Avis juridique important

Judgment of the Court of 20 May 1992. - Commission of the European Communities v Kingdom of the Netherlands. - Failure to fulfil obligations - EEC Directive - National legislation not in conformity therewith. - Case C-190/90. European Court reports 1992 Page I-03265

Summary Parties Grounds Decision on costs Operative part

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1. Acts of the institutions ° Directives ° Implementation by the Member States ° Transposition of a directive without legislative action ° Conditions ° Existence of legal framework guaranteeing full application of the directive

(EEC Treaty, third para. of Art. 189)

2. Approximation of laws ° Major-accident hazards of certain industrial activities ° Manufacturer' s obligation to give notice of the person or body authorized to set certain emergency plans in motion ° Scope

(Council Directive 82/501, third indent of Art. 5(1)(c) )

1. The transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express specific legislation; an existing legal framework may be adequate for the purpose, provided that it does guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.

2. The third indent of Article 5(1)(c) of Directive 82/501/EEC on the major-accident hazards of certain industrial activities, which requires the Member States to take the measures needed to ensure that the manufacturers concerned are required to send to the competent authorities a notification containing the name of the person or body authorized to carry out emergency plans and to alert the competent authorities, must be interpreted as referring not only to the person legally responsible for safety, including in particular safety outside the establishment, but also to the person responsible for the practical arrangements for ensuring such safety, that is to say for setting in motion the requisite safety measures in case of accident.

In Case C-190/90,

Commission of the European Communities, represented by Thomas van Rijn, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of the Netherlands, represented by J.W. de Zwaan and T. Heukels, Deputy Legal Advisers in the Ministry of Foreign Affairs, acting as Agents,

defendant,

APPLICATION for a declaration that, by not adopting within the period laid down all the laws, regulations and administrative provisions needed in order to comply with Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities (OJ 1982 L 230, p. 1), and in particular Articles 3, 4, 5(1)(b) and (c), 5(3), 8(1) and 10(1) and (2) thereof, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of: F.A. Schockweiler, President of Chamber, acting as President, F. Grévisse and P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, M. Diez de Velasco, M. Zuleeg and J.L. Murray, Judges,

Advocate General: C. Gulmann,

Registrar: J.A. Pompe, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 5 February 1992, at which the Commission was represented by R.G. Fischer, Legal Adviser, and the Kingdom of the Netherlands by T. Heukels, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 March 1992,

gives the following

Judgment

1 By application lodged at the Court Registry on 14 June 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by not adopting within the period laid down all the laws, regulations and administrative provisions needed in order to comply with Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities (OJ 1982 L 230, p. 1, hereinafter "the directive"), and in particular Articles 3, 4, 5(1)(b) and (c), 5(3), 8(1) and 10(1) and (2) thereof, the Kingdom of the Netherlands had failed to fulfil its obligations under the EEC Treaty.

2 The directive is concerned with the prevention of major accidents which may be caused by certain industrial activities and limitation of their consequences for man and the environment.

3 Article 3 of the directive provides:

"Members States shall adopt the provisions necessary to ensure that, in the case of any of the industrial activities specified in Article 1, the manufacturer is obliged to take all the measures necessary to prevent major accidents and to limit their consequences for man and the environment."

4 Under Article 4 of the directive,

"Member States shall take the measures necessary to ensure that all manufacturers are required to prove to the competent authority at any time, for the purposes of the controls referred to in Article 7(2), that they have identified existing major-accident hazards, adopted the appropriate safety measures, and provided the persons working on the site with information, training and equipment in order to ensure their safety."

5 Article 5(1) of Directive 82/501 makes it incumbent upon the Member States to introduce the necessary measures to require manufacturers to send to the competent authorities a notification, which must include the following:

"(a) ...

(b) information relating to the installations, that is to say:

...

° the maximum number of persons working on the site of the establishment and particularly of those persons exposed to the hazard,

...

(c) information relating to possible major-accident situations, that is to say:

...

...

° the names of the person and his deputies or the qualified body responsible for safety and authorized to set the emergency plans in motion and to alert the competent authorities specified in Article 7."

Pursuant to Article 5(3) of the directive,

"The notification specified in paragraph 1 shall be updated periodically to take account of new technical knowledge relative to safety and of developments in knowledge concerning the assessment of hazards."

6 Article 8(1) of the directive reads as follows:

"Member States shall ensure that the persons liable to be affected by a major accident originating in a notified industrial activity within the meaning of Article 5 are informed in an appropriate manner of the safety measures and of the correct behaviour to adopt in the event of an accident."

7 Article 10 of the directive provides:

"1. Member States shall take the necessary measures to ensure that, as soon as a major accident occurs, the manufacturer shall be required:

(a) to inform the competent authorities specified in Article 7 immediately;

(b) to provide them with the following information as soon as it becomes available:

° the circumstances of the accident,

° the dangerous substances involved within the meaning of Article 1(2)(d),

° the data available for assessing the effects of the accident on man and the environment,

° the emergency measures taken;

(c) to inform them of the steps envisaged:

° to alleviate the medium and long-term effects of the accident,

° to prevent any recurrence of such an accident.

2. The Member States shall require the competent authorities

(a) to ensure that any emergency and medium and long-term measures which may prove necessary are taken;

(b) to collect, where possible, the information necessary for a full analysis of the major accident and possibly to make recommendations."

8 At the hearing, the Commission withdrew its allegations concerning the non-transposition of the second indent of Article 5(1)(b), Article 5(3) and Article 10(1) of the directive.

9 The Kingdom of the Netherlands contends that the obligations laid down by its domestic legislation are in conformity with the terms of the directive. Thus, Article 3 of the directive, it maintains, is covered by:

Articles 2 and 17(1) of the Law of 1952 on unsuitable, unhygienic or dangerous establishments ("the Hinderwet", Staatsblad 1981, p. 410);

the Law of 26 November 1970 on atmospheric pollution ("the Wet Inzake de Luchtverontreiniging", Staatsblad 1970, p. 580);

the Decree of 23 May 1972 giving effect to Article 19(1) of that Law (Staatsblad 1972, p. 294);

Articles 12 and 13 of the Law of 1985 on the fire-fighting services ("the Brandweerwet", Staatsblad 1985, p. 87) and the Decree on in-house fire-fighting services ("the Besluit Bedrijfsbrandweren", Staatsblad 1990, p. 80), and

Article 2 of the Law on substances dangerous to the environment ("the Wet Milieugevaarlijke Stoffen", Staatsblad 1985, p. 639).

Article 4 of the directive is, it maintains, covered by:

Articles 2(1), 5, 30 et seq. of the Hinderwet, and

Article 2 of the Decree of 1953 on unsuitable, unhygienic or dangerous establishments, as amended in 1988 ("the Hinderbesluit", Staatsblad 1988, p. 433).

The third indent of Article 5(1)(c) of the directive is, it maintains, covered by:

Articles 14 and 26 of the Hinderwet, and

Articles 2(1) and 4(1)(a) of the Royal Decree of 15 September 1988 on rules for the notification of major-accident hazards ("the Besluit Inzake Risico' s van Zware Ongevallen", Staatsblad 1988, p. 432).

The Netherlands Government only concedes that Article 8(1) and Article 10(1) have not been transposed into Netherlands law.

10 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Article 3 of the directive

11 Article 2 of the Hinderwet lays down a general prohibition of the setting up or operating of establishments liable to present a danger, hazard or nuisance beyond their perimeter or the making of any change to the operating methods used there, without special authorization. The manager of the establishment is under an obligation to give notice of any change to the establishment or the working methods to the authority empowered to authorize such changes, to the inspector and to the head of the district and to the authorities of the province and the municipality in which the establishment is located wholly or in part. Pursuant to Article 17(1) of the Hinderwet, authorization is granted subject to compliance with the necessary requirements to ensure the prevention or limitation of any dangers, hazards or nuisances liable to arise outside the establishment. Those requirements may involve, in particular, the obligation to take action to prevent or limit the types of hazard, damage or nuisance indicated therein, the obligation to take measures in accordance with a specified method with a view to determining whether the establishment presents or is liable to present a danger, a hazard or a nuisance beyond its perimeter, or the obligation to notify the results of the measures thus taken to the administrative bodies appointed for that purpose.

12 The Wet Inzake de Luchtverontreiniging also provides for certain measures for the prevention and reduction of atmospheric pollution from the categories of establishments mentioned in the Decree of 23 May 1972 which implements Article 19(1) of that Law. Pursuant to Article 42 of that Law, if, following an exceptional incident in an establishment, the air is, or is in danger of being, polluted to such an extent that it presents a serious hazard to health, or causes an intolerable nuisance or serious harm, suitable measures must be taken forthwith in order to rectify the situation. The incident, and likewise the measures taken, must be notified immediately to the Mayor of the municipality in which the establishment is located; those obligations fall on the manager of the establishment and the security staff.

13 Articles 1, 12 and 13 of the Brandweerwet, in conjunction with the Besluit Bedrijfsbrandweren, require the municipal authorities, on the one hand, and, on the other, the managers or directors of establishments liable to present a particular hazard to public safety, to set up a fire-fighting service. The in-house service must satisfy the requirements as to staffing and equipment laid down by the local authorities. The manager or director of the establishment must ensure that the fire service follows the instructions given in that regard by the person actually in charge of fire-fighting and action to deal with other hazards within the establishment.

14 Article 2 of the Wet Milieugevaarlijke Stoffen provides that any person who, in pursuance of his business, produces a substance or preparation, makes it available to a third party, imports it or uses it in the Netherlands and who knows or could reasonably suspect that a hazard to man or the environment may arise from the operations which he conducts, is required to take all the steps which may reasonably be expected of him in order to limit that hazard as far as is possible.

15 The Commission maintains that the Netherlands has not fulfilled the obligation laid down in Article 3 of the directive, whereby the Member States must require manufacturers to take all measures necessary for the prevention of major accidents and the limitation of their consequences for man and the environment. It considers that that general obligation should have been implemented by a rule which was binding upon the competent national authorities. However, Article 17 of the Hinderwet grants the Netherlands authorities a discretion regarding both the issue of authorizations to the industrial establishments concerned and the determination of their terms and of the optional or binding nature of the requirements attached to them.

16 According to the Netherlands Government, the first sentence of Article 17(1) of the Hinderwet requires the competent authorities to issue authorizations and make them subject to the requirements needed to prevent and limit the dangers, hazards and nuisances liable to arise outside the establishment. The fact that the list of specific measures mentioned in the second sentence of that paragraph is merely illustrative does not in its view change the binding nature of the rule contained in the first sentence, which, moreover, is applicable to "dangers, hazards or nuisances" and is thus wider in scope than Article 3 of the directive, which refers only to "major accidents". The Netherlands Government also contends that the prevention or limitation of major-accident hazards by means of individual mandatory authorizations, to which requirements appropriate to the nature and location of the establishment are attached, are more effective than a general rule which, in any event, has to be narrowed down according to the circumstances of each individual case. It adds, finally, that the Wet Inzake de Luchtverontreiniging, the Brandweerwet, the Besluit Bedrijfsbrandweren and the Wet Milieugevaarlijke Stoffen contribute to the implementation of Article 3 of the directive.

17 It must be borne in mind that the Court has consistently held (see in particular the judgment in Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 18) that the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express specific legislation; an existing legal framework may, depending on the content of the directive, be adequate for the purpose, provided that it does guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.

19 It must be stated that the domestic legislation referred to by the Netherlands Government is designed, just like the directive, to lay down specific and effective measures with a view to preventing major accidents and any consequences thereof outside the establishment.

20 Firstly, the Hinderwet creates a system of prior, mandatory authorizations whose issue is subject to compliance with the requirements needed to avoid or limit any danger, hazard or nuisance.

21 Secondly, the authorizations which must be issued to those industrial establishments likely to cause atmospheric pollution are, by virtue of the Wet Inzake de Luchtverontreiniging, also subject to specific requirements appropriate to the activity envisaged.

22 Finally, Article 2 of the Wet Milieugevaarlijke Stoffen requires persons undertaking operations liable to constitute a danger for man and the environment to take measures to limit that danger and is thus in conformity with the requirements laid down by Article 3 of the directive.

23 It follows from the foregoing considerations that the implementation of Article 3 of the directive is ensured by binding and specific national legislation which satisfies the obligations incumbent on the Kingdom of the Netherlands by virtue of Article 189 of the EEC Treaty.

Article 4 of the directive

24 Pursuant to Article 5 of the Hinderwet, an application for authorization to set up, operate, extend or modify an establishment must be submitted together with a substantial amount of information, provided for in Article 2 of the Hinderwet, in order to identify and prevent hazards of major accidents. Article 30 et seq. of the Hinderwet provide that the officials responsible for monitoring the application of the provisions of that Law are to have access to the books and premises of the establishment to the extent to which this is reasonably necessary for the performance of their duties, in which the manufacturer and his employees are required to cooperate.

25 The Commission considers that, in accordance with Article 4 of the directive, the manufacturer is under a general and constant obligation to prove at all times that he has identified the hazards of major accidents liable to arise, having regard to technical developments or developments in production methods. The fact that a manufacturer must submit with his application for authorization a report on safety outside the establishment does not in its view meet that obligation. Moreover, the Commission considers that Article 30 et seq. of the Hinderwet are not in conformity with Article 4 of the directive since they relate only to the checking of the information contained in the application for authorization and the requirements subject to which the latter is issued.

26 The Netherlands Government contends that Article 4 of the directive does not impose any obligation on manufacturers to prove at any time that they have adopted the measures necessary to prevent major accidents. It considers that the Commission' s assertion in that regard deprives Article 6 of the directive of any useful purpose. It states, however, that in any event Article 30 et seq. of the Hinderwet create a continuing obligation to provide information about the data supplied in support of the application for authorization and that, therefore, Netherlands law is in conformity with Article 4 of the directive.

27 It must be noted that Article 4 of the directive places manufacturers under an obligation to prove at any time to the competent authority that it has identified the hazards of major accidents and has taken the measures referred to in that provision and that that obligation is reproduced in the Netherlands legislation.

28 Under Article 30 et seq. of the Hinderwet, the national officials responsible for the application of that Law may at any time ask the manufacturer for information concerning the data furnished in support of the application for authorization, the requirements to which the latter is subject and the books and other documents concerning the establishment; they may also carry out inspections of the premises, arranging to be accompanied by third parties in appropriate cases, and remove and examine goods or samples, provided that this is reasonably necessary for the purpose of the inspection. That supervisory function, for the performance of which the manufacturer is required to cooperate and provide any information requested, represents for him a continuing reporting obligation.

29 It should also be observed that, according to Article 6 of the directive, the Member States are to take the appropriate measures to ensure that manufacturers revise, inter alia, the measures referred to in Article 4 of the directive in the event of modification of an industrial activity which could have significant consequences as regards major-accident hazards. Therefore, one of the aims of Article 6 is to impose on the Member States an obligation to require manufacturers to determine major-accident hazards, in step with developments, and to make consequential changes regarding the information given to, and training of, persons working on the site in order to guarantee their safety.

30 Similarly, Article 5(3) of the directive provides for the notification mentioned in Article 5(1) to be updated in order to take account in particular of new technical knowledge relative to safety and of developments in knowledge concerning the assessment of hazards.

31 Since the Commission does not allege any infringement of the updating obligations laid down in Articles 5(3) and 6 of the Hinderwet, it must be deemed to have accepted that the Netherlands legislation is in conformity with the objectives of those two provisions and, consequently, to have conceded, by implication, that that legislation is in conformity with the objectives of Article 4 of the directive, because compliance with the obligations laid down in Articles 5(3) and 6 of the directive necessarily presupposes compliance with the obligations laid down in Articles 4 and 5(1) of the directive.

The third indent of Article 5(1)(c) of the directive

32 Articles 14 and 26 of the Hinderwet provide that the authorization given for the exercise of an industrial activity is valid for the applicant and his successors that, in granting that authorization, the competent authority may change or withdraw the requirements imposed in relation to it. Under Articles 2(1) and 4(1)(a) of the Besluit inzake Risico' s van Zware Ongevallen, any person managing an establishment where there are dangerous substances must forward to the competent authorities every five years a report on safety outside the establishment, containing, in particular, a general description of the establishment, the substances located there and their properties.

33 In the Commission' s opinion, those provisions make it possible to establish who has legal responsibility for safety but not who should be contacted by the authorities in case of accident.

34 According to the Netherlands Government, the general context of the Hinderwet, and more particularly Articles 14 and 26, and Article 1(1)(a) of the Besluit inzake Risico' s van Zware Ongevallen, make it possible to identify the holder of an authorization, who is responsible for ensuring compliance with all the legal obligations, including those concerning safety outside the establishment. The holder of an authorization is competent to deal with safety and for that purpose has authority to take certain decisions; he thus corresponds to the qualified person or body referred to in the third indent of Article 5(1)(c) of the directive. The Netherlands legislation is thus, in its view, in conformity with that provision.

35 It must be observed in that connection that the notification provided for in the third indent of Article 5(1)(c) of the directive must contain the name of the person or body authorized to set the emergency plans in motion and to alert the competent authorities. That, in practice, presupposes de facto authority to apply the necessary safety measures in case of accident. It follows that that provision refers not only to legal responsibility for safety, in particular safety outside the establishment, but also to the person responsible for the practical arrangements for ensuring such safety.

36 It must be stated that the provisions referred to by the Netherlands Government do not make it possible to identify the person responsible for setting emergency plans in motion and alerting the authorities in the event of a major accident.

37 Consequently, the Commission' s charge concerning the implementation of the third indent of Article 5(1)(c) of the directive must be upheld.

Articles 8(1) and 10(1) of the directive

39 It need merely be stated that no measure to ensure the application of those provisions had been adopted when the period prescribed in the reasoned opinion expired.

40 It follows that the Commission' s action is well founded as regards Articles 8(1) and 10(1) of the directive.

41 In view of all the foregoing considerations, it must be declared that, by not adopting within the period laid down all the laws, regulations and administrative provisions needed in order to comply with the third indent of Article 5(1)(c), Article 8(1) and Article 10(1) of Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty.

Costs

42 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they are asked for in the other party' s pleadings.

43 Since the Netherlands has failed in only some of its submissions and the Commission withdrew some of its allegations, the parties should be ordered to bear their own costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by not adopting within the period laid down all the laws, regulations and administrative provisions needed in order to comply with the third indent of Article 5(1)(c), Article 8(1) and Article 10(1) of Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty;

2. For the rest, dismisses the application;

3. Orders the parties to bear their own costs.