Opinion of the Advocate General — ECLI:EU:C:1998:176
Date: 1998-04-28
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment
1. Social policy — Protection of health and safety of workers — Directive 90/394 on the protec­
tion of workers from the risks related to exposure to carcinogens at work — Use of carcinogens
at the workplace — Employers' obligations — Whether contingent on the outcome of the
assessment of risks — Not contingent
(Council Directive 90/394, Arts 3 and 4)
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SUMMARY— CASE C-2/97
2. Social policy — Protection of health and safety of workers — Directive 90/394 on the protec­
tion of workers from the risks related to exposure to carcinogens at work — Exposure of
workers to carcinogens — Employers' obligations — Contingent on the outcome of the assess­
ment of risks
(Council Directive 90/394, Arts 3 and 5)
3. Social policy — Protection of health and safety of workers — Directive 90/394 on the protec­
tion of workers from the risks related to exposure to carcinogens at work — National rules
placing employers under obligations more stringent than those provided for by the Directive
— More stringent measures for protection within the meaning of Article 118a(3) of the Treaty
— Whether permissible — Conditions
(EC Treaty, Art. 118a(3); Council Directive 90/394, Art. 5)
4. Social policy — Protection of health and safety of workers — Directive 89/655 concerning the
minimum safety and health requirements for the use of work equipment by workers at work
— Time allowed for the adaptation of existing equipment — National rules prescribing a
period shorter than that prescribed by the Directive — Whether permissible — Conditions
(Council Directive 89/655, Art. 4(1)(b))
1. Article 4 of Directive 90/394 on the pro­
tection of workers from the risks related
to exposure to carcinogens at work must
be interpreted to the effect that the employ­
er's obligation to reduce or replace a car­
cinogen is not contingent on the outcome
of the assessment of risks referred to in
Article 3 of that Directive.
2. Article 5 of Directive 90/394 on the pro­
tection of workers from the risks related
to exposure to carcinogens at work must
be interpreted to the effect that the employ­
er's obligation to avoid or reduce expo­
sure to a carcinogen is contingent on the
outcome of the assessment of risks referred
to in Article 3 of that Directive.
3. A national provision which requires the
employer to reduce workers' exposure to
a carcinogen irrespective of the assessment
of risks is not contrary to Directive 90/394
on the protection of workers from the
risks related to exposure to carcinogens at
work where it constitutes a more stringent
measure for the protection of working
conditions authorised by Article 118a(3)
of the Treaty and by Directive 90/394,
which lays down only minimum require­
ments in this respect.
In the first place, such an obligation, which
increases the protection of the health and
safety of workers and which is confined
to reinforcing the obligation laid down in
Article 5 of Directive 90/394, does not
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IP v BORSANA
undermine the coherence of Community
action in the area of workers' health and
safety. Secondly, a national provision which
reinforces the obligation laid down in
Article 5 of Directive 90/394 by requiring
the employer to reduce workers' exposure
to the carcinogen irrespective of the assess­
ment of risk applies in a non-discriminatory
manner and does not hinder the exercise
of the fundamental freedoms guaranteed
by the Treaty.
4. Article 4 of Directive 89/655 concerning
the minimum safety and health require­
ments for the use of work equipment by
workers at work does not preclude a
Member State from setting a time-limit for
adapting existing working equipment that
expires before 31 December 1996 — the
deadline set in Article 4(1)(b) of that Direc­
tive — provided that the time-limit is not
so short that it does not enable employers
to effect the adaptation or entail a cost
that is clearly excessive as compared with
what they would have had to meet if the
time-limit had been longer.
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