Opinion of the Advocate General — ECLI:EU:C:2005:629
Date: 2005-10-20
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Austria

Summary of the Judgment 1. Social policy – Protection of the health and safety of workers – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work (Council Directive 89/391, Art. 7(1) and (3)) 2. Social policy – Protection of the health and safety of workers – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work (Council Directive 89/391, Art. 8(2)) 3. Social policy – Protection of the health and safety of workers – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work (Council Directive 89/391, Art. 11(2)(c) and (d)) 1. Article 7(1) of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work imposes a principal obligation on the employer, which is to designate one or more workers to carry out activities related to the protection and prevention of occupational risks. Article 7(3) thereof provides for the 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 those protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment. Article 7 of the Directive therefore places the obligations imposed on employers in an order of precedence. In order to ensure full applicability of Directive 89/391 in a clear and precise manner, its transposition into the national law of the Member States must reflect the order of precedence laid down in Article 7. It follows that national legislation allowing employers to choose between entrusting activities related to protection against and prevention of occupational risks to either competent internal or external services does not comply with that order of precedence of the obligations and is not therefore compatible with Article 7(1) and (3). (see paras 49-50, 52, 54) 2. The obligation under the first paragraph of Article 8(2) of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work to the effect that the employer must, for first aid, fire-fighting and evacuation of workers, designate the workers responsible for taking the necessary measures is not subject to the nature of the activities and the size of the undertaking and/or establishment. Such a restriction on the obligation of designation is not apparent from the wording of that article, which does not refer to any exception to or restriction on that obligation of designation and, running counter to the objective of the directive, would mean that that obligation would apply only to large undertakings and establishments or to those carrying on certain activities, without the provision of clear and objective criteria to identify them. On the other hand, it is possible to take into consideration the scale or the size of the undertaking and/or establishment, as well as the nature of the activities carried on in it, in order to delineate the factors covered by the requirements in the first subparagraph of Article 8(2) of the directive. (see paras 60-62, 64) 3. Article 11(1) of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work provides for a general obligation on employers to consult workers and/or their representatives and to allow them to take part in discussions on all questions relating to safety and health at work. However, Article 11(2) refers to the prior and separate obligation of participation and consultation of workers with specific responsibility for the safety and health of workers. Accordingly, a national implementing provision which does not provide for those workers to enjoy a specific, special position so far as concerns the consultation and balanced participation with regard to the information referred to in Article 10(1)(a) of that directive does not comply with Article 11(2)(c) thereof. That is the case with a national provision prescribing, on the one hand, the obligation on the works committee, the persons responsible for safety and on workers in general to take part in the research on and assessment of risks and providing, on the other hand, that where workers who are not contractually bound to the employer in charge of a workplace, namely external workers, work there, that employer is required, where necessary, to see to it that those workers are informed about the risks existing in their workplace and are trained accordingly. That national provision transposes only the general obligation of information provided for in Article 10(2) of the directive. Moreover, it does not transpose the obligation in Article 11(2)(d) which provides for the obligation of participation and consultation of those workers also when competent persons or services outside the undertaking and/or establishment are enlisted by the employer. (see paras 75-77, 80-81, 91)