Joined Cases C-256/10 and C-261/10

David Barcenilla Fernández

and

Pedro Antonio Macedo Lozano

v

Gerardo García SL

(References for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León)

(Directive 2003/10/EC – Exposure values – Noise – Hearing protection – Effectiveness)

Summary of the Judgment

1. Social policy – Protection of the safety and health of workers – Directive 2003/10 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise)

(European Parliament and Council Directive 2003/10, Arts 3 and 5 to 7)

2. Social policy – Protection of the safety and health of workers – Directive 2003/10 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise)

(European parliament and Council Directive 2003/10, Art. 5)

1. Directive 2003/10 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise), as amended by Directive 2007/30, must be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level is above 85 dB(A), measured without taking account of the effect of individual hearing protectors, fails to fulfil the obligations resulting from that directive by simply providing the workers with such hearing protectors so that the daily noise exposure level is reduced to less than 80 dB(A), that employer being obliged to put in hand a programme of technical or organisational measures intended to reduce such noise exposure to a level of less than 85 dB(A), measured without taking into account the effect of the individual hearing protectors.

(see para. 34, operative part 1)

2. Directive 2003/10 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise), as amended by Directive 2007/30, must be interpreted as meaning that it does not require an employer to make an extra payment to workers who are exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors on the sole ground that it has not put in hand a programme of technical or organisational measures intended to reduce the daily noise exposure level. However, national law must provide appropriate mechanisms to ensure that a worker who is exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors, can require the employer to fulfil the preventive obligations set out in Article 5(2) of that directive.

(see para. 43, operative part 2)

JUDGMENT OF THE COURT (Seventh Chamber)

19 May 2011 ( )

(Directive 2003/10/EC – Exposure values – Noise – Hearing protection – Effectiveness)

In Joined Cases C‑256/10 and C‑261/10,

REFERENCES for a preliminary ruling under Article 267 TFEU, from the Tribunal Superior de Justicia de Castilla y León (Spain), made by decisions of 21 April 2010, received at the Court on 25 May 2010, in the proceedings

David Barcenilla Fernández (C-256/10),

Pedro Antonio Macedo Lozano (C-261/10)

v

Gerardo García SL,

THE COURT (Seventh Chamber),

composed of D. Šváby, President of the Chamber, E. Juhász and T. von Danwitz (Rapporteur), Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Spanish Government, by B. Plaza Cruz, acting as Agent,

– the Belgian Government, by T. Materne and M. Jacobs, acting as Agents,

– the Italian Government, by M. Russo, acting as Agent,

– the European Commission, by G. Rozet and G. Valero Jordana, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 These references for a preliminary hearing concern the interpretation of Articles 3, 5, 6 and 7 of Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 2003 L 42, p. 38), as amended by Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007 (OJ 2007 L 165, p. 21, ‘Directive 2003/10’).

2 The references have been made in the course of two sets of proceedings brought by Mr Barcenilla Fernández (C-256/10) and by Mr Macedo Lozano (C-261/10) against Gerardo García SL (‘Gerardo’) concerning the obligation of the latter to make an extra payment under a provision of national law providing for such an extra payment where the conditions of the work station are particularly arduous.

Legal context

European Union law

3 According to recital 10 in the preamble to Directive 2003/10:

‘The level of exposure to noise can be more effectively reduced by incorporating preventive measures into the design of work stations and places of work and by selecting work equipment, procedures and methods so as to give priority to reducing the risks at source. Provisions relating to work equipment and methods thus contribute to the protection of the workers involved. In accordance with the general principles of prevention as laid down in Article 6(2) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1), collective protection measures have priority over individual protection measures.’

4 According to recital 12 in the preamble to Directive 2003/10:

‘… The assessed or objectively measured values should be decisive for initiating the actions envisaged at the lower and upper exposure action values. Exposure limit values are needed to avoid irreversible damage to workers’ hearing; the noise reaching the ear should be kept below the exposure limit values.’

5 Article 3 of that directive, entitled ‘Exposure limit values and exposure action values’, provides:

‘1. For the purposes of this Directive the exposure limit values and exposure action values in respect of the daily noise exposure levels and peak sound pressure are fixed at:

(a) exposure limit values: L EX, 8h = 87 dB(A) and P peak = 200 Pa ... respectively;

(b) upper exposure action values: L EX, 8h = 85 dB(A) and P peak = 140 Pa ... respectively;

(c) lower exposure action values: L EX, 8h = 80 dB(A) and P peak = 112 Pa ... respectively.

2. When applying the exposure limit values, the determination of the worker’s effective exposure shall take account of the attenuation provided by the individual hearing protectors worn by the worker. The exposure action values shall not take account of the effect of any such protectors.

...’

6 Article 5 of that directive, entitled ‘Provisions aimed at avoiding or reducing exposure’, provides:

‘1. Taking account of technical progress and of the availability of measures to control the risk at source, the risks arising from exposure to noise shall be eliminated at their source or reduced to a minimum.

The reduction of such risks shall be based on the general principles of prevention set out in Article 6(2) of Directive 89/391/EEC, and take into account in particular:

(a) other working methods that require less exposure to noise;

(b) the choice of appropriate work equipment, taking account of the work to be done, emitting the least possible noise, including the possibility of making available to workers work equipment subject to Community provisions with the aim or effect of limiting exposure to noise;

(c) the design and layout of workplaces and work stations;

(d) adequate information and training to instruct workers to use work equipment correctly in order to reduce their exposure to noise to a minimum;

(e) noise reduction by technical means:

i) reducing airborne noise, e.g. by shields, enclosures, sound-absorbent coverings,

ii) reducing structure-borne noise, e.g. by damping or isolation;

(f) appropriate maintenance programmes for work equipment, the workplace and workplace systems;

(g) organisation of work to reduce noise:

i) limitation of the duration and intensity of the exposure;

ii) appropriate work schedules with adequate rest periods.

2. On the basis of the risk assessment referred to in Article 4, if the upper exposure action values are exceeded, the employer shall establish and implement a programme of technical and/or organisational measures intended to reduce the exposure to noise, taking into account in particular the measures referred to in paragraph 1.

...’

7 Article 6 of Directive 2003/10, entitled ‘Personal protection’, states:

‘1. If the risks arising from exposure to noise cannot be prevented by other means, appropriate, properly fitting individual hearing protectors shall be made available to workers and used by them in accordance with the provisions of Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (third individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)(OJ 1989 L 393, p. 18) and Article 13(2) of Directive 89/391/EEC and under the conditions set out below:

(a) where noise exposure exceeds the lower exposure action values, the employer shall make individual hearing protectors available to workers;

(b) where noise exposure matches or exceeds the upper exposure action values, individual hearing protectors shall be used;

...’

8 Article 7 of Directive 2003/10, entitled ‘Limitation of exposure’, provides:

‘1. Under no circumstances shall the exposure of the worker as determined in accordance with Article 3(2) exceed the exposure limit values.

2. If, despite the measures taken to implement this Directive, exposures above the exposure limit values are detected, the employer shall:

(a) take immediate action to reduce the exposure to below the exposure limit values,

(b) identify the reasons why overexposure has occurred; and

(c) amend the protection and prevention measures in order to avoid any recurrence.’

National law

9 Directive 2003/10 was transposed by Royal Decree 286/2006 on the protection of the health and safety of workers against risks connected with noise exposure (Real Decreto 286/2006 sobre la protección de la salud y la seguridad de los trabajadores contra los riesgos relacionados con la exposición al ruido) of 10 March 2006 (BOE No 60, 11.3.06, p. 9842).

10 Article 5(1) of Royal Decree 286/2006 distinguishes between action values and limit values which must not be exceeded under any circumstances. The limit value which must not be exceeded, under Article 8 of that decree, is an average daily level of 87 dB(A).

11 Article 5(2) of Royal Decree 286/2006 states that ‘when applying the exposure limit values, the determination of the worker’s actual noise exposure shall take account of the attenuation provided by the individual hearing protectors worn by the worker.’

12 Article 27 of Collective Agreement 2007-2011 for the building and public works sector of the province of Palencia (‘the Collective Agreement’) provides:

‘1. Persons who work in conditions that are particularly arduous, toxic or dangerous are entitled to receive an extra payment corresponding to 20% of their basic salary. If they work for half of the working day or less, this extra payment shall be 10% of that salary.

...

3. Where, for any reason, the conditions of particular arduousness, toxicity or dangerousness no longer exist, the extra payments shall no longer be made.

...’

The actions in the main proceedings and the questions referred for a preliminary ruling

13 Gerardo, the employer of the applicants in the main proceedings, is a company which produces stone materials from natural stone. The applicants in the main proceedings usually work on an automatic cutting machine.

14 During their working day, the noise level at their place or work exceeds a daily average of 85 dB(A). To remedy that situation, Gerardo provided them with individual hearing protection equipment. With the level of attenuation provided by that equipment, the daily noise exposure level of the applicants in the main proceedings was reduced to a level of less than 80 dB(A).

15 The applicants in the main proceedings claimed an extra payment under Article 27 of the Collective Agreement, in respect of the arduous conditions of their work station due to the fact that they are exposed to a noise level exceeding a daily average of 85 dB(A). Their claims were dismissed by the Juzgado de lo Social, which held that Gerardo complied with Royal Decree 286/2006, which transposes Directive 2003/10. According to that court, the noise-attenuating effect of the individual hearing protection equipment must be taken into account when determining whether the conditions of the work station are to be considered arduous.

16 The applicants in the main proceedings brought an appeal before the referring court.

17 That court states that the dismissal by the Juzgado de lo Social of the claims of the applicants in the main proceedings is consistent with the recent case-law of the Tribunal Supremo, according to which the noise-attenuating effect of the individual hearing protection equipment must be taken into account when determining whether the worker is exposed to arduous conditions at his work station. According to the national court, that case-law, interpreting the concept of ‘arduousness’ in the light of Directive 2003/10 and of the national law transposing it, infers from them that they are intended to protect the worker against health risks connected with actual exposure to noise. It follows that there is no arduousness where individual hearing protection equipment allows reduction of the noise reaching the ear to a level of under 80 dB(A).

18 The national court expresses doubts with regard to the compatibility of that case-law of the Tribunal Supremo with Directive 2003/10. In that regard, the national court, while accepting that the disputes in the main proceedings concern an extra payment that, as such, is not governed by that directive, considers that the directive must first be interpreted in order to determine whether or not the applicants in the main proceedings are entitled to that payment.

19 It considers that the obligation set out in Article 27 of the Collective Agreement, to make an extra payment in respect of arduous working conditions, depends on compliance by the employer with the obligations arising from Directive 2003/10 and Royal Decree No 286/2006. It would undermine the effectiveness of that directive if an employer could escape from the obligation to make such an extra payment simply by making hearing protection available to its employees, even if it has not complied with the requirements of that directive regarding the preventive obligations established under it.

20 In those circumstances, the Tribunal Superior de Justicia de Castilla y Léon decided to stay the proceedings and to refer the following questions, worded identically in each case, to the Court for a preliminary ruling:

‘(1) Are Articles 3, 5(2), 6 and 7 of Directive 2003/10 … to be interpreted as meaning that a company in which the workers’ daily noise exposure level is above 85 dB(A) (measured without taking account of the effect of hearing protectors) fulfils the obligations to take preventive measures laid down in that Directive in respect of physical working conditions by providing those workers with hearing protectors so that, with the level of attenuation provided by those protectors, the workers’ daily noise exposure level is reduced to less than 80 dB(A)?

(2) Is Article 5(2) of Directive 2003/10 … to be interpreted as meaning that the programme of technical and/or organisational measures which must be adopted by a company in which the workers’ daily noise exposure level is above 85 dB(A) (measured without taking account of the effect of hearing protectors) is intended to reduce the noise exposure level to below 85 dB(A)?

(3) If question 1 is answered in the negative, does Directive 2003/10 … preclude a national rule or judicial approach which exempts a company from making a monetary payment, which in principle it must pay to workers affected by daily noise exposure levels of over 85 dB(A), because the company has provided those workers with hearing protectors whose attenuating effect causes daily exposure to remain under 80 dB(A)?’

Consideration of the questions referred

The first and second questions

21 By its first two questions, which should be considered together, the national court asks, in essence, whether Directive 2003/10 is to be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level is above 85 dB(A), measured without taking account of the effect of individual hearing protectors, fulfils the obligations resulting from that directive by simply providing the workers with such hearing protectors, so that the daily noise exposure level is reduced to less than 80 dB(A), and whether Article 5(2) of that Directive is to be interpreted as meaning that it is intended to reduce the daily noise exposure level to below 85 dB(A), measured without taking account of the effect of the individual hearing protectors.

22 To answer those questions, reference should be made to the legal framework established by Directive 2003/10.

23 First, under Article 5(1), first subparagraph, of that directive, the risks arising from exposure to noise are to be eliminated at their source or reduced to a minimum, taking account of technical progress and of the availability of measures to control the risk at source.

24 To that end, the second subparagraph of Article 5(1) provides that the reduction of those risks is to be based on the general principles of prevention and details the measures to promote that objective.

25 Under Article 5(2) of Directive 2003/10, the employer is to establish and implement a programme of measures intended to reduce the exposure to noise if the upper exposure action values are exceeded. To that end, if follows from Article 3(1)(b) and Article 3(2), second sentence, of that directive that that exposure value is fixed at 85 dB(A), which is to be measured without taking into account the effect of the individual hearing protectors.

26 Then, under Article 6 of that directive, individual hearing protectors are to be made available to workers where the noise exposure exceeds the exposure action values, ‘if the risks arising from exposure to noise cannot be prevented by other means’.

27 Finally, under Article 7(1) of Directive 2003/10, the exposure of the worker is under no circumstances to exceed the exposure limit values, that is, according to Article 3(1)(a) and Article 3(2), first sentence, of that directive, a level of 87 dB(A), measured taking account of the effect of the individual hearing protectors.

28 Thus, Directive 2003/10 establishes a hierarchy between the obligations of the employer.

29 First, the employer is obliged, under Article 5(2) of that directive, to implement a programme intended to reduce the noise exposure where the workers are exposed to a noise level exceeding 85 dB(A), measured without taking into account the effect of the individual hearing protectors.

30 It is only in the event that that programme does not allow such noise exposure to be reduced that Article 6 of Directive 2003/10 sets out, secondly, the additional obligation to make individual hearing protectors available to workers.

31 Thirdly and finally, Article 7 of that directive provides specific obligations for the case where use of individual hearing protectors does not prevent exposure limit values being exceeded.

32 It therefore follows from the clear wording and arrangement of these provisions that an employer cannot fulfil its obligations under Article 5(2) of Directive 2003/10 by simply providing the workers with individual hearing protectors, but that it must implement a programme intended to reduce exposure to noise where workers are exposed to a noise level exceeding 85 dB(A), measured without taking into account the effect of the use of individual hearing protectors.

33 That reading of Directive 2003/10 is supported by recital 10 in the preamble, according to which that directive is based on the concept of prevention, so that priority is given to reducing the risks at source and collective protection measures have priority over individual protection measures.

34 In the light of the foregoing, the answer to the first two questions must be that Directive 2003/10 is to be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level is above 85 dB(A), measured without taking account of the effect of individual hearing protectors, fails to fulfil the obligations resulting from that directive by simply providing the workers with such hearing protectors, so that the daily noise exposure level is reduced to less than 80 dB(A), as that employer is obliged to implement a programme of technical or organisational measures intended to reduce such noise exposure to a level of less than 85 dB(A), measured without taking into account the effect of the individual hearing protectors.

The third question

35 By its third question, the national court asks, in essence, if Directive 2003/10 is to be interpreted as meaning that it requires an employer, who has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure level, to make an extra payment to workers who are exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors, even where it has made such hearing protectors available to those workers, the effect of which is to reduce the daily noise exposure level to below 80 dB(A).

36 With regard to that question, it should be recalled that, according to the Collective Agreement, an extra payment is due to persons who work in particularly arduous conditions, and such arduousness may result from exposure to noise.

37 In this regard, the national court states that, according to the recent case-law of the Tribunal Supremo, such arduousness is absent where the individual hearing protectors have the effect of reducing the noise reaching the ear to a level of less than 80 dB(A). According to the national court, that case-law is based on an interpretation of Directive 2003/10 according to which its objective is to protect the worker against the health risks connected with actual exposure to noise. Such a restrictive interpretation would undermine the effectiveness of that directive. An employer could thus escape from the obligation to make such an extra payment simply by making individual hearing protectors available to its workers, even if it has not complied with the requirements of that directive regarding the preventive obligations established under it.

38 In this regard, it is important to point out that, as the European Commission has observed, Directive 2003/10 does not govern, as such, either the making of an extra payment in respect of the arduousness of a work station due to noise exposure or the issue of whether the effect of individual hearing protection can or must be taken into account to determine the noise exposure threshold that gives rise to the obligation to make such an extra payment.

39 Accordingly, Directive 2003/10 does not require that failure by the employer to comply with the preventive obligations established under that directive should be penalised by the obligation to make an extra payment.

40 However, with regard to the questions of the national court, it should be pointed out that those preventive obligations intended to reduce, as far as possible, the noise exposure at source by implementing a programme of technical or organisational measures, fall within the objective of Directive 2003/10 of protecting the health of workers.

41 Further, according to established case-law, the freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (Case C-268/06 Impact [2008] ECR I-2483, paragraph 40 and case-law cited) and to ensure, where the directive is intended to create rights for individuals, that they can, where appropriate, rely on them before the national courts (Case C-361/88 Commission v Germany [1991] ECR I‑2567, paragraph 15).

42 It follows that national law must be interpreted so as to enable workers to effectively require their employer to comply with the preventive obligations established under Directive 2003/10 which, as is clear from recital 10, is specifically intended to contribute to the protection of workers.

43 In the light of the above, the answer to the third question must be that Directive 2003/10 must be interpreted as meaning that it does not require an employer to make an extra payment to workers who are exposed to a noise level above 85 dB(A), measured without taking into account the effect of individual hearing protectors, on the sole ground that it has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure level. However, national law must provide appropriate mechanisms to ensure that a worker who is exposed to a noise level exceeding 85 dB(A), measured without taking into account the effect of individual hearing protectors, can require the employer to comply with the preventive obligations set out in Article 5(2) of that directive.

Costs

44 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1. Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), as amended by Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007, must be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level is above 85 dB(A), measured without taking account of the effect of individual hearing protectors, fails to fulfil the obligations resulting from that Directive by simply providing the workers with such hearing protectors so that the daily noise exposure level is reduced to less than 80 dB(A), as that employer is obliged to implement a programme of technical or organisational measures intended to reduce such noise exposure to a level of less than 85 dB(A), measured without taking into account the effect of the individual hearing protectors.

2. Directive 2003/10, as amended by Directive 2007/30, must be interpreted as meaning that it does not require an employer to make an extra payment to workers who are exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors on the sole ground that it has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure level. However, national law must provide appropriate mechanisms to ensure that a worker who is exposed to a noise level above 85 dB(A), measured without taking into account the effect of the individual hearing protectors, can require the employer to comply with the preventive obligations set out in Article 5(2) of that directive.

[Signatures]