C-74/95

Inadmissibility of the questions from the Procura della Repubblica 1 — See Case C-393/92 Municipality of Almelo and Others v Energiebedrijf IJsselmij [1994] ECR I-1477, paragraph 21; Case 61/65 Vaassen v Beambtenfonds voor het Mijnbedríjf [1966] ECR 261; Casc C-24/92 Carbian v Administration des Contributions [1993] ECR I-1277; and Case 338/85 Par- dini v Ministero del Commercio con l'Estero [1988] ECR 2041. 2 — This was the case at the material time in Case 14/86 Pretore di Salò v Persons Unknown [1987] ECR 2545. At that time the functions performed by the Pretore were both those of a 3. I shall begin by pointing out that the Ital­ public prosecutor and those of an examining magistrate. The Pretore carried out preliminary investigations in his capacity ian Public Prosecutor's Office is not a court as public prosecutor and, where they disclosed no grounds or tribunal authorized to make use of for continuing the proceedings, made an order accordingly in the place of an examining magistrate. Therefore the Court Article 177 of the EC Treaty and therefore of Justice found that the Pretori were judges who, in pro­ ceedings such as those in which the questions referred to the the questions which he wishes to refer to the Court in that case were raised, combined the functions of a Court in this case must be ruled inadmis­ public prosecutor and an examining magistrate. Accordingly requests for a preliminary ruling from the Pretori were sible. admissible because such requests were from 'a court or tri­ bunal which has acted in the general framework of its task of judging, independently and in accordance with law, cases coming within the jurisdiction conferred on it by law, even though certain functions of that court or tribunal in the pro­ ceedings which gave rise to the reference for a preliminary * ruling are not, strictly speaking, of a judicial nature'. Original language: Spanish.

(a) the Public Prosecutor's Office is not a court or tribunal with binding jurisdic­ tion since it is not even a court or tribu­ nal having iurisdictio in the strict sense; 10. A ruling that the questions submitted by the Public Prosecutor's Office arc inadmis­ sible will furthermore assist in clarifying the term 'court or tribunal' used in Article 177 of the Treaty, which in certain cases should perhaps be interpreted more rigorously by (b)the Public Prosecutor's Office does not 5 the Court of Justice. decide after hearing the parties in an adversary procedure, but is itself a party in that procedure. 3 — In its written observations, the Commission points out that Article 392 of the (Italian) Code of Criminal Procedure allows both the Public Prosecutor and the person who is the subject of investigations 'to request the Magistrate to order expert evidence or a judicial inspection in relation to per­ sons, things or places whose status is subject to inevitable alteration'. 4 — The Italian Public Prosecutor's Office likewise has no stand­ ing to refer questions of unconstitutionality to the Italian Constitutional Court, as that court has ruled in its judgment of 9 April 1963 and its order of 22 January 1979. 5 — The Court has on occasions accepted preliminary references 8. In fact, the part played by the Public from administrative authorities whose independence was Prosecutor's Office in the preliminary inves­ doubtful and whose decisions furthermore were open to review by genuine courts. This occurred in Joined Cases tigations which have given rise to the ques­ C 260/91 and C-261/91 Dwersmle ami Iberlacta v Admnis mirrou Principal de Aduanai [1993] ECU I 1885, with regard tions referred was to request the Magistrate, to a Spanish financial administrative tribunal, which was an by application of 11 April 1995, to order an organ of the tax authorities and was not of a judicial nature.

12. The Public Prosecutor's Office, acting on the presumption that the legislation for 'Of particular importance is the interpreta­ the protection of workers using display tion of Article 2(c) regarding any worker screens had been contravened, requested the who "habitually uses display screen equip­ Giudice per le Indagini Preliminari to obtain ment as a significant part of his normal the evidence which I mentioned above. work" in order to ascertain whether that provision excludes the specific situations described above (use throughout the work­ ing week but not always for four consecutive hours daily, or use in excess of four consecu­ tive hours, but not throughout the working week: for example, use for several consecu­ 13. The Magistrate considers that, before tive hours on every day but one of the work­ deciding on the application by the Public ing week). Prosecutor's Office for an immediate expert's report, it is necessary to ascertain whether an offence may be supposed to have been com­ mitted here, in particular any offence under Articles 50 to 59, Title VI, of Legislative 6 Decree No 626 of 19 September 1994 con­ cerning the use of equipment fitted with dis­ Having regard to Article 55 of Legislative play screens. Decree No 626/94 providing for periodic medical examinations only in the case of

6 — Gazzetta Ufficiale della Repubblica Italiana No 265, 12 November 1994, Supplemento Ordinario No 141. 7 — OJ 1987 L 156, p. 14.

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Lastly, since the technical investigations have 17. The Directive in turn meets the require­ disclosed the possibility of problems related ments of Article 118a of the Treaty, under to lighting and microclimatic conditions, in which the Council is to adopt, by means of view of which it is necessary to assess directives, minimum requirements designed whether any offences have been committed, to encourage improvements, especially in the and given that Article 58 of Legislative working environment, to ensure a better Decree 626/94 requires workstations to be level of protection of workers' safety and brought into conformity with the minimum health. requirements set out in Annex VII — which, containing only one paragraph, lays down rules in respect of the equipment used — the question is whether Articles 4 and 5 of Directive 90/270/EEC call for compliance with those requirements in the case of all workstations (Article 2(b)) or only in the case of those used by workers as defined in 18. Specifically, it is an individual directive Article 2(c) and, in particular, whether such within the meaning of Article 16(1) of Coun­ compliance must also extend to the mini­ cil Directive 89/391 / EEC of 12 June 1989 on mum requirements set out in Sections 2 the introduction of measures to encourage

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improvements in the safety and health of (c) the scope of the minimum requirements workers at work. of the Annex with regard to the worksta­ tions to which it refers.

19. A reading of the questions from the 21. I shall now examine each of these three national court shows, in my opinion, in spite points, in respect of which the national court of certain statements apparently to the con­ sets out the national rule (Articles 51, 55 and trary, that the national court's purpose is not 58 of the Legislative Decree) and immedi­ so much to obtain an interpretation of the ately compares it with the requirements of Directive, but to show the points on which the Directive. the Legislative Decree differs from the Directive and to ask what effect this may have.

Community definition. The Legislative have reached 45 years of age. In addition, Decree excludes numerous employees, who, according to the national court, it 'appears' according to the Directive, should be to provide for specialist checks only after the included, from the category of 'workers' for initial medical examination, and for ophthal- the purposes of its Title VI — with the result mological examinations only if the worker so that their health at work is not protected requests, provided he suspects, and a doctor under the Decree. confirms, that his sight has deteriorated.

25. This applies in particular to workers 28. On the same question Article 9 of the who use video terminals for, say, three-and- Directive provides as follows: a-half hours daily throughout the week, or even for more than four hours daily but not every day of the working week.

'1 . Workers shall be entitled to an appropri­ ate eye and eyesight test carried out by a per­ 26. Such persons, as the Commission and son with the necessary capabilities: the Austrian Government point out in their observations, should come within the ambit of the Directive because a significant part of their normal work is done in front of display screens. Nevertheless, the Legislative Decree excludes them from the protective measures laid down by Title VI because they are not — before commencing display screen work, deemed to be 'workers' for the purposes of that Title.

— at regular intervals thereafter, and

27. On the second point (health monitor­ ing), Article 55 of the Legislative Decree requires periodic medical examinations only in the case of workers classified as 'fit subject — if they experience visual difficulties which to certain reservations' and workers who may be due to display screen work.

31. On this point the Directive clearly requires employers to take appropriate steps 11 — This paragraph of the Annex contains minimum require­ ments concerning the environment of the work station: to ensure that workstations meet the mini­ space requirements, lighting, reflections and glare, noise, 9 mum requirements laid down in the Annex, heat, radiation and humidity. 10 12 — This paragraph of the Annex sets out a number of ergo­ which relate not only to equipment (para­ nomie requirements which the employer must take into graph 1), but also to the environment of the account in designing, selecting, commissioning and modify­ ing software and in designing tasks using display screen equipment. 13 — This omission was pointed out by Silvia Bertocco in her work La sicurezza del lavoratore nelle fonti internazionali del lavoro. Il recipimento dalla direttiva CEE 89/391 9 — Articles 4 and 5 of the Directive refer respectively to work­ nell'ordinamento nazionale, 1995, p. 127, in which she stations first put into service after 31 December 1992, which states that 'the Legislative Decree concerning safety is a must meet the requirements from the outset, and worksta­ detailed, complex legislative measure which has the techni­ tions already in service on 31 December 1992, which must cal defect of cumbersome language and is not improved by be adapted to comply with the requirements within a maxi­ certain errors of substance such as the absence of two para­ mum of four years. graphs in Annex VII: a) the ergonomie requirements con­ 10 — The minimum requirements in this paragraph relate to the cerning the work environment and the operator/computer display screen, the keyboard, the work desk or work sur­ interface, as set out in paragraphs 2 and 3 of the Annex to face and the work chair. Directive 90/270, have been omitted ...'.

exclusively. Without wishing to interfere with their jurisdiction in this respect, I think it necessary to point out that, to obtain a rul­ ing on the existence of the offence the suspi­ cion of which has given rise to the prelimi­ nary investigations, the Italian court cannot 39. Article 89 of the Legislative Decree lays take into account rules of law outside its down penalties of fine and imprisonment for 'any offence under Article 58' committed by

14 — For that to be true in the strictest sense desirable, an action would have had to be duly brought against the Italian Republic ( which furthermore has not appeared in these 15 — This docs not mean that , in other than a purely criminal proceedings upon a reference) for failing to fulfil its obliga context, the application and interpretation of the Directive lions . The Court of Justice has consistently held that , docs not entail any consequences. Thus , with regard to the within the scope of application of Article 177 of the Treaty, employment and social security aspects, workers could , it has no jurisdiction to rule on the compatibility of even against their own Stale, claim the measures of protec- national measures with Community law. tion which the Directive is intended to guarantee.

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45. The Italian criminal courts must, in accordance with that principle, apply 42. Perhaps these observations necessitate a rather more detailed examination of the rela­ tionship between the implementation of the 17 — In its judgment of 25 May 1993 Kokkinakis v Greece (A directives and national criminal law. 260-A 1993) the European Court of Human Rights points out that Article 7(1) of the Convention is not limited to prohibiting retrospective application of criminal law to a defendant: it also enshrines the general principle that crimes can be defined and penalties prescribed only by law, as well as the principle that the criminal law cannot be interpreted 16 — In no way, moreover, does the Directive require compliance extensively to the disadvantage of the defendant — by way to be secured by means of criminal penalties. of analogy, for example.

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national legislation defining punishable that Community directives which have not offences (crimes and serious, minor or petty been incorporated into national law cannot offences) according to its own terms, and be relied upon as against individuals, specifi­ criminal liability cannot be incurred in cally in the criminal field. respect of conduct which, although it ought to have been made a statutory offence, has not in fact been made an offence in Italy.

18 — For this the elements referred to by the Court of justice in Case C-36/94 Siesse v Director da Alfândega de Alcântrara 50. In the Pretore di Salò case the national [1995] LCR I-3573, paragraph 20, must be present: it is court asked whether the Italian legislation in settled case-law, confirmed in Case C-382/92 Commission v United Kingdom [1994] ECR I 2435, paragraph 55, and force at that time concerning the protection Case C 383/92 Commission v United Kingdom [1994] ECR I-2479, paragraph 40, that where Community legisla­ of water from pollution was consistent with tion docs not specifically provide any penally for an the principle and quality objectives laid infringement or refers for that purpose to national legisla 20 tion. Article 5 of the Treaty requires the Member States to down by a Community directive. The take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which arc analogous to those applicable to 19 — [1986] ECR 723, at p. 737. infringements of national law of a similar nature and impor­ 20 — Directive 78/659/EEC of 18 July 1978 on the quality of tance and which, in any event, make the penalty effective, fresh waters needing protection or improvement in order to proportionate and dissuasive.' support fish life (OJ 1978 1. 222, p. 1).

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21 — Case 80/86 [1987] ECR 3969. 22 — In that case the Netherlands court asked whether a national authority could rely as against nationals of the same State on a provision of a directive in a case which was not cov­ 57. It has already been observed that, in the ered by the State's own legislation or implementing provi­ sions. legal systems of the different Member States,

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the principle of legality plays a key part in 60. If such interpretation results in deter­ criminal law which extends not only to the mining or aggravating the liability of the per­ prior definition of offences {lex previa) but son concerned, in cases where that would also to the interpretation thereof (lex certa). not otherwise occur, a conflict arises between two principles: the prohibition of extensive interpretations in the criminal law and the obligation of national courts to interpret their own law in conformity with directives.

58. The legal basis for the imposition of penal sanctions must thus be clear and unequivocal, that is to say, unambiguous. No 61. This conflict was resolved by the Court doubt a criminal provision also requires in paragraphs 12 and 13 of the Kolpinghnis interpretation by the courts, but they are not Nijmegen judgment cited above as follows: permitted to fill any lacunae in the defini­ tions of offences by resorting to an extensive interpretation.

— on the one hand, it is true that, in apply­ ing the national law and in particular the provisions of a national law specifically introduced in order to implement a direc­ tive, national courts arc required to inter­ pret their national law in the light of the wording and the purpose of the directive 59. It is clear that where national legislation in order to achieve the result referred to has been introduced in implementation of a in the third paragraph of Article 189 of directive, it is a general requirement of Com­ the Treaty; munity law that national courts must in principle interpret their national legislation 2 in the light of the directive. 3

63. The principle of legal certainty, when understood in this way, precludes resorting to a Community directive in order to extend the definition of an offence, to the disadvan­ tage of the accused, to situations different from those which strictly match the defini­ tion of the punishable acts given by national 65. Examination of the present case shows criminal law. 24 clearly that interpretation of the Directive, as requested by the Italian court, could never reduce any hypothetical criminal liability, quite the contrary.

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67. What the national court really wishes to (b) The eye and eyesight tests apply to all know is not so much the interpretation of workers covered by the Directive, and certain provisions of the Directive, which are mean both the test before commencing clear enough, but whether the Directive per­ display screen work and the test at regu­ mits the exclusion from its ambit of certain lar intervals thereafter (Article 9(1) of the situations for which the Legislative Decree Directive). The ophthalmological exami­ does not provide a penalty, either by not nation referred to in Article 9(2) may defining them as offences or by defining the be shown to be necessary in any of elements of the offence in different terms the three situations referred to in from those of the Directive. Article 9(1).

(c) Articles 4 and 5 of the Directive refer expressly to the 'workstations' defined in Article 2(b) and require compliance with all the minimum requirements set out in 68. The interpretation of the provisions of the Annex in relation to the equipment, the Directive to which the national court's environment and operator/computer questions refer follows from the terms of the interface. questions themselves, and all the parties which have submitted observations agree in that regard:

74. The legal reasoning being the same, the 71. It follows that the Court need not give a conclusion must also be the same: no one detailed reply on each of the articles of the may be punished by virtue of an extensive Directive referred to in the question, in the interpretation of national criminal law to manner requested by the national court. On bring it into conformity with a Community the contrary, it is sufficient to take one more directive, or for acts which are not punish­ step on the same lines as the Pretore di Salò able under national law. and the Kolpinghuis Nijmegen judgments.

75. In these cases too, the principle of legal­ ity in criminal law forms the same insuper­ 72. The Court established in those judg­ able barrier to the effectiveness of directives ments that directives could not create or and to the need to interpret national law in aggravate criminal liability where they had conformity with them. not been implemented in national law, and the same principle must be extended to situ­ ations where there is defective implementa­ tion, that is to say, where domestic law has 26 already been adapted.

76. This does not arise from any imaginary 26 — This may also serve to avoid the proliferation of prelimi­ supremacy of national criminal law (which nary references of this kind in relation to criminal proceed­ ings similar to those in the present case. There arc at present the Member State in question will have to pending before the Court a number of cases — Case amend when its failure to comply with C-168/95 and Joined Cases C -304/94, C-330/94, C-342/94 and C-224/95 — all seeking a preliminary ruling on ques­ tions concerning the effect of various directives on the envi­ ronment in certain criminal proceedings before Italian courts. The opinion of Advocate General Elmer delivered on 14 March 1996 in the first of those cases repeals once 27 — In the sense referred to by the judgments cited in foot­ again the reasoning of the Pretore di Salò judgment. note 18.

(2) The interpretation of Council Directive 90 / 270 / EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equip­ ment cannot determine or aggravate the criminal liability of persons who infringe its provisions if a Member State's national law adopted to implement the directive either omits to define certain conduct as a punishable offence or defines the elements of an offence in different terms from those of the Direc­ tive.

(3) In the alternative:

(a) The phrase 'worker who habitually uses display screen equipment as a sig­ nificant part of his normal work' (Article 2 of Directive 90 / 270 / EEC ) applies to persons who habitually work in front of such screens for four hours a day, even if not every day of the working week. It may also apply to persons working in front of such screens every day of the week , but not

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necessarily for four consecutive hours, and it is for the national court to assess in each case whether the time spent by a given worker in front of the equipment in question is significant.