Informe para la vista in Case C-190/90
I — Facts
Legishtive framework
A — Directive 82/501/EEC
1. Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities (OJ 1982 L 230, p. 1) seeks inter alia to approximate the provisions enacted by the Member States for the prevention of major accidents which might be caused by certain industrial activities, and for the limitation of their consequences for man and the environment.
2. Article 1(2) provides that, for the purposes of Directive 82/501:
‘(a) (...)
b) Manufacturer means:
any person in charge of an industrial activity;
c) (...)
d) Dangerous substances means:
for the purposes of Articles 3 and 4, substances generally considered to fulfil the criteria laid down in Annex IV,
for the purposes of Article 5, substances in the lists in Annex III and Annex II in the quantities referred to in the second column.’
3. Articles 3 and 4 of Directive 82/501 read as follows:
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.
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.’
4. Article 5(1) of Directive 82/501 obliges Member States to introduce the necessary measures to require the manufacturer to give the competent authorities notification, which must include the following: Pursuant to Article 5(3) of the Directive,
‘(a) information relating to substances listed, respectively, in Annex II and Annex III, that is to say: (...)
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.’
‘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.’
5. Article 8(1) of the directive was amended by Council Directive 88/610/EEC of 24 November 1988 on the major-accident hazards of certain industrial activities (OJ 1988 L 336, p. 14). Article 8(1) now reads as follows:
‘Member States shall ensure that information on safety measures and on the correct behaviour to adopt in the case of an accident is supplied in an appropriate manner, and without their having to request it, to persons liable to be affected by a major accident originating in a notified industrial activity within the meaning of Article 5.’
6. Under Article 10(1) and (2) of Directive 82/501
‘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 speci fied 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 l(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.’
7. Article 20 of the directive provides that:
‘1. Member States shall take the measures necessary to comply with this Directive, at the latest on 8 January 1984. They shall forthwith inform the Commission thereof.
2. Member States shall communicate to the Commission the provisions of national law which they adopt in the field covered by this Directive.’
B — Netherlands legislation
8. In the Netherlands the subject-areas covered by Directive 82/501 are governed inter alia by the following instruments: (a) as regards safety on the undertaking's work premises, by legislation on working conditions, and in particular by: the Safety Law of 1934 (‘Veiligheidswet 1934’, Staatsbhd, p. 352); the Law on Working Conditions of 1980 (‘Arbeidsomstandighedenwet’, hereinafter the ‘Arbowet’, Staatsblad, 1990, 94); the Royal Decree of 15 September 1988 on rules for the notification of major-accident hazards (‘Besluit Inzake Risico's van Zware Ongevallen’, Staatsblad, 1988, p. 432); the Ministerial Decree of 4 February 1989 on further rules regarding the report on external safety (‘Besluit Inzake Risico's van Zware Ongevallen’, Staatscourant of 13 February 1989, p. 4); and the Ministerial Decree of 22 September 1987 giving effect to Article 9 of the Arbowet (‘Ministeriële Regeling’ of 22 September 1987, Staatscourant, 1987, p. 197); (b) with regard to the protection of man and his environment outside the undertaking's premises, by the legislation on the environment, and in particular: the Law of 1952 on unsuitable, unhygienic or dangerous establishments (‘Hinderwet’, Staatsbhd, 1981, p. 410); the Decree of 1953 on unsuitable, unhygienic or dangerous establishments (Staatsbhd, p. 36), as amended by a Royal Decree of 15 September 1988 (‘Hinderbesluit’, Staatsbhd, 1988, p. 433); the Law of 1970 on atmospheric pollution (‘Wet Inzake de Luchtverontreiniging’, Staatsblad, 1970, p. 580); the Decree of 1972 giving effect to Article 19(1) of the Hinderwet (‘Inrichtingenbesluit Article 19, eerste lid Wet Inzake de Luchtverontreiniging’, Staatsbhd, 1972, p. 294); the law on substances dangerous to the environment (‘Wet Milieugevaarlijke Stoffen’, Staatsbhd, 1985, p. 639); the Law of 1979 laying down general provisions on the protection of the environment (‘Wet Algemene Bepalingen Milieuhygiëne’, Staatsbhd, 1979, p. 442); and the Law of 1978 on public awareness of administrative measures (‘Wet Openbaarheid van Bestuur’, Staatsblad, 1978, p. 581); (c) with regard to arrangements for combating fires and accidents due to dangerous materials and for handling disasters, the legislation on disasters, and in particular: the Law of 1985 on disasters (‘Rampenwet’, Staatsblad, 1985, p. 88); the Law on the firefighting services (‘Brandweerwet’, Staatsblad, 1985, p. 87); and the Decree on in-house firefighting services (‘Besluit Bedrijfsbrandweren’, Staatsblad, 1990, p. 80).
Background to the dispute
9. By letters of 27 November 1985 and 4 December 1986, the Commission drew the attention of the Netherlands Government to what it claimed to be the incorrect implementation of Directive 82/501, and in particular Articles 1, 3, 4, 5, 6, 8 and 10 thereof, and requested the Netherlands authorities to submit their observations within two months of 4 December 1986.
10. The Netherlands Government replied by letter of 14 September 1987, stating that Articles 1, 3, 4 and 6 of the directive were already incorporated in Netherlands law. With reference to Article 5 it contended that Netherlands legislation gave effect to it in part and that, as far as Article 8 was concerned, national law already made provision for an information scheme, which the authorities would improve further. In practice, Article 10 of the directive was being complied with and a formal obligation implementing it would enter into force in 1987.
11. On 20 September 1988 the Commission sent the Netherlands authorities a reasoned opinion under Article 169 of the EEC Treaty, concluding that there had been a failure to transpose into Netherlands law Articles 1(2), 3, 4, 5, 6, 8 and 10 of Directive 82/501; it allowed the national authorities a period of two months to comply with it.
12. By letter of 28 December 1988 the Netherlands Government declared that Directive 82/501 had been fully implemented in domestic law since 1 November 1988, largely due to the entry into force of two royal decrees.
II — Written procedure before the Court of Justice
13. The Commission's application was lodged at the Court Registry on 14 June 1990.
14. The written procedure followed its normal course. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. Nevertheless, the Court put two questions to the Commission, which replied to them within the requisite period.
III — Forms of order sought by the parties
15. The Commission, the applicant, claims that the Court should: (i) declare that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions needed to comply with Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities, and in particular Articles 3, 4, 5(l)(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 Treaty; (ii) order the Kingdom of the Netherlands to pay the costs.
16. The Netherlands Government, the defendant, contends that the Court should: (i) dismiss the application as unfounded; (ii) order the Commission to pay the costs.
IV — Pleas in law and arguments of the parties
17. The Commission maintains that Netherlands legislation is not in conformity with Articles 3 and 4, the second indent of subparagraph (b) and third indent of subparagraph (c) of the second paragraph of Article 5(1), Article 5(3), Article 8(1) and Article 10 of Directive 82/501.
18. With regard to the obligation under Article 3 of Directive 82/501, requiring Member States to adopt the provisions necessary to ensure that the manufacturer is obliged to take all the measures necessary to prevent major accidents and to limit their consequences for man and the environment, the Commission claims that the broad obligation involved needs to be implemented by a broadly drafted national provision. Although a general provision of that kind is to be found in Article 4 of the Arbowet as far as safety on the undertaking's work premises is concerned, there is no equivalent provision as regards the protection of man and the environment outside those premises. Article 17 of the Hinderwet, by laying down only a system of permits accompanied by nonbinding instructions to undertakings constituting a risk, allows the authority responsible for issuing the permits the discretion to include or to omit such instructions. Accordingly, Article 17 of the Hinderwet leaves the matter in some doubt and cannot be regarded as a proper implementation of Article 3 of the directive, which categorically obliges Member States to make manufacturers subject to certain rules. In that connection the Commission points to the case-law of the Court showing that it is essential that each Member State should implement every directive in a way which fully satisfies the requirements of clarity and certainty in legal situations which the directive seeks to create (see in particular the judgment in Case 300/81 Commission v Italy [1983] ECR 449).
19. As far as safety outside the undertaking is concerned, the Commission takes the view that the obligation under Article 4 of the directive has not been implemented by any broad national provision. Netherlands legislation contains no general obligation requiring manufacturers to be able to prove at any time that they have identified existing accident hazards and have adopted the appropriate safety measures. The preventive and vigilant approach underlying the obligation under Article 4 of Directive 82/501 is not reflected in Netherlands law. Article 4 of Directive 82/501 is not implemented by Article 2(4) of the Hinderbesluit, regarding the report on external safety to be attached to the application for a permit in the case of undertakings representing a risk. Although that report is an integral part of the permit once it is issued, the manufacturer is compelled to comply only with the obligations contained in it, as drafted and submitted at the time of the application. Consequently, the manufacturer is not obliged by Article 4(2) of the Hinderbesluit to be in a position to prove to the competent authority at any time that he has identified existing major-accident hazards in line with technical progress, or that he has adopted appropriate safety measures going far beyond the information supplied in the report on external safety submitted with the application for the permit. The Commission adds that this omission from Netherlands legislation in the implementation of Article 4 of Directive 82/501 is not mitigated by Article 30(b) of the Hinderwet. Article 30(b) merely requires the manufacturer to supply all information to the State officials responsible for examining the particulars supplied with the application for a permit, and in support of it, and to comply with the obligations subject to which the permit is granted. Article 30(b) makes no provision for a permanent obligation spanning the productive life of the establishment whereby major-accident hazards are to be identified, appropriate safety measures are to be adopted, and the persons working on the site are to be informed, trained and equipped to ensure their safety. The Commission further submits that, even on the assumption that Netherlands legislation does place the manufacturer under a general, preventive duty of continuous vigilance, as envisaged in Article 4 of Directive 82/501, the scope of that duty is in any case confined to the dangerous substances listed in Annexes II and III to that directive. Article 2(4) of the Hinderbesluit refers to ‘an establishment to which the Besluit Risico's Zware Ongevallen applies’. That decree applies only to establishments on whose premises a dangerous substance mentioned in Annex I or Annex II to that decree is present. However, Annexes I and II to the decree correspond to Annexes HI and II, respectively, of Directive 82/501, whereas, for the purposes of Articles 3 and 4, that directive treats ‘dangerous substances’ as meaning substances fulfilling the criteria laid down in Annex IV (see the first indent of Article l(2)(d)).
20. The Commission takes the view that the second indent of Article 5(l)(b) of Directive 82/501, regarding the maximum number of persons, has not been transposed into Netherlands law, in the sense that Article 5(1) of the Arbowet does not require the manufacturer to specify in the report on safety at work ‘the maximum number of persons working on the site of the establishment and particularly of those persons exposed to the hazard’. In the Commission's opinion that obligation is not discharged by the fact that a ‘handbook’ on the drafting of reports on safety provides that such a report must include the items to which the second indent of Article 5(1 )(b) of Directive 82/501 refers. Such a handbook does not constitute a legally binding text, whereas the Court has consistently held that directives are to be implemented by binding national provisions. Furthermore, the ‘handbook’ is vague in that it refers only to a ‘statement of the number of workers’ and a ‘comprehensive statement of the number of workers’, whilst the specific wording of the directive called for ‘the maximum number of persons...’. The Commission claims that the requirement under the third indent of Article 5(l)(c) of Directive 82/501, regarding the name of the qualified person, has not been implemented in Netherlands law because that law does not include the obligation to state in the safetyreport ‘the names of the person and his deputies or the qualified body responsible for safety and authorized to set the emergency plans in motion’. The raison d'être of that indent is that the authorities must know the person or body which they are to contact in case of accident. The important point is to know the name of the person and his deputies, or the qualified body, who are de facto responsible for safety, rather than to know the name of the permit holder for the undertaking who bears legal liability, including Lability for external safety. The Commission observes that Article 5(3) of Directive 82/501 has been transposed into Netherlands law only as regards the report on the external safety of the establishment, covered by Article 2(1) of the Besluit Risico's Zware Ongevallen. As far as safety at the workplace is concerned, it maintains that Article 5(3) of the directive has not been implemented. The revision of the report on safety at work, required by Article 5(4) of the Arbowet following any alteration to the establishment (or plant) due to advances in the way in which safety matters are approached cannot be regarded as giving effect to Article 5(3) of Directive 82/501. The Commission is not convinced that a revised approach to safety matters will necessarily bring about an alteration to the establishment or its plant, with a consequent obligation to amend the report on safety at work. Article 5(l)(c) of the Arbowet provides only for a description of the hazards which are reasonably foreseeable. It does not in any way suggest that a revised approach to safety matters will give rise to alterations to the establishment or the plant. Article 3 of the Arbowet, under which the employer must be constandy attentive to the generally accepted technical procedures and to the current state of knowledge in ergonomics and organization-and-methods, is in the Commission's view equally inadequate for implementing Article 5(3) of Directive 82/501. Article 3 of the Arbowet includes reserves from which it may legitimately be concluded that the general obligation contained therein does not by any means have the automatic effect of causing the employer to alter his establishment or his plant in such a way as to necessitate a revision of the report on safety at work.
21. The Commission maintains that Article 8(1) of Directive 82/501, providing for the active notification of persons hable to be affected by a major accident of the safety measures and the correct behaviour to adopt in the event of an accident, is not implemented in Netherlands law merely by the fact that the application for a permit is published in the newspapers. Such publication has no bearing on preventive safety measures. Indeed, under the Wet Algemene Bepalingen Milieuhygiëne 1979 the public is informed only by the publication of the permit application, of which the report on external safety forms an integral part, by its availability for consultation and, if need be, by oral explanation from the competent authorities.
22. Turning to Article 10 of Directive 82/501, the Commission claims that its application to the Court contains an adequate statement of the grounds on which it is based and thus meets the requirements of Article 38(1) of the Rules of Procedure of the Court of Justice.
23. The Commission argues that Article 10 of the directive refers to ‘dangerous substances’ matching the criteria laid down in Annex IV thereto. It is clear from the general arrangement of the directive that Article 10 does not apply only to the activities governed by the requirement under Article 5 of the directive but also to activities falling under Articles 3 and 4. The term ‘major accident’ is not further defined, nor is it defined in Articles 3 or 4. Moreover, Article 10(l)(b) refers to dangerous substances ‘within the meaning of Article l(2)(d)’. Article l(2)(d) expressly mentions substances generally considered dangerous (which are listed in Annex IV), together with the dangerous substances included in the lists in Annexes II and III.
24. Article 10(1) of the directive, setting out the manufacturer's obligation in the event of a major accident to supply the items of information specified in Article 10(l)(b) and (c), has no counterpart in Netherlands law. No such obligation to supply detailed information is contained in Article 6 of the Besluit Risico's Zware Ongevallen. Indeed, the obligation under Article 6 applies only to establishments housing ‘dangerous substances’ for the purposes of Article 1(d) of that decree, corresponding to Annexes III and II of the directive. With reference to Article 10 of the Arbowet the Commission notes, in the first place, that the annual report required thereunder cannot be regarded as equivalent to the information required under Article 10(l)(c) of the directive. Under that directive the information must be forthcoming ‘as soon as a major accident occurs’. That means that, after a major accident, special notification is required so that its medium and long-term effects can be alleviated and a recurrence of the accident avoided. In that respect the annual report under Article 10 of the Arbowet is liable to be too early or too late. It will be too late when a long period of time has elapsed between the major accident and the date when the annual report is sent to the competent authority, and too early when that period is too short to allow all the steps under Article 10(l)(c) of the directive to be envisaged. The annual report is therefore not an appropriate means of supplying the information required by Article 10(1) of Directive 82/501. Furthermore, the notification of accidents and occupational diseases under Article 9 of the Arbowet will not necessarily contain the information set out in Article 10(l)(b) of Directive 82/501. The Commission notes that such notification is accompanied by a brief account of the circumstances of the accident and that ‘in the event of an accident’ the Labour Inspectorate compiles the information to which Article 10(1) refers. Similarly, Article 42 of the Wet Inzake de Luchtverontreiniging makes no provision for the notification of the specific items of information required by Article 10(l)(b) and (c) of Directive 82/501. The Commission concludes that the provisions of Article 10(l)(b) and (c) of Directive 82/501 have not been transposed into national law by Article 6 of the Besluit Risico's Zware Ongevallen, nor by the Arbowet or Article 42 of the Wet Inzake de Luchtverontreiniging.
25. The Commission maintains that the broad obligation under Article 10(2) of Directive 82/501 is not to be found as such in Netherlands law. Article 10(2) requires the competent authorities to ensure that the measures referred to are taken. Article 30 of the Hinderwet is inadequate in that respect, because the duty to ‘ensure compliance with the law’ is more restrictive and more passive than is demanded of the competent authorities by Article 10(2) of Directive 82/501. The Commission agrees with the Netherlands Government that Article 10(2) may be implemented by means of internal administrative instructions. However, no such instructions were notified to the Commission. The Commission takes the view that the Netherlands authorities need to send the competent authorities a broadly-drafted mandate assigning to them the duties set out in Article 10(2).
26. In the opinion of the Netherhnds Government neither Article 189 of the EEC Treaty nor Article 3 of Directive 82/501 itself requires the implementation of the latter provision by means of a broad national provision. A mandatory permit scheme such as operates in the Netherlands is adequate for the implementation of Article 3. That implementation was effected partly by the Hinderwet and the Wet Inzake de Luchtverontreiniging and partly by the Brandweerwet. Articles 2 and 17(1) of the Hinderwet set up a broad system of mandatory administrative measures which, in their content and effects, satisfy the dictates of Articles 3 and 7(1) of Directive 82/501. In the general framework of the Hinderwet, the hazards are more effectively prevented or limited by individual permits accompanied by instructions and specific to the nature and circumstances of the establishment than by general rules. The range of activities liable to fall within the scope of Article 3 of the directive is so diverse that the formulation of very general aims would be unlikely to add anything at all to those set out in Articles 2 and 17 of the Hinderwet. In any case, those general aims would then have to be given practical effect by individual permits containing specific instructions. The Netherlands authorities contend that under the system created by the Hinderwet the duty of attending to the protection of the environment and to problems of safety outside the establishment falls, in the first instance, on the competent authority — that is to say, at the municipal level on the mayor and the alderman and, at the provincial level, on the Provincial Executive [College van Gedeputeerde Staten]. After assessing the type of pollution emanating from the undertaking and the scale of the risk to which it might expose the environment, the competent authority determines whether those disadvantages are acceptable and lays down the conditions to govern the industrial operations. The scheme under the Hinderwet incorporates that principle of the manufacturer's liability within a permit system whereby the local authorities are required to give the manufacturer mandatory instructions specific to the nature and circumstances of the establishment, so as to prevent or limit the hazard, damage or nuisance outside the establishment. In the Hinderwet, therefore, the legislature has created a set of general provisions which subjects the permit system to the requirements laid down by the directive, and adheres faithfully in content and scope to Articles 3 and 4 of that directive. The Commission's claim that Article 17 of the Hinderwet vests the competent authorities with a discretionary power rests on a misinterpretation of that article. Article 17 of the Hinderwet obliges the authority responsible for issuing the permits to include in them all the instructions ‘which are necessary in order to prevent or limit the hazard, damage or nuisance outside the establishment’. The second sentence of Article 17(1) of the Hinderwet expressly lists a number of specific measures. The list is merely illustrative and does not prejudice the mandatory character of the rule in the first sentence of Article 17(1). Article 17 goes further than is required by Article 3 of the directive, which refers only to ‘major-accident hazards’ whereas that article of the Hinderwet envisages any form of ‘hazard, damage or nuisance outside the establishment’. The Netherlands Government further submits that the Wet Inzake de Luchtverontreiniging and the Inrichtingenbesluit giving effect to Article 19(1) of that Law play a part in the implementation of Article 3 of Directive 82/501. The aim of the Wet Inzake de Luchtverontreiniging is to prevent and reduce atmospheric pollution. To that end it formulates rules applicable to some categories of establishment which may create considerable atmospheric pollution. The Inrichtingenbesluit lists those categories. Most of the installations referred to in Item 1 of Annex I to Directive 82/501 are included in Article 1(c) of the Inrichtingenbesluit. Furthermore, some of the industrial installations in Item 6 of Annex I to the directive appear in Article 1(a)(1), (2) and (4) of the Inrichtingenbesluit. Accordingly, the Wet Inzake de Luchtverontreiniging applies to most of the undertakings governed by Directive 82/501. Moreover, Article 42 of the Wet Inzake de Luchtverontreiniging contains rules applicable both to establishments within its own scope and to establishments under the Hinderwet in the event of an incident involving atmospheric pollution. The management and supervisory staff must then adopt the requisite measures to put an end to it. By virtue of Article 42(2) of the Wet Inzake de Luchtverontreiniging the aforesaid persons are also required to declare the incident to the mayor of the municipality in which the establishment is wholly or mainly situated, and to inform him of the measures adopted. Articles 43 to 47 of the Wet Inzake de Luchtverontreiniging further provide the option of ordering the closure of an establishment if the pollution is such as to involve considerable danger. Turning to the Brandweerwet the Netherlands Government points out the powers conferred under Article 13 on the mayor arid aldermen, in council, to designate those establishments which, if presenting a special hazard to public safety in the event of fire or accident, must have an in-house firefighting service. The Besluit Bedrijfsbrandweren specifies the establishments liable to be so designated. Moreover, pursuant to Article 1 of the Brandweerwet the municipal authorities must create a municipal fire service responsible for dealing not only with fires but also with dangers to men and animals arising from accidents due to a cause other than fire. In addition, Article 12 of the Brandweerwet requires municipalities to adopt, in legislative form, provisions relating to a number of the measures envisaged in Article 3 of the directive. Article 2 of the Wet Milieugevaarlijke Stoffen, worded as follows: also contributes to the implementation of the obligations imposed on manufacturers by Article 3 of the directive.
‘... 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 obliged to take all the steps which may reasonably be expected of him in order to limit that hazard as far as is possible’,
27. The Netherlands Government takes issue with the ‘dynamic’ interpretation which the Commission gives to Ankle 4 of Directive 82/501. It cannot be inferred from Article 4 that adequate measures adopted by those concerned need constantly to be revised in accordance with successive developments. The phrase used in Article 4, ‘that all manufacturers are required to prove to the competent authority at any time’ shows rather that the article implies a duty of proof on the manufacturer's part, which extends to the preventive measures taken after ‘existing’ major-accident hazards have been discovered. Moreover, Article 6 of the directive requires the manufacturer to ‘revise’ the measures in question in the event of modification of an industrial activity. Such obligatory revision would be unnecessary if Article 4 of the directive were constantly expanding in scope, as the Commission suggests. According to the Netherlands Government the general duty to take preventive steps under Article 4 of the directive was enacted in Netherlands law through the system set up by Articles 2(1) and 5 of the Hinderwet and Article 2 of the Hinderbesluit. Under Article 2(1) of the Hinderwet it is prohibited to set up, manage, enlarge or reorganize an establishment, or change the working methods used there, without a fresh permit issued for that purpose. Pursuant to Article 5(2) of the Hinderwet the documents set out in Article 2 of the Hinderbesluit must be attached to the permit application. Accordingly, the permit application must contain information concerning the safety measures which the manager of the establishment has adopted or proposes to adopt. Such information also forms an integral part of the permit. Moreover, under Article 17(1) of the Hinderwet, the permit may be accompanied by the requisite safety instructions. The Netherlands Government argues that both the letter and the spirit of Article 30(b) of the Hinderwet imply a continuous obligation on the part of the manufacturer to supply information. That obligation covers information regarding not only verification of the data supplied in support of a permit application but also verification of compliance with the obligations imposed by the instructions attached to the permit. The Netherlands authorities take the view that the obligation on the manufacturer under Articles 2 and 5 of the Hinderwet and Article 2 of the Hinderbesluit extends to all the establishments governed by the Hinderwet, not only those which have the dangerous substances listed in Annexes II and III to the directive, to which the Besluit Risico's Zware Ongevallen is applicable. All the activities to which Articles 3 and 4 of the directive apply are covered by the term ‘establishment’ within the meaning of Article 2(2) of the Hinderwet.
28. Without actually admitting that Articles 3 and 4 of Directive 82/501 were inadequately implemented, the Netherlands Government, on a number of points, proposes to improve the definition and clarity of the legal situation by following directly the wording of a number of the provisions contained in that directive. In that connection the Netherlands Government considers it desirable to amend the draft law now laid before the Second Chamber, extending and revising the Wet Algemene Bepalingen Milieuhygiëne and harmonizing the provisions of other laws, in such a way as to make the statutory wording adhere more closely to the terms of Articles 3 and 4 of the directive. In the same spirit, an amendment of the Besluit Risico's Zware Ongevallen is also planned.
29. With reference to the second indent of Article 5(l)(b) of Directive 82/501 (regarding the maximum number of persons), the Netherlands Government states that under Article 5(1) of the Arbowet the report on safety at work must include the description of the establishment, together with further information needed for the assessment of reasonably foreseeable risks jeopardizing the safety and health of those working in the undertaking or establishment. That description must be in conformity with the rules set out in the ‘Leidraden’ or more correctly the Publicatiebladen van de Arbeidsinspectie — the circulars issued by the Labour Inspectorate. The current ‘handbook’ (reference PI 72-2) states that the safety report must give the number of persons working on the site (‘density of the work force’) (under heading 3.2), indicate in general terms the number of employees assigned to the various departments (see heading 3.3 Organization') and the maximum concentration of the substance or substances emitted on premises where workers may be present (heading 5). The Netherlands Government concludes that if the statement required by Directive 82/501 regarding the maximum number of persons working on site refers to a state of affairs rather than a permitted maximum, it follows that the statement in the report on safety at work regarding the number of persons working on the site and exposed to the risk represents the implementation in Netherlands law of the second indent of Article 5(l)(b). Furthermore, the Netherlands Government claims that ‘Handbook’ PI 72-2 has legal implications. It explains that its content will be referred to by the authority responsible for checking safety (the Labour Inspectorate) in the performance of its duty to verify compliance with the Arbowet. If the manufacturer does not have regard to the instructions contained in that handbook, his conduct may be the subject of administrative measures. For example, the Labour Inspectorate may require the employer to provide further information or adopt additional measures. Under Article 57 of the Arbowet any person who fails to comply with such a requirement will be guilty of an offence punishable under the Wet op de Economische Delicten (Law on economic offences; Staatsblad, 1950, p. K258). The Netherlands Government further submits that criterion of the number of workers present in the establishment or on the site — to be quantified in compliance with Handbook PI 72-2 — is no vaguer than ‘the maximum number of persons’ to which Article 5 of the directive refers. The Netherlands Government states that the Commission had raised no objection at the time regarding the Handbook CP-3 (the previous version of PI 72-2) in which the national authorities had given effect to the first indent of Article 5(1 )(b) of Directive 82/501. With regard to the obligation under the third indent of Article 5(l)(c) (regarding the name of the qualified person), the Netherlands Government cites Articles 14 and 26 of the Hinderwet and Articles 2(1) and 4 of the Besluit Risico's Zware Ongevallen as evidence that a permit holder is responsible for compliance with the legal obligations, including those imposed by the rules on external safety. Accordingly, under Netherlands law a permit holder corresponds to the qualified person or body to which the third indent of Article 5(l)(c) of the directive refers. The Netherlands Government submits that Article 5 cannot be interpreted as referring, not to the person hable in law but to the person responsible in practice for the safety of the establishment and authorized to set the emergency plans in motion and to alert the competent authorities. By alluding to persons ‘responsible for safety’, Article 5(l)(c) assumes that the persons or bodies in question are empowered to take certain decisions, and this appears to point to a legal liability rather than a practical responsibility. As far as the implementation of Article 5(3) of Directive 82/501 is concerned, the Netherlands Government argues that the report on safety at work must include a description of the ‘reasonably foreseeable hazards’ involved in the running of an undertaking, an establishment or part of either. If the general approach to safety has been revised, the reasonably foreseeable hazards inside the establishment are usually reviewed. The consequence of such a change within the undertaking is that the report on safety at work becomes obsolete. Pursuant to Article 5(4) of the Arbowet, the general report on safety at work must then be amended. The period allowed for the periodic updating of the report on safety at work is five years (see subheading 2.7.3 of the handbook P 172-2). In addition, Article 3 of the Arbowet places the employer under a general obligation, as a result of which he may be required to carry out alterations to his establishment or plant. Under Article 5(4) of the Arbowet, if such alterations are important for the purposes of the report on safety at work they will cause it to be amended immediately.
30. The Netherlands Government does not deny that Article 8(1) of Directive 82/501 was not transposed into Netherlands law. Nevertheless, it states that an amendment to the Rampenwet is in preparation. The new legislation is expected to enter into force in 1992. The draft law in preparation would make the mayor and aldermen of every municipality responsible for giving the population adequate information about the safety measures adopted to prevent and to combat catastrophes, and about the procedures to be followed in the event of a catastrophe. Broadly-drafted administrative provisions will set out the requirements to be met by the information with which the mayor and aldermen must provide the population. Those administrative provisions will mention the specific requirements arising from Article 1(1) of Directive 88/610 amending Directive 82/501 on the major-accident hazards of certain industrial activities.
31. As far as the complaints regarding the implementation of Article 10 of Directive 82/501 are concerned, the Netherlands Government contends, as its main argument, that the explanations given in the Commission's application to the Court are inadequate as far as Article 42 of the Wet Inzake de Luchtverontreiniging and Articles 9 and 10 of the Arbowet are concerned.
32. As its subsidiary argument, the Netherlands Government submits that Article 10 does not make readily identifiable the types of industrial activity to which it relates. Since the article refers merely to the ‘manufacturer’, which according to Article 1(2) of the directive means ‘any person in charge of an industrial activity’, the Netherlands authorities maintain that they were entitled to infer that Article 10 envisaged only the undertakings falling under Article 5 of the directive, as opposed to those under Articles 3 and 4 thereof. Furthermore, Article 10(l)(a) of Directive 82/501 refers explicitly to Article 7 thereof. Article 7, which lays down the duties of the authorities and to which Article 10 refers, applies only to the undertakings under Article 5 of the directive.
33. As part of its argument in the alternative, the Netherlands Government claims that Article 6 of the Besluit Risico's Zware Ongevallen requires that, in the event of an accident, the management of the establishment shall immediately make the facts, and the measures adopted, known to the competent authority and to the mayor of the municipality on whose territory the establishment lies. Such notification must enable the competent authority to assess the scale of the hazard, damage or nuisance so that it can adopt the requisite measures. Article 10(l)(b) and (c) of Directive 82/501 was also implemented in Netherlands law, by (inter alia) Articles 9 and 10 of the Arbowet. As far as the implementation of Article 10(l)(c) of the directive is concerned, the Netherlands Government draws attention to the fact that the provisions on the compulsory drafting of an annual report (Article 10 of the Arbowet) incorporate part of Article 10(1) of the directive. The Netherlands Government adds that a ministerial decree was promulgated (Staatscourant, 1991, p. 64) which expressly states that the information on the planned measures, together with the information under Article 10(c) of the directive, must form an integral part of the particulars to be communicated whenever an accident is notified pursuant to Article 9 of the Arbowet. They serve to supplement the annual report. With regard to the implementation of Article 10(l)(b) of the directive, the Netherlands Government submits that, in practice, compliance with Article 9 of the Arbowet usually entails in the first instance a notice accompanied by a short description of the circumstances of the accident or occupational disease. The Labour Inspectorate will obtain further particulars from the employer (Article 33 of the Arbowet). These will, in appropriate cases, include the information to which Article 10(l)(b) of the directive refers. The same applies to notification under Article 42(2) of the Wet Inzake de Luchtverontreiniging. Lasdy, the Netherlands Government explains that, in its second amendment to the draft law enlarging and revising the Wet Algemene Bepalingen Milieuhygiëne and amending other laws accordingly, it decided to render Article 10 of Directive 82/501 in Netherlands law more literally. Furthermore, it intends to enact a set of implementing rules which will state expressly that the notice to the Labour Inspectorate under Article 9 of the Arbowet must in appropriate cases contain at least the information required by Article 10(l)(b) of the directive.
34. According to the Netherlands Government, Article 10(2) of the directive can be implemented in national law by way of administrative instructions. The government then refers to Article 30 of the Hinderwet, concluding that the task it imposes of ‘ensuring compliance with the law’ — including the tasks set out in Article 10(2) of the directive — implements Article 10, albeit only in part. In that connection the Netherlands Government also mentions Article 1(6) of the Brandweerwet, containing the statutory definition of the tasks to be performed by the fire service in preventing or limiting accidents, fire risks, fires or catastrophes, and in dealing with them. According to Article 1(6) the fire service compiles information which, in practice, corresponds to the information referred to in Article 10(2)(b) of Directive 82/501. Those statutory tasks are embodied in two circulars, Circular No 3021 of the Minister of Justice, dated 10 August 1953, and Circular No 19097 of the Minister of Home Affairs, dated 24 August 1953. The Netherlands Government also points to the existence of the national department for the supervision of public health, whose task is to ensure compliance with inter alia the Hinderwet and the Wet Inzake de Luchtverontreiniging. In that context, the Ministry for Housing, Regional Development and the Environment and the Ministry of Welfare, Health and Cultural Affairs has published a document on the handling of accidents harmful to the environment and on the importance of toxicological tests in the event of accidents. The annual report to which Article 10 of the Arbowet refers must describe the measures adopted when a major accident occurs. The report must be forwarded as quickly as possible to the relevant District Head of the Labour Inspectorate. The Labour Inspectorate will then use the annual report for its inspection duties. Moreover, on 19 April 1991 the Director General for Labour Matters sent the Labour Inspectorate a letter in which he drew his attention to the obligations under Article 10(2) of the directive. The Netherlands Government concludes that the objective envisaged in Article 10(2) of the directive was realized in practice. For the sake of completeness, however, the government points out that it intends shortly to adopt separate directives designed to supplement — as far as is necessary — the existing administrative instructions in order to dispel any possible doubts as to the implementation of Article 10(2) of Directive 82/501.
V — Questions
35. The Court of Justice requested the Commission to reply to the following question:
‘To what extent, in the Commission's view, do the Brandweerwet, the Besluit Bedrijfsbrandweren (Staatsblad, 1990, p. 80), the Wet Milieugevaarlijke Stoffen (Staatsblad, 1985, p. 639) and the Wet Inzake de Luchtverontreiniging (Staatsblad, 1970, p. 580), together with the Inrichtingenbesluit artikel 19 eerste lid Wet Inzake de Luchtverontreiniging, contribute to the implementation in Netherlands law of Article 3 of Directive 82/501 as far as the protection of man and the environment outside the premises of undertakings is concerned?’
36. In its reply the Commission takes the view that the laws and decrees referred to in the question do not, either separately or in combination, implement fully Article 3 of the directive in Netherlands law. As regards the Brandweerwet and the Besluit Bedrijfsbrandweren, which were not communicated to the Commission, in contravention of Article 20 of Directive 82/501, the Commission observes that Articles 1, 12 and 13 of the Brandweerwet do not implement Article 3 of the directive. That is so because, in the first place, Article 1 of the Brandweerwet imposes obligations on the ‘College van Burgemeester en Wethouders’ rather than on the manufacturer, whereas Article 3 of the directive requires the Member States to lay specific obligations on the manufacturer; similarly, Article 12 is inadequate because it only imposes an obligation on a municipal body and not on the manufacturer. In the second place, Article 1 of the Brandweerwet does not relate to accidents other than fires, whereas the term ‘major accident’ in Article 3 of the directive extends to accidents besides fires (see Article l(2)(c) of the directive); the same is true of Article 12, which makes no provision for kmiting the consequences of major accidents other than fires. Moreover, whilst Article l(4)(b) of the Brandweerwet confines its terms of reference to the limitation of risks to men and animals, Article 3 of the directive envisages limiting the consequences for man and the environment; ‘environment’ embraces more than just animals. Lastly, Article 13 of the Brandweerwet provides that the ‘Burgemeester en Wethouders’ may require the director or manager of an establishment to ensure that there is a special team of firemen attached to that establishment; according to Article 1(a) of the Besluit Bedrijfsbrandweren, the aim of such a team of firemen is to deal with fires and accidents on the premises; the article therefore makes no provision for the prevention of major accidents as is required by Article 3 of the directive. As regards the establishments considered to need a team of firemen, reference must be made to the Besluit Risico's Zware Ongevallen (Article 2(b) of the Besluit Bedrijfsbrandweren). The establishments covered by the Besluit do not correspond to the industrial activities envisaged by the directive. Turning to the Wet Milieugevaarlijke Stoffen, which was not communicated to the Commission, in contravention of Article 20 of Directive 82/501, the Commission denies that Article 2 thereof gives effect to the obligations imposed on the manufacturer by Article 3 of the directive. First, it is questionable whether all the industrial activities envisaged by the directive were covered by the obligation under Article 2 of the Wet Milieugevaarlijke Stoffen. Article 2 is apparently silent about storage and transportation within the establishment (see Article l(2)(a) of the directive), and also about ‘the total or partial disposal of solid or liquid substances by incineration or chemical decomposition’ (see Item 3 of Annex I to the directive). Secondly, Article 2 of the Wet Milieugevaarlijke Stoffen refers to limiting the risk to man and the environment, but ‘risk’ is a vague term and does not necessarily correspond tò ‘major accident’ as used in the directive. Furthermore, Article 2 does not expressly deal with the prevention of major accidents. In the Commission's opinion it was not designed to implement Article 3 of the directive and is used by the Netherlands Government as a means of last resort. As far as the Wet Inzake de Luchtverontreiniging and the Inrichtingenbesluit giving effect to Article 19(1) thereof are concerned, the Commission argues that the provisions do not implement — as indeed the Netherlands Government has conceded — Article 3 of Directive 82/501, for the following reasons: Item 1 of Annex I to the directive concerns ‘installations for the production or processing of organic or inorganic chemicals’. Article 1(c) of the Inrichtingenbesluit deals only with the production (and hence not the processing) of a limited range of substances, in conjunction with a minimum plant capacity. Item 2 of Annex I to the directive embraces a much wider range of installations than those to which Article 1(b) of the Inrichtingenbesluit refers; it is not confined to refining and sets no threshold. The same is true of Item 4 of Annex I to the directive in relation to Article 1(d) of the Inrichtingenbesluit. The directive is not limited to ‘use’ alone but covers ‘production or processing’ and introduces no threshold level. The establishments to which Article 1(e) refers do not accord with the ‘installations’ in Items 2 to 4 of Annex I to the directive. Although the ‘installations’ in Item 6 of Annex 1 to the directive are covered by the establishments referred to in Article 1(a)(1), (2) and (4) óf the Inrichtingenbesluit, that decree conflicts with the directive by setting threshold levels. The Wet Inzake de Luchtverontreiniging relates to the prevention and limitation of atmospheric pollution, and not to other potential accidents such as those set out in Article l(2)(c) of the directive. In any case, neither the Wet Inzake de Luchtverontreiniging nor the Inrichtingenbesluit imposes obligations on manufacturers as Article 3 of the directive demands. The Wet Inzake de Luchtverontreiniging sets up a permit scheme, but without making those permits subject to conditions placing the manufacturer under the obligation envisaged in Article 3 of the directive. The provisions of Chapter V of the Wet Inzake de Luchtverontreiniging set out only the rules to be followed in the event of an ‘exceptional occurrence’, without dealing with the prevention of accidents. Moreover, ‘exceptional occurrence’ does not correspond to the term ‘major accident’ used in the directive.
37. The Court of Justice requested the Commission to reply to the following question:
‘Is it the Commission's view that Article 10(l)(c) has been implemented in Netherlands law since the promulgation of the Ministerial Decree of 28 March 1991 (Staatscourant, 1991, p. 64) inserting Article 6a into the decree of the Staatssecretaris van Sociale Zaken en Werkgelegenheid of 22 September 1987?’
38. The Commission replies that the decree of the Minister for Social Affairs of 28 March 1991 fairly and fully implements Article 10(l)(c)(d) of the directive as regards ‘the environment within the establishment’ — that is to say, with regard to safety on the work premises within the establishment. However, the Commission doubts whether the mere reference to the directive in the articles of the decree, without inclusion of the text, meets the Court's conditions requiring the public exposure of the obligations imposed on individuals. Nevertheless, as far as the environment outside the undertaking is concerned, the Commission reiterates that Article 6 of the Besluit Risico's Zware Ongevallen does not satisfy the obligations under Article 10(l)(b) and (c) of the directive. Thus Article 10(l)(c) has not been fully implemented.
G. F. Mancini
Judge-Rapporteur
1 Language of the case: Dutch.