In proceedings between a company supplying petrol and one of its distributors, the Tribunale di Genova referred questions to the Court of Justice concerning the compatibility with Community law of Italian legislation on the protection of the health and safety of workers exposed to carcinogens.
SpA Italiana Petroli (IP) regularly supplied Srl Borsana with petrol for motor vehicles as well as the equipment necessary to resell it. Borsana asked IP 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 in the filling stations it operates. Taking the view that it was not possible to comply with Borsana's request because of the divergences between Italian legislation and the European Directives, IP refused and brought proceedings against Borsana in the Tribunale di Genova for a declaration that it was not obliged to meet Borsana's claims. The national court accordingly referred several questions to the Court of Justice concerning the interpretation of the directives in question.
The questions related to the protection of workers against risks linked to exposure to carcinogens at work, the minimum health and safety requirements for the use of work equipment by workers at work and, lastly, the maximum benzene content in petrol.
With regard to the first question, the 1990 Community Directive requires the employer, where there is a risk concerning the safety or health of workers, to avoid their exposure to carcinogens or to reduce it to as low a level as possible, whilst the Italian legislation imposes the same obligation on the employer irrespective of the assessment of risk.
The Court points out that the Directive sets out minimum requirements and that the Member States are authorised to adopt measures for the protection of working conditions that are more stringent than the Community requirements. It states that a national provision reinforcing the protection of workers is compatible with Community law if it applies in a non-discriminatory manner and does not hinder the exercise of the fundamental freedoms guaranteed by the Treaty. In the Court's view, the Italian legislation in point is such a case.
As regards the question of work equipment, the 1989 Community Directive provides that the Member States are to transpose into national law the requirements which it lays down within a period of four years, whereas the 1994 Italian law transposing the Directive requires employers to adapt their equipment within a period of three months from its entry into force.
The Court points out that the time-limit of four years set in the abovementioned provision constitutes the maximum prescribed period and there is nothing to prevent the Member States from setting a shorter period within which the obligations contained in the directive must be implemented, provided that the principle of proportionality is complied with. In this case the Court states, however, that the Member States have a wide discretion in setting such time-limits and that it is for the national court to examine whether in fact a time-limit of three months for adapting equipment is sufficient in the light of the principle of proportionality, and in particular whether it does not involve excessive cost for employers.
Lastly, as regards the maximum benzene content of petrol, the 1985 Community Directive fixes this at 5% by volume, whereas the 1996 Italian law limits the permissible level to 1.4% by volume until 30 June 1999 and to 1% thereafter. The 1990 Directive on the protection of workers from the risks related to exposure to carcinogens at work requires employers to reduce the use of such carcinogens by replacing them with other substances which are less dangerous to health "in so far as is technically possible". The national court considered that the Italian law extended that requirement to planners and designers of premises or work stations or of plant or machinery.
The question put to the Court sought to ascertain whether the obligation to reduce carcinogens requires those persons, in the same way as the employer, to reduce benzene content below the level of 5% or the lower limits fixed by the Italian law. The Court considered that it was not technically possible for an employer, in the case in point Borsana, which operates petrol filling stations, to replace the benzene in the petrol it distributes. As to the obligation imposed in Italian law on workplace and plant planners and designers to reduce the benzene content below the limit of 5%, the Court notes that the 1994 Italian law does not refer to any provision of Community law but to Italian domestic law and that however Community law were interpreted those persons would remain bound by the lower limit fixed by Italian law. The Court concludes that it has no jurisdiction to reply to the question.
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