Opinion of Mr Advocate General Mischo delivered on 28 April 1998. - Società italiana petroli SpA (IP) v Borsana Srl. - Reference for a preliminary ruling: Tribunale di Genova - Italy. - Social policy - Protection of health and safety of workers - Use of work equipment - Risks related to exposure to carcinogens - Directives 89/655/EEC and 90/394/EEC. - Case C-2/97.



European Court reports 1998 Page I-08597



Opinion of the Advocate-General

1 The Tribunale di Genova (District Court, Genoa) has referred questions to the Court on the interpretation of certain provisions of Council Directives 89/655/EEC of 30 November 1989 concerning the minimum health and safety requirements for the use of work equipment by workers at work (Second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), (1) and 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work (Sixth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). (2) A preliminary ruling on these questions will enable the national court to settle a dispute between Società Italiana Petroli SpA (hereinafter `Italiana Petroli'), a company producing fuel for motor vehicles, and one of its customers, Borsana Srl, a distributor.

2 Italiana Petroli had entered into agreements with Borsana to supply fuel and to provide interest-free credit for the machinery and equipment required to resell such fuel.

3 Borsana had asked Italiana Petroli, quoting the provisions of Italian Legislative Decree 626/94 and Directives 89/655 and 90/394, and asking it to supply:

- under the distribution agreement, petrol with the lowest possible benzene content and

- under the credit agreements, gas and fumes recovery devices to be fitted to the distribution system to protect the health of its employees.

4 Italiana Petroli denied that it was under any such obligations. It sought confirmation that it was justified in taking this stance by bringing the matter before the Tribunale di Genova. The Tribunale took the view that, before it could give a ruling, it required an interpretation of Article 4 of Directive 89/655 and Articles 3, 4 and 5 of Directive 90/394, which it has sought in its three questions to the Court.

Question 1: prior assessment of the risk

5 In order to understand the wording of the first question, it is first necessary to examine Articles 3, 4 and 5 of Directive 90/394 and their relationship.

6 It will suffice at this point to say that the purpose of the question, very briefly, is to determine whether employers (filling station operators) are automatically obliged to take concrete measures to protect their employees against the risks arising from benzene in petrol or whether they are only obliged to take such measures after having first carried out an assessment of the risk to which the workers are exposed.

7 The relevant provisions of the Directive provide as follows:

`Article 3

Scope - Determination and assessment of risks

1. This Directive shall apply to activities in which workers are or are likely to be exposed to carcinogens as a result of their work.

2. In the case of any activity likely to involve a risk of exposure to carcinogens, the nature, degree and duration of workers' exposure must be determined in order to make it possible to assess any risk to the workers' health or safety and to lay down the measures to be taken.

The assessment must be renewed regularly and in any event when any change occurs in the conditions which may affect workers' exposure to carcinogens.

The employer must supply the authorities responsible at their request with the information used for making the assessment.

Article 4

Reduction and replacement

1. The employer shall reduce the use of a carcinogen at the place of work, in particular by replacing it, in so far as is technically possible, by a substance, preparation or process which, under its conditions of use, is not dangerous or is less dangerous to workers' health or safety, as the case may be.

2. The employer shall, upon request, submit the findings of his investigations to the relevant authorities.

Article 5

Prevention and reduction of exposure

1. Where the results of the assessment referred to in Article 3(2) reveal a risk to workers' health or safety, workers' exposure must be prevented.

2. Where it is not technically possible to replace the carcinogen by a substance, preparation or process which, under its conditions of use, is not dangerous or is less dangerous to health or safety, the employer shall ensure that the carcinogen is, in so far as is technically possible, manufactured and used in a closed system.

3. Where a closed system is not technically possible, the employer shall ensure that the level of exposure of workers is reduced to as low a level as is technically possible.

...'

8 It seems clear to me that the Community legislature planned for action to be taken at two different levels to prevent workers' health from being endangered by exposure to carcinogens. Primarily and quite logically, it intended that the use of carcinogens be avoided whenever possible, particularly where there is no insurmountable obstacle to the use of other, harmless substances.

9 That was the thrust of Article 4, which makes the obligation to reduce the use of carcinogens - and, where possible, to replace them - unconditional. The level of exposure of workers and the attendant risks are immaterial. The use of carcinogens where avoidable is ruled out. That is a radical solution, but one that is perfectly understandable and reasonable because the products in question, being carcinogenic, are dangerous. Who would deny that the best form of prevention is to eliminate the risk completely?

10 Regrettably, that solution cannot always be put into practice, or may be so only partially, which means that the use of carcinogens is merely reduced. In such cases, action is required at another level, that of the worker's exposure to harmful substances whose presence is unavoidable, and this is the level at which the Community legislature has acted in laying down a series of obligations in Article 5 of the Directive. At this level, however, action is no longer directed to solving the problem by banning the use of carcinogens, as that has proved impossible, but rather to minimising the risk entailed, where possible by eliminating it, but in any event, by controlling it.

11 To do so, the very first step is to assess the risk, it being difficult to see how a risk from exposure can be effectively countered if it has not first been identified. The choice of protection measures and their appropriateness depend entirely on the nature of the risk to which the undertaking's employees are exposed and the forms that the risk takes within that undertaking. The risk may vary a great deal in form between one workplace and the next within the same undertaking. To secure maximum protection, therefore, it actually needs to be assessed in relation to each workstation.

12 That is why the Community legislature was careful to specify in Article 5 of the Directive that the measures to prevent or reduce exposure should be applied, in the order specified, `where the results of the assessment referred to in Article 3(2) reveal a risk to workers' health or safety'; in this respect, it should be borne in mind that the latter provision lays down an obligation to determine the `nature, degree and duration of workers' exposure'.

13 Thus, the approach taken by the Community legislature is entirely consistent with the aim of protecting workers' health and safety. As the Commission has quite rightly stated, the Directive's intention was to place employers under obligations structured in a logical sequence that can be summed up as follows:

- elimination or replacement of the carcinogen in the production cycle where technically possible;

- reduction of the carcinogen in the process to a minimum, where technically possible;

- assessment of the risk to which workers are exposed because of the presence of the carcinogen;

- adoption of measures to reduce workers' exposure to as low a level as is technically possible.

14 However, the logic underlying the Directive is not truthfully reflected in Legislative Degree 626/94, which transposes it into Italian law. This explains why Italiana Petroli brought proceedings and why the national court referred its first question. The relevant provisions of that Decree, namely Articles 62 and 63 thereof, are worded as follows:

`Article 62

Replacement and reduction

1. The employer shall avoid or reduce the use of a carcinogen at the place of work, in particular by replacing it with a substance, preparation or process which, under its conditions of use, is not harmful or is less harmful to workers' health or safety, as the case may be, provided that this is technically possible.

2. Where it is not technically possible to replace the carcinogen, the employer shall ensure that the carcinogen is manufactured and used in a closed system, provided that this is technically possible.

3. Where a closed system is not technically possible, the employer shall ensure that the level of exposure of workers is reduced to as low a level as is technically possible.

Article 63

Assessment of risk

1. Save where otherwise provided by Article 62, the employer shall carry out an assessment of exposure to carcinogens, the findings of which shall be recorded in the document referred to in Article 4(2).

2. This assessment shall take account, in particular, of the characteristics of operations, their duration and frequency, the quantities of carcinogens manufactured or used, their concentration and the capacity of the said carcinogens to enter the organism via the various routes of absorption; account shall also be taken of their state and, when these substances are in solid state, of whether the mass is compact, fractured or powdery, and whether or not they are contained in a solid matrix that limits or prevents their escape.

3. Based on the findings of the assessment referred to in paragraph 1, the employer shall adopt the measures of prevention and protection set out hereunder, adapting them to suit the particular features of different places of work.'

15 Thus, the Italian legislature has faithfully reproduced the Community provisions so far as their formulation is concerned, but it has lent them somewhat different emphasis. While Article 62(1), like Article 4 of the Directive, gives absolute priority to eliminating the use of carcinogens or, where that is not possible, to reducing their use - Articles 62(2) and 62(3) appear to place employers under a duty to adopt measures to limit workers' exposure to as low a level as is technically possible, even before having assessed the risks to which they are exposed and irrespective of the findings of any assessment.

16 In the light of this situation, the national court is essentially asking the Court:

- on a proper construction of Articles 3, 4 and 5 of Directive 90/394, is the obligation to adopt measures to reduce and replace the use of carcinogens, and to avoid or reduce the exposure of workers to such substances, contingent on the outcome of the assessment of risks referred to in Article 3?

- if so, does the Directive preclude legislation which places the employer under a duty to take action to replace or reduce and/or to reduce the level of exposure of workers to as low a level as possible, whether or not a definite risk has been found to exist and duly assessed under Article 3, failing which severe criminal penalties, even custodial sentences, may be imposed?

Preliminary observations

17 I have two preliminary observations to make.

18 The first is to note that the Court is in the delicate position of having to rule on measures for the transposition of a directive into national law without benefit of any statement from the Member State concerned as to how the contested provisions of its national legislation should be interpreted.

19 Does the Italian court's interpretation of Articles 62 and 63, which led it to make a reference to the Court, faithfully reflect the intention of the Italian legislature? Did the latter actually mean to impose certain measures for the reduction of the level of exposure even where there has been no research pinpointing the risks to which workers are actually exposed? Or was the sole purpose underlying the arrangement of Articles 62 and 63 to group together in the first instance the measures to be taken by employers to reduce the risk, and in the second all the provisions relating to risk assessment, there being no intention of deviating from the Directive? Could Article 63(3) not be construed as placing a duty on the employer to carry out a risk assessment in all cases?

20 Under the preliminary ruling procedure the Court may not substitute its interpretation of national law for that of the national court. It must be clearly understood that, although the Court's reasoning in this case is based on the national court's account of requirements under national law, this can in no way be taken to mean that the Court is adopting a position on a question of interpretation outside its jurisdiction.

21 Secondly, subsequent to the decision to make a reference to the Court, Council Directive 97/42/EC of 27 June 1997 took effect, amending for the first time Directive 90/394. (3) From the point of view of the question at issue, the new Directive raises two interesting points. First, it sets limit values for exposure to benzene, something which had been left in abeyance in Annex III to the original version of Directive 90/394 and, second, it adds a new paragraph - Article 5(4) - under which `exposure shall not exceed the limit value of a carcinogen as set out in Annex III'.

22 The fact that Article 5 has been amended in this way suggests that the Community legislature had come to realise that the role of the limit value had not been sufficiently clarified in the original version of the Directive. In point of fact, Article 16 is the only provision which refers to the limit value, providing that:

`1. The Council shall, in accordance with the procedure laid down in Article 118a of the Treaty, set out limit values in Directives on the basis of the available information, including scientific and technical data, in respect of all those carcinogens for which this is possible$

2. Limit values and other directly related provisions shall be set out in Annex III.'

However, this Annex contained only the indication `p.m.'.

23 Annex III now sets the limit values for occupational exposure at 1 ppm (one part per million by volume in air). A limit value of 3 ppm is permitted as a transitional measure from 27 June 2000, the date on which the new Directive enters into force, until 27 June 2003.

24 But does the fact that Article 5(4) now specifies that `exposure shall not exceed the limit value of a carcinogen as set out in Annex III' mean that this is now the only criterion to which employers need refer? In other words, will Italiana Petroli's main point of contention - namely that employers are placed under a vague and indeterminate obligation to ensure that `the level of exposure of workers is reduced to as low a level as is technically possible' - lose all force once the Italian Republic has transposed the amendment to the Directive into national law?

25 Regrettably, the situation remains ambiguous, since the passage quoted above has been retained in Article 5(3). The hearing did not provide any clarification in this respect.

26 Accordingly, it must be assumed that the Community legislature wished to introduce two methods to operate concurrently. I would add, however, that these two methods are not mutually incompatible.

27 The first consists in placing employers under a duty to use all available technical resources at all times to minimise the risks to which workers are exposed.

28 The second consists in setting a threshold above which exposure is deemed unacceptable. When, as the Community legislature appears to have done, these two approaches are combined, this will naturally lead to the closure of undertakings in which exposure exceeds the set limit value, whether because it is technically impossible to comply or because of criminal intent on the part of the employer; it will also mean that an employer will be regarded as not having fulfilled his obligations when, even though his workers are subject to a level of exposure below the limit value, he has not used the resources at his disposal to reduce that exposure to as low a level as possible.

29 However commendable this uncompromising attitude, its drawbacks so far as legal certainty is concerned cannot be ignored. In order to assess whether an employer has fulfilled his obligations, it will be necessary to refer both to an objective factor, the limit value, and to a factor which is less than objective, namely the efforts made in the light of the possibilities offered by the most recent technology.

30 It is not for me to question the method adopted by the Community legislature, especially as I am perfectly aware that simply setting a limit value would have seemed like giving the go-ahead to expose employees up to a certain point to risks that could have been eliminated had the appropriate resources been used. However, I consider that the difference between exceeding a limit value and failing to use all the resources offered by technological progress, which is akin to the difference between an obligation as to the result to be achieved and an obligation as to the means to use, should be a factor in determining the severity of the criminal punishment to which the employer is liable in either case.

31 Compliance with the limit value can never excuse negligence on the part of an employer, but it should be taken into account when punishing that negligence.

32 Having clarified the context in which the national court's questions arise, I will now return to the first of these questions, namely whether or not Articles 62 and 63 of Legislative Decree 626/94 correctly transposed Directive 90/394 into national law.

33 The problem may appear to be straightforward, but it is not. The question is not simply whether the Italian authorities, in enacting the provisions of Articles 62 and 63 of the Legislative Decree, remained within the bounds of the discretion that they undoubtedly enjoy under Article 189 of the EC Treaty in for the purposes of transposing the Directive into national law.

34 Since the Directive in question falls within the scope of Article 118a of the EC Treaty, namely the protection of workers' health, it is also necessary to examine whether, should the Directive prove to have been incorrectly transposed into national law, it should be regarded quite simply as a more stringent measure of protection, which Member States are expressly permitted to adopt under Article 118a(3).

35 On the first point, I believe that the case-law of the Court has marked out the route that the reasoning should take. The second point, however, touches on unknown territory, since the Court has not yet had occasion to rule on the scope of Article 118a(3). Nevertheless, I would argue - and on this point I agree with the Commission - that the principle of proportionality, inherent in the Community legal system, which can be used as a yardstick to assess the measures adopted by Member States to implement directives, is also the appropriate criterion to use when ruling on the permissibility of a more stringent measure of protection under Article 118a.

The residual discretion enjoyed by Member States in the transposition of directives into national law

36 So far as the transposition of directives into national law is concerned, there can no doubt that when the Community legislature decides to act by means of a directive rather than a regulation, which is a very different instrument, the implication is that the response required of national authorities is not strictly mechanical and that they have a certain leeway to use a degree of initiative and discretion. That discretion is not open to challenge as a matter of interpretation. It must be emphasised, however, that when a Member State uses this discretion, it is still required to respect the general principles of Community law.

37 Had Directive 90/394 merely placed Member States under a duty to do their utmost to ensure that workers' health was not endangered by the presence of carcinogens in the workplace, there could have been no complaint with the choices reflected in Legislative Decree 626/94.

38 But that is not the case since, as we have seen, Articles 3, 4 and 5 of the Directive do not simply set a target to achieve, they define a strategy for achieving that target, distinguishing two levels of action: action against the actual use of carcinogens and action to prevent workers' exposure to such substances, the former to be applied in all circumstances and the latter by reference to the assessment of the risk to which workers are in practice exposed.

39 To my mind, systematically to impose the adoption of certain measures to limit the exposure risk, independently of any assessment, constitutes a significant departure from the strategy defined by the Community legislature. For that reason alone, I am already inclined to the view that the Directive has not been correctly transposed into national law, something which the Commission, whilst noting that `these provisions [Articles 62 and 63 of the Legislative Decree] could ... appear not to be fully compliant with those laid down by the Directive', is clearly hesitant to admit.

40 But even if it were to be accepted that the choice made by the Italian authorities is still within their discretion under the Directive, my view is that the method of transposition used is not permissible. The stumbling block, in point of fact, is the principle of proportionality. This principle requires not only that measures imposing burdens on operators be appropriate and necessary to achieve legitimate objectives but also that, where there is a choice between a number of appropriate measures, the least restrictive measure must be chosen, and the burdens imposed must not be out of proportion to the objective to be achieved.

41 Whilst, admittedly, these requirements were initially laid down in respect of Community legislation itself, it can no longer be denied, at least since the judgment in the Pastoors and Trans-Cap case, (4) that they are also binding upon the national legislature when addressing matters covered by Community law.

42 In the case in point, while the strategy defined by the Directive seems to satisfy those requirements in all respects, the duties placed on employers by the Italian legislature appear seriously inconsistent with the principle. I am surprised that the Commission recognises that the burdens placed on employers are far heavier than those imposed by the Directive, while maintaining that there has been no breach of the principle of proportionality.

43 It can scarcely be denied that to require the use of certain means of reducing the risk of exposure - which may prove extremely expensive for employers - without any prior assessment of the actual nature and extent of that risk, is to attach little importance to the principle of proportionality. Safety has no price, but it does entail costs, and investments in safety cannot be made without exercising a minimum degree of rationality; in this context, rationality is the element introduced by the prior assessment.

The more stringent measures permitted under Article 118a of the Treaty

44 In view of the option available to Member States under Article 118a(3) of the Treaty of introducing measures more stringent than those required by Community legislation, must it be accepted that in enacting Articles 62 and 63 of the Legislative Decree, as interpreted by the national court in its questions, the Italian legislature has not infringed Community law?

45 Here, too, and unlike the Commission, I think not. I make no claim to analyse here all the implications of Article 118a, but I believe that the meaning of that provision will become clear only if we start from the premiss that workers' safety, as a plank of social policy, falls within the scope of Community law and that, as a consequence Member States are no longer free to act in this field without having regard to the action taken by the Community. In no way can Article 118a(3) be interpreted as giving Member States free rein to implement measures, provided simply that they concern the protection of workers' health, or to ignore the policy strategies and guidelines defined at Community level.

46 Member States are merely permitted - provided, however, that their action is in line with Community policy - to introduce more stringent requirements, to take proactive measures. They may anticipate Community action, but they may not unilaterally define the route they intend to take. Viewed together, Community measures and initiatives taken by Member States must constitute a coherent line of action, and that coherence would be jeopardised if Articles 62 and 63 of the Legislative Decree were to be deemed justified by Article 118a(3) of the Treaty. The difference between what is laid down in the Directive and what is contained in these provisions is not one of degree, to which there could be no objection, but one of method. The pragmatic approach adopted in the Directive is replaced by an approach which requires precise measures to be taken even before the risk has been precisely understood and defined. In that respect, it matters little that the method adopted by the Italian legislature may yield as good results in terms of risk elimination as the method chosen by the Community legislature.

47 In any case, exercise of the option available to Member States under Article 118a remains subject to the principle of proportionality and my conclusion that Articles 62 and 63 of the Legislative Decree run counter to that principle when viewed as a means of implementing the Directive applies mutatis mutandis when they are considered in the light of Article 118a.

48 Moreover, Article 118a(2) provides that directives adopted on that basis must not impose administrative, financial or legal constraints in a way that would hold back the creation and development of small and medium-sized undertakings. This also applies to `more stringent' national measures.

49 I therefore believe that even if Article 118a is brought to bear in this dispute, the Italian legislature was not entitled to require adoption of the measures provided for in Article 5 of the Directive independently of the findings of the assessment required under Article 3 thereof.

50 I have one final point to make. As stated by the Commission and the French Government, and contrary to what is claimed by Italiana Petroli, the procedural requirements governing derogation, set out in Article 100a of the EC Treaty, cannot be transposed to Article 118a. The second paragraph of Article 100a(4) requires Member States to notify the Commission of national provisions which are more stringent than those laid down by a directive. The Commission `shall confirm the provisions involved after having verified that they are not a means of arbitrary discrimination or a disguised restriction on trade between Member States'.

51 There is no similar provision in Article 118a. However, as the agent for the French Government rightly pointed out, that does not mean that the Commission would have no means of control over more stringent national measures. The legislation transposing a directive must be communicated to the Commission in accordance with the customary mechanisms for notifying national measures implementing Community law.

52 Besides, cases of new measures which have not been adopted strictly within the framework of a directive arise most often in the context of notifications required by Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations. (5)

53 In my view, therefore, the reply to the first question referred to the Court should be that the principle of proportionality, in conjunction with Articles 118a of the EC Treaty and Articles 3, 4 and 5 of Directive 90/394, precludes the adoption of national rules for the protection of the health and safety of workers against risks linked to exposure to carcinogens which require that certain measures to reduce the risk of exposure be adopted in all circumstances, independently of the findings of a risk assessment.

Question 3: reduction of the benzene content to `even lower' levels

54 The third question also concerns Directive 90/394. It appears sensible, therefore, to consider it immediately after the first question. The national court is essentially asking the Court whether Articles 3, 4 and 5 of Directive 90/394 impose on employers - that is to say, on filling station operators and the designers and owners of filling station equipment - obligations relating to the reduction of the benzene content in fuel which are additional and indeterminate by comparison with those introduced by Council Directive 85/210/EEC of 20 March 1985 on the approximation of the laws of the Member States concerning the lead content of petrol (6) (which limits the benzene content in fuel to 5 % with effect from 1 October 1989) and by Italian Legislative Decree No 246/96 (which reduces the limit to 1.4 % with effect from 1 July 1997 and to 1 % with effect from 1 July 1999).

55 In other words, is it permissible to require a filling station operator to buy fuel with a lower benzene content than that supplied by the refineries of the undertaking for which he provides the retail outlet, if that were to prove necessary in order to reduce the exposure of his employees to benzene?

56 In my view, the answer to this question is simple. As the Commission pointed out, Directive 85/210 and Directive 90/394 have different, albeit not contradictory, aims. While the purpose of the former is to protect public health and the environment in general, the latter seeks to protect workers, that is to say, persons who are specifically exposed to the risks posed by carcinogenic substances.

57 There can be no dispute that filling station operators can only sell the products delivered to them by their suppliers and so have no influence over the benzene content of the fuel that they distribute. All that can be required of them in relation to the benzene content of the fuel that they sell is that it should comply with the limit laid down by Legislative Decree No 246/96, a limit which, it has to be agreed, is not contrary to Community law, since the reduction of the benzene content below the level prescribed by Directive 85/210 was notified to the Commission, pursuant to Article 100a of the Treaty, and did not meet with any objection.

58 It would make no sense to claim that Article 4 of Directive 90/394 requires operators to reduce the benzene content still further, since at the filling station stage this is clearly a technical impossibility.

59 However, filling-station operators do remain subject to the requirements concerning the protection of workers against the risks of exposure. This case clearly shows that, whatever the benzene content of fuel, that risk cannot be regarded as prima facie non-existent, in so far as there are few filling stations in Italy which operate along self-service lines and, consequently, there are employees who spend their working day serving customers at the pumps. Thus, in principle, employers will be responsible for carrying out the risk assessment prescribed in Article 3 of the Directive and, on the basis of the findings of that assessment, implementing where necessary the measures laid down in Article 5 of the Directive.

60 The Commission suggests, but without really explaining itself on this point, that the position may be different for fuel producers, on whom Directive 90/394 may impose obligations to reduce the benzene content to a level lower than the maximum level laid down by Legislative Decree No 246/96, which itself goes further than Directive 85/210. In my view, there is absolutely no need to address that point in order to reply to the third question referred to the Court, which I believe relates solely to the obligations incumbent upon filling station operators.

61 In any event, it seems implausible that producers, in their capacity as sellers of fuel to customers, can be placed under obligations by Directive 90/394, which specifically concerns the obligations of employers towards their employees.

62 I therefore conclude that, on a proper construction of Articles 3, 4 and 5 of Directive 90/394, employers - filling station operators in this particular case - are not required to reduce the benzene content of the fuel that they distribute, provided that the fuel sold complies with the maximum level prescribed by Directive 85/210 or by a provision of national law which, albeit more stringent, complies with Community law.

Question 2: the period prescribed for adapting work equipment

63 I shall now turn, finally, to the second question referred for a preliminary ruling, by which the national court asks whether Article 4(1)(b) of Directive 89/655 precludes a national implementing provision which, arguably in contravention of the principles of reasonableness and proportionality, prescribes a period of three months for its entry into force, without making any distinction between new equipment and existing equipment requiring adaptation and imposing harsh criminal penalties on employers who, after the deadline has expired, require their employees to use equipment that does not comply.

64 In order to understand this question, it is necessary to consider the provisions of the Directive and then the way in which they have been transposed into Italian law by Legislative Decree No 626/94.

65 Member States were required to implement the Directive by 31 December 1992 at the latest. Article 4 of the Directive, setting out the rules concerning work equipment, provides that:

`1. Without prejudice to Article 3, the employer must obtain and/or use:

...

(b) work equipment which, if already provided to workers in the undertaking and/or establishment by 31 December 1992, complies with the minimum requirements laid down in the Annex no later than four years after that date.'

66 For reasons that have not been explained to the Court, Italy was late in transposing this Directive. The relevant provisions were only introduced when Legislative Decree No 626/94 entered into force on 13 November 1994. Under Article 36 thereof `any work equipment presenting hazards due to discharges of gas, vapour or liquid or to emissions of dust must be fitted with appropriate containment and/or extraction devices near the sources of the hazardous emissions'. This obligation, which clearly concerns filling stations, took effect on 13 February 1995.

67 The situation in respect of which the national court has referred the question is therefore as follows: the Community Directive of 1989, which should have been transposed into national law by 31 December 1992, allowed until 31 December 1996 to adapt existing equipment, whereas the Italian legislature, which did not act until 13 November 1994, required that adaptation to be completed within three months, that is to say, by 13 February 1995. Is such conduct on the part of the Italian authorities permissible under Community law?

68 This is precisely the question referred to the Court and in my view deliberation should confine itself to this point. In other words, I consider it neither necessary nor opportune to open a theoretical debate at this juncture on whether a Member State, anticipating an action for failure to fulfil obligations, is permitted to `catch up' - if I may use that expression - that is to say, to make up for the public authorities' delay in applying Community law by requiring economic operators to comply virtually instantaneously with new provisions which the Community legislature had known full well would require a transitional period.

69 In the present case, the fact that the Directive had not been transposed into national law by 31 December 1992, the deadline set, was enough in itself to expose the Italian Republic to an action for failure to fulfil obligations. However, that delay did not wholly rule out the possibility that Italian filling stations would be operating in accordance with the standards imposed at Community level by the deadline of 31 December 1996 set down by the Directive. It is therefore very difficult to understand why the Italian legislature thought fit to set 13 February 1995 as the deadline for adapting existing equipment, thereby depriving firms of nearly two years which would have been extremely useful to them in bringing their equipment up to standard.

70 It is my view that, by making such a choice, the Italian legislature infringed Community law. There are a number of reasons for this.

71 First, I believe that setting a three-month time-limit runs wholly counter to the spirit of the Directive, which intended to leave employers sufficient time and itself allowed four years. Those four years, as is clear from Article 4 of the Directive, represented only a maximum and to consider that employers were entitled to a period of four years as a matter of right would be to disregard the discretion enjoyed by every Member State when it comes to transposing a directive. In my view, it would have been perfectly permissible to require compliance by 13 February 1995, had the Directive been transposed into national law, as it should have been, by 31 December 1992. Indeed, it is sometimes necessary to speed things up and great victories are sometimes won through forced marches. That said, it is entirely futile to ask a marathon runner to progress at the same pace as a 100-metre sprinter, which, by analogy, is what Italy has demanded of filling station operators.

72 It was not out of excessive caution that the Community legislature provided for a sufficiently long period of adaptation. Obviously, the adaptation of thousands of fuel points of sale requires both very heavy investment and technical work involving numerous personnel over a comparatively long period. Thus, as I have already concluded in the context of the first question, the approach adopted by the Italian authorities is at odds with Community legislation.

73 The difference in method is all the more serious in that it is likely significantly to undermine the credibility of Community action in the field of worker protection. Imposing requirements that are impossible to meet destroys the legislature's authority and breeds hostility in those concerned, who will have every opportunity to justify inaction by arguing that no-one can be required to do the impossible.

74 This brings me to my second reason for thinking, in agreement with Italiana Petroli, that a three-month time-limit was too short and therefore contrary to the principle of proportionality which, as I explained above, must be respected by Member States when implementing Directives.

75 In my mind, there could be no justification for the fact that employers, on whom the Directive itself imposed no obligation, even though they could have known about it for a long time, were deprived of the greater part of the time allowed to adapt their installations, that is to say, most of the period between 13 November 1994, the effective date of transposition, and 31 December 1996, the deadline laid down in the Directive for complying with the new standards.

76 I would add that, as in the context of the measures introduced within the framework of Directive 90/394, Article 118a of the Treaty cannot properly be relied on to render compatible with Community law the imposition of a time limit so short that it is irreconcilable with Directive 89/655, since an unreasonable measure cannot be rendered acceptable by classifying it as a measure providing more stringent protection.

77 Lastly, two other possible objections need to be considered. Might the assertion that the general principles of Community law - such as the principle of proportionality - already apply:

- before the deadline set by a directive for its transposition,

- before the deadline set by a directive for the implementation of an obligation that it imposes,

induce Member States to transpose directives into national law as late as possible?

78 In reply to the first part of that question, I would suggest that if a Member State does not transpose a directive until the end of the prescribed period, that is no serious matter, since it is under no obligation to do so sooner.

79 So far as the second hypothesis is concerned (the point at issue in this case), the considerations set out above have shown that it is not always in the interests of the proper implementation of a directive to depart from the Council's time limit for compliance with a given obligation. In fact, there is a risk of imposing requirements that are impossible to meet, thereby undermining the legislature's authority.

80 Following another line of thought, an observation by the Commission on the subject of criminal penalties also warrants comment. If I have understood the Commission correctly, its view is that the proportionality problem did not arise so much with regard to the brevity of the period within which undertakings had to act, but rather with regard to the harshness of the penalties imposed in the event of failure to meet the deadline (a custodial sentence of between three and six months).

81 On that point, I would observe that the legislature's authority would also be undermined if it were to impose on undertakings obligations that are very difficult to meet within the prescribed periods, while at the same time indicating, by imposing very light penalties, that they were not really expected to comply.

82 On this second question, therefore, I am of the opinion that the principle of proportionality, in conjunction with Article 4(1)(b) of Directive 89/655, precludes a provision of national law which sets a time-limit so short that it does not allow equipment to be brought up to standard as required by the Directive.

Conclusion

83 Having considered all the points raised by the questions referred to the Court, I propose that the Court should reply as follows:

(1) With regard to Question 1, the principle of proportionality, in conjunction with Article 118a of the Treaty and Articles 3, 4 and 5 of Council Directive 90/394/EEC of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work (Sixth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), precludes the adoption of national rules for the protection of the health and safety of workers against risks linked to exposure to carcinogens which require that certain measures to reduce the risk of exposure be adopted in all circumstances, independently of the findings of a risk assessment;

(2) With regard to Question 3, Articles 3, 4 and 5 of Directive 90/394 must be interpreted as meaning that they do not impose on filling station operators obligations to reduce the benzene content of the fuel that they distribute, provided that the fuel sold complies with the maximum level prescribed by Council Directive 85/210/EEC of 20 March 1985 on the approximation of the laws of the Member States concerning the lead content of petrol, or by a provision of national law which, albeit more stringent, complies with Community law;

(3) With regard to Question 2, the principle of proportionality, in conjunction with Article 4(1)(b) of Council Directive 89/655 EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (Second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), precludes a provision of national law which prescribes, for the bringing of existing equipment up to standard, a period so short that it does not allow the result desired by the Directive to be achieved.

(1) - OJ 1989 L 393, p. 13.

(2) - OJ 1990 L 196, p. 1.

(3) - OJ 1997 L 179, p. 4.

(4) - Case C-29/95 Eckehard Pastoors and Trans-Cap v Belgian State [1997] ECR I-285.

(5) - OJ 1983 L 109, p. 8.

(6) - OJ L 96, p. 25.