C-441/01

OPINION OF MR RUIZ-JARABO — CASE C-441/01

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 16 January 2003 1

1. The Commission seeks a declaration Treaty (Articles 117 to 120 of the EC from the Court of Justice, under Article 226 Treaty have been replaced by Articles 136 EC, that the Kingdom of the Netherlands EC to 143 EC). In view of the excessively has failed to fulfil its obligations under high incidence of accidents at work and Article 7(3) of Directive 89/391/EEC on the occupational diseases, it is proposed, in the introduction of measures to encourage tenth and eleventh recitals, that preventive improvements in the safety and health of measures be introduced or improved with- workers at work. 2 out delay in order to safeguard the safety and health of workers and ensure a higher degree of protection. To that end, workers and/or their representatives must be informed of the risks to their safety and Under that provision, where undertakings health and of the measures required to lack the capabilities to organise activities reduce or eliminate these risks. related to the protection from and the prevention of occupational risks, they may enlist the help of external agencies. It appears that the Netherlands legislation provides that employers may choose between designating one or more of their 3. Article 7, paragraph 3 of which is the employees to carry out the tasks concerned provision whose breach is alleged, pro- and engaging an external agency to arrange vides: the service.

'1. Without prejudice to the obligations referred to in Articles 5 and 6, the employer I — Directive 89/391 shall designate one or more workers to carry out activities related to the protection and prevention of occupational risks for the undertaking and/or establishment. 2. The Council adopted Directive 89/391 on the basis of Article 118 A of the EC

3. If such protective and preventive meas- ures cannot be organised for lack of competent personnel in the undertaking and/or establishment, the employer shall enlist competent external services or per- to deal with the organisation of protective sons. 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. 4. Where the employer enlists such services or persons, he shall inform them of the factors known to affect, or suspected of affecting, the safety and health of the workers and they must have access to the information referred to in Article 10(2). 6. The protection from, and prevention of, the health and safety risks which form the subject of this Article shall be the respon- sibility of one or more workers, of one service or of separate services whether from inside or outside the undertaking and/or 5. In all cases: establishment.

— the workers designated must have the necessary capabilities and the necessary The worker(s) and/or agency(ies) must means, work together whenever necessary.

I - 5467

OPINION OF MR RUIZ-JARABO — CASE C-441/01

7. Member States may define, in the light pose Article 7(1) and (3) of Directive of the nature of the activities and size of the 89/391 into national law, provides: undertakings, the categories of undertak- ings in which the employer, provided he is competent, may himself take responsibility for the measures referred to in paragraph 1. '1. In accordance with their legal obli- gations, employers must enlist the assist- ance of:

to organise protective and preventive meas- IV — The procedure before the Court ures.

9. The Commission lodged the application at the Court Registry on 15 November 2001. The defendant government lodged its defence on 5 February 2002. The reply was III — The administrative procedure lodged on 27 March 2002, and the rejoinder on 13 May 2002.

7. In February 1994, the Netherlands auth- orities communicated to the Commission the legislative provisions it had adopted to 10. At the hearing, which was held on implement Directive 89/391. In July 1997, 28 November 2002, oral argument was the Commission sent the Netherlands auth- presented by the agents of the Commission orities a letter of formal notice, pointing and the Netherlands Government. out that, as concerns the organisation of protective and preventive measures, Direc- tive 89/391 does not grant employers the right to choose between their own staff and an external undertaking, and that instead the directive creates a hierarchy between the two options, by reference to whether there are employees with the necessary capabilities. V — Analysis of the action

11. The Commission requests the Court to declare that, by failing to transpose cor- 8. Since the Commission was not per- rectly Article 7(3) of Directive 89/391 suaded by the explanations offered by correctly into national law, the Nether- Netherlands Government in November lands has failed to fulfil its obligations. The 1997, it delivered a reasoned opinion in Commission also seeks an order for costs late December 1998, calling upon the against the Netherlands. Netherlands Government to adopt, within two months, the measures necessary to implement the directive correctly. In its reply, at the end of March 1999, the Netherlands Government refused to alter its position, and the Commission therefore proceeded with the action by bringing it The Commission claims that, under the before the Court. directive, employers must designate one or

(a) The wording of Article 7(3) 15. Article 7 of Directive 89/391 governs the organisation of activities related to the protection from and the prevention of occupational risks in undertakings and 13. The defendant Government contends provides that employers are to play a that there is no support for Commission's crucial role, to the extent that those who interpretation in the text of the provision. If have the necessary capabilities at their that interpretation were to stand, it would disposal may themselves undertake the be impossible for employers with staff organisation of the activities concerned. skilled in the prevention of occupational Paragraph 1 stipulates that, first and fore- risks to engage the services of an external most, employers must designate one or agency to organise the service, unless they more employees to carry out the activities, decided to dismiss the staff concerned. An while bearing in mind that, in accordance employer who subsequently recruited with Paragraph 5, those employees must workers competent in the field would be have the necessary capabilities and the obliged to terminate the contract with the necessary means and that, in accordance external undertaking. Similarly, Article 7(6) with Paragraph 6, they may undertake of the directive would be rendered mean- protective and preventive measures in con- ingless. Even if there were cause to interpret junction with external undertakings. Article 7(3) in the sense advocated by the Paragraph 3 stipulates that if such measures Commission, the Member States would not cannot be organised for lack of competent be obliged to reproduce its contents verba- staff in the undertaking and/or establish- tim, since they are free to decide the form ment, the employer must enlist external and the methods used to achieve the aim services or persons. This is an ancillary pursued by the directive. In the opinion of provision which is conditional upon there the Netherlands Government, it is prefer- being insufficient means within the under- able to enlist persons or gencies from taking.

17. The Court has held that transposing a directive into national law does not require its provisions to be reproduced verbatim in a specific, express law or regulation, pro- 16. The wording used in Article 7(1) and vided that, depending on the content of the (3) is clear and precise. The employer must directive in question, it is sufficient in a assess whether there are sufficient compet- general legal context. The Court has also ent staff — in the absence of which, stated, however, that the general legal Paragraph 3 will apply — by reference to context referred to must effectively ensure the necessary capabilities and aptitudes, the full application of the directive in a which the Member States must define in clear and precise manner. 4The defendant accordance with Paragraph 8. The Government concedes that the Law on the employer does not, therefore, make a value working environment does not stipulate judgment that is personal and subjective in that precedence must be given to the nature, as the Netherlands appears to fear, organisation of protective and preventive but rather a decision based on general, measures by employees of the undertaking, objective and uniform criteria that are laid as specified in the directive. Since the law down in national legislation. Where an ignores the hierarchy between the two employer, who, owing to a lack of available options that is stipulated in the directive, staff, has engaged an external agency or it must therefore be concluded that persons to provide the service of protection Article 7(1) and (3) have not been accu- and prevention, subsequently has suitable rately transposed into national law. employees available, it will be because that

18. I share the Commission's view that of competent staff, the make-up of the there are good reasons behind the fact that workforce, continuity in the provision of Article 7 gives precedence to the perform- the service, and the problems which ance of the tasks related to protection and entrusting the activities to the staff would prevention by employees wherever poss- entail for the running of the establishment. ible. First, employees have inside knowl- Contrary to the Commission's view, the edge of the undertaking, they practise its Netherlands Government does not agree work methods, they understand the that Article 7 of Directive 89/391 lays hazards associated with the specific busi- down a hierarchy between the two options ness activity it carries out, they are aware of provided for therein. the background, they can identify potential risks, and they are located permanently at the undertaking's premises. Second, it is the employees who have the greatest interest in efficient performance of the activities, since their physical safety and that of their 20. I do not agree with that approach colleagues is at stake. In addition, there is either. Article 7(3) must be interpreted by an increased chance that organising the reference to its position within the structure activities concerned internally will lead to of the article. Paragraph 1 stipulates that an awareness, on the part of all staff, of the employer must designate one or more importance of carrying out such work, and workers to carry out activities related to that any inconvenience which may arise protection and prevention, with the will not be deemed to be the result of proviso, under Paragraph 2, that workers obligations imposed from outside the may not be placed at any disadvantage as a undertaking. result of carrying out those activities and may only do so on condition that they have the necessary time. Paragraph 3 provides that, if it is not possible to designate employees due to a lack of competent personnel, the employer must enlist an external undertaking to provide the service and must furnish that undertaking with the necessary information in that regard, pur- (b) The scheme of Article 7 suant to Paragraph 4. Paragraph 5 applies, in conjunction with the national legislation provided for under Paragraph 8, irrespec- tive of whether the activities are carried out inside the undertaking or by an external agency. Paragraph 6 provides that the protection from and the prevention of occupational risks in an undertaking may be carried out partly by the staff of the 19. The Netherlands Government takes the undertaking and partly by an outside view that there are certain advantages agency, in which case, the workers must inherent in being able to choose to enlist work together where necessary. The fact an external service. The freedom to decide that Paragraph 3 follows two paragraphs, between one solution and the other is the first of which governs the designation subject to factors such as the availability of the workers responsible for the activities

(c) The object of the directive

22. It is true that the object of Directive 89/391, as stipulated in Article 1(1) is to encourage improvements in the safety and health of workers at work. However, the preamble states that it is vital that workers and/or their representatives contribute to 21. The defendant Government maintains the adoption of the necessary protective that Directive 89/391 aims to ensure that measures, and that information, dialogue the attention given to working conditions and balanced participation on safety and and occupational hazards in undertakings health at work must be encouraged is systematic and preventive in nature. The between employers and workers and/or

I - 5473

OPINION OF MR RUIZ-JARABO — CASE C-441/01

Since the balanced participation of employers and workers in the prevention of occupational hazards is defined as a general principle of Directive 89/391, it follows that Article 7 thereof should pro- vide that the internal organisation of the 24. Under Article 1(3) of Directive 89/391, tasks involved must take precedence over Member States are effectively entitled to the entitlement of employers to enlist an retain existing provisions which are more external undertaking to arrange the service. favourable to the safety and health pro- tection of workers, and to improve their arrangements. It is not, however, appropri- 5 — Eleventh and twelfth recitals. ate to evaluate whether the protection

I - 5474

COMMISSION v NETHERLANDS

I - 5475

OPINION OF MR RUIZ-JARABO — CASE C-441/01

related to the protection from and the VI — Costs prevention of occupational risks within the undertaking, and enlisting an external body to arrange the service. 28. In accordance with Article 69(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party's pleadings. Since I propose to allow the Commission's application, and in view of Accordingly, the action brought by the the fact that an application for costs has Commission is well-founded and it is been made against the Kingdom of the appropriate to declare that the Netherlands Netherlands, it is appropriate to order that has failed to fulfil its obligations under Member State to pay the costs of the Community law. proceedings.

V I I — Conclusion

29. In accordance with the foregoing considerations, I propose that the Court of Justice should:

(1) declare that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(3) 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 providing in its national legislation that employers are entitled to choose, without distinction, between organising activities related to the protection from and the prevention of occupational risks within the undertaking and enlisting an external body to arrange the service;