C-2/97

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IP v BORSANA

Question 1: prior assessment of the risk 2. In the case of any activity likely to involve a risk of exposure to carcinogens, the nature, degree and duration of workers' exposure must be determined in order to make it pos­ sible to assess any risk to the workers' health 5. In order to understand the wording of the or safety and to lay down the measures to be first question, it is first necessary to examine taken. Articles 3, 4 and 5 of Directive 90/394 and their relationship.

The assessment must be renewed regularly 6. It will suffice at this point to say that the and in any event when any change occurs in purpose of the question, very briefly, is to the conditions which may affect workers' determine whether employers (filling station exposure to carcinogens. operators) are automatically obliged to take concrete measures to protect their employees against the risks arising from benzene in petrol or whether they are only obliged to take such measures after having first carried out an assessment of the risk to which the workers The employer must supply the authorities are exposed. responsible at their request with the informa­ tion used for making the assessment.

7. The relevant provisions of the Directive provide as follows:

Article 4

gerous or is less dangerous to workers' health 3. Where a closed system is not technically or safety, as the case may be. possible, the employer shall ensure that the level of exposure of workers is reduced to as low a level as is technically possible.

2. The employer shall, upon request, submit the findings of his investigations to the rel­ evant authorities. ...'

Article 5

8. It seems clear to me that the Community legislature planned for action to be taken at two different levels to prevent workers' health from being endangered by exposure to car­ Prevention and reduction of exposure cinogens. Primarily and quite logically, it intended that the use of carcinogens be avoided whenever possible, particularly where there is no insurmountable obstacle to the use of other, harmless substances.

1. Where the results of the assessment referred to in Article 3(2) reveal a risk to workers' health or safety, workers' exposure must be prevented.

9. That was the thrust of Article 4, which makes the obligation to reduce the use of car­ cinogens — and, where possible, to replace them — unconditional. The level of exposure 2. Where it is not technically possible to of workers and the attendant risks are imma­ replace the carcinogen by a substance, prepa­ terial. The use of carcinogens where avoidable ration or process which, under its conditions is ruled out. That is a radical solution, but of use, is not dangerous or is less dangerous one that is perfectly understandable and rea­ to health or safety, the employer shall ensure sonable because the products in question, that the carcinogen is, in so far as is techni­ being carcinogenic, are dangerous. Who would cally possible, manufactured and used in a deny that the best form of prevention is to closed system. eliminate the risk completely?

12. That is why the Community legislature was careful to specify in Article 5 of the •— assessment of the risk to which workers Directive that the measures to prevent or arc exposed because of the presence of the reduce exposure should be applied, in the carcinogen;

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— adoption of measures to reduce workers' 2. Where it is not technically possible to exposure to as low a level as is technically replace the carcinogen, the employer shall possible. ensure that the carcinogen is manufactured and used in a closed system, provided that this is technically possible.

14. However, the logic underlying the Direc­ 3. Where a closed system is not technically tive is not truthfully reflected in Legislative possible, the employer shall ensure that the Degree 626/94, which transposes it into Italian level of exposure of workers is reduced to as law. This explains why Italiana Petroli brought low a level as is technically possible. proceedings and why the national court referred its first question. The relevant provi­ sions of that Decree, namely Articles 62 and 63 thereof, are worded as follows:

Article 63

3. Based on the findings of the assessment — if so, does the Directive preclude legisla­ referred to in paragraph 1, the employer shall tion which places the employer under a adopt the measures of prevention and protec­ duty to take action to replace or reduce tion set out hereunder, adapting them to suit and/or to reduce the level of exposure of the particular features of different places of workers to as low a level as possible, work.' whether or not a definite risk has been found to exist and duly assessed under Article 3, failing which severe criminal penalties, even custodial sentences, may be imposed?

15. Thus, the Italian legislature has faithfully reproduced the Community provisions so far as their formulation is concerned, but it has lent them somewhat different emphasis. While Preliminary observations Article 62(1), like Article 4 of the Directive, gives absolute priority to eliminating the use of carcinogens or, where that is not possible, to reducing their use — Articles 62(2) and 62(3) appear to place employers under a duty to adopt measures to limit workers' exposure to as low a level as is technically possible, 17. I have two preliminary observations to even before having assessed the risks to which make. they are exposed and irrespective of the find­ ings of any assessment.

18. The first is to note that the Court is in the delicate position of having to rule on 16. In the light of this situation, the national measures for the transposition of a directive court is essentially asking the Court: into national law without benefit of any state-

20. Under the preliminary ruling procedure the Court may not substitute its interpreta­ '1 . The Council shall, in accordance with the tion of national law for that of the national procedure laid down in Article 118a of the court. It must be clearly understood that, Treaty, set out limit values in Directives on although the Court's reasoning in this case is the basis of the available information, including based on the national court's account of scientific and technical data, in respect of all requirements under national law, this can in those carcinogens for which this is possible... no way be taken to mean that the Court is adopting a position on a question of interpre­ tation outside its jurisdiction. 3 — OJ 1997 L 179, p. 4.

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2. Limit values and other directly related pro­ 25. Regrettably, the situation remains ambig­ visions shall be set out in Annex III.' uous, since the passage quoted above has been retained in Article 5(3). The hearing did not provide any clarification in this respect.

However, this Annex contained only the indi­ cation 'p. m.'. 26. Accordingly, it must be assumed that the Community legislature wished to introduce two methods to operate concurrently. I would add, however, that these two methods are not mutually incompatible.

23. Annex III now sets the limit values for occupational exposure at 1 ppm (one part per million by volume in air). A limit value of 27. The first consists in placing employers 3 ppm is permitted as a transitional measure under a duty to use all available technical from 27 June 2000, the date on which the new resources at all times to minimise the risks to Directive enters into force, until 27 June 2003. which workers are exposed.

33. The problem may appear to be straight­ forward, but it is not. The question is not simply whether the Italian authorities, in enacting the provisions of Articles 62 and 63 of the Legislative Decree, remained within the bounds of the discretion that they undoubtedly enjoy under Article 189 of the 30. It is not for me to question the method EC Treaty in for the purposes of transposing adopted by the Community legislature, espe­ the Directive into national law. cially as I am perfectly aware that simply set­ ting a limit value would have seemed like giving the go-ahead to expose employees up to a certain point to risks that could have been eliminated had the appropriate resources been used. However, I consider that the dif­ ference between exceeding a limit value and 34. Since the Directive in question falls within failing to use all the resources offered by the scope of Article 118a of the EC Treaty, technological progress, which is akin to the namely the protection of workers' health, it difference between an obligation as to the is also necessary to examine whether, should result to be achieved and an obligation as to the Directive prove to have been incorrectly the means to use, should be a factor in deter­ transposed into national law, it should be mining the severity of the criminal punish­ regarded quite simply as a more stringent ment to which the employer is liable in either measure of protection, which Member States case. are expressly permitted to adopt under Article 118a(3).

35. On the first point, I believe that the case-law of the Court has marked out the 31. Compliance with the limit value can never route that the reasoning should take. The excuse negligence on the part of an employer, second point, however, touches on unknown but it should be taken into account when territory, since the Court has not yet had punishing that negligence. occasion to rule on the scope of Article

36. So far as the transposition of directives 39. To my mind, systematically to impose into national law is concerned, there can no the adoption of certain measures to limit the doubt that when the Community legislature exposure risk, independently of any assess­ decides to act by means of a directive rather ment, constitutes a significant departure from than a regulation, which is a very different the strategy defined by the Community leg­ instrument, the implication is that the response islature. For that reason alone, I am already required of national authorities is not strictly inclined to the view that the Directive has not mechanical and that they have a certain leeway been correctly transposed into national law, to use a degree of initiative and discretion. something which the Commission, whilst That discretion is not open to challenge as a noting that 'these provisions [Articles 62 and matter of interpretation. It must be empha­ 63 of the Legislative Decree] could ... appear sised, however, that when a Member State not to be fully compliant with those laid uses this discretion, it is still required to down by the Directive', is clearly hesitant to respect the general principles of Community admit. law.

40. But even if it were to be accepted that the 37. Had Directive 90/394 merely placed choice made by the Italian authorities is still Member States under a duty to do their utmost within their discretion under the Directive, to ensure that workers' health was not endan­ my view is that the method of transposition gered by the presence of carcinogens in the used is not permissible. The stumbling block, workplace, there could have been no com­ in point of fact, is the principle of propor-

The more stringent measures permitted under 41. Whilst, admittedly, these requirements Article 118a of the Treaty were initially laid down in respect of Com­ munity legislation itself, it can no longer be denied, at least since the judgment in the Pas­ toors and Trans-Cap case, 4that they are also binding upon the national legislature when addressing matters covered by Community law. 44. In view of the option available to Member States under Article 118a(3) of the Treaty of introducing measures more stringent than those required by Community legislation, must it be accepted that in enacting Articles 62 and 63 of the Legislative Decree, as inter­ preted by the national court in its questions, the Italian legislature has not infringed Com­ munity law? 42. In the case in point, while the strategy denned by the Directive seems to satisfy those requirements in all respects, the duties placed on employers by the Italian legislature appear seriously inconsistent with the principle. I am surprised that the Commission recognises that the burdens placed on employers are far heavier than those imposed by the Directive, 45. Here, too, and unlike the Commission, I while maintaining that there has been no think not. I make no claim to analyse here all breach of the principle of proportionality. the implications of Article 118a, but I believe that the meaning of that provision will become clear only if we start from the premiss that workers' safety, as a plank of social policy, 4 — Case C-29/95 Eckehard Pastoors and Trans-Cap v Belgian State [1997] ECR I-285. falls within the scope of Community law and

48. Moreover, Article 118a(2) provides that directives adopted on that basis must not impose administrative, financial or legal con­ straints in a way that would hold back the creation and development of small and medium-sized undertakings. This also applies to 'more stringent' national measures. 46. Member States are merely permitted — provided, however, that their action is in line with Community policy — to introduce more stringent requirements, to take proactive mea­ sures. They may anticipate Community action, but they may not unilaterally define the route they intend to take. Viewed together, Com­ 49. I therefore believe that even if Article munity measures and initiatives taken by 118a is brought to bear in this dispute, the Member States must constitute a coherent line Italian legislature was not entitled to require of action, and that coherence would be jeop­ adoption of the measures provided for in ardised if Articles 62 and 63 of the Legisla­ Article 5 of the Directive independently of tive Decree were to be deemed justified by the findings of the assessment required under Article 118a(3) of the Treaty. The difference Article 3 thereof. between what is laid down in the Directive and what is contained in these provisions is not one of degree, to which there could be no objection, but one of method. The pragmatic approach adopted in the Directive is replaced by an approach which requires precise mea­ sures to be taken even before the risk has 50. I have one final point to make. As stated been precisely understood and defined. In by the Commission and the French Govern­ that respect, it matters little that the method ment, and contrary to what is claimed by adopted by the Italian legislature may yield as Italiana Petroli, the procedural requirements good results in terms of risk elimination as governing derogation, set out in Article 100a the method chosen by the Community legis­ of the EC Treaty, cannot be transposed to lature. Article 118a. The second paragraph of Article

54. The third question also concerns Direc­ tive 90/394. It appears sensible, therefore, to consider it immediately after the first ques­ tion. The national court is essentially asking the Court whether Articles 3, 4 and 5 of Directive 90/394 impose on employers — that is to say, on filling station operators and the designers and owners of filling station equip­ ment — obligations relating to the reduction 52. Besides, cases of new measures which of the benzene content in fuel which are have not been adopted strictly within the additional and indeterminate by comparison framework of a directive arise most often in with those introduced by Council Directive the context of notifications required by 85/210/EEC of 20 March 1985 on the approxi­ Council Directive 83/189/EEC of 28 March mation of the laws of the Member States con­ 1983 laying down a procedure for the provi­ cerning the lead content of petrol 6(which sion of information in the field of technical limits the benzene content in fuel to 5 % with standards and regulations. effect from 1 October 1989) and by Italian

5 — OJ 1983 L 109, p. 8. 6 — OJ L 96, p. 25.

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IP v BORSANA

Legislative Decree No 246/96 (which reduces zene content below the level prescribed by the limit to 1.4 % with effect from 1 July 1997 Directive 85/210 was notified to the Com­ and to 1 % with effect from 1 July 1999). mission, pursuant to Article 100a of the Treaty, and did not meet with any objection.

55. In other words, is it permissible to require a filling station operator to buy fuel with a 58. It would make no sense to claim that lower benzene content than that supplied by Article 4 of Directive 90/394 requires opera­ the refineries of the undertaking for which he tors to reduce the benzene content still fur­ provides the retail outlet, if that were to prove ther, since at the filling station stage this is necessary in order to reduce the exposure of clearly a technical impossibility. his employees to benzene?

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OPINION OF MISCHO — CASE C-2/97

level lower than the maximum level laid down 4(1)(b) of Directive 89/655 precludes a national by Legislative Decree No 246/96, which itself implementing provision which, arguably in goes further than Directive 85/210. In my contravention of the principles of reasonable­ view, there is absolutely no need to address ness and proportionality, prescribes a period that point in order to reply to the third ques­ of three months for its entry into force, tion referred to the Court, which I believe without making any distinction between new relates solely to the obligations incumbent equipment and existing equipment requiring upon filling station operators. adaptation and imposing harsh criminal pen­ alties on employers who, after the deadline has expired, require their employees to use equipment that does not comply.

61. In any event, it seems implausible that producers, in their capacity as sellers of fuel to customers, can be placed under obligations by Directive 90/394, which specifically con­ cerns the obligations of employers towards 64. In order to understand this question, it is their employees. necessary to consider the provisions of the Directive and then the way in which they have been transposed into Italian law by Leg­ islative Decree No 626/94.

62. I therefore conclude that, on a proper construction of Articles 3, 4 and 5 of Direc­ tive 90/394, employers — filling station opera­ tors in this particular case — are not required to reduce the benzene content of the fuel that 65. Member States were required to imple­ they distribute, provided that the fuel sold ment the Directive by 31 December 1992 at complies with the maximum level prescribed the latest. Article 4 of the Directive, setting by Directive 85/210 or by a provision of out the rules concerning work equipment, national law which, albeit more stringent, provides that: complies with Community law.

(b) work equipment which, if already pro­ 68. This is precisely the question referred to vided to workers in the undertaking and/ the Court and in my view deliberation should or establishment by 31 December 1992, confine itself to this point. In other words, I complies with the minimum requirements consider it neither necessary nor opportune laid down in the Annex no later than four to open a theoretical debate at this juncture years after that date.' on whether a Member State, anticipating an action for failure to fulfil obligations, is per­ mitted to 'catch up' •—· if I may use that expression — that is to say, to make up for the public authorities' delay in applying Com­ munity law by requiring economic operators to comply virtually instantaneously with new provisions which the Community legislature had known full well would require a transi­ 66. For reasons that have not been explained tional period. to the Court, Italy was late in transposing this Directive. The relevant provisions were only introduced when Legislative Decree No 626/94 entered into force on 13 Novem­ ber 1994. Under Article 36 thereof 'any work equipment presenting hazards due to dis­ 69. In the present case, the fact that the Direc­ charges of gas, vapour or liquid or to emis­ tive had not been transposed into national sions of dust must be fitted with appropriate law by 31 December 1992, the deadline set, containment and/or extraction devices near was enough in itself to expose the Italian the sources of the hazardous emissions'. This Republic to an action for failure to fulfil obli­ obligation, which clearly concerns filling sta­ gations. However, that delay did not wholly tions, took effect on 13 February 1995. rule out the possibility that Italian filling sta­ tions would be operating in accordance with the standards imposed at Community level by the deadline of 31 December 1996 set down by the Directive. It is therefore very difficult to understand why the Italian legislature thought fit to set 13 February 1995 as the deadline for adapting existing equipment, thereby depriving firms of nearly two years 67. The situation in respect of which the which would have been extremely useful to national court has referred the question is them in bringing their equipment up to stan­ therefore as follows: the Community Direc­ dard. tive of 1989, which should have been trans­ posed into national law by 31 December 1992, allowed until 31 December 1996 to adapt existing equipment, whereas the Italian legis­ lature, which did not act until 13 Novem­ ber 1994, required that adaptation to be com­ pleted within three months, that is to say, by 70. It is my view that, by making such a 13 February 1995. Is such conduct on the part choice, the Italian legislature infringed Com­ of the Italian authorities permissible under munity law. There are a number of reasons Community law? for this.

75. In my mind, there could be no justifica­ tion for the fact that employers, on whom the Directive itself imposed no obligation, even though they could have known about it for a long time, were deprived of the greater part of the time allowed to adapt their installa­ tions, that is to say, most of the period between 13 November 1994, the effective date of trans­ position, and 31 December 1996, the deadline 72. It was not out of excessive caution that laid down in the Directive for complying with the Community legislature provided for a the new standards. sufficiently long period of adaptation. Obvi­ ously, the adaptation of thousands of fuel points of sale requires both very heavy invest­ ment and technical work involving numerous personnel over a comparatively long period. Thus, as I have already concluded in the con­ text of the first question, the approach adopted 76. I would add that, as in the context of the by the Italian authorities is at odds with measures introduced within the framework of Community legislation. Directive 90/394, Article 118a of the Treaty

I-8616

IP v BORSANA

induce Member States to transpose directives into national law as late as possible?

81. On that point, I would observe that the legislature's authority would also be under­ mined if it were to impose on undertakings obligations that arc very difficult to meet within the prescribed periods, while at the 78. In reply to the first part of that question, same time indicating, by imposing very light I would suggest that if a Member State does penalties, that they were not really expected not transpose a directive until the end of the to comply.

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82. On this second question, therefore, I am national law which sets a time-limit so short of the opinion that the principle of propor­ that it does not allow equipment to be brought tionality, in conjunction with Article 4(1 )(b) up to standard as required by the Directive. of Directive 89/655, precludes a provision of

Conclusion

I-8618