Court of Justice of the European Communities (including Court of First Instance Decisions)

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).

Community law

'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.'

'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.

...'

'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.'

'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.

...'

'From 1 October 1989 the benzene content of leaded petrol and of unleaded petrol shall not exceed 5.0% by volume.'

'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

'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.'

'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.'

'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.

...'

'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.'

'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

and fumes recovery devices to be fitted to the distribution system, in order to protect the health of its employees.

'(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?'

Question 1

- 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.

- 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

Question 3

Costs