Opinion of Advocate General Rantos delivered on 11 April 2024.

• Jurisdiction: European Union
• Celex Number: 62022CC0792
• ECLI: ECLI:EU:C:2024:302
• Date: 11 April 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 11 April 2024 (1)

Case C‑792/22

Parchetul de pe lângă Judecătoria Rupea,

LV,

CRA,

LCM

Criminal proceedings

against

MG,

joined party:

SC Energotehnica SRL Sibiu

(Request for a preliminary ruling from the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania))

(Reference for a preliminary ruling – Social policy – Directive 89/391/EEC – Measures to encourage improvements in the safety and health of workers at work – Principle of effectiveness of EU law – Death of a worker in the course of a work operation – Parallel criminal and administrative proceedings before national courts – Final judgment of the administrative court according to which that operation does not constitute an ‘accident at work’ – National legislation under which such a final judgment has the force of res judicata before the criminal court – Possibility for that criminal court to characterise that operation as an ‘accident at work’ and to impose criminal and civil penalties)

I. Introduction

1. Following the death of an electrician which occurred during an operation on an electrical installation, administrative proceedings were instituted against the company that employed the victim and, in parallel with them, criminal proceedings were brought against the chief electrician who worked for that company for failure to comply with legal measures concerning health and safety at work and for manslaughter, in which the family of the deceased electrician was a civil party against that company and the chief electrician.

2. At the end of the administrative proceedings, the administrative court ruled, by a final judgment, that that operation did not constitute an ‘accident at work’ with the result that the administrative penalties imposed on the company were annulled. Furthermore, national legislation, as interpreted by the Constitutional Court of the Member State in question, provides that final judgments of courts and tribunals other than criminal courts, on a preliminary question in a criminal procedure, have the force of res judicata before the criminal court. The characterisation of the operation at issue as an ‘accident at work’ constitutes such a preliminary question.

3. Does Directive 89/391/EEC, (2) which seeks to encourage improvements in the safety and health of workers at work, preclude national legislation which prevents a criminal court seised from examining whether that same operation may be characterised as an ‘accident at work’ and thus from imposing criminal or civil penalties on the chief electrician and the employer? That is, in essence, the question asked by the Curtea de Apel Braşov (Court of Appeal, Braşov, Romania), the criminal court in the case in the main proceedings.

4. The present case, which is unprecedented, gives the Court an opportunity to clarify the interrelationships between the national remedies so that, in the implementation of Directive 89/391, compliance with the principle of effectiveness of EU law is guaranteed for the interested parties and, in particular, the protection of the rights of the defence.

II. Legal framework

A. European Union law

5. Section I of Directive 89/391, which is entitled ‘General provisions’, comprises Articles 1 to 4 thereof. Article 1 of the directive, entitled ‘Object’, states:

‘1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.

3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work.’

6. Article 4 of the directive provides:

‘1. Member States shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive.

2. In particular, Member States shall ensure adequate controls and supervision.’

7. Article 5 of that directive, entitled ‘General provision’, which appears in Section II, entitled ‘Employers’ obligations’, stipulates:

‘1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.

…

3. The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.

4. This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care.

Member States need not exercise the option referred to in the first subparagraph.’

B. Romanian law

1. Criminal Code

8. Article 192 of Legea nr. 286/2009, privind Codul penal (Law No 286/2009 on the Criminal Code) of 17 July 2009, (3) in its version in force at the time of the facts in the main proceedings (‘the Criminal Code’), entitled ‘Manslaughter’, states in paragraph 2:

‘Manslaughter resulting from failure to comply with the legal provisions or precautionary measures established for the practice of a profession or of a craft or for the performance of a specific activity shall be punishable by no less than two years and no more than seven years of imprisonment. When a breach of the legal provisions or precautionary measures constitutes a criminal offence in itself, the rules on the concurrence of criminal offences shall apply.’

9. Article 350 of the Criminal Code, entitled ‘Failure to comply with legal measures concerning safety and health at work’, provides in paragraphs 1 and 3:

‘(1) Failure by any person to comply with obligations and measures established concerning safety and health at work, if it creates an imminent danger of an accident at work or occupational disease, shall be punishable by no less than six months and no more than three years of imprisonment or by a fine.

…

(3) The acts referred to in paragraphs 1 and 2 shall be punishable by no less than three months and no more than one year of imprisonment or by a fine where they are committed out of negligence.’

2. Code of Criminal Procedure

10. Article 52 of Legea nr. 135/2010, privind Codul de procedură penală (Law No 135/2010 on the Code of Criminal Procedure) of 1 July 2010, (4) in its version in force at the time of the facts in the main proceedings (‘the Code of Criminal Procedure’), entitled ‘Preliminary questions’, provides:

‘(1) The criminal court shall have jurisdiction to hear any preliminary question for the determination of the case, even if, by its nature, the question falls within the jurisdiction of another court, except in situations where jurisdiction does not lie with the judiciary.

(2) The preliminary question shall be decided by the criminal court in accordance with the rules and means of proof relating to the subject matter of the question.

(3) Final judgments of courts and tribunals other than criminal courts regarding a preliminary question in criminal proceedings shall have the force of res judicata before the criminal court, with the exception of the circumstances relating to the existence of the offence.’

3. LawNo 319/2006

11. Legea nr. 319/2006 a securităţii şi sănătăţii în muncă (Law No 319/2006 on safety and health at work) of 14 July 2006 (5) (‘Law No 319/2006’) transposes Directive 89/391 into the Romanian legal order. Under Article 5(g) of that Law:

‘For the purposes of the present law:

…

(g) “accident at work” means serious injury to the body or acute occupational poisoning, sustained in the course of work or in the performance of work duties, which results in temporary incapacity to work for at least three calendar days, disability or death.’

12. Article 7(4)(c) of that Law states:

‘Without prejudice to other provisions of the present Law, taking into account the nature of the activities of the undertaking and/or establishment, the employer shall:

…

(c) take into consideration the capabilities of workers as regards safety and health at work when it entrusts work to them.’

13. Article 20(1)(b) of that Law provides:

‘The employer shall ensure such conditions as to enable each worker to receive sufficient and adequate training in safety and health at work, in particular in the form of information and instructions specific to his or her workplace and job:

…

(b) in the event of a change of job or a transfer.’

14. Article 22 of Law No 319/2006 stipulates:

‘Each worker shall perform his or her work in accordance with his or her training and preparation and the instructions issued by his or her employer such as not to expose himself or herself or other persons who could be affected by his or her actions or failure to act in the context of work to risks of accident or occupational disease.’

4. Decision No 1146/2006

15. Annex I of Hotărârea Guvernului nr. 1146/2006, privind cerințele minime de securitate și sănătate pentru utilizarea în muncă de către lucrători a echipamentelor de muncă (Government Decision No 1146/2006 concerning the minimum safety and health requirements for the use of work equipment by workers at work) of 30 August 2006 (6) (‘Decision No 1146/2006’) is worded as follows:

‘…

3.3.2.1. In electrical installations and work equipment, protection against electrocution by direct contact shall be ensured by technical measures, supplemented by organisational measures.

…

3.3.2.3. Protection against electrocution by direct contact...