Opinion of the Advocate General — ECLI:EU:C:2003:32
Date: 2003-01-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

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)) 
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SUMMARY — CASE C-441/01 
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 — Fromotion 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 obli­
gations imposed on employers in an 
order of precedence. Article 7(1) 
imposes on employers a principal obli­
gation to designate one or more 
workers to carry out activities related 
to protection against and prevention of 
occupational risks. Article 7(3) pro­
vides for an obligation to enlist com­
petent 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 com­
petent 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 trans­
position 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 ser­
vices 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 
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COMMISSION v NETHERLANDS 
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 acci­
dents at work and occupational dis­
eases. 
(see paras 39-40) 
3. Allowing employers to choose between 
internal organisation of activities 
related to protection against and pre­
vention of occupational risks or the 
enlistment of external competent ser­
vices does not contribute to ensuring 
the effectiveness of Directive 89/391 on 
the introduction of measures to encour­
age improvements in the safety and 
health of workers at work but con­
stitutes 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. Sec­
ond, the aim of Directive 89/391 is to 
promote balanced participation of 
employers and workers in activities 
related to protection against and pre­
vention 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) 
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