C-11/99

1. By order lodged on 18 January 1999, the Single European Union Act and subse- Arbeitsgericht Siegen (Labour Court, Sie- quently (with amendments) became Arti- gen) referred three questions to the Court cle 118a of the EC Treaty after the entry of Justice of the European Communities for into force of the Treaty on European Union a preliminary ruling on the interpretation (Articles 117 to 120 of the EC Treaty have of Council Directive 90/270/EEC of been replaced by Articles 136 EC to 143 29 May 1990 on the minimum safety and EC), laid down in its first paragraph that health requirements for work with display the Member States were to pay particular screen equipment (fifth individual directive attention 'to encouraging improvements, within the meaning of Article 16(1) of especially in the working environment, as Directive 89/391/EEC) 1 (hereinafter 'the regards the health and safety of workers', directive' or 'the 1990 directive') with with a view to the 'harmonisation of regard to the terms 'display screen' or conditions in this area, while maintaining 'graphic display screen' and 'control cabs the improvements made'. To that end, for ... machinery' employed therein. In Article 118a (2) offered the Council the essence, the national court asks whether possibility of adopting, 'by means of direc- the directive in question can be applied also tives, minimum requirements for gradual to television cutters who select and process implementation, having regard to the con- film material using different procedures ditions and technical rules obtaining in with a view to producing programmes for each of the Member States', using the broadcasting. procedure known as the 'cooperation' pro- cedure. According to Article 118a(3), the Community provisions adopted in this way were not to impede the Member States from maintaining or introducing 'more stringent measures for the protection of working conditions compatible with this Treaty'. It should also be noted that Relevant Community and national legisla- Article 137 EC incorporated the substance tion of the above measures, setting them, how- ever, in the broader perspective of the protection of fundamental social rights, particularly those of workers. 2 2. Article 118a of the EEC Treaty, which was introduced on 1 July 1987 with the 2 — Article 137 EC refers expressly to Article 136 EC, which cites the European Social Charter signed at Turin on 18 October 1961 and the 1989 Community Charter of the * Original language: Italian. Fundamental Social Rights of Workers, to define the 1 — OJ 1990 L 156, p. 14. objectives to be achieved.

4. The 1990 directive, to which the ques- tions submitted for a preliminary ruling relate, does indeed constitute an 'individual directive' (the fifth, in fact) for the purposes of Article 16(1) of the general Directive 5. Both the general Directive 89/391 and 89/391. On the basis that 'compliance with the 1990 individual directive set 31 Decem- the minimum requirements for ensuring a ber 1992 as the final deadline for the better level of safety at workstations with adoption of national transposition mea-

3 —OJ 1989 L 183, p. 1. 6 — Fourth recital in the preamble to the 1990 directive. 4 — See Articles 1(1) and 2(1). 7 — See Articles 1(1) and 2(1). 5 — Article 16(3). 8 — See Chapter 1 ('Equipment'), (b).

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sures. 9 The German Government arranged ('gemeinnützigen Anstalt des öffentlichen for them to be transposed late, by a federal Rechts') which produces and transmits law of 7 August 1996 1 0and a federal radio and television programmes in the regulation of 4 December 1 9 9 6 . 1 1The territory of the Land of North Rhine- latter defines 'display screens' with a for- Westphalia. mula which follows that used in the 1990 directive 12 and also excludes from its scope 'control cabs for vehicles or machinery'. 13

I-5593.

OPINION OF MR SAGGIO — CASE C-11/99

one: the raw analogue film material is at the Court Registry on 18 January 1999, transferred onto a digital medium follow- in which the Court of Justice was asked to ing a preliminary selection and then pro- rule on three questions submitted for a cessed by the cutter using a keyboard with preliminary ruling; these may be summar- the assistance of computerised programmes ised as follows: with a view to producing transmissions which are also broadcast digitally.

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picture material is processed with the directive provided for by Article 1(3)(a) aid of technical installations and/or and therefore relates 'only to workstations computer programmes? where control of a machine or technical installation is effected with the assistance of a data processing installation and the screen display is limited to the reproduction of entry values and technical data which arise in the course of the production process.' 1 4However, the national court 10. In the order for reference, the national acknowledges that other solutions also court explains why the answers to the three founded on plausible arguments could be questions are necessary for a proper ruling applied to the problems of interpretation in the case in the main proceedings. To concerned in the main case. This explains settle the dispute between Ms Dietrich and why a ruling from the Court of Justice in WDR, it must be ascertained whether the this connection is necessary in order to benefits provided for by the federal regula- avoid further uncertainties as regards the tion of 4 December 1996 — which trans- scope of the directive and, accordingly, of posed the 1990 directive into German the national legislation which transposed it. law — can apply to the present case. Since the regulation is substantially in accordance with the aforesaid directive as regards the definitions of 'display screen' and 'graphic display' and 'control cabs for... machinery', the interpretation of the directive is of decisive importance for the proper under- standing of the terminology used in national law: the national court is required to interpret national law in accordance First and second questions with Community law.

of preferring an extensive interpretation of variable intensity' 16 and it is to deal with the terms 'display screen' and 'graphic the risks to the health of workers which display' and makes the point that the might arise from this process that the problem of interpretation would best be directive provides for special benefits for set in the wider context of the definition of their protection. 'workstation' in Article 2(b) of the 1990 directive. The aim of the latter is to ensure adequate protection for the greatest possi- ble number of workers who use display screens, in accordance with the require- ment of protection of safety and health at work provided for by the then Article 118a of the EEC Treaty and the general provi- sions of Directive 89/391, which could not fail to cover radio and television stations, referring as it does to all sectors of activity, both public and private, including the cultural and recreational sectors. From this 13. WDR and the Netherlands Govern- point of view, the preparatory work for the ment, on the other hand, suggest a literal 1990 directive 15 confirms that the Com- interpretation of the terms 'display screen' munity legislature generally intended to and 'graphic display screen' to the Court of cover, in the directive, all the possible uses Justice. At a television cutter's workstation of graphic display equipment and ade- for the most part recordings of film mate- quately protect the workers using it. The rial are displayed on monitors which could literal wording of the provision in Arti- not in any way be covered by the terms cle 2(a) of the directive concerned does not, 'alphanumeric screen' or 'graphic display' in the Commission's view, preclude a used by the directive to define 'display broader interpretation of the term 'display screens'. According to this line of reason- screen'. At a technical level, there is no ing, displays on screen of plans, graphics, significant difference between the display diagrams or, at most, drawings or artificial of alphanumeric or graphic elements and images ought solely and exclusively to be that of film sequences or clips, regardless of covered by the term 'display screen' and all the technological process — analogue or sequences of moving images ought accord- digital — used to replay the images. In all ingly to be excluded. With regard to the cases 'the screen emits an irradiation of latter, the cutter does not use the screen to electrons in the form of points of light öf create a design, plan or artificial image 17 but only to view pre-existing film material in order to produce, in agreement with the writer or producer, the programme to be broadcast. Not even the display of video data files containing recordings of film material in digital form on monitors would fall, according to WDR, within the defini-

tion of 'display screen'; in fact, the final legislature, the regulatory context of the result of such display would, from the directive and the practical requirements of spectator's point of view, be reflected in the working environment in this case. sequences of moving images quite similar to those produced by analogue recordings. According to the directive, moreover, the definition of a display screen is entirely independent of the display process used. To support its contention, WDR also refers to technical standard DIN 15996, which was produced on its initiative and relates to the requirements of workstations in respect of the 'electronic processing of filmed images and sound in cinematographic, television and radiophonic undertakings', 1 8whose provisions do not apply to 'film cutting tables'. 19 15. As regards the literal formulation of the directive, I have already pointed out that this defines the display screen as 'an alphanumeric or graphic display screen, regardless of the display process employed'. Now, at technical level, the display process on screen is absolutely identical in the case of signs, numbers, symbols, graphics and images, whether these are artificial or real, fixed or moving. In all these cases, it is electron beams which strike the internal The interpretation accepted part of the display screen, creating the image as the final result of a complex technological procedure. 20The same mov- ing images are in reality nothing other than sequences of fixed images composed of a certain number of parallel lines which vary according to the frequency standards adopted — images which, following each 14. I consider that Article 2(a) of the other at a certain rate, deceive the percep- directive should be interpreted to mean tion of the human eye by persisting on the that the term 'display screen' contained retina and creating the illusion of move- therein relates to the display of any type of ment. 21 From this point of view, there image. This conclusion is reached by ana- would therefore be no reason not to assign lysing the literal formulation of the afore- to the terms 'alphanumeric display screen' said provision, the protective aim of the and 'graphic display screen', which make directive, the intentions of the Community up the overall definition of 'display screen

16. As regards the worker who uses display 18. The aim of the directive is the protec- screen equipment, the risk to health does tion of the safety and health of workers not depend on the type of image displayed using display screen equipment. To achieve on the screen but on prolonged exposure to this aim effectively, a broad scope in the screen. This in fact emits radiation keeping with the overall objective of which, if absorbed over an excessive length extending protection to the greatest possi- of time, can seriously harm sight in parti- ble number of workstations — save in the cular and health in general. The intrinsic case of the exceptions provided for in this dangerousness of display screens is entirely connection — needs to be assigned to the independent of what the screen displays; definition of display screen equipment used the risk is a constant and undifferentiated by Article 2(a) of that directive. A restric- one inherent in the tasks of users of display tive interpretation such as that suggested by screens and requires exposed workers to WDR and the Netherlands Government have adequate means to protect their would conflict with the need to protect health. In connection with such means, workers' health adequately in the broader the directive imposes a set of minimum perspective of public health protection. requirements to reduce the risks and, Indeed, consideration of the aspects relat- among other things, provides for the peri- ing to the protection of health 'is based odic interruption of daily work on a display essentially on requirements of a higher screen with breaks or changes of activity, order which have to do with the protection 'reducing the workload', 22 as well as of human rights and which underpin the suitable forms of protection for 'workers' entire legal system of the Community.' 24 eyes and eyesight'. 23 The risk associated Any economic or commercial interests with exposure to display screens is accord- seeking to exclude particular categories of ingly bound up not so much with the type workers — such as television cutters for of image displayed as with the intensity of example — from the protection granted the emissions from the equipment used. them by the directive cannot be taken into Justifying differentiated treatment based on account: indeed, 'the requirements linked the type of image displayed is therefore to the protection of public health must inadequate both in technical and medical unquestionably be given more weight than terms.

19. Concerns of the same kind were acted on by the Court in its judgment of 12 December 1996 in X, 26 which consti- tutes the only specific precedent in the matter. In defining the scope of certain provisions of the 1990 directive, in fact, the Court has preferred to use a broad inter- pretation of the terms of 'worker' and 'workstation', in accordance with the need to guarantee a minimum level of safety and protection. On the basis of such a line of 20. With a view to the protection of health, reasoning, it has accordingly been estab- there is no doubt that the Community lished that 'Article 9(1) of the Directive is legislature's intention was to include all to be interpreted as meaning that the workstations equipped with display regular eye tests for which it provides are screens, with the sole exceptions provided to be carried out on all workers to whom for by Article 1(3), in the scope of the the Directive applies', that 'Article 9(2) [of directive. The preparatory work, and above the Directive] is to be interpreted as mean- all the proposal for a Commission direc- ing that workers are entitled to an ophthal- tive, 29 bears out such an intention. More- mological examination in all cases where over, the formulation of Article 1(1) con- the eye and eyesight test carried out pur- cerning the object of the directive leaves suant to Article 9(1) shows that this is little room for doubt, inasmuch as in necessary', 27 that '[o]n a proper construc- providing that 'This Directive ... lays down tion of Articles 4 and 5 of the Directive, the minimum safety and health requirements obligations they impose [to take the appro- for work with display screen equipment as priate steps to ensure that workstations defined in Article 2' it presupposes a gen- eralised application thereof, reserving for Article 2 ('Definitions') the sole task of 25 — Ibid., paragraph 103.1 would point out that Article 129 of clarifying the terms 'display screen equip- the EC Treaty (now, after amendment, Article 152 EC) ment', 'workstation' and 'worker'. provides, in the first subparagraph of paragraph 1, that 'A high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.' 26 —Joined Cases C-74/95 and C-129/95 [1996] ECR I-6609. 28 — Ibid., paragraph 41 (my emphasis). 27 — Ibid., paragraph 36 (my emphasis). 29 — See footnote 16.

21. The regulatory context of the 1990 connected with the activity of television directive further supports my thinking. In cutters. WDR itself points out that such fact, it constitutes an 'individual directive' activity is frequently interrupted for tech- within the meaning of Article 16(1) of nical reasons (insertion of video-cassettes to Directive 89/391. Both contain minimum be viewed, rewinding of film material, etc.) requirements to protect the safety and or to allow the cutter to talk to the health of workers pursuant to the then programme writer or producer. What is Article 118a of the EEC Treaty, which involved, therefore, is a kind of activity comes under 'Social provisions'. From that which by its nature does not require point of view, I feel it should be emphasised continuous and uninterrupted application. that the definitions used in Article 2 of the This, in my opinion, allows a system of 1990 directive are instrumental in relation 'breaks or changes of activity' for the to the protective aim of the directive and cutter's benefit to be set up in accordance must be interpreted and applied in close with Article 7 of the directive without any conformity with that aim. The situation difficulty and, all the more so, the 'mini- would obviously have been very different mum requirements' envisaged by the Annex had the directive been a 'harmonisation to the directive to be put into operation. directive' adopted on the basis of the then Article 100a of the EEC Treaty (which subsequently became Article 100a of the EC Treaty and then, after amendment, Article 95 EC): in that case, the definitions would have been instrumental in approx- imating laws in the context of the internal market and would certainly have had the task of rigorously circumscribing the scope of the directive. In my opinion, this signifies that the reference to technical standard DIN 15996 by WDR should be understood 23. To conclude, I consider that a joint to mean that the latter should be recognised answer should be given to the first two as having merely the value of a detailed questions concerning the possibility of application of the protective requirements making the term 'graphic display screen' · acknowledged by the directive in the cine- cover also the reproduction of recordings of matographic, radiophonic and television film material and video data files contain- sectors rather than as defining the limits ing recordings of film material in digital of its scope. form. Two questions with an analogous object are in fact involved, notwithstanding the fact that the second is asked solely in the event that a negative reply is given to the first. This is because distinguishing the image displayed on screen on the basis of the analogue or digital medium from which it derives does not seem significant; as far as the directive is concerned, no account whatsoever is taken of 'the display process employed'. The reproduction on screen of 22. I would finally make the point that the recordings of film material or of video data interpretation which I support is compati- files containing recordings of film material ble with the organisational requirements in digital form must thus be treated in the

Third question 25. On the other hand, WDR considers that the provisions of the aforesaid direc- tive relate essentially to office activities or, more generally, those of an administrative type and cannot be applied in sectors or contexts having different characteristics. This is the raison d'être of the derogations provided for in Article 1(3) of the directive, among which is precisely that relating to 'control cabs for... machinery'. It is accord- The interpretations proposed ingly necessary to interpret such a term as if it referred to control cabs constituting 'an integral part of the machine by virtue of controls with a display screen, which allow direct intervention in the machine's pro- duction cycle.' In the present case, the activity of a television cutter takes place at 24. The Commission is inclined to a restric- a workstation where film material is pro- tive reading of the term 'control cabs ... for cessed using equipment operated by a machinery' provided for as an exception to control panel fitted with monitoring the application of the specific system for screens, in a very similar way to that taking the protection of workers in Article 1(3) of place in, for example, the operation of the the 1990 directive. The Community legis- diagnostic devices used in the medical lature's intention was to circumscribe the sector. In other words, a television cutter's derogations from the application of the workstation constitutes, to all intents and directive to very limited cases and, among purposes, a 'control cab for ... machinery' others, to the case in which the display and as such is excluded from the scope of screen equipment, while having to be used the directive.

27. In this connection, the cases of deroga- tion listed in Article 1(3) can be divided into two categories, according to the use of the display screen equipment and the degree to which it is dangerous. In the first category are those cases in which the display screen equipment is installed in 'control cabs for vehicles or machinery' or 'on board a means of transport' and thus performs an auxiliary role in the operation of a vehicle or machine. To the second category belong, on the other hand, all 29. In the present case, the possibility of those cases in which the risks associated including the activity carried out by a with the worker's exposure to display television cutter under 'control cabs for ... screen equipment are minimal or actually non-existent: what are involved here are 'computer systems mainly intended for 30 — The German text of the 1990 directive ('Bedienerplätze von ... Maschinen') is more precise than the Italian public use'; the use of 'portable' terminals inasmuch as the latter refers to 'posti di guida di ... macchine'. 'not in prolonged use at a workstation', 31 — Aclassic case of this kind is that of computerised 'equipment having a small ... display' and diagnostic devices used in medicine. But one should also remember industrial control panels or those used in electric finally, typewriters of traditional design. power stations.

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machinery' depends on the role which this case the term can or cannot cover a display screen equipment performs in the workstation at which analogue or digita- procedure for the processing of film mate- lised film material is processed with the aid rial. It will accordingly be the responsibility of technical installations or computer pro- of the national court to establish whether in grammes.

operator operates a machine or technical installation using a technical data processing device which is limited to displaying on screen the data which the operator keys in or which are processed by the device during the production process. It is the responsibility of the national court to establish whether in this case the term can or cannot cover a workstation at which analogue or digitalised film material is processed with the aid of technical installations or computer programmes.

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