C-190/90

O P I N I O N OF M R G U L M A N N — CASE C-190/90

OPINION OF ADVOCATE GENERAL GULMANN delivered on 17 March 1992 *

Mr President, 3. Pursuant to Article 20(1) the Member Members of the Court, States were to comply with the directive by 8 January 1984 at the latest. 4

* Original language: Dutch. 4 — The directive was amended twice, most recendy by Directive 1 — O J 1982 L 230, p. 1. 88/610/EEC of 24 November 1988, OJ 1988 L 336, p. 14. 2 — This is made clear in the Parliament's opinion concerning the Those amendments do not affect the provisions in the direc- direttive of 14 July 1980, O J 1980 C 175, p. 48, at p . 50. tive which are material to the present case, apart from Article 3 — See the fifth recital in the preamble to the directive. 8(1).

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The Commission has not claimed that the existing Netherlands legislation does not in In the course of the procedure the Nether- all essential respects both seek and in fact lands Government admitted that Article 8(1) manage to secure the objectives underlying and Article 10(1) have not been correctly the directive. The Commission takes the implemented. The Government explained view, however, that the Netherlands legisla- that the draft laws necessary for implementa- tion does not fully and absolutely precisely tion have been introduced. Article 8(1) con- implement the rules in the directive and that cerns the Member States' duty to ensure that such full and absolutely precise implementa- appropriate information concerning an tion would bring about certain improve- establishment's safety measures and so forth ments in the legal situation in the Nether- is disseminated to persons liable to be lands. affected by a major accident, and Article 10(1) imposes a duty on Member States to ensure that the manufacturer informs the competent authorities of any accident that occurs and in addition gives the authorities specific details.

The Netherlands Government contends, in my view rightly, that the Netherlands legisla- tion contains a set of rules which gives better protection to the working and external envi- The dispute between the parties accordingly ronment in connection with major accidents turns solely on the question whether Articles than that which would exist if the rules of 3, 4 and 5(1 )(c), third indent, have been the directive were implemented on then- properly implemented in the Netherlands. own.

In those circumstances the case is one •where however, be acknowledged that, as men- fringe issues and nuances are decisive. It tioned above, the case acquired its present, appear also to be a case where the outcome limited, form because in the course of the will to some degree depend on the Court's procedure before the Court the parties were basic attitude to the extent and character of prepared to respect each other's legal view- the requirements which should be imposed points. It must also be recognized that the on Member States in connection with the remaining legal issues have their basis in real proper implementation of directives. It is sig- differences in the way the parties interpret nificant that in this case the Commission has the relevant provisions of the directive and referred to case-law which emphasizes the the rules in Netherlands law which are need for full and precise implementation of claimed to form the basis of proper imple- directive provisions, 5 whereas the Nether- mentation. lands Government refers to case-law in which the Court has accepted that directives may also be implemented by means of exist- ing rules which create a sufficient legal framework for the directive's real and effec- tive application in national law. 6

'. . . the transposition of a directive into national law does not only industrial installations involving large, necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal specifically detailed, quantities of particuUrly provision, and . . . a general legal context maybe sufficient ifit dangerous substances which are listed in actually ensures the full application of the directive in a suf- ficiently clear and precise manner.' See also the judgment in Annex II and III of the directive.

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that in the Netherlands approximately 'Article 3 80 establishments are covered by Article 5.

Member States shall adopt the provisions Articles 3 and 4 require Member States to necessary to ensure that, in the case of any of implement rules which impose on the manu- the industrial activities specified in Article 1, facturer — under Article 1 'manufacturer' the manufacturer is obliged to take all the means any person in charge of an industrial measures necessary to prevent major acci- activity covered by the directive — a general dents and to limit their consequences for duty to prevent and limit the consequences man and the environment. of major accidents, whilst Article 5 contains rules which require the Member States to introduce an administrative system whereby the manufacturer must notify the national authorities of any particularly dangerous activities. Article 4

With regard to Articles 3 and 4 the Commis- Member States shall take the measures neces- sion claims that generally speaking the Neth- sary to ensure that all manufacturers are erlands legislation does not contain a satis- required to prove to the competent authority factory implementation of those provisions at any time, for the purposes of the controls as far as the prevention and limitation of the referred to in Article 7(2), that they have consequences of major accidents for man and identified existing major-accident hazards, the environment outside establishments is adopted the appropriate safety measures, and concerned. provided the persons working on the site with information, training and equipment in order to ensure their safety.'

(c) provided the persons working on the site prevent major accidents and to Umit their with information, training and equipment consequences, is secured in the Netherlands in order to ensure their safety. legislation. It is claimed by the Netherlands Government and seems to be accepted by the Commission that the area covered by the directive is also covered by the rules which As it stands Article 4 indicates moreover that are found in the Netherlands Law on instal- manufacturers must be able to prove to the lations and devices that are contaminated, competent authority at any time that they harmful to health or in any other way dan- have taken all the measures mentioned. gerous (Hinderwet).8 The Hinderwet is based upon a general system under which establishments in which dangerous sub- stances are used and stored are only lawful if they are positively approved by the Nether- 8. I shall deal first with the question whether lands authorities, see Article 2 of the Hinder- the Netherlands legislation contains adequate wet. It is clear from Article 17 of the Hinder- rules with regard to the implementation of wet that such approval is not given unless it the manufacturer's general duty to prevent is certain that the necessary measures have major accidents and limit the consequences been adopted to prevent and limit the dan- thereof in accordance with Article 3. gers and hazards which the establishment represents for the surrounding area. The authorities may only give their approval if that basic condition is satisfied. The authori- The Commission has accepted that the ties may if necessary make their approval requirements of the directive are satisfied on conditional on further detailed requirements that point as far as the area covered by the being satisfied. Netherlands Law on the Working Environ- ment is concerned. 7 The Commission con- siders, however, that the Netherlands legisla- tion is not adequate in so far as the area covered by the Netherlands legislation con- cerning protection of the external environ- ment is concerned. 10. The Commission founds its criticism of the Netherlands rules in relation to the requirements of the directive on the follow- 9. In my opinion it is, first, important to ing points: state that there can be no doubt that the basic objective of the directive, that is to say the adoption of real and effective measures to

(b) the Commission claims that the Nether- 11. The Government has pointed to a com- lands rules contravene the directive prehensive set of rules in a list of special laws because it is the authorities and not the for combatting air pollution, fires and catas- manufacturers themselves who are trophes 10 which, in the Government's opin- responsible for 'taking all the necessary ion, contribute to implementing the directive measures' which are to apply to the in Netherlands law. In my view there is no establishments; and reason to examine those laws in further detail. It is common ground that the Nether- lands Government is correct in its view that within the area they regulate those laws con- (c) the Commission maintains that the Neth- tain rules that really do help to prevent erlands rules do not, as the directive pro- major accidents and limit their consequences. vides, ensure that the manufacturer is But it is also common ground that they can- required 'at any time' to see that the not be regarded as containing a fully ade- safety measures in force are amended quate implementation of the directive. It is when developments make that necessary. thus accepted by the Netherlands Govern- ment that they are laws which cover the area dealt with by the directive up to a certain point only. The Netherlands Government:

(a) has sought to establish that the existing Netherlands system has, by means of a long list of laws, in fact built up a level of 12. It is more important to examine the protection which is higher than that question whether the Netherlands Govern- which the directive requires to be imple- ment's contention that the provisions in the mented; Law on Environmentally Dangerous Sub- stances can be regarded as containing an ad- equate implementation. The Netherlands Government has referred to Article 2 of the law, which provides: (b) claims that the Netherlands Law on Envi- ronmentally Dangerous Substances 9 does in fact impose a duty on the manufacturer corresponding to Article 3 of the direc- tive; and

In my view it can reasonably be claimed that It will be seen that that provision imposes on the objectives which the rules in the Seveso the manufacturer a general duty which in directive seek to achieve are realized most principle corresponds to Article 3 of the effectively under a system whereby an indus- directive, namely that general responsibility trial establishment which deals with and should be imposed on the manufacturer to stores dangerous substances is only lawful if ensure against irresponsible handling of dan- the authorities have approved it, or where gerous substances. The provision which is, such approval is only conferred if the moreover, subject to a criminal penalty, must authorities, after independent investigation, therefore be regarded as a significant step conclude that adequate safety measures have towards proper implementation of Article been taken in the establishment. The Nether- 3 of the directive. I must, however, agree lands Government has described how with the Commission that as it stands the approval under the Hinderwet may be given provision is not sufficient to implement Arti- if it is established that the necessary safety cle 3. The Commission has, righdy I believe, measures have been taken and how the raised doubts as to whether the scope of authorities can make approval conditional on application of the Netherlands provision is a number of further specified safety meas- not narrower than that of the provision in ures. the directive and it is in any case clear that there are such great differences in the form of the two provisions that it is not suffi- ciently certain that the law will be applied absolutely consistently with the directive. The provision does not therefore fulfil the requirement that there must be precise and That assessment is confirmed in my view by exact implementation of the provisions of the notification system laid down in Article directives. It is also worth noting that the 5 of the directive. It is clear that the notifica- Netherlands Government first raised the sig- tion system was considered to be a necessary nificance of that provision as it stands rela- extension of the protection system to be tively late in the course of the procedure, achieved by applying Articles 3 and 4. Noti- namely in its rejoinder, where it contended fication is to enable the competent authori- that the provision 'contributes' to implemen- ties to check that the manufacturer has tation. In addition, at the hearing the Gov- adopted the most appropriate safety meas- ernment referred to that provision as con- ures and so forth, on which see Article 7 of taining merely secondary implementation in the directive. The notification system applies, relation to the implementation which is said as stated, only to the relatively few establish- to have taken place by way of the Hinder- ments that use particularly dangerous sub- wet. stances. It is evident that the Netherlands

(i) by requiring not merely notification, but prior approval; 16. As stated in Article 2 and 17 of the Hinderwet, the setting up and commence- ment of operation of installations cannot (ii) by making the approval system apply to take place without the manufacturer's first every industrial establishment covered having obtained approval, in connection by the directive, not just to establish- with which it is ensured that the safety pro- ments where particularly dangerous visions are in order. The Netherlands Gov- substances are involved. ernment has pointed out, undoubtedly cor- recdy, that the approval procedure requires cooperation between the manufacturer and the authorities and thus the manufacturer's In this connection it should perhaps be men- active collaboration. tioned that Article 17 of the directive expressly provides that the directive does not prevent the Member States from laying down rules that ensure greater protection of man and the environment than that which A prerequisite of approval is, of course, an derives from the provisions of the directive. application by the manufacturer, who must provide the information which enables the authorities to take a decision on the applica- tion (see Article 5(2) of the Hinderwet, according to which 'Bij het verzoek om ver- 14. In that context the question to be exam- gunning moeten de bescheiden worden over- ined is whether the Commission is correct in gelegd welke door Ons bij algemene maatre- its view that in order to comply with the gel van bestuur worden voorgeschreven'). directive it is necessary for the existing More detailed rules concerning the content Netherlands rules to be supplemented by a of the application are laid down in a decree, general rule imposing on the manufacturer a the Hinderbesluit. n Those rules provide duty to do independently what he finds nec- inter alia that an external safety report must essary to prevent major accidents and to be prepared containing detailed information limit their consequences. on safety problems and the measures which the manufacturer has taken. The external safety report need only, however, be pre- pared for the establishments covered by The question is whether such a general obli- Article 5 of the directive, that is-to say for gation on the manufacturer would improve establishments which deal with particularly the level of safety already achieved in the dangerous substances. The Hinderbesluit, Netherlands. however, requires of all establishments that

The approval will be based on the informa- (ii) when there are advances in the knowl- tion given by the manufacturer on the safety edge of how major accidents may best conditions in the establishment. This forms be prevented and their consequences part of the basis for approval and accord- limited. ingly binds the manufacturer. The advantage of the Netherlands system is that the author- ities are obliged to assess whether the safety conditions in the establishment are satisfac- The Commission has in particular submitted tory or whether, in order to prevent acci- that implementation in national law of a gen- dents and to limit their consequences to an eral rule corresponding to Article 3 would adequate extent, it is necessary to require the emphasize the fact that manufacturers are manufacturer to adopt further safety meas- under a positive duty to ensure on a perma- ures. If the authorities consider that to be nent basis that safety measures are kept up to the case, under Article 17(1) of the Hinder- date with progress. It is also common wet they are bound to make approval condi- ground that it is important to ensure that, tional on such safety measures being taken once adopted, safety measures should be by the manufacturer. amended when the need arises. In an approval system such as that of the Nether- lands, there might be a risk that manufactur- ers will take the view that they have fulfilled their obligations concerning safety condi- tions once they have simply complied with In my opinion that shows that the Hinder- the conditions for, and the content of, the wet, at least in connection with setting up an approval. establishment and putting it into operation, contains the necessary rules to 'ensure that... the manufacturer is obliged to take all the measures necessary to prevent major acci- dents and to Umit their consequences ...' as 18. If the Commission is correct in its belief required by Article 3 of the directive and that Article 3 should be interpreted as con- that at that point at least nothing would be taining an independent requirement that the gained by imposing on the manufacturer an manufacturer should continue to amend the independent general duty as the Commission safety measures he has adopted in the light considers necessary. of developments, that is a strong argument

19. There are, however, other provisions in 'The notification specified in paragraph the directive which in my view definitely run 1 shall be updated periodically to take counter to such an interpretation of Article account of new technical knowledge relative 3. The provisions in question expressly reg- to safety and of developments in knowledge ulate the Member States' duties to ensure concerning the assessment of hazards.' that manufacturers amend their safety meas- ures when an industrial activity is modified in a way which could have significant conse- quences as regards major-accident hazards and when changes in technical knowledge Those two provisions should, in my view, be relative to safety take place, including understood as laying down exhaustively the knowledge concerning the assessment of Member States duties to ensure that there hazards. should be constant updating of the safety measures adopted. It is hard to see what independent meaning the provisions could have if the Commission's interpretation of Article 6 of the directive provides: Article 3 was correct.

'In the event of modification of an industrial activity which could have significant conse- I cannot therefore agree with the Commis- quences as regards major-accident hazards, sion that Article 3 can be construed as con- the Member States shall take appropriate taining an independent updating duty for the measures to ensure that the manufacturer: manufacturer. That question is regulated exhaustively in Article 5(3) and Article 6.

— revises the measures specified in Articles 3 and 4, 20. The Netherlands legislation contains a number of rules which aim to ensure that safety measures are amended when develop- — informs the competent authorities ments make that necessary and the parties referred to in Article 7 in advance, if nec- did to some extent give an account of those

rules during the written and oral procedure. not seem inconceivable to me that such a There is, however, no cause for the Court to rule could cause certain problems when it examine whether those rules fulfil the came to slotting it into the existing approval requirements of the directive for the simple system, including the existing system of pen- reason that the Commission has not claimed alties. N o t least in environmental matters it that Article 5(3) and Article 6 are not prop- is important that the implementation of EC erly implemented in Netherlands law. 12 directives does not create further complica- tions, unless absolutely necessary to achieve the directive's objectives, in the very com- prehensive and complicated regulatory sys- O n that basis I cannot support the Commis- tems of some of the Member States.

The Netherlands Government than is required by the directive. no longer appears to ascribe importance to the said technical legal problems. O n the contrary, the Netherlands Government holds out the prospect that Article 3 of the direc- 21. For the sake of completeness I should tive will be incorporated into its environ- mention that in its defence the Netherlands mental legislation in a planned amendment Government claimed that the adoption of a thereto. The Government has emphasized framework law with a general content for that that is not because it is thought to be the purpose of implementing the directive necessary from the legal point of view, but would have involved a thoroughgoing reor- that it has the advantage that thereby any ganization of the existing legislation on the remaining ambiguity will be removed con-

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24. With regard to the Commission's daim require from the manufacture any informa- that Article 4 of the directive has not been tion of importance for safety conditions, properly implemented, it is worth pointing there should also be an express duty on the out that the Commission has founded a large manufacturer to be in a position to fulfil that part of its argument on the abovementioned duty to provide information. views concerning the manufacturer's duty to ensure positively and on a permanent basis that the necessary safety measures are adopted in the establishment. I have dealt with those views in connection with Article 3, where in my view they belong. The inde- In my view the supervision provisions in the pendent meaning of Article 4 is that under Hinderwet are, within the framework of the national law manufacturers are to be Netherlands system, sufficient to implement required to prove that they have adopted the the duty to provide information under Arti- appropriate safety measures to the national cle 4. I would therefore suggest that the authority. The duty to provide information Court should also find for the Kingdom of or, put differently, the duty to furnish proof, the Netherlands as far as that part of the is a duty imposed on manufacturers at all Commission's claim is concerned. times. That means that the competent national authorities, whenever they wish, are to be able to require information about the safety measures adopted and that manufac- turer must be in a position to provide that information when it is sought. Article 5(l)(c) of the directive

28. The first concerns a question of the interpretation of this provision in the direc- 29. However, the Netherlands Government tive. The Netherlands Government claims contends secondly, in the alternative, that that the person whose name is to be given in even interpreted as the Commission claims it the notification is the person who is legally should be, the provision is adequately imple- responsible for safety in the establishment, mented in Netherlands law. The Govern- which means in practice the manufacturer ment refers to the fact that the internal safety

The Netherlands Government name of the person who is de facto respon- referred to Point 3.3 of the guidelines, where sible within the establishment for the estab- inter alia, it is provided that the report lishment's safety conditions. The Commis- should contain: '. . . a description of the sion's interpretation of the provision appears responsibility and duties of the departments, to me, in the light of both the wording of the bodies and persons having a bearing on provision and its objective, to be correct. An safety; .

motion . . .'. It is not natural to describe the and do not, therefore, constitute a suffi- person responsible in law for the establish- ciently precise implementation of the ment as a person 'authorized' to set the requirements of the directive. O n that emergency plans in motion. The objective of ground alone I believe that the Court should the provision must, moreover, be to identify find for the Commission on that head of the person or persons who in practice have claim.

(1) the Kingdom of Netherlands has failed to fulfil its obligations under Article 189 of the E E C Treaty in so far as it has not correctly adopted all the provi- sions necessary to make its national legislation wholly consistent with Article 5(l)(c), third indent, Article 8(1) and Article 10(1) of Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain indus- trial activities;

(2) the remainder of the application is dismissed;

(3) each party is to bear its own costs.

13 — See the Court's latest judgment (1.10.91) on this point in Case 13/90 Commission v France, cited above, at paragraphs 8-10, with references to other judgments.

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