C-65/01

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL MISCHO delivered on 26 September 2002 1

1. The objective of Council Directive 3. Under Article 4(1 )(a) and (b) thereof, as 89/391/EEC of 12 June 1989 on the intro- amended by Directive 95/63/EC: 4 duction of measures to encourage improve- ments in the safety and health of workers at work, 2is the putting in place of general measures intended to guarantee the safety and health of workers in all sectors of activity whilst leaving to certain 'individual directives' the task of regulating, among 'Without prejudice to Article 3, the others, the particular fields mentioned in employer must obtain and/or use: the annex thereto.

(a) work equipment which, if provided to workers in the undertaking and/or establishment for the first time after 31 December 1992, complies with:

2. One of those is the directive in issue in this case, namely Council Directive 89/655/EEC of 30 November 1989 con- cerning the minimum safety and health requirements for the use of work equip- ment by workers at work (second individ- ual Directive within the meaning of (ii) the minimum requirements laid Article 16(1) of Directive 89/391/EEC) 3 down in Annex I, to the extent (hereinafter 'the Directive'). that no other Community directive is applicable or is so only partially; 1 — Original language: French. 2 — O J 1989 L 18.3, p. 1. 4 — Council Directive nf ,S Decemhcr 199S ( 0 | 199S 1. 33.S, 3 — O J 1989 L 393, p. 13. p. 28).

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The first complaint, alleging infringement of Article 4(1) of and paragraph 2.1 of 'Every starting of complex machinery oper- Annex I to the Directive ated by several workers positioned at various places and not perfectly visible by the person whose task it is to set the machinery in motion shall be preceded by an agreed acoustic signal.' 5. The applicant accuses the Italian Gov- ernment of not having correctly transposed the sixth sentence of paragraph 2.1 of Annex I to the Directive, which, in its third subparagraph, that is to say in its fourth, fifth and sixth sentences, provides: 7. According to the Italian Government, the Commission is wrong to disregard the connection between the three sentences of the third subparagraph of paragraph 2.1 of Annex I to the Directive and to claim that the last sentence of that subparagraph 'If necessary, from the main control pos- contains an independent obligation. ition, the operator must be able to ensure that no person is present in the danger zones. If this is impossible, a safe system 5 — GURI No 158 of 12 July 1955.

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8. It argues that that sentence is only an presented by the process — results in the extension of the two previous ones and that effective setting in motion of work equip- its only function is to specify the sense and ment. With that awareness, those exposed purpose of the warning required by the to the attendant hazards can avoid them. second sentence.

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OPINION OF MR MISCHO — CASE C-65/01

Italian Government disagree with each warnings, the possibility, not only for an other on the degree of precision required assistant operator but for every person in to transpose the requirements of the Direc- the danger zone, of avoiding the hazard in tive. good time should be assured.

14. In the eyes of the defendant, the signal prescribed by the Italian legislation can have no other function than to put the 17. By referring only to such warnings, persons exposed in a position to escape Article 80 of the DPR 547/55 makes no from the hazard, and it is therefore point- allusion to that fundamental objective less to set out more explicitly an obligation expressly specified by the Community legis- to provide for the possibility for those lature. It cannot, therefore, be regarded as a operators to retire to a place of safety. satisfactory transposition of the Directive, under the pretext that the warnings in question cannot have any other objective than that set out in the Directive.

15. It is true that the argument put forward by the Commission that it is easy to point to situations in which any warning signals relating to the starting or stopping of work equipment would not enable the operators to move rapidly out of danger, gives 18. It is for the national authorities to grounds for doubt. Such signals would be adopt transposition measures which do not almost useless and it is therefore difficult to have the slightest ambiguity with regard to conceive that legislation prescribing them the objective of the obligations in issue. For could be interpreted otherwise than as confirmation of that I refer to the Court's requiring signals which enable the workers settled case-law concerning the necessity to avoid the hazard, since otherwise that for sufficient precision in the transposition legislation would be deprived of any prac- of the provisions of a directive. 6 tical effect.

'The starting controls of the machines must The same shall apply: be arranged in such a way as to avoid accidental starting or engagement or be equipped with appropriate devices to fulfil the same function.'

— to restart it after a stoppage for what- ever reason, 22. The Italian Government undertakes a detailed analysis of that provision and concludes that it does in fact serve to attain the same objectives as the Community provision. Article 77 of the DPR No 547/55 requires quite simply 'in negative terms' (the avoidance of accidental •— for the control of a significant change starts) what the Directive requires 'in in the operating conditions (e.g. speed, positive terms' (a deliberate action to pressure, etc.), obtain a start).

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25. I do not subscribe to the first part of the Commission's argument, which lays stress on the fact that Article 77 of the DPR N o 547/55 only covers the positioning of the controls. It is, admittedly, indisputable that it is not sufficient to regulate the positioning in order to ensure that inadver- 28. Contrary to the Italian Government's submission, it is not obvious to me that that situation is covered by the concept of 7 — Emphasis added by the Commission. 'accidental starting or engagement', to 8 — Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 7. which the national rule at issue applies.

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29. It should therefore be concluded that 32. To the Commission's assertion that the the Commission is right in submitting that principles arising from paragraph 2.3 are paragraph 2.2 of Annex I to the Directive not incorporated in the Italian legislation, has not been transposed with sufficient the defendant replies that that omission is precision by the national rule cited by the only apparent. The legislature has in fact defendant. taken them into account in a general way in Articles 69 and 71 of DPR No 547/55 and has applied those principles in a certain number of specific provisions, namely Articles 133, 157, 165, 209 and 220 of DPR No 547/55.

30. It follows that the applicant's second complaint is well founded.

33. The text of those provisions is as follows:

Article 157

The reels of wire-drawing machines must be equipped with a device, which can be activated directly by the operator, enabling the machines to be stopped immediately in case of necessity. Article 133

Rolling mills and presses which, by reason of their dimensions, power, velocity or other working conditions, present particu­ larly serious specific dangers, such as roll­ Article 165 ing mills (mixers) for rubber, presses for rubber strips and the like, must be equipped with a device enabling the immediate halting of the rollers. The control system must be designed and arranged so that the Platen printing presses and similar machine can be stopped by being pressed machines which are not provided with simply and lightly by any part of the automatic feeders must be equipped with

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COMMISSION v ITALY

a device enabling the machine to be and gradient of the run, the operating speed stopped automatically by a single blow of or other particular features of the instal- the operator's hand, should he be in danger lation, and in any event if they arc used, between the fixed bed and the moving even sporadically, for the transport of plate, or they must be equipped with persons. another appropriate safety device of proven effectiveness.

35. It claims on the other hand, correctly in of the second sentence of paragraph 2.8 of my view, that none of the provisions cited Annex I to the Directive, which provide: by the defendant takes up the two specific requirements of the Directive with regard to the priority of the stop commands over the start commands and to the switching off of the energy supply to the motors. The last point, the importance of which for the 'The guards and protection devices must: safety of workers is obvious, is not men- tioned in any of the national provisions cited by the defendant. As for the priority of the stop commands, here again one looks for it in vain in those provisions, since they confine themselves to referring, in certain cases, to an 'immediate halting', which cannot be equated to an explicit statement as to the priority of the stop commands, such as flows from the Directive.

— not give rise to any additional hazard,

36. It follows that the Commission's com- — not be easily removed or rendered plaint relating to the infringement of the inoperative, third and fourth sentences of paragraph 2.3 of Annex I to the Directive is well founded.

— be situated at sufficient distance from the danger zone,

The fourth complaint, alleging infringe- ment of Article 4(1) of and paragraph 2.8 of Annex I to the Directive — not restrict more than necessary the view of the operating cycle of the equipment,

37. The Commission also accuses the Ita- lian Republic of not having ensured the transposition of the second to fifth indents ...'.

39. According to the Italian Government, it is only ostensibly that the Directive, which sets out an exhaustive list of the perform- ance and construction characteristics of the guards and protection devices, is more Guards on frames for the cutting of stones, detailed than the national provisions. The marble and the like may be dispensed with, Italian legislature has adopted a more open unless there are particular dangers, where and evolutionary system including, first, a the moving parts are inaccessible or the series of specific requirements covering engine power does not exceed one horse- various aspects which are regarded as power or the speed 60 revolutions per particularly critical and, second, a body of minute. general rules whose effect is to impose on the employer, under threat of criminal penalty, the obligation to seek and to apply the best current solutions in terms of safety, to be found, according to settled case-law Article 44 of the Italian courts, in the state of the art as codified and set out in all the codes of good practice.

Parts of trees projecting from a machine or its supports by more than a quarter of their diameter must be cut back to that size or protected by means of a guard fixed to an immobile part.

40. The specific provisions cited by the defendant are Articles 4 3 , 44, 48 and 49 of

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Article 48 The prohibition laid down in the first paragraph must be brought to the attention of operators by clearly visible notices.

43. The Italian Government relies, second, work and its environment, must be con- on Article 4(5)(b) of the Legislative Decree structed to good standards of stability, No 626 of 19 September 1994 'implement- durability and efficiency, commensurate ing Directives 89/391/EEC, 89/654/EEC, with their conditions of use and with the 89/655/EEC, 89/656/EEC, 90/269/EEC, requirements of work safety, and must be 90/270/EEC, 90/394/EEC and 90/679/EEC so maintained. concerning the improvement of the safety and health of workers at work', 10 as amended by the Legislative Decree No 242 of 19 March 1996, 1 1according to which employers, managers and personnel who carry out, direct or supervise the activities referred to in Article 1 [namely, 'all private and public sectors of activity' save the Plant, machinery, equipment, tools and exceptions provided for], in the context of instruments, including protection equip- their respective powers and spheres of ment, must have the qualities of resistance competence, are to take the necessary and suitability demanded by the require- measures to secure the safety and health ments of work safety and must be main- of workers, and in particular, are to take tained in a good state of repair and the preventive measures necessary on the efficiency. When maintenance manuals are basis of the changes in organisation and supplied with the equipment referred to in production which are of importance for the paragraph 2, they must be kept up to date.' purposes of workers' health and the safety of the work, that is to say, on the basis of current developments in technology, pre- vention and protection.

50. As for the costs, while it is true that the Commission withdrew one of its com- plaints or, more precisely, part of the complaint relating to the infringement of paragraph 2.3 of Annex I to the Directive, 47. The Directive is intended, as the Com- that is insufficient to enable the Italian mission stresses, to guarantee for all the Republic to escape being ordered to pay all workers of all the Member States a mini- the costs. mum level of protection such as to avert in an appropriate manner the risks connected with the use of work equipment. Its provi- sions therefore imply the adoption by the Member States of clear and precise provi- sions, leaving no doubt as to the extent of the rights which the Directive confers on individuals and corresponding to the mini- mum requirements arising from the Direc- tive. 51. It is not disputed that it was only with the service of the defence that the defendant notified the Commission of the measures providing for the transposition of the Community rules. It is therefore not proper to make the Commission pay part of the costs on the ground that it partly withdrew one of its complaints.

48. It must be observed that none of the provisions cited by the defendant reflect, precisely and unquestionably, the provi- sions of paragraph 2.8 of Annex I to the 52. I therefore propose that the defendant Directive relating to protection devices. be ordered to pay the costs. I - 3670

COMMISSION v ITALY

Conclusion

53. For the foregoing reasons I propose that the Court should:

— Declare that, by not adopting the laws, regulations and administrative provisions necessary to transpose into national law the minimum require- ments arising from Article 4(1) of, and the sixth sentence of paragraph 2 . 1 , the second sentence of paragraph 2.2, the third and fourth sentences of paragraph 2.3, and the second, third, fourth and fifth indents of the second sentence of paragraph 2.8 of Annex I to, Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Italian Republic has failed to fulfil its obligations under that directive;