C-49/00

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 31 May 2001 1

I — Subject-matter the principle of the responsibility of the employer.' 1. In these proceedings the Commission asks the Court to find that the Italian Republic has failed to fulfil its obligations under Council Directive 89/391/EEC of 12 June 1989 on the introduction of mea- sures to encourage improvements in the 3. Article 6(3)(a) provides: safety and health of workers at work 2 (hereinafter: Directive 89/391) by not prop- erly transposing several provisions into Italian law. 'Without prejudice to the other provisions of this directive, the employer shall, taking into account the nature of the activities of the enterprise and/or establishment:

II — Legal framework

(a) evaluate the risks to the safety and health of workers, inter alia in the A — Community law: Directive 89/391/ choice of work equipment, the chemi- EEC cal substances or preparations used and the fitting-out of workplaces.'

2. Article 5(3) provides:

to deal with the organisation of protective and preventive measures, taking into account the size of the undertaking and/or establishment and/or the hazards to which the workers are exposed and their distribu- tion throughout the entire undertaking and/ or establishment. 3. If such protective and preventive mea- sures cannot be organised for lack of competent personnel in the undertaking and/or establishment, the employer shall enlist competent external services or per- sons.

8. Member States shall define the necessary capabilities and aptitudes referred to in paragraph 5.

5. In all cases: They may determine the sufficient number referred to in paragraph 5.'

—· the workers designated must have the necessary capabilities and the necessary means, 5. Article 16 provides:

— the external services or persons con- '1. The Council, acting on a proposal from sulted must have the necessary apti- the Commission based on Article 118a of tudes and the necessary personal and the Treaty, shall adopt individual directives, professional means, and inter alia, in the areas listed in the Annex.

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rescue, first aid and the general emer- gency service;

4. The employer:

(a) shall designate in accordance with Arti- (c) in allocating tasks to workers it shall cle 8 the person responsible for the internal take into account their capabilities and or external protective and preventive ser- qualifications with regard to their health vices; and in regard to safety;

(b) shall designate in accordance with Arti- ...". cle 8 the persons participating in the inter- nal or external protective and preventive services;

6. Without prejudice to the provisions of 3. The workers mentioned in paragraph 2 paragraph 5, if the capabilities of the shall be sufficient in number, possess the workers within the undertaking or produc- necessary capabilities, and have appropri- tion unit are insufficient, the employer may, ate time and means at their disposal, in after consulting the safety representative, order to carry out the tasks with which they have recourse to external persons or ser- have been entrusted. They may not be vices. placed at any disadvantage, as a result of their activity, as regards the performance of their own duties.

7. The external service must be suitable to the characteristics of the undertaking or 4. Without prejudice to the provisions of production unit for which it is called upon paragraph 2, the employer may have to provide the appropriate services, and recourse to persons external to the under- with reference to the number of workers taking who have the necessary professional involved. expertise to provide for prevention and protection.

— by failing to require employers to evaluate all health and safety risks in the workplace,

III — Pre-litigation procedure

— by allowing employers to decide whe- ther or not to enlist external services 9. Under Article 18(1) of Directive 89/391 for the adoption of protective and the Member States were to bring into force preventive measures when the skills the laws, regulations and administrative available within the undertaking are provisions necessary to comply with the insufficient, and Directive by 31 December 1992. As the Commission took the view that Directive 89/391 had not been correctly transposed into Italian law within the relevant period it initiated the procedure for failure to fulfil Treaty obligations. After the Commission — by failing to define the capabilities and had invited the Italian Republic to make aptitudes which the persons responsi- observations and these had been received, it ble for protective and preventive mea- sent a reasoned opinion on 19 October sures against occupational risks to 1998, by which it requested the Italian workers' health and safety must pos- Republic to confirm within two months of sess,

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the Italian Republic has failed to fulfil its risk in the undertaking or establishment obligations under Article 6(3)(a) and Arti­ should also be evaluated by the employer. cles 7(3), 7(5) and 7(8) of Directive 89/391;

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arising from atmospheric and other causes factors in the undertaking concerned, are included in 'the fitting-out of the including their interaction with each other. workplace'.

Appraisal 14. It argues further that the provision in question must be considered in the global context of the applicable Italian health and safety legislation. In implementing several 16. Firstly it must be noted that the word- individual directives within the meaning of ing of Article 6(3)(a) of Directive 89/391 in Article 16 of Directive 89/391, Italy laid all language versions is such that the down in Articles 52, 63 and 78 of the sources of risks mentioned there are listed Decree-Law duties of evaluation with in an illustrative and not an exhaustive regard to particular sources of risk. Fur- fashion. thermore, Article 2087 of the Civil Code (Codice Civile) requires the employer in general to take measures to protect the physical and moral integrity of the worker, which could not be contemplated without a corresponding evaluation of the relevant 17. Further, the 15th recital in the pream- sources of risk. Special legal provisions (for ble to Directive 89/391 states that 'the example with regard to working time and provisions of this directive apply... to all patterns of work) also exist in Italy which risks'. The employer is thus required by in any case forbid the employer to make Article 6(3)(a) of Directive 89/391 to carry workplace rules which would affect the out a comprehensive evaluation of the risks safety and health of workers. to safety and health of workers at work.

19. Article 4(1) of the Decree-Law does in 21. In particular in the case of directives for fact set out the sources of risk (choice of the improvement of the working environ- work equipment, the chemical substances ment to protect workers' health and safety or preparations, fitting-out of workplaces) adopted under Article 118a of the EC which the employer in every case must Treaty (Articles 117 to 120 of the EC evaluate, but without an additional phrase Treaty have been replaced by Articles 136 making it clear that the employer's duties of EC to 143 EC), it must be noted that the evaluation in question relate to all, that is content of the national measures which also other, sources of risk present 3in the implement these directives must also be undertaking or establishment affecting the clear and unambiguous both for employers safety and health of workers. There is in small and medium-sized undertakings 6 therefore the danger that the employer will and for workers in general and their restrict its duties of evaluation to the representatives. That is not the case here. sources of risk expressly mentioned.

23. Firstly, in so far as the implementation measures relate to individual directives 24. Secondly, in respect of the arguments within the meaning of Article 16(1), it based on the general rule of Article 2087 of must be noted that it is not the purpose of the Civil Code — the text of which was this case to determine whether and to what not produced in the proceedings — and in extent the Italian Republic has also imple- respect of the labour law provisions, not mented through the Decree-Law individual described in any detail by the Italian directives within the meaning of Arti- Government, it must be noted that the cle 16(1) of Directive 89/391. That ques- obligation in Article 6(3) of Directive tion appears to be in principle irrelevant for 89/391 goes beyond a general duty to the purpose of determining whether or not preserve physical integrity and to respect Article 6(3)(a) of Directive 89/391 has been labour law provisions, in that it obliges the correctly transposed. Implementing mea- employer to carry out specifically in the sures adopted by reason of the obligations light of the aims of the directive a particular arising out of the individual directives evaluation of the risks to the health and might in some areas give effect to the safety of workers at work. This obligation transposition of Article 6(3)(a) of Directive cannot be deduced from the general duty of 89/391. They are however fundamentally the Civil Code, at any rate not with inappropriate as a means of providing a sufficient clarity as is necessary for the supplement to an apparently exhaustive transposition of directives. The general national provision such as that arising in labour law provisions mentioned by the the present case, so complete that an Italian Government cannot be assessed in employer — within the meaning of the this regard as they were not produced in provision of the directive to be implemen- these proceedings. ted — may assume without any doubt that it is obliged to evaluate all sources of risk in the undertaking or establishment with regard to the health and safety of workers. Such a conclusion would only be plausible were it to be assumed that when taken together all the individual directives issued on the basis of Article 16(1) of Directive 89/391 contained duties to evaluate in 25. With regard to the explanation of the respect of all the risks not expressly men- Italian Government that Circular 102 tioned in Article 6(3)(a) of Directive makes it clear that employers — despite 89/391. Such an assumption cannot be the exhaustive enumeration of the sources

B — Second complaint: enlisting external protective and preventive services in respect of occupational risks (Article 7(3) of Direc- tive 89/391) 29. It argues that the different paragraphs of Article 8 of the Decree-Law must be viewed together. That reveals that the system created by the Italian legislator is as follows: paragraph 2 requires as a general principle the nomination of mem- bers of the workforce as workers with Arguments of the parties health and safety responsibilities. Para- graph 4 allows the employer as a deroga- tion from this principle to engage external services. Paragraph 5 creates an exception whereby in certain cases the employer is 27. In its second complaint the Commis- required to create an internal service. sion criticises Article 8(6) of the Decree- Paragraph 6 makes it clear that where there Law. The provision does not meet the is a lack of competent personnel in the undertaking or establishment, the employer — in derogation from the gen- 7 — See, for example, Case 116/86 Commission v Italy [1988] eral principle of paragraph 2 — is permit- ECR 1323. ted to engage external services.

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the employer — assuming that it has Republic made clear beyond doubt that the understood the schema just explained — employer in the circumstances set out in must realise that the word 'può' in para- Article 7(3) of Directive 89/391 is obliged graph 6 indicates an obligation because it to enlist external services. would be clear to the employer that if it did not do so it could be held liable.

39. The first objection to that is that 42. Leaving that on one side, the lengths to Article 8(10) of the Decree-Law is clearly which the Italian Government went in its a mere implementation of the general explanation suffice to negate the simplicity, principle of Article 5(3) of Directive clarity and comprehensibility of the 89/391 whereby the employer is not national implementation measure. relieved of its liability to workers if it engages external services.

43. Article 8 of the Decree-Law fulfils 40. Furthermore, the content of both this therefore neither by way of paragraph 6 provision of the Directive and its imple- nor when viewed as a whole the require- mentation in Article 8(10) of the Decree- ments of Community law as regards the Law relates to the case where an external legal certainty and clarity of implementing service is engaged and contains no indica- measures and therefore does not represent a tion as to whether and when such an proper transposition of Article 7(3) of external service should be engaged, pre- Directive 89/391 into national law. cisely the matter addressed by Article 7(3) of Directive 89/391.

C — Third complaint: definition of the 47. It argues that the general scheme of capabilities and aptitudes which the per- Directive 89/391 indicates that Member sons responsible for ivorkers' health and States have a duty to define by law the safety must possess (Articles 7(5) and 7(8) necessary capabilities and aptitudes. In its of Directive 89/391) view the rule at issue in Article 7(8) cannot be understood as merely a general require- ment to transpose into national law the conditions laid down in the first and second indents of Article 7(5). The duty to trans- pose Article 7(5) of Directive 89/391 Arguments of the parties already arises out of Article 18(1) of Direc- tive 89/391. It follows accordingly, in the view of the Commission, that Article 7(8) of Directive 89/391 can only be understood 45. In its third complaint the Commission as imposing an obligation on the Member alleges that Articles 8(3) and 8(8) of the States to set down in law certain capabil- Legislative Decree do not provide a proper ities and aptitudes. transposition of Articles 7(5) and 7(8) of Directive 89/391. According to the argu- ment of the Commission, the Member States are obliged to lay down a legally binding definition of the capabilities and aptitudes which the workers designated as 48. The Commission contests the view of responsible for health and safety according the Italian Government that the implemen- to Article 7(2) of the Directive or the tation of the Directive has been effected by competent external persons engaged means of a statutory delegation to employ- according to Article 7(4) of the Directive ers, which in the view of the Italian (hereinafter in relation to both groups: the Government is permissible as a matter of persons responsible for workers' health and Community law. The Commission observes safety) must possess. The Italian legislation that according to the case-law of the Court contains no definition meeting the require- and the provisions of Article 137 EC it is ments of Article 7(8) of Directive 89/391 in possible under certain conditions to entrust this respect. the social partners with the implementation of directives. In its view, these conditions have, however, not arisen in the present case; moreover, at issue is a unilateral instruction to employers, and therefore 46. According to the Commission the not 'social partners' within the meaning of Italian Republic leaves it to the individual the Treaty provision cited. employer to set criteria with regard to the capabilities and aptitudes which the per- sons responsible for workers' health and safety must possess. However the Commis- sion takes the view that the Directive requires a binding definition of these cap- 49. The Italian Government contends that abilities and aptitudes applying across the the form and content by which directives board to all persons responsible for work- are transposed is a matter for the Member ers' health and safety. States. The Italian Republic decided to

50. Furthermore, in its view, the contested provisions of the Decree-Law must be viewed together with Articles 8(9) and 8(11) of the Decree-Law. Thus Article 8(9) 52. The general scheme of the directive is of the Decree-Law provides that the Min- sufficient to show that the first sentence of istry of Labour and Social Security can by Article 7(8) of Directive 89/391 cannot be decree set down conditions for the certifi- understood as requiring merely the trans- cation of persons responsible for workers' position into national law of the duty health and safety. Article 8(11) of the contained in Article 7(5), required in any Decree-Law provides that the employer event by the general duty to implement must inform the labour inspectorate and under Article 18(1), since Article 7(8) of the responsible local health bodies of the Directive 89/391 sets out more precisely names of the persons responsible for work- how the individual components of Arti- ers' health and safety, including details of cle 7(5) are in turn to be implemented. the duties entrusted to each of them and of According to Article 7(5) of Directive their individual career history. This obliga- 89/391 three conditions must be satisfied tion allows for, according to the Italian with regard to the duties of the persons Government, State control of capabilities responsible for workers' health and safety: and aptitudes, as is required by Directive they must have the necessary capabilities 89/391. and aptitudes and the necessary means, and the number of persons must be sufficient. According to Article 7(8) Member States are required with regard to the 'capabilities and aptitudes' of the persons responsible for workers' health and safety to define Appraisal what is necessary (first sentence). As regards the 'sufficient number' this may be determined by the Member States (sec- ond sentence) and in respect of the neces- 51. It must be observed at the outset that sary means the provision of the Directive the arguments of the Commission as to the contains no further details.

56. The possibility of risk to the health of 54. As to the argument of the Italian persons owing to non-compliance with the Government that in principle the imple- measures required by the directive arises in mentation of a directive can be achieved by this case too. Recital 10 in the preamble statutory delegation to private parties, here makes it clear that as a matter of priority the employer, the following points must be Directive 89/391 is aimed at improving noted. protection against the risks of accidents at work and occupational illnesses. In this respect the use of qualified individuals in carrying out the tasks of the persons responsible for workers' health and safety is of great importance. Individuals without sufficient relevant capabilities and apti- 55. According to consistent case-law there tudes could represent a risk to the safety is no proper transposition of a directive if and health of the workers to be protected. 'an ambiguous state of affairs' is created 'by keeping the persons concerned in a state of uncertainty as to the possibility of relying on Community law.' 8Furthermore the Court has held that 'a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the 57. In addition implementation of Direc- full application of the directive in a suffi- tive 89/391 serves also to guarantee certain ciently clear and precise manner so that, rights for the workers in question and for where the directive is intended to create their representatives. In the judgment pre- rights for individuals, the persons con-

viously cited the Court emphasised the responsible for workers' health and safety, great importance 11 attached to individuals which on account of the accompanying having knowledge of measures which pro- requirement to communicate the career vide protection for their health. This, history of the persons responsible for however, is made more difficult for them, workers' health and safety does not seem if not practically impossible, if the evalua- in principle to be an unsuitable way of tion of the capabilities and aptitudes of the enabling the public authorities to evaluate persons responsible for workers' health and the capabilities and aptitudes of the persons safety is entrusted wholly to the individual responsible for workers' health and safety. judgment of private parties, 12 here the However, what is missing is both the laying employer, statutory norms to serve as the down of criteria as required by the provi- basis for their decision. sion of the directive, a necessary prerequi- site for such an evaluation to take place, and the creation of a legal duty, whereby the public authorities are required to carry out an evaluation on the basis of the notification received. 58. It must also be noted with regard to the argument of the Italian Government in respect of the involvement of public autho- rities in the evaluation of such capabilities and aptitudes that Article 8(9) of the 60. I therefore propose that the Court Decree-Law creates at best a power to should declare that by failing to define the adopt administrative provisions to imple- capabilities and aptitudes which the per- ment Article 7(5) and the first sentence of sons responsible for the protection and Article 7(8) of Directive 89/391. It is, prevention of occupational risks to the moreover, an option, and the Italian Gov- health and safety of workers must possess ernment brought forward no arguments the Italian Republic has failed to fulfil its which suggested that the public authorities obligations under Article 7(5) and the first mentioned therein had made use of it. sentence of Article 7(8) of Directive 89/391.

(1) The Italian Republic has failed to fulfil its obligations under Article 6(3)(a) and Articles 7(3), 7(5) and 7(8) 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 at work

— by failing to require employers to evaluate all health and safety risks existing in the workplace,

— by allowing employers to decide whether or not to enlist external services for the adoption of protective and preventive measures when the skills available within the undertaking are insufficient, and

— by failing to define in a binding measure the capabilities and aptitudes which the persons responsible for protective and preventive measures against occupational risks to workers' health and safety must possess.

(2) The Italian Republic shall pay the costs.

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