conducted by local and regional police forces at the
time. This occurred without much coordination from the central state. As a lasting echo of the Industrial
Code, today’s the federal state only passes broad framework legislation while the federal states
(Lander) organize enforcement activities. Drawing on German public administration studies, we analyze
the theoretical affinity for risk approaches in Lander work safety inspections first and substantiate this
discussion empirically in the second half of the section. This analysis shows that Lander motives for
using risk tools emulate those mentioned in the Anglo-Saxon debate and thus form an analytical
contrast to corporatist rationalities of risk-based regulation which we discuss later.
In Germany, Lander factory inspectorates (Gewerbeaufsichtsämter) enforce statutory work safety
legislation. The organizational structures of inspectorates vary from agencies at Lander level (as in
Berlin, Schleswig-Holstein, Hamburg), to municipal district governments (as in North-Rhine-Westphalia),
or in some cases operate in each communal district (as in Baden-Württemberg). Most enforcement
agencies are not only charged with the licensing of new enterprises and their routine or follow-up
inspections, but also with implementing environmental, product safety, and even nuclear safety. Such
territorial and functional variation has been expected to impede the adoption of risk-based regulatory
tools. We have already discussed our reasons for doubting this claim in section 2. So why would
German Lander, hypothetically speaking, pick up risk tools?
Lander administrations can be expected to justify using risk-based tools for similar reasons as those
presented in the Anglo-Saxon debate. This claim rests on two key insights. Firstly, the hierarchies within
the German model of so-called territorial self-administration (territoriale Selbstverwaltung) establish
forms of direct accountability and overview. They may operate autonomously from the central
government in Berlin, but German Lander civil servants are typically required to implement legislation in
a neutral and impartial manner. They accomplish this through a hierarchy of different levels of Lander
administration (Glaessner 2006). Strong ministerial oversight ensures that tasks are narrowly defined
and pursued accordingly. Statutory inspectors are held accountable by their line managers, who are in
turn held accountable by the Minister, who is then held to account by the Land parliament and the public
(see also: Dohler 2002). Blame-shifting is hardly possible in this hierarchical setting of direct
accountability. Secondly, Lander raise and manage their own budgets and staff resources with a high
degree of autonomy from Berlin. They are directly accountable for the quality of the public good
provided. Risk might represent a welcome tool for rationalizing inspection planning. By acknowledging
upfront the limits to full risk avoidance, efficiency gains in enforcement activities can be promised and a
venue to account for things going wrong can be established. Our subsequent analysis of inspection
planning validates these claims empirically.
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Lander inspectorates distinguish between event-driven and routine inspections in workplace safety.
While the first necessarily occur independently of inspectors’ decisions, several Lander have introduced
risk-based planning for routine inspections over the past several years. We focus on North-Rhine
Westphalia (NRW) because it has been decisive in mainstreaming the approach across all
inspectorates through a Lander working group (LASI) 4. In its ‘risk-oriented inspection concept’, NRW
suggests a three-step procedure. In a first step, inspectorates categorize each company within their
jurisdiction according to four “risk categories”: mechanic risks, substance-related risks, physical, and
psychological strains on the employees. The risk value ranges from negligible risk (0) to low (1),
medium (2), and finally, high risk (3). High risk scores in singular categories or overall scores of 2 or 3
imply that a whole sub-sector will move onto the preliminary inspection list. This first step is arguably
hazard-based as it only considers potential impact and ignores probabilities. In a second step, however,
inspectorates assess the size of companies in order to factor in probabilities of regulatory compliance
with OHS management requirements. As a consequence, small and medium sized enterprises become
the focus for inspections, with non-compliance being of particular importance. Large companies, even
those with high damage potential, are ‘un-selected’ because their compliance records tend to be
excellent.
Table 1: Example of risk-based inspection planning in Hamburg
Hazard potential >
Ability of firm to deal with hazard potential A (high)
(likelihood)
B (medium)
C (low)
I (satisfactory system audit)
Not inspected
Not inspected
Not inspected
II (partly satisfactory system audit)
Can be inspected
Not inspected
Not inspected
III (insufficient system audit)
Must be inspected
Can be inspected
Not inspected
Source: Amt für Arbeitsschutz der Freien und Hansestadt Hamburg (2008)
To reduce the inspection load further, a final selection step takes companies’ past performance into
consideration. This is intended to inform inspectorates about likelihood of future compliance.
Inspectorates have to assess, “whether the respective employer entertains an adequate organization fit
for the identification, planning and execution of necessary OHS measures in its entirety” (LASI 2011,
41). This system-audit-approach is very fine-grained but the gist is an overall evaluation of companies’
A participant observation during an inspectors’ workshop on risk-based inspections in Dusseldorf in 2013 indicated that the
motives and mechanisms described for the case of North-Rhine Westphalia are representative for other Lander, too.
4
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OHS management, which can be “adequate”, “partially adequate” or “insufficient” (LASI 2011: 15),
based on their potential risk levels (see also: Table 1). Landers’ routine inspection duties are considered
to exist only in cases where the overall judgment is “partially adequate” or “insufficient” (for detailed
methods of categorization with indicators and scenario descriptions for all aspects, see appendices of
LASI 2011).
What drove the development of this approach? As expected, the approach clearly targets efficiency
gains. The justifications for adopting risk-based inspection planning sound like a perfect rehearsal of the
Anglo-Saxon drivers for risk-based regulation. In a climate where some inspectorates saw more than a
50% staff decrease over the last decade, risk-based planning is welcomed as a formalized procedure
that economizes scarce resources according to slim Lander budgets (NRW 2013a, 9). In NRW, 200 of
the previously more than 700 inspectors have been laid off in the last decade. As one Lander
inspectorate manager explains, targeting scarce resources in a risk-based manner was seen as a
remedy:
“If you don’t have the resources … you cannot visit every firm. It is impossible to do this in any appropriate
frequency. … Given the scarce resources and great number of firms to inspect, we need to aim for a transparent
and reproducible approach ... Not least as we have to convey to the political system and the public: why have we
done certain things and refrained from doing others” (interview partner 07).
Tight global budgets and increasing tasks (also outside the work safety domain) since the 1970’s
(Herbst 2004) explain why the NRW initiative is now seen as a blue print for other Lander. This
rationalization seems to pay out. NRW ended up inspecting only 4,442 out of a total of almost 308,000
companies in addition to the approximately 10,000 event-driven checks in 2012 (NRW 2013b). With the
help of a similar approach in Hamburg, two-thirds of the categories in table 1, and hence the great
majority of companies, could be excluded from routine inspections.
While efficiency pressure operates as a catalyzer for risk-based approaches, the inspection manager’s
statement above indicates that the impulse for adopting them is not a consequence of internal
hierarchies, as proposed in section 3. Equally, there seems to be no general political pressure to adopt
risk for ideological reasons comparable to NPM reforms in the Anglo-Saxon world during the 1980’s and
1990’s. As a chief inspector explains, risk-based inspections are embraced primarily to make
transparent what inspectorates do, why, and what they cannot do as a consequence of scarce
resources. Risk-based inspection planning is thus used to legitimize a certain level of ex-ante failure
and tolerance for accidents. This is not so much directed toward the minister, but rather toward the
democratically elected leaders and the general public:
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“This is about transparency towards the political system, Land parliament, members of parliament, and so on. But
also towards the general public. To be able to say: I have done this because we agreed it that way, we thought it to
be right and important, and I refrained from doing other things because we agreed it that way, too. … The
foundation was the case of X [a scandal about large intoxications in a company which had not been inspected
recently], when everyone asked us: “Why have you not been there?” And now we can simply say: but we have a
concept! Whether this concept is correct in every instance can be discussed, but I have to be able to communicate
it!” (interview partner 15).
For the debate on risk-based regulation, this first example does not present much news. While German
federalism may lead to more spatially and temporarily scattered turns to risk, it clearly does not prevent
them. Risk-based priority planning was introduced with the hope of rationalizing increasingly scarce
resources. Efficiency pressures under conditions of tight global budgets, in combination with strong
public and political accountability expectations, have thus made risk-based tools for inspection planning
just as attractive as the British Hampton Review would have it (albeit, this surfaces with less ideological
undertones linked to NPM). We now turn to our analysis of corporatist cases of risk-based work safety
regulation and thus expand the Anglo-Saxon debate beyond the dominance of efficiency rationales.
4. Corporatist turns to risk I: Negotiating consensus for standard-setting
As work safety regulation involves trade-offs between worker protection and economic viability
(Rothstein et al. 2015), a key question for standard-setters is how far employer obligations should go.
The concern for avoiding over- as well as under-regulation has been a key rationale for risk-based
standard-setting in the US or the UK, as we discussed earlier. The 19th century German Industrial Code
set out employers’ obligations to safeguard workers against dangers to life and health, ‘insofar as
permitted by the nature of the business’ (Hennock 2007). More recently, the Occupational Safety Law of
1996 – a literal transposition of EU directive 1989/391 – obligates employers to plan work in a way ’such
that danger to life and health is avoided wherever possible and the remaining hazards are reduced to a
minimum’.
However, neither the EU directive nor German legislation qualify how far such minimization must go,
thus leaving employer duties potentially open ended and favoring full safety over risk-based strategies.
A recent comparative study highlights, however, that in civil law countries such as Germany (but also
France and the Netherlands), the seemingly risk-averse goals of safety and risk minimization have been
interpreted flexibly by the courts as well as in enforcement practices (Rothstein et al. 2015).
Furthermore, rather than engaging central state legislators, the broad legal guidelines of German work
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safety regulation are usually elaborated upon in negotiations undertaken by corporatist standard-setting
committees 5 which produce more detailed ordinances, guidelines and technical rules. Eventually, the
acceptance of risk-based tools seems to depend on the structural features of the negotiation
arrangements in standard-setting committees.
Negotiations in the German setting are often shaped by considerations for longstanding relationships
and therefore require the facilitation of trust and consensus between otherwise adversarial actors (e.g.,
Czada and Schmidt 1993). In the literature review of section 2, such arrangements have been described
as impediments to risk-based rationalities. However, we have raised doubts as to whether risk tools
could not also be trust and consensus enhancers in corporatist arrangements. Corporatist work safety
regulation certainly deviates from typical Anglo-Saxon forms of regulation. Many studies have
highlighted a cleavage between market-oriented regulation and corporatist decision-making 6 in Europe
(e.g., Hall and Soskice 2001; Holtmann and Voelzkow 2000; Siebert 2005). While the former rely on
price mechanisms and competition for regulatory innovation, the latter delegate decision-making
authority to societal groups who then engage in trust-based negotiations on behalf of (and often tightly
regulated by) the state. Both forms can certainly co-exist in the same country or even the same policy
field (Hood et al. 2001), but comparative approaches such as the varieties of capitalism have indicated
that Anglo-Saxon countries rely more often on market-based decision-making than continental
European countries (Hall and Soskice 2001).
Corporatist settings have usually been associated with consensual types of democratic decision-making
in countries such as Austria, Germany, Italy, or Switzerland. Unlike the British Westminster majoritarian
model, they feature no “closed circle of accountability” between those governed and those governing.
Instead, they have to negotiate multiple societal interdependences through consensus (Scharpf 1993,
27; translation by the authors; also see: Lijphart 1984). Regulatory efficiency has been described, at
best, as a secondary concern in such settings. We thus ought to be alert not to stop our analysis of
continental European risk-based regulation prematurely simply because efficiency rationales do not
feature prominently.
Negotiations are also crucial in firm-internal work safety planning: in a typically corporatist fashion, the German work safety
law of 1973 saw firm-internal co-determination processes on accident prevention strategies and the systematic involvement
of occupational doctors and safety engineers as key solutions for managing the trade-off.
6 Seminal work on corporatism in the 1970’s and 1980’s preferred the term ‘neo-corporatism’ to mark clear differences to the
fascist and totalitarian uses of corporatist interest concertation in the 1930’s and 1940’s in Europe. Similarly, they discuss
how concepts of corporatism evolved from examining structured interest intermediation (in competition to pluralism) to
negotiated forms of policy-making more generally (e.g., Lehmbruch and Schmitter 1982).
5
14
Meanwhile, consensus-finding through negotiation operates as the dominant rationality in corporatist
settings: “high performance [of corporatist negotiation models] can only be achieved when the mutual
willingness to reach consensus is high” (Scharpf 1993, 41; translation by the authors). As Vlek (1996)
shows for several cases of collective risk generation, risk calculations can indeed facilitate the search
for consensus in negotiations – especially in adversarial situations where workers can only gain in terms
of protection when employers are ready to spend more (and vice versa). By offering a transparent basis
for joint decision-making risk tools can moderate competing views. As Vlek’s analysis suggests, the
alleged probabilistic neutrality of risk assessment can act as a “trust-injection” in negotiation stall-mates.
These insights reveal a systemic bias and essentialism within the Anglo-Saxon risk-based regulation
debate. Only competition-based forms of governance, embedded in structures of exclusive statutory
accountability and authority, are acknowledged as institutional backgrounds for risk tools. Transposing
such implicitly ideological assumptions to continental European cases, however, seriously misinterprets
alternative forms of regulation. Corporatist regulation may rely on trust-based coordination and
consensus-seeking rather than competition, but this form may cultivate attractions to risk-based
regulation in its own right and for reasons far removed from the usual efficiency pressure claims.
Indeed, one standard-setting committee has recently turned to risk-based thinking to qualify the general
risk minimization goals of umbrella work safety legislation. With its ‘risk-based concept for carcinogenic
substances’, the Committee for Hazardous Substances (Ausschuss für Gefahrstoffe, AGS) provides a
welcome example for us to elaborate empirically on why negotiators in a corporatist standard-setting
committee apply risk rationalization techniques.
The AGS is comprised of employers, unions, Lander authorities, as well as social insurance and
scientific experts. In 2008, they introduced – for the very first time in Germany – a risk-based explication
and management of cancer risks for all workplaces and substances. This included clear limits in regards
to how far employers are expected contribute to avoiding exposure to such substances (BAuA 2012;
Committee for Hazardous Substances 2008). The Committee developed a model (figure 2), which
distinguishes between a high risk area, a medium risk area, and a low risk area. A risk tolerability
threshold between the high and medium risk areas was established — this resides at 4 in 1,000 cases,
with higher rates deemed absolutely unacceptable. Low and medium risks are differentiated by the risk
acceptability threshold of 4 in 100,000 cases. This renders less risk residual and thereby acceptable
(ibid, 10f). A set of “graduated risk control measures” (BAuA 2012, 12ff) accompany the different risk
zones. High risk substances are subject to conditional approval by the Lander inspectorates and require
a detailed employer action plan. Work with medium-risk substances requires a risk minimization action
plan. Low risk works activities can be conducted without employers having to deal with additional
15
administrative duties beyond a regular mandatory risk assessment. By differentiating among
interventions according to a calculated degree of riskiness, this model equals the typical ‘risk carrot’ that
is widely used in Anglo-Saxon standard-setting and enforcement (e.g., Bouder, Slavin, and Löfstedt
2007).
Figure 2: The risk-based concept for carcinogen management
Source: Committee for Hazardous Substances [AGS] (2008, 8)
Before the risk-based concept was established, the acceptability of cancer risks was not regulated at all
in Germany. This left a key regulatory problem unsolved: many carcinogenic substances do not imply
simple cause-effect-relationships in a manner that allows threshold effects to be determined. Experts
felt that, “there was a lack of transparency of comparability and the substance-related residual risk
[which could be accepted] was not clearly identified” (BAuA 2012, 6; similar statements by all
interviewed committee delegates). Certainly, the abstract legal principle of risk minimization established
in the 1989 EU directive was often interpreted in companies, by inspectors, and by courts as an implicit
signal to stop with residual risks. As one interviewee stated, “we do not have to perform better in a
factory compared to a worker’s risk when cycling home” (interview partner 01). The same interviewee
argues that, although legislation on working at heights does not specify cases where guards are
superfluous, no inspector has ever insisted that desk chairs need guards in order to prevent people from
falling off. However, this discretionary qualification of employers’ risk minimization duties has the
potential to cause new conflicts between employees and employers in thousands of workplaces across
16
the country. Moreover, each new negotiation about carcinogen management re-opened Pandora’s Box:
under which conditions are (statistical) cancer deaths acceptable at workplaces?
“The charms” of the risk-based model (interview partner 05) are seen in its ability to make carcinogenic
risks comparable across substances and workplaces, thus creating a transparent basis for employers’
duty to minimize risks “as far as possible”, all the while acknowledging that, “a certain residual risk will
remain” (BAuA 2012, 5). Some interviewees consider this “a revolution” (interview partner 01). Prior to
the risk-based model, limits to employer duties had not been acknowledged legally, but only informally
in enforcement practices. The success of the AGS is seen in its establishment of a “socio-political point
of reference” for risk acceptability (interview partner 05, similar statements by interview partners 01 and
03). But how did they get there and to what extent were risk-based rationalizations seen as beneficial
for negotiations within the committee?
While all members agreed that some reference value for risk acceptability must be found, negotiations
in the AGS mainly revolved around the identification of a reasonable reference. Adversarialism would
suggest, of course, that employers’ interest in high exposure values strictly opposes workers’ interest in
lower values. An employer representative questions, “Which risks can we still accept? Which risks are
no longer acceptable for a society? You can certainly grasp this somehow with math and natural
sciences, but … you cannot derive thresholds or limits with natural sciences! It is simply a socio-political
consensus” (interview partner 09). Our evidence shows that risk assessment was crucial for the
committee to strike such a socio-political consensus between various stakeholders, “Various risks at the
workplace and for the general population were taken as the starting point of the consultations [within the
committee]” (Committee for Hazardous Substances 2008, 18). This comparison of risk levels with
management strategies in other fields included, for example, the risk of a fatal accident in agriculture,
mining and retail; the risk of contracting a cancer by airborne substances in the environment; or the
existing thresholds for carcinogenic pollutants.
The AGS utilized actuarial risk calculations from neighboring fields in order to create a transparent base
for negotiating an agreement for cancers’ acceptability at work (on socio-political uses of actuarial risk
assessment in regulation see: Haines 2011; Vlek 1996). Eventually, the committee opted for a “level of
protection … for employees with respect to the acceptable risk [which] is equally differentiated and
comparable to that of the general population” (ibid, 20). Understandably, employees were easily
satisfied with that level of protection. Employers accepted this reference to ‘everyday life risk’ because
17
the comparative risk assessment convinced them that it would be unethical otherwise. To demand
higher willingness to risk exposure at workplaces would violate their moral responsibilities and
jeopardize good industrial relations 7 (interview partner 10). Once the normative consensus around
every-day life risk as an acceptability threshold was established, “the rest is [was] epidemiology”
(interview partner 01).
The negotiation process around acceptability of cancer risks at workplaces in the AGS indicates that in
negotiation settings, any science-based or probabilistic rationalization of standards can only promise
transparency after a normative base line for risk acceptability has been found. In this case, a risk-based
rationalization created a transparent basis for such a normative decision and facilitated the search for
consensus about acceptable cancer risks. The risk-based concept for managing carcinogens at work
also carries the promise of transparency into the future. By creating a common reference point for risk
acceptability and tolerability, it de-burdens negotiations and aids the fulfillment of a century-old German
aspiration: social peace at workplaces.
5. Corporatist turns to risk II: maintaining solidarity in the social insurance regime
Corporatist thinking in German work safety was developed alongside the public accident insurance —
one of Bismarck’s social policy reforms in 1844. This introduced a strict no-fault liability scheme for
compensating work-induced injuries and diseases, paid for by employer and worker contributions.
Bismarck delegated the management of social insurance to trade sectors and thus introduced a strong
corporatist pillar of work safety regulation alongside the state pillar (Ayaß 2012; Paur 1981; Simons
1984). Building upon the long-established self-regulation of trades by medieval guilds, mutual trade
associations (Berufsgenossenschaften, MTA) were founded to fulfill new self-regulatory tasks. Given its
utmost relevance in contemporary German work safety regulation the corporatist organization of social
insurance through mutual trade associations forms our third case study of risk-based tools.
Today’s public accident insurance (Deutsche Gesetzliche Unfallversicherung, DGUV) consists of nine
mutual trade associations. These MTAs are organized by economic sector 8. Membership is mandatory
for all firms in a given sector, which nowadays also pay 100 percent of the contributions. With an annual
turnover of € 20 billion, the DGUV covers (currently at the average annual cost of € 319 per worker)
The chemical industry, chief negotiator on the employers’ side, may not be representative for its strong belief in industrial
relations, of course.
8 There are further 19 public sector mutuals and a specific mutuality regime for agriculture.
7
18
employees against possible workplace related harms. In turn, the employer is protected against
financial liability in case of accidents. Contemporary MTAs form a powerful set of regional and sectoral
organizations, established under the Germany’s Social Code (Sozialgesetzbuch) and governed jointly
by employers, employees, insurance experts, and state delegates.
More important than their governance structure, however, is their wide-ranging authority to regulate
work safety issues on behalf of, but independently from the state. MTAs have been characterized as
‘self-regulatory’ organizations, which have been endowed with statutory regulatory powers. This allows
them to solve work safety problems jointly with workers and employers (Scharpf 1993, 36; also see:
Collin 2012; Simons 1984). MTAs have three principal means of governing work safety. Firstly, they can
incentivize work safety performance by managing insurance premiums. These premiums are negotiated
in the self-regulatory tripartite boards (Ayaß 2012). Secondly, MTA boards can pass detailed ‘accident
prevention regulations’ (Unfallverhütungsvorschriften), which are legally binding, subject to approval by
the Federal Ministry of Labour. Indeed, the bulk of detailed rules that give legal expression to the
generic risk minimization goal are produced in the corporatist pillar. Lastly, MTAs also run their own
inspectorates. MTA inspectors traditionally regard themselves as having a ‘preventative’ and advisory
function, in contrast to the formal enforcement role of the Lander inspectorates. However, they do have
recourse to powers which are similar to regional inspectorates, such as fines or orders, to demand
prevention activities from firms.
Such a corporatist regulatory solution is typical for the German case. Unfortunately, it is often
miscomprehended in the rather binary Anglo-Saxon distinction between public vs. private regulation. As
Peter Katzenstein (1987: 31) noted on German policy reforms:
“[R]egulation does not pit government against business in a public, adversary relation marked by widespread
litigation. ... Instead cooperation between business and government is formalized. Rather than delegating broad
discretion to independent regulatory agencies … West German legislation confers restricted powers on public
authorities, to be exercised only in consultation with major societal interests”.
In German regulation (even 30 years after Katzenstein’s writings), state intervention is often limited
while self-regulatory solutions have focused on harvesting the regulatory capacities and expertise of
societal sectors involved in a given domain (e.g., Benz 2008; Collin et al. 2012; Mayntz and Scharpf
1995). The central state has long ago externalized accountability for work safety regulation to societal
and industrial actors. There are therefore less of the “de-burdening” pressures, which have been
described as key catalyzers for the British or US emergence of risk-based regulation. We need to
examine alternative rationalities in order to understand corporatist turns to risk.
19
We propose two key features of corporatist organizations that may render risk tools attractive: internal
reciprocal accountability and strong needs for solidarity. Like Lander, corporatist organizations such as
MTAs have the ability to raise their own taxes and contributions, devise budgets, recruit and control
staff, and choose regulatory priorities and the means to achieve them. Yet, they do not operate with
global budgets. MTAs do not run profits, but draw on obligatory member contributions in a pay-as-yougo-system, which distributes cost to members retrospectively (Ayaß 2012). In other words, if their
spending increases as a result of more accidents occurring, MTAs can make up for increased expenses
by raising the cost of members’ contributions. According to legal historians, forced incorporation and
obligatory contribution are key markers of autonomy and successful self-regulation in German work
safety:
“The transformation into para-publically constituted forced incorporations guaranteed an extension of the financial
base by the introduction of obligatory contributions for all activities within a sector, encompassing binding force of
the self-given rules, and, thanks to the conferment of public duties, eventually a strengthened impact vis-à-vis the
state” (Collin 2012, 28, translation by the authors).
It seems that MTAs experience less pressure compared to Lander inspectorates when it comes to
saving money in work safety provision. This may render them less likely to apply risk tools.
Financial autonomy is controlled, however, by strict financial accountability within each sector —
especially between companies who pay into the same insurance fund. The costs inflicted by one
employer or sub-sector are taken on directly by all others. Solidarity between members in each MTA
can only be maintained when the MTA management can ensure high levels of transparency in this
contribution regime. As scholars of corporatism have long noted, the very features that render
corporatist arrangements resilient – forced membership and contributions, functional representation,
monopolistic structures and strong organizational resources – also produce key lines of attack for
unsatisfied members and hence threaten the stability of the arrangement (Schmitter 1982, 266f). Risk
tools may be appealing in forced incorporations such as MTAs, if they can stabilize sector-internal
accountability structures. Previously scholars have acknowledged that, “corporatism may coexist with,
even become directly dependent on, other modes of conflict management and consensus-building often
deemed incompatible with corporatism” (Wassenberg 1982, 85). This may prove true in our case of riskbased regulatory approaches as well.
Our last case analyzes the use of risk concepts in MTAs’ management of contributions in public
accident insurance. Like any insurance, MTAs need to square the circle of risk pooling vs. moral hazard
(Baker and Simon 2002). As all firms have forced membership in their MTA, they also pay for risks and
work safety costs deliberately or negligently incurred by other firms in their sector. MTAs counter this
20
potential free-riding behavior by micro-managing contribution schemes. Risk-based mechanisms have
gained key importance in that context. The key policy tool here is the so-called ‘risk tariff’, a coefficient
that multiplies firms’ basic contributions depending on risk levels. Starting from a fixed percentage of the
wage bill, risk levels in their sub-sector plus the firm’s individual risk level multiply the contribution rate.
Even since Imperial Germany, “their classification in a so-called ‘hazard class’ has been decisive for the
specific contribution level of a firm alongside the wage bill” (Ayaß 2012, 132), meaning that the use of
risk-based differentiation is as old as the social insurance itself.
In order to design risk tariffs, “one simply takes all sub-sectors and activities in any one MTA [for the
previous five years] and then devises them retrospectively by the actual risk, meaning accident
frequencies and costs” (interview partner 02). MTA risk calculations draw on statistics of accident
probabilities and economic impact, and inform highly variable contribution levels. Some high risk sectors
such as construction pay sixty times as much as employers who provide low risk office jobs. In addition,
most MTAs apply localized merit-rating-systems. Good performers (statistically speaking), receive up to
30 percent of their annual contributions back, while additional contributions have to be paid by below
average performers. MTAs also use risk-related statistics to govern prevention and research priority
setting.
However, the solidarity principle clearly limits the extent to which contribution levels can be risk-based:
“If roof building firms were asked to cover their risks fully [rather than enjoying some solidarity within the
construction sector], they could not run their businesses” (interview partner 02). As a matter of fact, the
need to cover risks fully would eradicate the very purpose behind the insurance. Political pressures can
mitigate the balance between solidarity and risk-individualization further. For example, semiprofessional football clubs cannot afford risk-based premiums. Their players are exposed to high risks
and costs are huge costs compared to low wage sums. Following political pressures, MTAs were
persuaded to spread the high costs of semi-professional sports onto a low risk sector: private
administration (e.g., banks and private insurances) (interview partners 02, 10). These examples show
that political rationales and the need for solidarity in the self-regulatory insurance regime can tip the
balance between solidarity and individual cost towards the former.
Despite these limitations, the risk-based contribution model is justified predominantly by the need for
reciprocal accountability within a sector. According to an MTA expert, the balancing of collective costs
and individual performance needs to happen in such way that solidarity within the sector can be
sustained:
21
“It cannot be the meaning of solidarity that all are liable for everyone else. Imagine that the contribution that the
university pays for you should also cover the risk of a miner! … The university would then have to pay 4 or 5 times
as much as they do now. No-one would find that very funny.” (interview partner 02)
This is also echoed by employers: “We consider this a sensible approach, because the higher your risk,
the higher is your potential to produce costs from accidents and occupational diseases. … Uniform
contribution levels would certainly not please anyone!” (interview partner 03).
Our evidence indicates that risk tariffs fulfill an important signaling function. They make all MTA
members aware that (forced) solidarity is responsive to poor safety records and keeps bad performers
liable, at least to some extent. Risk differentiation renders varied work safety performances and
prevention efforts transparent within each sector and thus lays the foundations for enforcing financial
accountability between members. By ensuring such mutual accountability between their members and
providing a relatively fair and efficient allocation of work safety costs, MTAs can counteract free-riding or
non-compliance dynamics without relying on central state interventions. Overall, risk-based
contributions serve as stabilizers of mutuality 9 and solidarity in the public accident insurance and,
eventually, sustain self-regulation in a forced incorporation regime.
6. Discussion: Towards a corporatist type of risk-based regulation
This paper started out by problematizing state-of-the-art risk-based regulation studies. In looking for the
replication of Anglo-Saxon patterns and drivers of risk-based regulation, these scholars tend to overlook
or misjudge unique forms of risk-based regulation in continental European cases. Rather than being
generally incompatible with risk tools, European adoptions of risk-based regulation may simply feature
mechanisms and rationales that surmount the efficiency rationalities that dominate the Anglo-Saxon
political and scholarly debate. To counter such a systemic bias, we scrutinized theoretically and
empirically the structural features of corporatist arrangements that render the adoption of risk-based
regulatory tools attractive in such settings. In the following, we summarize the paper’s key findings and
discuss its implications for concepts of risk-based regulation. We then set out the contours of a wider
research agenda, which can systematically expand the spatial, functional, and ideological confines of
risk-based regulation.
Not by chance were the first social insurance bodies called “mutualités” in France. Until present day, the mutual
accountability for work safety costs in a solidary contribution scheme resonates as the core organising principle.
9
22
Our findings fall in two camps, one confirmative of the existing debate on risk-based regulation and its
key rationalities, and one which considerably expands its realm onto new terrain. On the confirmative
side, our analysis of Lander work safety inspections in section 3 yields results that align neatly previous
assumptions about the appeal of risk-based tools. Risk-based inspection planning is welcomed as a
remedy to dealing with ever tightening global budgets and staff resources as well as the need to
rationalize interventions. Hopes of efficiency gains and sustained public accountability of “why we do
certain things and refrain from doing others” (interview partner 07), feed the turn to risk-based
inspections. While federalism might certainly fragment the overall regulatory regime and produce less
comprehensive risk-based strategies than a central regulatory agency (such as the British HSE), Lander
feature budget and accountability pressures likewise to the HSE. Their de-centralized turn to risk should
therefore not be surprising.
More interesting is our second camp of findings from sections 4 and 5, which depart considerably from
what the Anglo-Saxon debate on risk-based regulation has diagnosed and explained so far. Corporatist
arrangements had been described as rather risk-impeding before. Obstructions were claimed to stem
from necessities for maintaining trust and consensus between adversarial stakeholders, and a
resistance to formulaic rationalized decision-making. Our analysis shows that the opposite can be true.
Not only can corporatist self-regulation be risk-based, but it entails structural features which make the
use of risk rationalizations attractive (in one case even 150 years ago) for very different reasons than
those identified in the Anglo-Saxon debate. The structural need for sustained trust and consensus in
corporatist institutions can promote risk-based instruments as stabilizing tools. In the case of standardsetting for carcinogens, the tripartite Committee for Hazardous Substances used scientific risk
assessment to stabilize trust relationships and strike an otherwise difficult socio-political consensus
about the acceptability of cancer risks. The insertion of a formulaic basis for decision-making – in this
case the statistical reference to everyday life risk as a threshold for risk’s acceptability – moderates the
adversarial potential of corporatist industrial relations by limiting the amount of bargaining over the use
of carcinogens in individual workplaces. In the case of MTA’s social insurance regime, risk-based
management of contributions operated to increase the financial accountability between contributing
firms by basing contributions on work safety performances. By addressing the free-rider problem with
risk-differentiated tariffs, MTAs could maintain a sufficient level of solidarity between their members and
thus stabilize the social insurance system as a whole.
Our findings call for an expansion of the academic discussion on risk-based regulation. Not only do
corporatist decision-making settings in continental European cases also make use of risk-based tools,
but they do so for very different reasons than found in the Anglo-Saxon literature. In our examples, it’s
23
neither efficiency nor regulatory accountability that drives risk-based approaches. Instead, the adoption
of risk tools originates from a) the unacceptable failure of solidarity in the self-regulated social insurance
regime and b) the need to strike consensus and sustain trust in a corporatist standard-setting
committee. In fact, the features that tend to cause impediments from an Anglo-Saxon viewpoint are the
very structural prerequisites for risk tools in corporatist settings.
We suggest that such empirical variation justifies an expansion of risk-based regulation concepts to
include types which have been hitherto under the proverbial radar. In addition to the well covered
competition-based type of risk-based regulation, our case study has carved out the first contours of a
corporatist type of risk-based regulation (see table 3). While both types use similar techniques of risk
assessment, our explorative evidence suggests that three rationality dimensions distinguish them
sharply from one another: form of accountability, regulatory orientation, and function. Firstly, the less
circular forms of accountability in corporatist settings produce none of the ‘de-burdening’ pressures
experienced in the UK or the US. Risk-based approaches serve less as a venue for deflecting blame
and justifying (non-)interventions to the public than in competition-based arrangements. The lack of
reliance on global budgets in many corporatist regulatory institutions (such as the MTAs) amplifies this
tendency further. Instead, the internal and reciprocal accountability structures between members or
negotiation partners inform the adoption of risk tools. This is related to our second point: while risk tools
in competition-based settings target the rationalization of regulatory interventions (policy input
orientation), corporatist uses of risk are more oriented towards the rationalization of the processes by
which interventions are prepared (policy process orientation). Lastly, corporatist risk-based regulation
tends to disregard the innovation and economic rationalization functions, which count as key drivers in
the UK. Rather, risk-based instruments operate to stabilize corporatist arrangements over time by
nourishing their core ingredients: trust, consensus, and solidarity.
Table 3: Rationalities of risk-based regulation
Forms of Accountability
Regulatory Orientation
Function of Regulation
Competition-based RBR
Public, circular between
governed and governors
Global budgets
Rationalization of regulatory
interventions (policy input
orientation)
Innovation and economic
rationalization through
increased efficiency
Corporatist RBR
Internal, reciprocal relations
between members or
stakeholders
Pay-as-you-go models
Rationalization of regulatory
processes which prepare
interventions (policy process
orientation)
Stabilization of decisionmaking arrangements
through sustained trust,
consensus and solidarity
Authors’ analysis and delineation
24
These conceptual additions require more empirical research and theoretical cross-pollination.
Therefore, we propose a research agenda that could expand the spatial (Anglo-Saxon), ideological
(competition-based) and functional (target efficiency gains) confines of contemporary risk-based
regulation research. An obvious starting point is the vast comparative knowledge on varieties of socioeconomic governance, foremost the varieties of capitalism (e.g., Hall and Soskice 2001). Their insights
on market-based versus trust-based forms of socio-economic coordination could substantiate our
explorative typology further and add more cases to a systematic comparison of risk-based regulation
types. Traditionally coordinated market economies with strong corporatist arrangements, such as
Austria, Belgium, Italy, Sweden or Switzerland, should prove to be useful cases moving forward.
The risks of methodological nationalism or national essentialism should be moderated, however, as
both competition-based and corporatist types can be found in one country or even within one policy
domain. Our example of competition-based Lander inspection planning, which happily co-exists with the
corporatist turns to risk in German work safety, is indicative in that regard. Moreover, policy domains
such as work safety, health care, higher education or employment seem more prone to operating with
corporatist solutions than other domains such as criminal justice, flooding, consumer protection, or
defense. A wider comparative agenda would therefore need to examine not only the structural
conditions for the adoption of risk tools in various types of regulatory settings, but also the policyspecific conditions which make risk tools attractive for various reasons. Perhaps such a search will
identify yet another rationality of risk-based regulation beyond the here discussed competition-based
and corporatist forms. If our paper could offer an impulse for such an apt expansion of risk-based
regulation concepts, it will have achieved its aims.
Appendix
Interviews (conducted between August 2013 and October 2014)
IP01:
Trade Union representative in MTA and standard-setting committee (IGBCE)
IP02:
MTA umbrella organisation manager (DGUV)
IP03/04:
Employer representatives in MTA and standard-setting committee (BDA/BDI)
IP05/06:
Federal ministerial officials (BMAS), representatives in standard-setting committee
IP07:
Lander inspectorate director, North-Rhine Westphalia
IP08:
MTA manager in chemical industry sector (BGRCI)
IP09:
Employer representative, representative in standard-setting committee (VCI)
IP10:
Research director at Federal OHS Institute (BAuA) and expert in standard-setting committee
25
IP11/12:
Work council representative and corporate safety expert of a large chemical producer
IP13/14/15:
Municipal district inspectors in Land North-Rhine Westphalia, including chief inspector
IP16:
Leading OHS scholar and instructor, expert in standard-setting committee
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