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favourable to protection of the safety and including those facing groups of health of workers at work. workers exposed to particular risks;

4. Without prejudice to the other provi- sions of the Directive, an employer is (b) decide on the protective measures to be required under Article 6(3)(a) of the Direc- taken and, if necessary, the protective tive, taking into account the nature of the equipment to be used; activities of the enterprise and/or establish- ment, to evaluate the risks of safety and health of workers, inter alia, in the choice of work equipment, the chemical sub- stances or preparations used and the fitting- out of work places. Subsequent to this evaluation and as necessary, the preventive measures and the working and production methods implemented by the employer must assure an improvement in the level of protection afforded to workers with regard to safety and health and be inte- grated into all the activities of the under- (2) Member States shall define, in the light taking and/or establishment and at all of the nature of the activities and size of the hierarchical levels. undertakings, the obligations to be met by the different categories of undertakings in respect of the drawing-up of the documents provided for in paragraph 1(a) and (b) and when preparing the documents provided for in paragraph 1(c) and (d).' 5. Article 9 of the Directive provides:

'Various obligations on employers 6. Article 10 of the Directive, entitled 'worker information', provides in para- graph 3:

1. The employer shall:

9. Paragraph 6(1) of the ArbSchG has the heading 'Documentation'. According to the ...' first sentence of this provision, the employer must keep documents containing inter alia the results of the assessment of risks for employees. The third sentence of Paragraph 6(1) of the ArbSchG exempts small undertakings from this duty to keep B — Implementation in Germany of the documents (hereinafter: 'the small under- relevant provisions of the Directive takings rule') and is drafted as follows: 'Save in so far as may be otherwise prescribed by other legal provisions, the 7. The Directive was implemented in Ger- first sentence hereof shall not apply to man law by the Gesetz zur Umsetzung der employers with 10 or fewer employees'. EG-Rahmenrichtlinie Arbeitsschutz und According to the final sentence of Para- weiterer Arbeitsschutz-richtlinien (Law graph 6(1) of the ArbSchG, when the transposing the EC Safety and Health number of employees is being calculated Framework Directive and other Safety and for the purposes of the third sentence of Health Directives) of 7 August 1996. Para- Paragraph 6(1), part-time workers with a graph 1 of this Law refers to the Gesetz regular working week of 20 hours or less über die Durchführung von Massnahmen are to be treated as 0.5 of an employee and des Arbeitsschutzes zur Verbesserung der those with a regular working week of 30 Sicherheit und des Gesundheitsschutzes der hours or less as 0.75 of an employee. 4 Beschäftigung bei der Arbeit (Law on the Implementation of Protective Measures to improve the Safety and Health of Employees at Work (hereinafter: 'Arbeitss- chutzgesetz' or 'ArbSchG'). 3 10. According to Paragraph 2(4) of the ArbSchG 'other legal provisions' within the

meaning of the Law are to be understood as 13. Paragraph 2(1) of the ASiG provides being provisions on employee protection to that the employer must appoint occupa- be found in other statutes, regulations and tional physicians (Betriebsärzte) in writing in Unfallverhütungsvorschriften (accident and assign to them the duties laid down in prevention regulations). Paragraph 3 of the ASiG. According to Paragraph 3(1) of the ASiG the duty of occupational physicians is to assist the employer in all matters relating to the protection of workers' health and accident prevention. Under point 1(g) of Paragraph 3(1) of the ASiG they must advise the employer and other persons responsible for the protection of workers and accident prevention in assessing the working con- 11. From the case-file it is clear that the ditions. 'other legal provisions' are to be found in particular in the Arbeitssicherheitsgesetz (the Law on Safety at Work, hereinafter also referred to as 'ASiG') 5and in Book VII of the Sozialgesetzbuch (the German Social Law Code), 6(hereinafter: 'SGB VII'). They also include the implementing regulations 14. Alongside these provisions, Paragraph (the accident prevention regulations) which 5(1) of the ASiG provides that the employer are based on that legislation. must appoint occupational safety special- ists (Fachkräfte für Arbeitssicherheit) in writing and assign to them the duties laid down in Paragraph 6 of the ASiG. The duties of occupational safety specialists under Paragraph 6 of the ASiG correspond in large measure to those of occupational physicians under Paragraph 3 of the ASiG. The duty of occupational physicians to assess the working conditions under 12. Paragraph 1 of the ASiG requires an point 1(g) of Paragraph 3(1) of the ASiG employer, in accordance with the provi- corresponds exactly to the duty of occupa- sions of that Law, to enlist the services of tional safety specialists under point 1(e) of occupational physicians and occupational Paragraph 6 of the ASiG. 7 safety specialists to assist in accident pre- vention and in health and safety activities, in order to ensure inter alia that the legal provisions in force are applied as appropri- ate in the circumstances.

trial accident insurance bodies ('Unfallver- the Federal Minister may determine that sicherungsträger') are required, on an for certain categories of enterprises, taking autonomous basis, to draw up accident into account specific criteria, which in prevention regulations concerning the particular relate to the number of workers measures that an enterprise must take to employed, the duties laid down in Para- fulfil its duties under the Arbeitssicherheits- graphs 3 and 6 of the ASiG need not be gesetz. In the pre-litigation phase the Ger- fulfilled either wholly or in part. Fur- man Government provided to the Commis- thermore, the Federal Minister may deter- sion examples of accident prevention regu- mine in accordance with point 2 of Para- lations for occupational safety specialists graph 14(2) of the ASiG that the duties laid taken from three sectors (mechanical engin- down in Paragraphs 3 and 6 of the ASiG eering and metalworking, the textile and need not be fulfilled either wholly or in garment industry and the construction part, in so far as this is unavoidable because industry). of shortages of occupational physicians or occupational safety specialists.

16. Also of importance in this case of failure to comply with Treaty obligations are certain provisions of the Arbeitssicher- heitsgesetz under which the Bundesminister für Arbeit und Sozialordnung (Federal Minister for Labour and Social Affairs) can grant exemptions. III — Procedure and forms of order sought by the parties

20. In its reply of 26 January 1999 the Articles 10 EC and 249 EC and German Government pointed out that the Articles 9(1)(a) and 10(3)(a) of Council Directive did not lay down a universal duty Directive 89/391/EEC of 12 June 1989 with regard to the documentation relating on the introduction of measures to to a risk assessment. Furthermore, it added encourage improvements in the safety that national law, by reason of the 'other and health of workers, inasmuch as, by legal provisions' within the meaning of the Paragraph 6 of the ArbSchG, it third sentence of Paragraph 6(1) of the absolves employers employing 10 or ArbSchG, in particular the Arbeitssicher- fewer persons from the requirement to heitsgesetz and the accident prevention keep documents containing the results regulations, placed all small undertakings, of risk assessments; according to their industrial sector, under the duty with regard to documentation, as prescribed by the Directive.

— order the Federal Republic of Germany As a further example of 'other legal provi- to pay the costs. sions' the German Government also pointed to the Biological Agents Regulation ('Biostoffverordnung'). 8

23. The German Government contends 21. As a result the Commission brought the that the Court should: present action, which was lodged at the Court Registry on 4 January 2000.

— dismiss the application; 22. The applicant claims that the Court should:

— declare the Federal Republic of Ger- — order the Commission to pay the costs. many in breach of its obligations under

8 — This related to a draft regulation designed to implement Council Directive 90/679/EEC of 26 November 1990 on the protection of workers from risks related to exposure to biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). The regulation was subsequently adopted on 27 January 1999 (BGBl. I, p. 50). 24. No hearing was held in this case.

28. It argues also that the accident pre- vention regulations invoked by the German 25. In its application the Commission first Government contain various lacunae as contends that Article 9(1 )(a) of the Direc- regards the implementation of the Direc- tive imposes on employers not only a duty tive. These lacunae concern, first, the to possess an assessment of the risks to equivalence of the provisions regarding safety and health at work, but also a duty the documentation of risk assessments and, to keep a documentary record of this second, the power of the Minister to assessment. In its view, this means that exempt certain employers from the duty the details must be recorded and kept in to carry out risk assessments. such a way as to be accessible and com- prehensible for others. In support of this, it puts forward a series of arguments based on the objectives of the Directive and the use of the word 'documents' in Article 9(2) of the Directive. 29. As regards the equivalence of the reports produced in the context of the accident prevention regulations and the documentation required by the Directive, the Commission in its reply points to problems both of structure and content. 26. As regards actual implementation of the Directive, the Commission in its appli- cation maintains its argument that the exemption of small undertakings by Para- graph 6(1) of the ArbSchG is incompatible with the provisions of the Directive just 30. When examining structural equival- referred to. It argues that, notwithstanding ence, the Commission emphasises that the the particular legal provisions referred to duties to report contained in the various by the German Government, the imple- accident prevention regulations are not mentation of the Directive is defective. imposed on the employer but on the occupational physicians and occupational safety specialists. Their obligations towards employers are principally of an advisory nature. However, the Commission points out that advice contained in a report to an 27. Thus in its view, for example, the employer which recommends certain action Biological Agents Regulation applies only to be taken cannot be treated as equivalent

33. Finally, the Commission alleges that the Federal Republic of Germany itself further extended the scope of the small undertakings rule by inserting the fourth 31. The Commission also expresses its sentence of Paragraph 6(1) of the ArbSchG concern as to whether there is equivalence by means of the Law of 27 September in terms of content between the reports 1996. 9 produced pursuant to the accident preven- tion regulations and the documentation required by the Directive. It notes that the content of such a report must meet several requirements. In this process, certain elements of risk assessment may well be addressed, while others may not. In order to determine whether or not equivalence in terms of content has been achieved, careful B — Defence arguments of the Federal examination is required in each individual Republic of Germany case as to whether and to what extent the content of that report meets the require- ments of the Directive with regard to risk assessment and the documentation thereof. The Commission contends that it cannot 34. The German Government argues that generally be assumed that every report the small undertakings rule in Paragraph contains an adequate risk assessment, as 6(1) of the ArbSchG challenged by the required by the Directive. For these rea- Commission forms part of the tiered sons, the basis on which protective and approach to transposition adopted by the preventive measures are to be taken may German legislature. In its view, the small also be deficient. And therefore it may be undertakings rule does not lead to the result more difficult for the employer to demon- that small undertakings do not have to keep strate to the supervisory authorities that he has complied with his risk assessment obligations. 9 —BGBl.I, p. 1461.

a written record of the risk assessments; as also satisfying the requirements of a risk rather, it merely prevents a disproportion- assessment within the meaning of the first ate dual burden on small undertakings and sentence of Paragraph 6(1) of the ArbSchG. is therefore in this respect in accordance with Community policy. It argues that the duty imposed by the Directive to keep adequate written records, by which workers can obtain access to the risk assessment results, is already contained in specific statutory provisions. The German 36. The German Government rejects the Government emphasises in this context Commission's view that there is no struc- that, even if the Biological Agents Regu- tural or substantive equivalence between lation were to be inadequate, every the documentation obligations imposed by employer is in any event subject to the the accident prevention regulations and accident prevention regulations. It contends those imposed by the Directive. that both the industrial accident insurance bodies for commerce and agriculture as well as the comparable bodies for the public sector have in this respect fully complied with their duties. 37. As regards structural equivalence, it points out that Article 9(1 )(a) of the Direc- tive requires merely that the employer be in possession 10 of a risk assessment. No specific mention is made as to the author of the report and it is therefore possible that several persons may work together in producing the report. For this reason it 35. According to the German Government, argues that Article 9 of the Directive can- the Arbeitsschutzgesetz and the Arbeitssi- not be interpreted as meaning that the cherheitsgesetz operate together as a seam- employer himself must compile the docu- less whole in meeting the objectives of the mentation in full through his own efforts. Directive. Paragraph 5 of the ArbSchG and Given that in larger undertakings the duties the lists of duties in Paragraphs 3 and 6 of of the employer are usually delegated and the ASiG correspond directly with one that not all duties can be carried out by the another. Paragraph 5 of the ArbSchG owner personally, the Directive rightly requires every employer to assess the risks refrained from imposing such an excessive facing employees at work. For the duty. employer to fulfil this task, Paragraphs 3 and 6 of the ASiG provide him with competent partners, the occupational safety specialists and occupational physicians. The information and advice provided by these specialists form part of the decisions 38. According to the German Government, taken by the employer. In its view there- the process of risk assessment is in practice fore, these reports within the meaning of Paragraphs 3 and 6 of the ASiG must, as regards small undertakings, always be seen 10 — My emphasis.

one which involves and requires the active 40. With regard to equivalence in terms of participation of all those having responsi- content, the German Government criticises bility within the undertaking. In this regard the Commission's point of departure, from the purpose of the duty to produce docu- which it appears to proceed on the specu- mentation is to ensure that in the process of lative premiss that in a specific case the risk risk assessment all relevant circumstances assessment is incomplete. In its view, the are taken fully into account and assessed. measure for assessing equivalence in terms The question of whether the employer of content must be a comparison at an adopts the report's recommendations abstract level of the duties to produce involves a decision-making process, going documentation, taking into account the beyond the plain documentation. Sub- Directive's protective aims. It argues that sequent decisions of the employer cannot in this particular case the comparison is themselves form part of the duty to produce successful and that the duties imposed on documentation. employers under the Arbeitsschutzgesetz and on occupational physicians and occu- pational safety specialists under the Arbeitssicherheitsgesetz are in principle equivalent. The choice of methods used by the employer and by the assistant advisers to implement the protective aims of the Directive cannot, in the view of the German Government, form the basis of an action for failure to fulfil Treaty obligations by reason of improper transposition of a directive. 39. The German Government next argues that, in order to track down and document the risks, the opinions of persons other than the employer himself, for example those of occupational physicians and safety special- ists, must also be taken into account. Such 41. In the view of the German Govern- persons are more qualified and more ment, the Commission errs in its contention impartial than the employer and are there- that the transposition of the Directive is fore in a better position to assess the risks. defective, in so far as it relates to Paragraph This is in line with an integrative approach 14 of the ASiG. From the principle of to health and safety at work, as set out in subsidiarity anchored in Paragraph 14(1) of the Directive. According to this approach the ASiG it follows that, where the auton- risk assessment is not left to the employer omously drafted accident prevention regu- alone. In its view, it is not decisive that lations comply with the provisions of the under the Arbeitsschutzgesetz the addressee Arbeitssicherheitsgesetz and Book VII of of the duty to provide documentation is the the Socialgesetzbuch, no further adminis- employer, whereas under the Arbeitssicher- trative regulations may be issued by the heitsgesetz the duty to report is imposed on relevant minister. In the present case all the specialists. The fact that the accident pre- industrial accident insurance bodies have vention regulations require undertakings to issued accident prevention regulations in an report regularly further demonstrates that appropriate manner. For that reason also employers must actively participate in the the Federal Minister has not exercised his compilation of the report. power under point 1 of Paragraph 14(2) of

45. Moreover, this case is primarily con- V — Appraisal cerned with the duty under Article 9(1) of the Directive to be in possession of docu- ments containing the risk assessment results. If the Federal Republic of Germany has not transposed this provision correctly 43. In order to resolve this problematic into national law, it then follows a fortiori issue, it may first be useful to sketch out that Article 10(3) of the Directive has also briefly the scope of the dispute and the been inadequately transposed. If the duties imposed by the Directive before employer is not in possession of the risk going on to evaluate the Commission's assessment, then obviously neither the application in the light of the arguments employees nor their representatives can presented. have access to it.

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B — The duties imposed by the Directive by employers in respect of the documen- tation to be provided 'in the light of the nature of the activities and size of the undertakings', must not in my opinion be understood as permitting the Member States to exempt certain categories of 46. While the scope of the Directive is undertaking from the duties laid down in broad, the Member States none the less Article 9(1) of the Directive. In this respect have a measure of discretion in implement- the objective of improving the actual con- ing its specific duties. ditions of work cannot be rendered sub- ordinate to purely economic considerations such as a possibly disproportionate bureau- cratic burden being placed on small under- takings. 12

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ation and development of small and to it at all times is guaranteed for the medium-sized undertakings. 13 persons affected such as, for example, those mentioned in Article 10(3)(a) of the Direc- tive and also for bodies such as the labour inspectorate, which supervises compliance with health and safety provisions. The Commission, in my view correctly, has argued that it is only when the risk assess- ment has actually been recorded that the workers can be best informed about it and 50. The fact that the protective aim of the the employer prove to the supervisory Directive must be broadly interpreted is authorities that he has complied with his also evident from the broad outline of the duties of documentation. risks which must be considered within the framework of the Directive. According to the 15th recital, the provisions of the Directive apply to all conceivable risks to the health and safety of workers. These include those risks which arise from the use at work of chemical, physical and biologi- cal agents and those risks which concern workers' safety, hygiene and health. All of these factors must be taken into account in the transposition and application of the duties arising with regard to risk assess- ment and the documentation thereof.

55. In the pre-litigation phase the German Government did not deny the possibility of lacunae in the Biological Agents Regulation but asserted that the accident prevention regulations issued in accordance with the C — Evaluation of the Commission's case Arbeitssicherheitsgesetz and Book VII of the Socialgesetzbuch provide a comprehen- sive system which transposes the duties with regard to documentation for employers employing 10 or fewer workers. 53. According to Article 18(1) of the Direc- I will therefore restrict my analysis to the tive, read in conjunction with Articles 10 latter provisions. EC and 249 EC, the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 31 December 1992. The question which now arises is whether the Federal Republic of Germany has failed to impose the duties 56. The first question which emerges is contained in Articles 9(1)(a) and 10(3)(a) whether the system, pursuant to which the of the Directive on employers employing 10 accident prevention regulations are issued or fewer workers. for each sector by the industrial accident insurance bodies, can as such satisfy the requirements for the transposition of the relevant provisions of the Directive.

tent of the national provisions, their com- sion. The question which must sub- plete compatibility with the directive and sequently be posed is whether the reports their formally binding nature. 14 Within produced within the framework of the these boundaries, however, the choice of accident prevention regulations are actually form and methods is a matter for the equivalent to the documentation required Member States. Just as the Federal Repub- by the Directive. For the Commission this is lic of Germany may implement the Direc- out of the question with regard to the tive through territorially decentralised German system. In its view, the German measures, it may also do this, as in the system lacks both the employer's express present case, through functionally decen- declaration that he has accepted the recom- tralised provisions, according to which the mendations made in the report and that he industrial accident insurance bodies — will use these as the basis for adopting bodies corporate as a matter of public further protective measures (structural law 15 — set down the duties with regard equivalence), and the equivalence of stan- to documentation in autonomous regu- dards, in respect of the assessment of risks lations, subject to the approval of the (substantive equivalence). Federal Minister. 16 The accident preven- tion regulations must be published 17 and are, following the Minister's approval and their publication, binding on employers and on their workers. 18 Although the several tiers of implementation measures involved create as a whole an impression of 59. In the action for failure to fulfil Treaty complexity, for the individual employer obligations brought under Article 226 EC, employing 10 or fewer workers no doubt the Commission as applicant must prove can exist that he must observe the relevant the alleged breach and provide the Court accident prevention regulations issued for with the information needed to enable it to that sector. determine whether the obligation has not been fulfilled. 19 In my opinion the Com- mission has not proved satisfactorily that the German system, both in terms of structure and content, does not correspond with the relevant provisions of the Direc- tive.

be in possession of a risk assessment. The the necessary measures is not laid down in provision does not lay down any conditions Article 9 of the Directive, but in Article 6. with regard to authorship of the reports In its reasoned opinion, however, the containing the risk assessments. It is per- Commission did not allege any breach of fectly conceivable that small undertakings Article 6 of the Directive, such that this will carry out the risk assessment with the argument need not, in my view, be con- help of third parties, such as occupational sidered in the present case. 22 physicians and other specialists, who have a thorough knowledge of the necessary area. 20 The quality of the risk assessments may in this way be improved, thereby contributing to the achievement of the Directive's aims. In this context it must be noted that under Article 7(3) of the Direc- tive the employer must make use of com- petent external services if protective and 62. In respect of the question of equival- preventive measures cannot be organised ence of content, the German Government for lack of competent personnel in the has pointed to the concordance of the undertaking. 21 duties with regard to documentation con- tained both in the Arbeitssicherheitsgesetz and the Arbeitsschutzgesetz.

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occur, in particular as a result of the demands imposed by the Directive regard- fitting-out and setting-up of the workplace, ing risk assessment. through physical, chemical and biological effects, through the choice and use of tools and equipment and through the arrange- ment of work and production processes and of working time.

65. Nevertheless there are two further possible criticisms of the system by which the Directive is implemented through the accident prevention regulations.

24 — According to these regulations the employer must require 23 — In this context see O. Wlotzke, 'Das neue Arbeitsschutzge- the specialists to report regularly on the performance of setz', Neue Zeitschrift für Arbeitsrecht, 1996, p. 1023. their duties.

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25 — For consistent case-law of the Court, see for example. Case 74. As I consider the Commission's com- C-59/89 Commission v Germany [1991] ECR I-2607 ('TA plaint to be well founded only in part, it is Luft'). 26 — For example, see Case C-144/99 Commission v Nether- in my view appropriate that each party lands (2001) ECR I-3541, at paragraph 21. should bear its own costs.

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VII— Conclusion

75. As a result of the foregoing I propose that the Court should:

(a) declare that the Federal Republic of Germany has failed to fulfil its obligations under Articles 10 EC and 249 EC and under Articles 9(1)(a) and 10(3)(a) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers, in that it has given the Federal Minister in Paragraph 14(2) of the Arbeitssicherheitsgesetz the power to determine that specific categories of undertakings, in certain circumstances relating in particular to the number of persons employed, are to be exempted from the duties laid down in Paragraphs 3 and 6 of the Arbeitssicherheitsgesetz;