1 By order of 14 December 1996, received at the Court on 3 January 1997, the Tribunale di Genova (District Court, Genoa) referred for a preliminary ruling under Article 177 of the EC Treaty three questions on the interpretation of Article 4 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) (OJ 1989 L 393, p. 13) 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) (OJ 1990 L 196, p. 1).
2 The questions arose in proceedings between Società Italiana Petroli SpA (IP) (hereinafter `Italiana Petroli') and Borsana Srl (hereinafter `Borsana') concerning the supply of petrol with the lowest possible benzene content and gas and fumes recovery devices to be fitted to the distribution system, requested by the latter on the basis of Directives 89/655 and 90/394. Community law
3 Directive 89/655 was adopted on the basis of Article 118a of the Treaty. Under the heading `Rules concerning work equipment', Article 4 provides: `1. Without prejudice to Article 3, the employer must obtain and/or use: (a) work equipment which, if provided to workers in the undertaking and/or establishment for the first time after 31 December 1992, complies with: (i) the provisions of any relevant Community directive which is applicable; (ii) the minimum requirements laid down in the Annex, to the extent that no other Community directive is applicable or is so only partially; (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.'
4 Directive 90/394 was adopted on the basis of Article 118a of the Treaty. Article 3, headed `Scope - determination and assessment of risks', provides: `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. ...'
5 Under the heading `Reduction and replacement', Article 4 specifies: `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.'
6 Article 5 of Directive 90/394, headed `Prevention and reduction of exposure', adds: `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. ...'
7 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 (OJ 1985 L 96, p. 25) was adopted on the basis of Article 100 of the EEC Treaty prior to the entry into force of the Single Act. The first paragraph of Article 4 provides: `From 1 October 1989 the benzene content of leaded petrol and of unleaded petrol shall not exceed 5.0% by volume.'
8 Article 7 of Directive 85/210 states: `1. Subject to paragraph 2, Member States shall not prevent or restrict, on grounds of lead or benzene content, the free circulation and marketing of petrol which complies with this Directive. 2. When a Member State applies Article 2(3), the maximum permitted lead content of leaded petrol placed on its market shall be fixed at 0.15 g Pb/l.' The Italian legislation
9 Legislative Decree No 626 of 19 September 1994 (GURI No 265 of 12 November 1994, supplemento ordinario, hereinafter `Legislative Decree No 626/94'), states in Article 6(1): `Planners and designers of premises or work stations, or of plant and machinery, shall comply in their design and technical choices with the general principle of prevention in relation to health and safety, and shall choose equipment and protective measures which meet the essential safety requirements prescribed by the legislation in force.'
10 Article 62 of Legislative Decree No 626/94, headed `Replacement and reduction', states: `1. The employer shall avoid or 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. Where it is not technically possible to replace the carcinogen, 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.'
11 Article 63 of Legislative Decree No 626/94, headed `Assessment of risk', states: `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 different routes of absorption; account shall also be taken of the extent to which they are cumulative 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. On the basis of 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. ...'
12 Articles 89 and 90 of Legislative Decree No 626/94 provide for penalties ranging up to three to six months' imprisonment for failure to comply with the obligations set out in Articles 62 and 63 of the Decree.
13 Article 36(7) of Legislative Decree No 626/94 added the following paragraph to Presidential Decree No 303 of 19 March 1956: `Any work equipment that presents a danger as a result of the emanation of gas, fumes or liquids or the emission of powders must be provided with adequate retention or extraction devices sited near the source of the emissions giving rise to the risk.'
14 The provisions of Article 36 of Legislative Decree No 626/94 came into force, in accordance with paragraph 8 thereof, three months after publication of the decree in the Gazzetta Ufficiale della Repubblica Italiana.
15 In addition, Article 2(1) and (2) of Decree Law No 294 of 27 May 1996 (GURI No 123 of 28 May 1996, hereinafter `Decree Law No 294/96') provides: `1. From 1 July 1997 to 30 June 1999, maximum benzene content shall be fixed at 1.4% by volume. 2. From 1 July 1999 maximum authorised benzene content in petrol shall be fixed at 1% by volume.' The dispute in the main proceedings
16 On 19 July 1991 Italiana Petroli entered into a number of agreements with Borsana for the supply of petrol for motor vehicles and the provision of interest-free credit for machinery and equipment required to resell such petrol.
17 By letter of 3 June 1996 Borsana asked Italiana Petroli, pursuant to the provisions of Legislative Decree No 626/94 read in conjunction with Directives 89/655 and 90/394, to supply petrol with the lowest possible benzene content together with gas and fumes recovery devices to be fitted to the distribution system, in order to protect the health of its employees.
18 Italiana Petroli considered that it was not possible to comply with Borsana's request because of the divergences between Legislative Decree No 626/94, in particular Articles 62 and 63 thereof, and Directives 90/394 and 89/655 with regard to the assessment of the risk of exposure to carcinogens and the period allowed to employers to adapt work equipment. Italiana Petroli also expressed its doubts as to the compatibility of Directive 90/394 and Legislative Decree No 626/94 with Articles 30, 36 and 100a of the EC Treaty, inasmuch as they impose an additional duty on employers to reduce, as far as technical progress allows, exposure to carcinogens, and therefore to the benzene present in petrol, below the limit fixed by Directive 85/210 and even below the yet lower limits fixed in Decree Law No 294/96.
19 In those circumstances, on 25 June 1996, Italiana Petroli brought proceedings against Borsana in the Tribunale di Genova for a declaration that it was not obliged to supply Borsana with petrol with a benzene content lower than the levels fixed by Directive 85/210 and Decree Law No 294/96, nor to supply it with gas and fumes recovery systems, before the periods prescribed by Directive 89/655 and Decree Law No 294/96 had expired.
20 In its order for reference, the national court first points out that, under the Italian distribution system, the filling-station operator or his employees carry out all the operations relating to the provision of petrol and services to motorists, who have direct access to pumps by way of automatic payment systems only in a very small number of filling stations and usually on public holidays or outside opening hours. That situation results in employees receiving considerably more exposure to gas and fumes from petrol.
21 The national court then states, as regards the preliminary assessment of the risk of exposure to carcinogens in connection with the employer's duty to reduce and replace those carcinogens, that Legislative Decree No 626/94 seems to be based on the `converse' of Directive 90/394 which it transposes. Article 62 of that decree provides that the employer is required to avoid, replace or reduce the use of carcinogens and to reduce workers' exposure to them to `as low a level as is technically possible', whilst Article 63 of that decree requires the employer `save where otherwise provided by Article 62' to carry out an assessment of the risk of exposure to carcinogens and to adopt preventive and protective measures in the light of the findings of that assessment. The duty to reduce workers' exposure to carcinogens to `as low a level as is technically possible' laid down in Article 62 of the decree is therefore imposed on the employer irrespective of the assessment of risk, whereas Directive 90/394 makes the duty to avoid or reduce the exposure of workers to carcinogens contingent on the outcome of such an assessment.
22 With regard to the question of adapting work equipment, the national court points out that, in contrast to the transitional period of four years laid down in Article 4(1) of Directive 89/655, Article 36(8) of Legislative Decree No 626/94 provides that the provisions concerning work equipment are to enter into force three months after the publication of the decree in the Gazzetta Ufficiale della Repubblica Italiana. According to the national court, to require the employer to comply with the new rules within a period of three months, on pain of criminal penalties which may even include a custodial sentence of between three and six months, does not satisfy the criteria of reasonableness or proportionality.
23 With regard to the question of lowering the benzene content in petrol to below the limits set by Directive 85/210 and Decree Law No 294/96, the national court states that in that decree law the Italian Government fixed levels lower than those set out in the Directive. To that end the Italian Government used the mechanism provided for by Article 100a(4) of the Treaty and therefore notified the decree law to the Commission. The national court further observes that Article 6(1) of Legislative Decree No 626/94 imposes on `planners and designers of work premises or work stations, or of plant and machinery', as regards such planning or design, the duties which, pursuant to Directive 90/394, are imposed on employers. According to the national court, such an extension by national law of the duties laid down in Directive 90/394 is compatible with Community law inasmuch as it is a more stringent measure for the protection of working conditions. It nevertheless expresses doubt as to whether Directive 90/394, which lays down a duty to take measures to reduce the risk as far as is technically possible, requires the benzene content of petrol to be reduced to a level lower than the levels laid down in Directive 85/210 and Decree Law No 294/96.
24 In the circumstances the Tribunale di Genova decided to stay the proceedings and refer to the Court the following questions: `(1) On a proper construction of Articles 3, 4 and 5 of Directive 90/394 of 28 June 1990 on the protection of workers from the risks related to exposure to carcinogens at work (Sixth individual directive), is the obligation to adopt measures to reduce and replace the risk, and to avoid or reduce exposure to carcinogens, contingent on the outcome of the "assessment of risks" referred to in Article 3? If so, does Directive 90/394 preclude a national implementing provision which provides that the employer is under a duty to take action to replace or reduce, in so far as is "technically possible", the use of carcinogens and/or to reduce the level of exposure of workers "to as low a level as is technically possible", whether or not a definite risk has first been found to exist and duly assessed under Article 3 of the directive, and which imposes, in the event of failure to fulfil those obligations, criminal penalties - including custodial sentences - which, as worded, do not differ from those provided for cases where, despite the fact that a definite risk has been found to exist and duly quantified, the employer fails to adopt the measures prescribed by law? (2) Does Community law as laid down by Article 4 of Directive 89/655 (in so far as it distinguishes, in terms of the periods allowed for adapting work equipment, between equipment already provided to workers by 31 December 1992 and that provided after that date) preclude a national implementing provision which, arguably in contravention of the principles of reasonableness and proportionality, makes no such distinction and sets a uniform period of three months for its entry into force for all intents and purposes (even where the employer is subject to harsh criminal penalties)? (3) On a proper construction of Articles 3, 4 and 5 of Directive 90/394 (and of the corresponding articles in Legislative Decree No 626/94 implementing that measure), are employers - and, respectively, the other persons referred to in Article 6 of Legislative Decree No 626/94 - subject to obligations and responsibilities regarding the reduction of the benzene content in petrol to levels lower than those set by Directive 85/210 and to the even lower levels set by Decree Law No 294/96?'
25 As a preliminary point, it must be borne in mind that, as the Court has consistently held since its judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48, a directive may not of itself impose obligations on an individual, in this case an employer in the private sector, and a provision of a directive may not be relied upon as such against such a person.
26 However, since the Court's judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein Westfalen [1984] ECR 1891, paragraph 26, it is clear from the case-law that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. As follows from the Court's judgments in Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4153, paragraph 8, and Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.
27 The questions raised by the national court must be answered subject to those observations. Question 1
28 In its first question, the national court asks essentially - whether Articles 3, 4 and 5 of Directive 90/394 should be interpreted to the effect that the employer's obligation to reduce and replace carcinogens and to avoid or reduce exposure to them is contingent on the outcome of the assessment of risks referred to in Article 3; - if so, whether national legislation requiring the employer to reduce or replace carcinogens and/or to avoid or reduce workers' exposure to them irrespective of an assessment of risk is contrary to that directive.
29 Article 3 of Directive 90/394 lays down that 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.
30 Where a risk relating to the health or safety of workers has been identified in accordance with Article 3, Article 5 of Directive 90/394 requires the employer to avoid workers' exposure to the carcinogen or to reduce such exposure to as low a level as is technically possible.
31 The obligation laid down in Article 5 of the directive to avoid or reduce workers' exposure to the carcinogen is made expressly contingent on the outcome of the assessment referred to in Article 3.
32 That is not, however, the case as far as the obligation set out in Article 4 of Directive 90/394 is concerned. That provision requires the employer to reduce the use of a carcinogen at the place of work or to replace it by a substance which is not dangerous or is less dangerous, in so far as is technically possible, without linking that requirement to the outcome of the assessment referred to in Article 3.
33 Accordingly, it follows from the wording of Articles 3, 4 and 5 of Directive 90/394 that, in contrast to the employer's obligation to reduce or replace the carcinogen, laid down in Article 4, the obligation to avoid or reduce exposure to such a carcinogen laid down in Article 5 is contingent on the outcome of the assessment of risks referred to in Article 3.
34 It appears from the order for reference that Article 62 of Legislative Decree No 626/94 requires the employer to reduce workers' exposure to the carcinogen `to as low a level as is technically possible' in every circumstance and irrespective of the assessment of risk. Such a provision therefore imposes a duty on the employer that is stricter than that provided for in Article 5 of Directive 90/394, inasmuch as it does not expressly make the duty to avoid or reduce workers' exposure to the carcinogen contingent on the outcome of the assessment of risk.
35 In that connection it should be noted that Directive 90/394 was adopted on the basis of Article 118a of the Treaty and that it lays down `minimum requirements' as regards the protection of the health and safety of workers against the risks linked to exposure to carcinogens at work. As the Court stated in Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 17, the significance of the expression `minimum requirements' in Article 118a, which is reproduced in Article 1 of Directive 90/394, is that Member States are authorised to adopt more stringent measures than those which form the subject-matter of Community action. Article 118a(3) of the Treaty moreover confirms that where such minimum requirements are adopted pursuant to that article, the Member States are still free to introduce more stringent measures for the protection of working conditions.
36 Accordingly the question that must be examined is whether a national provision, such as Article 62 of Legislative Decree No 626/94, which obliges the employer to reduce workers' exposure to the carcinogen irrespective of the assessment of risk constitutes a more stringent measure for the protection of working conditions which is authorised by Article 118a(3) of the Treaty and Directive 90/394.
37 On that point it must be noted, first, that the employer's duty to reduce workers' exposure to the carcinogen irrespective of the assessment of risks increases the protection of the latter's health and safety. Furthermore such a duty is confined to reinforcing the obligation laid down in Article 5 of Directive 90/394. It does not therefore undermine the coherence of Community action in the area of workers' health and safety.
38 Secondly, it must be pointed out that a national provision reinforcing 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 assessment of risk applies in a non-discriminatory manner and does not hinder the exercise of the fundamental freedoms guaranteed by the Treaty.
39 Accordingly, it must be held that a national provision such as Article 62 of Legislative Decree No 626/94, which requires the employer to reduce workers' exposure to the carcinogen irrespective of the assessment of risk constitutes a more stringent measure for the protection of working conditions, authorised by Article 118a(3) of the Treaty and Directive 90/394.
40 Since the legislation at issue is a more stringent measure for the protection of working conditions compatible with the Treaty and results from the exercise by a Member State of the powers it has retained pursuant to Article 118a(3) of the Treaty, it is not for the Court to rule on whether such legislation and the penalties imposed therein are compatible with the principle of proportionality.
41 The answer to the first question must therefore be that: - Article 4 of Directive 90/394 must be interpreted to the effect that the employer's obligation to reduce or replace a carcinogen is not contingent on the outcome of the assessment of risks referred to in Article 3 of that directive; - Article 5 of Directive 90/394 must be interpreted to the effect that the employer's obligation to avoid or reduce exposure to a carcinogen is contingent on the outcome of the assessment of risks referred to in Article 3 of that directive; - a national provision which requires the employer to reduce workers' exposure to a carcinogen irrespective of the assessment of risk is not contrary to that Directive where it constitutes a more stringent measure for the protection of working conditions authorised by Article 118a(3) of the EC Treaty and Directive 90/394. Question 2
42 By its second question the national court seeks essentially to ascertain whether a Member State is precluded by the principle of proportionality and Article 4 of Directive 89/655 from prescribing a period of three months for adapting existing work equipment, with criminal penalties for an employer who does not comply with such a prescribed period ranging up to imprisonment for three to six months.
43 The first point to be made is that the period allowed to the Member States for transposing Directive 89/655 expired on 31 December 1992, pursuant to Article 10 thereof.
44 Transposition of the Directive after that date, such as that undertaken in Legislative Decree No 626/94 of 19 September 1994, therefore constitutes belated transposition.
45 Secondly, under the terms of Article 4(1)(b) of Directive 89/655, work equipment already provided to workers by 31 December 1992 is to comply with the minimum requirements laid down in the Annex thereto no later than four years after that date.
46 The setting of a time-limit expiring before 31 December 1996 for adapting existing work equipment accordingly complies with the content of the obligations laid down in Article 4(1)(b) of Directive 89/655.
47 The time-limit of four years set in the abovementioned provision constitutes the maximum prescribed period. There is nothing to prevent the Member States from anticipating implementation of the obligations laid down in the Directive for existing work equipment.
48 However when taking all appropriate measures to ensure fulfilment of the obligations arising under a directive, pursuant to Article 5 of the Treaty, the Member States are required to comply with the general principles of Community law, in particular the principle of proportionality (see, to that effect, inter alia Case C-326/88 Hansen [1990] ECR I-2911, paragraphs 17 to 19).
49 In adopting measures such as the setting of a time-limit for adapting existing work equipment, which involves taking into account complex economic and technical circumstances, the Member States have wide discretion (see, to that effect, inter alia Case 174/82 Sandoz [1983] ECR 2445, paragraph 19).
50 It is therefore for the national court to examine whether, given such wide discretion and in particular the characteristics of the Italian petrol distribution system, a time-limit of three months for adapting existing work equipment complies with the principle of proportionality in the sense that it allows employers to effect the adaptation and does not entail a cost that is excessive in relation to that which they would have had to meet if the prescribed period had been longer.
51 As regards the question whether the criminal penalties laid down for failure to meet the time-limit are in compliance with the principle of proportionality, it must be noted that the dispute in the main proceedings, a civil case, concerns a request from Borsana to Italiana Petroli that it supply it with petrol with a minimum-possible benzene content and systems for gas and fumes recovery at the point of distribution, in order to protect the health of its employees.
52 In those circumstances it is clear that a reply to that question cannot in any event be of any assistance to the national court when giving judgment.
53 The answer to the second question must therefore be that Article 4 of Directive 89/655 does not preclude a Member State from setting a time-limit for adapting existing working equipment that expires before 31 December 1996, 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. Question 3
54 In its third question the national court asks whether Articles 3, 4 and 5 of Directive 90/394 and the corresponding articles in Legislative Decree No 626/94 must be interpreted to the effect that they require employers and the other persons referred to in Article 6 of that decree to reduce the benzene content in petrol to a level lower than that set by Directive 85/210 and to the even lower levels set by Decree Law No 294/96 where that is technically possible.
55 It should first be observed that Article 4 of Directive 90/394 provides that the employer is required to 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 which is not dangerous or is less dangerous to workers' health or safety.
56 As the Advocate General pointed out in point 57 et seq. of his Opinion, it is not technically possible for employers who operate filling-stations, such as Borsana, to replace the benzene in the petrol that they distribute by a substance which is not dangerous or is less dangerous to workers' health or safety.
57 As was pointed out in paragraph 23 of this judgment, the national court considers that Article 6 of Legislative Decree No 626/94 imposes on `planners and designers of work premises or work stations, or of plant and machinery', as regards such planning or design, the duties imposed on the employer, in so far as conformity of the working environment is concerned, by the provisions of Articles 3, 4 and 5 of Directive 90/394. Accordingly it asks whether those provisions must be interpreted, with regard to the persons referred to in Article 6 of Legislative Decree No 626/94, as requiring them to reduce the benzene content of petrol to below the limit of 5% by volume fixed by Directive 85/210 where such reduction is technically possible.
58 The national court thus considers that an interpretation of Community law by the Court is necessary to enable it to decide a question of domestic law.
59 According to settled case-law, the Court of Justice has jurisdiction under Article 177 of the Treaty to interpret Community law where the situation in question is not governed directly by Community law but the national legislature, in transposing the provisions of a directive into domestic law, has chosen to apply the same treatment to purely internal situations and to those governed by the directive, so that it has aligned its domestic legislation on Community law (see, most recently, Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam [1997] ECR I-4161, paragraph 34).
60 That is not, however, the case here. As regards the benzene content of petrol, Legislative Decree No 626/94 does not refer to any provision of Community law but to Italian domestic law. Under that law, as stated in the order for reference, the maximum benzene content of petrol is set at 1.4% by volume from 1 July 1997 and at 1% by volume from 1 July 1999.
61 In those circumstances, whatever interpretation of Community law the Court might give would have no effect on the applicability to the persons referred to in Article 6 of Legislative Decree No 626/94 of the limits on benzene in petrol set under Italian law.
62 It must accordingly be concluded that the Court has no jurisdiction to give a ruling on the third question.