OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER delivered on 16 January 2003 (1)

((Action for failure by a Member State to fulfil its obligations – Directive 89/391/EEC – Measures aimed at encouraging improvements in the safety and health of workers at work – Order of precedence between organising the measures to protect and prevent against occupational hazards within the undertaking and enlisting an external agency to provide the service))

I ─ Directive 89/391

5. In all cases:

─ the workers designated must have the necessary capabilities and the necessary means,

─ the external services or persons consulted must have the necessary aptitudes and the necessary personal and professional means, and

─ the workers designated and the external services or persons consulted must be sufficient in number 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 distribution throughout the entire undertaking and/or establishment.

II ─ The Netherlands legislation

(a) one or more experienced workers who can be organised into a service;

(b) other experts;

(c) one or more services composed of other experts; or

(d) a combination of experienced workers, other experts, or services within the meaning of subparagraphs (a), (b) and (c).

5. In the defence, the Netherlands Government states that the above provision was replaced by Article 14 of the 1998 Law on the working environment. Although the wording of the current provision differs from that of Article 17, which is at issue in these proceedings, both articles refer to the principle that employers may, without distinction, enlist internal or external services to organise protective and preventive measures.

III ─ The administrative procedure

IV ─ The procedure before the Court

V ─ Analysis of the action

10. The Commission requests the Court to declare that, by failing to transpose correctly Article 7(3) of Directive 89/391 correctly into national law, the Netherlands has failed to fulfil its obligations. The Commission also seeks an order for costs against the Netherlands. The Commission claims that, under the directive, employers must designate one or more of their employees to carry out activities related to protection and prevention, and that employers may only enlist external personnel where there are insufficient capabilities within the undertaking.

11. In the opinion of the Netherlands Government, however, Directive 89/391 does not impose on the Member States any hierarchy in relation to the two options, and it relies on five grounds in support of that view.

(a) The wording of Article 7(3)

12. The defendant Government contends that there is no support for Commission's interpretation in the text of the provision. If that interpretation were to stand, it would be impossible for employers with staff skilled in the prevention of occupational risks to engage the services of an external agency to organise the service, unless they decided to dismiss the staff concerned. An employer who subsequently recruited workers competent in the field would be obliged to terminate the contract with the external undertaking. Similarly, Article 7(6) of the directive would be rendered meaningless. Even if there were cause to interpret Article 7(3) in the sense advocated by the Commission, the Member States would not be obliged to reproduce its contents verbatim, since they are free to decide the form and the methods used to achieve the aim pursued by the directive. In the opinion of the Netherlands Government, it is preferable to enlist persons or agencies from outside the undertaking to organise activities related to the protection from and the prevention of occupational risks because external services have more expertise in this field.

13. I am unable to agree with any of those arguments.

14. 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 provides that employers are to play a crucial role, to the extent that those who have the necessary capabilities at their disposal may themselves undertake the organisation of the activities concerned. Paragraph 1 stipulates that, first and foremost, employers must designate one or more employees to carry out the activities, while bearing in mind that, in accordance with Paragraph 5, those employees must have the necessary capabilities and the necessary means and that, in accordance with Paragraph 6, they may undertake protective and preventive measures in conjunction with external undertakings. Paragraph 3 stipulates that if such measures cannot be organised for lack of competent staff in the undertaking and/or establishment, the employer must enlist external services or persons. This is an ancillary provision which is conditional upon there being insufficient means within the undertaking. The Court interpreted the two provisions in the same way in Commission v Italy (3) stating that Article 7(1) and (3) of the directive require employers to arrange a service of prevention and protection from occupational risks within the undertaking or, if its internal capabilities are insufficient, to enlist external help. In that case, the Italian legislation in question provided employers with the option, but not the obligation, to have recourse to persons or services outside the undertaking if the capabilities of the employees within it were insufficient.

15. The wording used in Article 7(1) and (3) is clear and precise. The employer must assess whether there are sufficient competent staff ─ in the absence of which, Paragraph 3 will apply ─ by reference to the necessary capabilities and aptitudes, which the Member States must define in accordance with Paragraph 8. The employer does not, therefore, make a value judgment that is personal and subjective in nature, as the Netherlands appears to fear, but rather a decision based on general, objective and uniform criteria that are laid down in national legislation. Where an employer, who, owing to a lack of available staff, has engaged an external agency or persons to provide the service of protection and prevention, subsequently has suitable employees available, it will be because that employer has made a conscious, rather than a random, decision to ensure that the activities in question are carried out within the establishment. In that situation, it seems logical to me that the employer would terminate the contract with the external undertaking since its services would no longer be needed.

17. I share the Commission's view that there are good reasons behind the fact that Article 7 gives precedence to the performance of the tasks related to protection and prevention by employees wherever possible. First, employees have inside knowledge of the undertaking, they practise its work methods, they understand the hazards associated with the specific business activity it carries out, they are aware of 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 colleagues is at stake. In addition, there is an increased chance that organising the activities concerned internally will lead to awareness, on the part of all staff, of the importance of carrying out such work, and that any inconvenience which may arise will not be deemed to be the result of obligations imposed from outside the undertaking.

(b) The scheme of Article 7

18. The Netherlands Government takes the view that there are certain advantages inherent in being able to choose to enlist an external service. The freedom to decide between one solution and the other is subject to factors such as the availability of competent staff, the make-up of the workforce, continuity in the provision of the service, and the problems which entrusting the activities to the staff would entail for the running of the establishment. Contrary to the Commission's view, the Netherlands Government does not agree that Article 7 of Directive 89/391 lays down a hierarchy between the two options provided for therein.

19. I do not agree with that approach either. Article 7(3) must be interpreted by reference to its position within the structure of the article. Paragraph 1 stipulates that an employer must designate one or more workers to carry out activities related to protection and prevention, with the proviso, under Paragraph 2, that workers may not be placed at any disadvantage as a 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, pursuant to Paragraph 4. Paragraph 5 applies, in conjunction with the national legislation provided for under Paragraph 8, irrespective 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 undertaking and partly by an outside agency, in which case, the workers must work together where necessary. The fact that Paragraph 3 follows two paragraphs, the first of which governs the designation of the workers responsible for the activities in question and the second of which counterbalances that by providing that their rights must be respected and that they must be provided with the necessary time, is a clear indication that an employer may only enlist an outside undertaking to arrange the service where the undertaking lacks staff with the necessary capabilities. In any event, if the directive did not stipulate any order of precedence between the two options, the first part of Paragraph 3, which makes recourse to external agencies conditional upon a lack of competent personnel in the undertaking, would be rendered superfluous.

(c) The object of the directive

21. 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 the adoption of the necessary protective measures, and that information, dialogue and balanced participation on safety and health at work must be encouraged between employers and workers and/or their representatives. (5) Those statements are referred to in Article 1(2) as general principles concerning the prevention of occupational risks and the protection of safety and health. It was as a result of those principles that precedence was given to the organisation of protective and preventive measures within undertakings. As the Commission rightly points out in the reply, the directive applies to all economic sectors, both public and private, with the sole exception of those with certain characteristics peculiar to the public service, such as, for example, the armed forces, the police and the civil protection services. Given that the scope of the directive is so wide, it is clear that there will be some undertakings which do not have the capabilities to enable them to provide the service using their own employees, but that does not mean that undertakings are not obliged to do so when they are able, by providing either a full service, or a partial service in conjunction with external agencies, as permitted by Article 7(6). 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 provide that the internal organisation of the tasks involved must take precedence over the entitlement of employers to enlist an external undertaking to arrange the service.

(d) Minimum harmonisation

22. The defendant government considers that Directive 89/391 achieves only minimum harmonisation for two reasons. The first is that the legal basis for the directive is Article 118 A of the EC Treaty, and the second is that Article 1(3) refers to the principle that the directive is without prejudice to national and Community provisions which are more favourable to protection of the safety and health of workers. The Netherlands legislature used this opportunity to provide for greater protection, in particular through the establishment of a system of high-quality services throughout its national territory to carry out more advanced prevention activities than those referred to in the directive. In order to comply with the obligations relating to working conditions that are imposed on the competent services, some employers have to enlist external personnel to carry out the activities. Under the directive, Member States are entitled to provide increased protection, allowing employers complete freedom to choose the service which offers the highest level of protection.

23. Under Article 1(3) of Directive 89/391, Member States are effectively entitled to retain existing provisions which are more favourable to the safety and health protection of workers, and to improve their arrangements. It is not, however, appropriate to evaluate whether the protection guaranteed under the Netherlands legislation is higher than that provided under Directive 89/391, but rather to ascertain whether the order of precedence between the two options referred to in Article 7 is accurately reflected in the national provisions.

(e) Effectiveness of the directive

24. The Netherlands maintains that there are a number of reasons why its legislation adequately ensures that undertakings have preventive and systematic internal health and safety policies. The first is that the legislation requires those who are charged with carrying out the most important protective and preventive tasks, whether employees or outside personnel, to be competent in the fields of medicine and hygiene at work, safety, ergonomics and management. It is, therefore, the size of the undertaking which determines whether there is a need to have recourse to external services, the advantage of which is that they are more objective in their work than the staff of the undertaking because they are not answerable to the employer. The second reason is that the legislation guarantees that workers may participate in the policy adopted in relation to working conditions, since the employer and the experts, whether internal or external, must inform the staff representatives and consult the workers' committee. The final reason is that a flexible system, which has stringent requirements regarding the competence of experts and which grants important rights to employees' representatives, is the best guarantee of compliance with the objectives of the directive.

25. I am unable to agree with those arguments either. The fact that the Netherlands has been more stringent than other Member States in defining the capabilities of workers and external agencies does not release it from the duty to comply with the order of precedence laid down in Article 7(1) and (3). I agree that, normally, the size of an undertaking influences whether or not there will be employees who are able to undertake activities related to the protection from and the prevention of occupational risks, but it must be pointed out that this is not always the case. In any event, the Member States must provide that it is, first and foremost, the responsibility of employers to arrange for the tasks concerned to be carried out within the undertaking. In addition, by ensuring that workers must receive information and that workers and/or their representatives must be consulted and allowed to participate in discussions, the Netherlands has transposed a number of the other provisions of the directive into national law.

26. For the reasons set out, I am of the opinion that the Commission has demonstrated that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(3) of Directive 89/391, 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. Accordingly, the action brought by the Commission is well-founded and it is appropriate to declare that the Netherlands has failed to fulfil its obligations under Community law.

VI ─ Costs

27. 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 the fact that an application for costs has been made against the Kingdom of the Netherlands, it is appropriate to order that Member State to pay the costs of the proceedings.

VII ─ Conclusion

28. 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;

(2) order the defendant Member State to pay the costs.

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1 – Original language: Spanish.

2 – 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 (OJ 1989 L 183, p. 1).

3 – Judgment in Case C-49/00 Commission v Italy [2001] ECR I-8575, paragraph 23.

4 – Judgments in Case C-214/98 Commission v Greece [2000] ECR I-9601, paragraph 49; in Case C-38/99 Commission v France [2000] ECR I-10941, paragraph 53; and in Commission v Italy, cited above, paragraph 21.

5 – Eleventh and twelfth recitals.