C-103/01

OPINION OF MR RUIZ-JARABO — CASE C-103/01

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 10 December 2002 1

1. The Commission seeks a declaration 3. The directive lays down the conditions from the Court against the Federal Repub- governing the placing on the market and lic of Germany, under Article 226 EC, on free movement within the Community of the grounds that the legislation of certain PPE, and the basic safety requirements Länder fails to comply with the obligations which such equipment must satisfy in order laid down in Articles 1 and 4 of Directive to ensure the health protection and safety 89/686/EEC on personal protective equip- of users. PPE means any device or ment. 2 appliance worn or held by an individual for protection against one or more health and safety hazards.

The Commission complains that, under the German legislation, personal protective equipment for fire brigades is subject to additional requirements, even though it Article 1(4) excludes from the scope of the meets the requirements of Directive 89/686 directive: and bears the EC mark.

— PPE covered by another directive designed to attain the same objectives I — Directive 89/686 with regard to placing on the market, free movement of goods and safety,

2. In accordance with Article 1(1) and (2), the directive applies to personal protective equipment, referred to as PPE.

II — The administrative procedure

9. That explanation did not satisfy the Commission, and it sent a reasoned opinion to the German Government on 21 October 6. Following a number of complaints, the 1998, repeating its objections to the Commission established that the legislation national legislation and requiring the Ger- of certain German Länder required per- man Government to reform that legislation sonal protective equipment for firefighters within two months. to meet requirements that are not laid down in Directive 89/686. Specifically, in Lower Saxony, firefighters' belts must conform to the technical specifications laid down in the German Standard, DIN 14926; while in North Rhine-Westphalia, helmets 10. In its reply of 18 December 1998, the must be approved by a body established German Government stated that it had under the laws of that Land, no other body written to the interior ministries of the having the right to intervene, even if it Länder, which are responsible for the fire provides an equivalent guarantee. brigades, asking them to amend their legis-

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OPINION OF MR RUIZ-JARABO — CASE C-103/01

lation on the purchase of personal pro- the German Government and the Commis- tective equipment so that it complied with sion submitted their observations in Community law, and requesting details of December. the measures that had been adopted. In its letter, the German Government undertook to forward the replies it received to the Commission.

14. At the hearing, which was held on 24 October 2002, oral argument was presented by the Agents of the Commission and the German Government. 11. Two years later, in December 2000, the defendant government in the present pro- ceedings stated, in response to an enquiry from the Commission in June 2000, that it was still awaiting explanations from the Länder. In the light of that stance, the Commission concluded that Germany had still not fulfilled its obligations under IV — Analysis of the action Directive 89/686 and brought this action.

The outcome of the action brought by the uniformly applied federal rules. The success Commission hinges, therefore, on whether of a joint operation involving several units personal protective equipment for fire- can only be guaranteed if all the units have fighters comes under the exception set out the same rescue tools which meet the same in Annex I, Point 1. In order to determine manufacturing and safety standards. the answer, it is necessary to decide whether that equipment was designed and manufactured specifically for use by the armed forces or in the maintenance of law and order. 18. The Community legislature had that concern for the safety of workers, and for the safety of fire brigade personnel in particular, in mind when it adopted Direc- tive 89/686. The preamble 3states that the provisions governing the design and manu- facture of personal protective equipment laid down in the directive are fundamental to attempts to ensure a safer working environment. In addition to laying down the conditions governing the placing on the market and free movement within the Community of PPE, the directive also sets out the basic requirements which such 17. The German Government states that equipment must satisfy in order to ensure the firefighters' belts, which gave rise to the health protection and safety of users. these proceedings, protect firefighters from Article 8(4) provides that the production of the hazards to which they are exposed PPE is to be subject to the EC declaration of during training, exercises and active duty. conformity. In addition, PPE of complex The technical circular relating to the belt design intended to protect against mortal governs its measurements, specifications danger or against dangers that may seri- and monitoring procedures, and stipulates ously and irreversibly harm the health, the that it must bear a mark. It is vital that all immediate effects of which the designer firefighters wear identical belts during assumes the user cannot identify in suffi- exercises and active duty in order to ensure cient time, must be subject to one of the that they can be rescued, that others can be two monitoring procedures referred to in rescued and, in particular, that assistance Article 11 ; namely, the EC quality control can be given to colleagues who are in system for the final product, and the system difficulties. The beltline enables firefighters for ensuring EC quality of production by to protect themselves against the risk of means of monitoring. The latter category falling from ladders and other dangerous includes, inter alia, filtering respiratory places. The belt incorporates an axe with a devices for protection against solid and protective cover, which conforms to DIN liquid aerosols or irritant; dangerous, toxic 14 924. Precise directions are needed for or radiotoxic gases; emergency equipment the belt since, for example, the safety for use in high-temperature environments features can only be activated with the aid the effects of which are comparable to of precision ropes and apparatus. That is why the use and putting into service of firefighters' equipment are governed by 3 — Seventh recital.

those of an air temperature of 100 °C or in its territory; accordingly, the duties and more and which may or may not be the organisation of the different brigades, characterised by the presence of infra-red and the firefighters' statutes, vary from one radiation, flames or the projection of large Land to another. It is also for each Land to amounts of molten material; emergency decide whether the fire brigades are bodies equipment for use in low-temperature responsible for the maintenance of public environments the effects of which are safety or law and order. The German comparable to those of an air temperature Government states that firefighters form of 50 °C or less; and PPE to protect against part of the forces of law and order and that falls from a height. I should add that the powers and duties assigned to them are Annex II, which lists basic health and intrinsic to the exercise of powers conferred safety requirements and general require- by public law, which is why personal ments applicable to all PPE, lays down a protective equipment specifically manufac- whole series of additional requirements tured for their use is excluded from the according to risk; paragraph 3.1.2.2. of scope of Directive 89/686. The German the annex covers the prevention of falls Government adds that under fire protection from a height, while paragraph 3.6. covers provisions, State fire brigades have con- protection against heat and/or fire. sistently been granted the same rights and powers as public authorities. Under current legislation, fire brigades are required to take the necessary measures to protect the community and individuals against the risks posed to their lives, health, safety and property by fires, explosions, accidents and other emergency situations, such as natural catastrophes. The measures con- cerned rank among those endowed with official authority, and may, therefore, I am certain that the concern shown by the entail the restriction of basic rights that defendant government for the safety of fire are partly enshrined in the legislation. 4 brigades in Germany is shared by the other Member States, but that has not prevented those States from amending their national legislation in order to remove any barriers to the free movement within the Commu- nity of personal protective equipment for Fire brigades also have powers of enforce- use by such workers. ment. The German Government cites the example of the fourth sentence of Para- graph 26(1) of the Rhineland-Palatinate Law on protection against fires and catas- trophes. Under that provision, the oper- ations commander or, where he is pre- vented from doing so, any other member of

the brigade, is authorised to implement the 2 1 . Article 1(4) of Directive 89/686 necessary security measures, if such meas- excludes from the scope of the directive ures have not been taken by the police or two wide categories of personal protective another competent body, such as the fed- equipment. These are: (a) PPE which is eral border police, the military police, or covered by another directive designed to other armed forces or forces responsible for attain the same objectives with regard to the maintenance of law and order. When placing on the market, free movement of putting such measures into effect, the com- goods, and safety, and (b) the PPE classes mander has the power, where necessary, to specified in the exhaustive list of excluded use force against objects or individuals and products in Annex I. Point 1 of the Annex to overcome resistance by the use of refers to personal protective equipment physical force. The legislation of the other designed and manufactured specifically for Länder confers wide powers of intervention use by the armed forces or in the mainten- on fire brigades. The German Government ance of law and order, such as helmets and adds that those brigades play an important shields. role in the organisation of civil protection, a sphere which, in times of war, is an intrinsic part of the functions of the State itself. The German Government asserts that it follows from a literal interpretation of Directive 89/686 that German public fire brigades, which are granted powers under 22. The parties agree that firefighters do public law, form part of the forces respon- not form part of the armed forces. They sible for the maintenance of law and order disagree, however, about whether fire- referred to in Annex I, Point 1, to the fighters should be regarded as forces of directive. law and order. If firefighters are regarded as forces of law and order, their personal protective equipment would be excluded from the scope of Directive 89/686, with the result that each Member State would be empowered to require such equipment to comply with the most appropriate require- ments, as appears to be the case in Ger- many at the moment.

and cannot be extended to cases other than when they carry out the duties that have those specifically laid down. 6 been assigned to them. When they are on active duty, fire brigades may be empowered by law to use force against objects or to take coercive measures against people, but such tasks are only likely to arise on an unplanned, occasional basis, and do not form part of their normal I agree with the Commission that the activities. Rather, the duties assigned to fire question whether fire brigades are answer- brigades under the control of the State are able to a particular ministry or to central virtually the same as those carried out by government, be it regional or local, depend- private firefighters retained by businesses ing on the Land, is not crucial to determin- or factories, who, in addition to preventing ing the scope of Directive 89/686. The and fighting fire in the sectors where they bodies in question represent different forms work, may be required to participate in of administrative organisation which are joint operations with the former if the need immaterial when it comes to determining arises. For that reason, the personal pro- whether there is free movement of personal tective equipment used by both types of fire protective equipment for firefighters in the brigade must comply with the same user internal market. safety requirements.

24. In all the Member States, the main duty of fire brigades, irrespective of whether they are under the control of the State or of 25. The exception in Annex I, Point 1, to private undertakings, and of whether they Directive 89/686 specifies that the equip- are made up of professionals or volunteers, ment must be designed and manufactured is the prevention and fighting of fires. They specifically for use by the armed forces or also carry out operations to rescue people in the maintenance of law and order. In and property in the event of explosions, view of the fact that fire brigades can be floods, earthquakes or other large-scale required on an occasional, contingent, and catastrophes. unplanned basis to carry out any of the functions of those forces, it cannot be argued that the equipment intended for their use fulfils that specific condition regarding its design and manufacture.

The Court has consistently proscribed any attempt by Member States to have recourse 28. Nor do I agree with the French Govern- to national law in an attempt to restrict the ment, because the personal protective scope of provisions of Community law, equipment used by fire brigades is intended describing this rule as fundamental to the to protect them in the exercise of their existence of the Community, 8since other- normal duties, including, in particular, the wise the unity and efficacy of the Commu- prevention and fighting of fires. Since they nity legal order would be impaired. In the do not undertake military or police oper- case before the Court, if the Member States ations, they need suits that are fire- were able to exclude from the scope of retardant to a degree which ensures their Directive 89/686 a group of consumers of health protection and safety at work, and personal protective equipment that is as therefore a bullet-proof vest, for example, important as fire brigades, simply by clas- would be of no use to them at all. sifying fire brigades as forces of law and order, the free movement of those goods in the Community would be distorted.

be inconsistent for Member States to lay The following December, the Council down additional requirements for firefight- approved Directive 89/686, the obligations ers' equipment under those directives, under which the Commission claims that which are aimed at improving the health Germany has failed to fulfil. The legal basis protection and safety of workers, since that for Directive 89/686 is Article 100a of the is prohibited by Directive 89/686. For that EC Treaty 13 and it is one of the measures reason, in the German Government's sub- aimed at progressively establishing the mission, personal protective equipment for internal market without frontiers over a firefighters should be excluded from the period which expired on 31 December scope of Directive 89/686. 1992. It was adopted to address the exist- ence of differing, very detailed, national provisions on the design, manufacture, quality level, testing and certification of personal protective equipment, with a view to protecting individuals against injury and illness. The differences between the national provisions were liable to constitute a barrier to trade with direct consequences for the creation and operation of the 30. I do not subscribe to that interpretation common market. because the contradiction suggested by the defendant government does not exist.

By contrast, Directive 89/686 is aimed at harmonising the laws of the Member States, laying down the conditions govern- ing the placing on the market and free movement within the Community of per- sonal protective equipment, together with the basic safety requirements which that equipment must satisfy in order to ensure the health protection and safety of users. Here, the power of the Member States to lay down the relevant requirements is 34. I do not agree with this argument put subject to two conditions: there must be forward by the German Government either. compliance with the Treaty and the exer- Article 39(4) EC excludes employment in cise of the power concerned must not give the public service from the scope of the rise to modifications to personal protective principle of free movement of workers. equipment which could result in its non- Since that is a derogation from one of the conformity with the provisions of the fundamental freedoms, the Court has directive. In any event, Member States restricted it to posts which involve the must not prohibit, restrict or hinder the exercise of official authority, including placing on the market of such equipment or local government posts, 14 and which its components which satisfy the provisions require a special relationship of allegiance of the directive and which bear the EC to the State on the part of persons occupy- mark. ing them, and the reciprocity of rights and duties which form the foundation of the bond of nationality. 15 The posts excluded are confined to those which, having regard to the tasks and responsibilities involved, display the characteristics of the specific activities of the public service in the spheres described. 33. The defendant government draws a parallel between the exception concerning employment in the public service laid down 14 — Judgment in Case 149/79 Commission v Belgium |1982| in Article 39(4) EC, and the exception in LCR 1845, paragraph 7. Annex I, Point 1, to Directive 89/686. Both 15 —Judgments in Case 149/79 Commission v Belgium |1980| ECU 3881, paragraphs 9 and 10; and in Case 66/85 must be interpreted strictly, and are limited Laure Blum [1986] ECR 2121, paragraph 27.

35. As concerns freedom of establishment the framework outlined by the harmonising and freedom to provide services, the first directives. 17 paragraph of Article 45 EC, and Article 55 EC, also lay down an exception for activ- ities which are connected to the exercise of official authority. The Court has restricted the exception to the activities referred to in Articles 43 EC and 49 EC which in themselves involve a direct and specific connection with the exercise of official Since Directive 89/686 harmonises the laws authority. 16 of the Member States relating to personal protective equipment, in order to guarantee free movement of goods for such equip- ment, the only derogations permitted are the ones laid down in the directive itself; that is, the exceptions relating to equip- ment governed by Community law, which cover its placing on the market, freedom of movement, and safety, and the exceptions 36. However, it would not be appropriate set out in the detailed list in Annex I. in this case to apply, by analogy, the exception relating to persons and services, since Article 30 EC, which is included in the chapter on free movement of goods, sets out a wide range of grounds on which restrictions on imports, exports or goods in transit may be justified. Nevertheless, it is well known that the Court has ruled that 37. The German Government claims that Article 30 EC is not designed to reserve the Member States have a wide discretion, certain matters to the exclusive jurisdiction which is not open to judicial review, when of Member States but permits national laws it comes to interpreting the exception to derogate from the principle of the free concerning the free movement of goods in movement of goods only to the extent to Annex I, Point 1, to Directive 89/686. The which such derogation is and continues to German Government puts forward the be justified for the attainment of the objec- example of the general-interest grounds tives referred to in that article. It therefore listed in Article 30 EC, where the definition follows that, when certain Community is enshrined in Community law but the directives provide for the harmonisation level of protection is left to the discretion of of the measures necessary to guarantee the the Member States. The leeway which the protection of animal and human health and Member States have enables them to deter- when they establish procedures to check mine the duties of the forces of law and that they are observed, recourse to order that participate in the exercise of Article 30 EC is no longer justified, and official authority. Accordingly, the regu- the appropriate checks must be carried out lation of the personal protective equipment and the protective measures adopted within

used by fire brigades in their capacity as 39. In the German Government's sub- forces of law and order forms part of the mission, the exception in Annex I, Point 1, discretionary powers of the Member States to Directive 89/686 must conform to the relating to the implementation of Directive division of powers between the Member 89/686. States and the Community, and to the principles of subsidiarity and proportional- ity referred to in Article 5 EC. In the German Government's opinion, the inter- pretation of the exception proposed by the Commission amounts to an abuse of power, and it is also a breach of the fundamental provisions in question. The 38. While I might agree with the German exercise of the rights and powers associated Government in principle, I disagree totally with official authority, including the fixing as to the substance. It is the case that of requirements for personal protective Member States have a considerable degree equipment, comes within the competence of latitude to oversee the maintenance of of the Member States. Therefore, the law and order in their territories, and the derogations provided for by Directive division of powers between the various 89/686 should be applied by reference to security forces and bodies. They also enjoy those provisions of the Treaty, from which a wide margin of discretion when laying it follows that the equipment used by fire down the requirements for personal pro- brigades is covered by the exception in tective equipment designed and manufac- Annex I, Point 1, to the directive. tured specifically for the forces of law and order, but only in so far as that equipment is excluded from the scope of Directive 89/686 by Annex I, Point 1, thereof. As I have already pointed out, Annex I, Point 1, derogates from Article 4, which provides for the free movement of personal pro- 40. However, when fire brigades carry out tective equipment within the Community, the duties entrusted to them, they are not and, as such, it must be interpreted restrict- exercising official authority, and they do ively. not form part of the forces responsible for the maintenance of law and order. The Commission's interpretation of the exception does not, therefore, constitute an abuse of power, and nor does it breach the principles of subsidiarity and proportionality.

44. In my opinion, the Commission has demonstrated that the Federal Republic of Germany has failed to fulfil its obligations 42. I find the German Government's asser- under Articles 1 and 4 of Directive 89/686, tions perplexing, because the majority of by retaining, in certain Länder, legislation citizens do not appear to have the same under which personal protective equipment difficulty. If there is a fire in their homes or for use by fire brigades is subject to in an area of woodland, they call the fire additional requirements, despite the fact brigade; if they or their property come that such equipment satisfies the require- under threat, they go to the police. To state ments of the directive and bears the EC that firefighters have to protect themselves mark. from attacks by pyromaniacs appears to me to be beside the point, since such people set fire to property rather than firefighters; so, when firefighters are putting out the flames, they do not need self-defence equip- ment to protect them from attack by people but rather specific equipment that enables The Commission's application is therefore them to work as safely as possible to well founded and a declaration should be extinguish the fire. Nor is it relevant that granted against the Federal Republic of the forces of law and order assist in Germany. operations to deal with disasters caused by catastrophes, since ordinary citizens also help voluntarily and unselfishly in those kinds of emergencies.

V — Costs

43. None of the arguments put forward by Germany has convinced me that the per- 45. In accordance with Article 69(2) of the sonal protective equipment used by fire- Rules of Procedure, theunsuccessful party

(2) order the Federal Republic of Germany to pay the costs;

(3) order the French Republic to bear its own costs.

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