Commission of the European Communities v Kingdom of the Netherlands.

• Jurisdiction: European Union
• Celex Number: 62001CJ0441
• ECLI: ECLI:EU:C:2003:308
• Court: Court of Justice (European Union)
• Date: 22 May 2003
• Procedure Type: Recurso por incumplimiento – fundado
• Docket Number: C-441/01

Case C-441/01


Commission of the European Communities
v
Kingdom of the Netherlands

«(Failure of a Member State to fulfil obligations – Directive 89/391/EEC – Measures to encourage improvements in the safety and health of workers at work – Article 7(3))»

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 16 January 2003

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Judgment of the Court (Fifth Chamber), 22 May 2003

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Summary of the Judgment

1..

Social policy – Protection of workers' safety and health – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work – Organisation of activities related to protection against and prevention of occupational risks – Obligation of employers to designate one or more workers to carry out those activities – Obligation taking precedence over that to enlist competent external persons or services

(Council Directive 89/391, Art. 7(1), (3), (4) and (6))

2..

Social policy – Protection of workers' safety and health – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work – Objectives – Promotion of balanced participation of employers and workers in activities related to protection against and prevention of occupational risks

(Council Directive 89/391, Art. 7)

3..

Social policy – Protection of workers' safety and health – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work – Organisation of activities related to protection against and prevention of occupational risks – Employers allowed to choose between internal organisation of those activities and enlistment of external competent services – Effectiveness of the Directive – Not ensured

(Council Directive 89/391, Art. 7(1) and (3))

1.

Article 7 of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work places the obligations imposed on employers in an order of precedence. Article 7(1) imposes on employers a principal obligation to designate one or more workers to carry out activities related to protection against and prevention of occupational risks. Article 7(3) provides for an obligation to enlist competent external persons or services. However, that obligation is merely subsidiary to that laid down in Article 7(1), since it arises only if such protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment. Paragraphs 4 and 6 of Article 7 by no means call into question the order of precedence laid down in paragraphs 1 to 3 of that article. Thus, in order to ensure full applicability of Directive 89/391 in a clear and precise manner, its transposition into Netherlands national law must reflect the order of precedence laid down in Article 7. see paras 20-21, 23, 30

2.

The decision, given expression in Article 7 of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work, to favour, where there is sufficient competent personnel within the undertaking, participation of the workers in the activities related to protection against and prevention of occupational risks over the enlistment of external competent persons or services is an organisational measure consistent with the aim of that directive to favour participation of workers in their own safety. It is clear from the 11th and 12th recitals of the Directive that its aims include a dialogue and balanced participation between employers and workers with a view to adopting the measures necessary for the protection of workers against accidents at work and occupational diseases. see paras 39-40

3.

Allowing employers to choose between internal organisation of activities related to protection against and prevention of occupational risks or the enlistment of external competent services does not contribute to ensuring the effectiveness of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work but constitutes a failure to fulfil the obligation to ensure full applicability of that directive. First, Article 7(1) and (3) of that directive clearly lays down an order of precedence with regard to the organisation of those activities within the undertaking. It is only where there is a lack of competent personnel within the undertaking that the employer must enlist external competent services. Second, the aim of Directive 89/391 is to promote balanced participation of employers and workers in activities related to protection against and prevention of occupational risks. It is therefore by giving precedence to the internal organisation of such activities that the best possible effectiveness of the Directive can be ensured. see paras 53-55

JUDGMENT OF THE COURT (Fifth Chamber)
22 May 2003 (1)

((Failure of a Member State to fulfil obligations – Directive 89/391/EEC – Measures to encourage improvements in the safety and health of workers at work – Article 7(3)))

In Case C-441/01, Commission of the European Communities, represented by H. van Vliet and H. Kreppel, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Kingdom of the Netherlands, represented by H.G. Sevenster, acting as Agent,

defendant,

APPLICATION for a declaration that, by authorising employers to choose freely whether to make use of internal or external health and safety services, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty and 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 (OJ 1989 L 183, p. 1),

THE COURT (Fifth Chamber),,

composed of: C.W.A. Timmermans, President of the Fourth Chamber, acting for the President of the Fifth Chamber, A. La Pergola, P. Jann, S. von Bahr and A. Rosas (Rapporteur), Judges, Advocate General: D. Ruiz-Jarabo Colomer,
Registrar: M.-F. Contet, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 28 November 2002, at which the Commission was represented by H. van Vliet and the Kingdom of the Netherlands by N.A.J. Bel, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 16 January 2003,

gives the following

Judgment

1

By application lodged at the Court Registry on 15 November 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by authorising employers to choose freely whether to make use of internal or external health and safety services, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty and 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 (OJ 1989 L 183, p. 1, the Directive).

Legal background

Community legislation

2

The 11th and 12th recitals of the Directive are worded as follows: ... in order to ensure an improved degree of protection, workers and/or their representatives must be informed of the risks to their safety and health and of the measures required to reduce or eliminate these risks; ... they must also be in a position to contribute, by means of balanced participation in accordance with national laws and/or practices, to seeing that the necessary protective measures are taken;... information, dialogue and balanced participation on safety and health at work must be developed between employers and workers and/or their representatives by means of appropriate procedures and instruments, in accordance with national laws and/or practices.

3

Article 7 of the Directive, which is entitled Protective and preventive services, provides:

1.

Without prejudice to the obligations referred to in Articles 5 and 6, the employer shall designate one or more workers to carry out activities related to the...