Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Barcenilla Fernandez (Social policy) [2011] EUECJ C-256/10 (19 May 2011)
URL: http://www.bailii.org/eu/cases/EUECJ/2011/C25610.html
Cite as: ECLI:EU:C:2011:326, [2011] EUECJ C-256/10, EU:C:2011:326
[New search] [Help]
IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT (Seventh Chamber)
19 May 2011 (*)
(Directive 2003/10/EC – Exposure values – Noise – Hearing protection – Effectiveness)
In Joined Cases C-256/10 and C-261/10
REFERENCES for a preliminary ruling under Article 267 TFEUfrom the Tribunal Superior de Justicia de Castilla y León (Spain)made by decisions of 21 April 2010received at the Court on 25 May 2010in the proceedings
David Barcenilla Fernández (C-256/10)
Pedro Antonio Macedo Lozano (C-261/10)
v
Gerardo García SL
THE COURT (Seventh Chamber)
composed of D. ŠvábyPresident of the ChamberE. Juhász and T. von Danwitz (Rapporteur)Judges
Advocate General: Y. Bot
Registrar: A. Calot Escobar
having regard to the written procedure
after considering the observations submitted on behalf of:
– the Spanish Governmentby B. Plaza Cruzacting as Agent
– the Belgian Governmentby T. Materne and M. Jacobsacting as Agents
– the Italian Governmentby M. Russoacting as Agent
– the European Commissionby G. Rozet and G. Valero Jordanaacting as Agents
having decidedafter hearing the Advocate Generalto proceed to judgment without an Opinion
gives the following
Judgment
1 These references for a preliminary hearing concern the interpretation of Articles 356 and 7 of Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 2003 L 42p. 38) as amended by Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007 (OJ 2007 L 165p. 21‘Directive 2003/10’).
2 The references have been made in the course of two sets of proceedings brought by Mr Barcenilla Fernández (C-256/10) and by Mr Macedo Lozano (C-261/10) against Gerardo García SL (‘Gerardo’) concerning the obligation of the latter to make an extra payment under a provision of national law providing for such an extra payment where the conditions of the work station are particularly arduous.
Legal context
European Union law
3 According to recital 10 in the preamble to Directive 2003/10:
‘The level of exposure to noise can be more effectively reduced by incorporating preventive measures into the design of work stations and places of work and by selecting work equipmentprocedures and methods so as to give priority to reducing the risks at source. Provisions relating to work equipment and methods thus contribute to the protection of the workers involved. In accordance with the general principles of prevention as laid down in Article 6(2) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183p. 1)collective protection measures have priority over individual protection measures.’
4 According to recital 12 in the preamble to Directive 2003/10:
‘… The assessed or objectively measured values should be decisive for initiating the actions envisaged at the lower and upper exposure action values. Exposure limit values are needed to avoid irreversible damage to workers’ hearing; the noise reaching the ear should be kept below the exposure limit values.’
5 Article 3 of that directiveentitled ‘Exposure limit values and exposure action values’provides:
‘1. For the purposes of this Directive the exposure limit values and exposure action values in respect of the daily noise exposure levels and peak sound pressure are fixed at:
(a) exposure limit values: LEX 8h = 87 dB(A) and Ppeak = 200 Pa ... respectively;
(b) upper exposure action values: LEX 8h = 85 dB(A) and Ppeak = 140 Pa ... respectively;
(c) lower exposure action values: LEX 8h = 80 dB(A) and Ppeak = 112 Pa ... respectively.
2. When applying the exposure limit valuesthe determination of the worker’s effective exposure shall take account of the attenuation provided by the individual hearing protectors worn by the worker. The exposure action values shall not take account of the effect of any such protectors.
...’
6 Article 5 of that directiveentitled ‘Provisions aimed at avoiding or reducing exposure’provides:
‘1. Taking account of technical progress and of the availability of measures to control the risk at sourcethe risks arising from exposure to noise shall be eliminated at their source or reduced to a minimum.
The reduction of such risks shall be based on the general principles of prevention set out in Article 6(2) of Directive 89/391/EECand take into account in particular:
(a) other working methods that require less exposure to noise;
(b) the choice of appropriate work equipmenttaking account of the work to be doneemitting the least possible noiseincluding the possibility of making available to workers work equipment subject to Community provisions with the aim or effect of limiting exposure to noise;
(c) the design and layout of workplaces and work stations;
(d) adequate information and training to instruct workers to use work equipment correctly in order to reduce their exposure to noise to a minimum;
(e) noise reduction by technical means:
i) reducing airborne noisee.g. by shieldsenclosuressound-absorbent coverings
ii) reducing structure-borne noisee.g. by damping or isolation;
(f) appropriate maintenance programmes for work equipmentthe workplace and workplace systems;
(g) organisation of work to reduce noise:
i) limitation of the duration and intensity of the exposure;
ii) appropriate work schedules with adequate rest periods.
2. On the basis of the risk assessment referred to in Article 4if the upper exposure action values are exceededthe employer shall establish and implement a programme of technical and/or organisational measures intended to reduce the exposure to noisetaking into account in particular the measures referred to in paragraph 1.
...’
7 Article 6 of Directive 2003/10entitled ‘Personal protection’states:
‘1. If the risks arising from exposure to noise cannot be prevented by other meansappropriateproperly fitting individual hearing protectors shall be made available to workers and used by them in accordance with the provisions of Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (third individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)(OJ 1989 L 393p. 18) and Article 13(2) of Directive 89/391/EEC and under the conditions set out below:
(a) where noise exposure exceeds the lower exposure action valuesthe employer shall make individual hearing protectors available to workers;
(b) where noise exposure matches or exceeds the upper exposure action valuesindividual hearing protectors shall be used;
...’
8 Article 7 of Directive 2003/10entitled ‘Limitation of exposure’provides:
‘1. Under no circumstances shall the exposure of the worker as determined in accordance with Article 3(2) exceed the exposure limit values.
2. Ifdespite the measures taken to implement this Directiveexposures above the exposure limit values are detectedthe employer shall:
(a) take immediate action to reduce the exposure to below the exposure limit values
(b) identify the reasons why overexposure has occurred; and
(c) amend the protection and prevention measures in order to avoid any recurrence.’
National law
9 Directive 2003/10 was transposed by Royal Decree 286/2006 on the protection of the health and safety of workers against risks connected with noise exposure (Real Decreto 286/2006 sobre la protección de la salud y la seguridad de los trabajadores contra los riesgos relacionados con la exposición al ruido) of 10 March 2006 (BOE No 6011.3.06p. 9842).
10 Article 5(1) of Royal Decree 286/2006 distinguishes between action values and limit values which must not be exceeded under any circumstances. The limit value which must not be exceededunder Article 8 of that decreeis an average daily level of 87 dB(A).
11 Article 5(2) of Royal Decree 286/2006 states that ‘when applying the exposure limit valuesthe determination of the worker’s actual noise exposure shall take account of the attenuation provided by the individual hearing protectors worn by the worker.’
12 Article 27 of Collective Agreement 2007-2011 for the building and public works sector of the province of Palencia (‘the Collective Agreement’) provides:
‘1. Persons who work in conditions that are particularly arduoustoxic or dangerous are entitled to receive an extra payment corresponding to 20% of their basic salary. If they work for half of the working day or lessthis extra payment shall be 10% of that salary.
...
3. Wherefor any reasonthe conditions of particular arduousnesstoxicity or dangerousness no longer existthe extra payments shall no longer be made.
...’
The actions in the main proceedings and the questions referred for a preliminary ruling
13 Gerardothe employer of the applicants in the main proceedingsis a company which produces stone materials from natural stone. The applicants in the main proceedings usually work on an automatic cutting machine.
14 During their working daythe noise level at their place or work exceeds a daily average of 85 dB(A). To remedy that situationGerardo provided them with individual hearing protection equipment. With the level of attenuation provided by that equipmentthe daily noise exposure level of the applicants in the main proceedings was reduced to a level of less than 80 dB(A).
15 The applicants in the main proceedings claimed an extrapayment under Article 27 of the Collective Agreement in respect of the arduous conditions of their work station due to the fact that they are exposed to a noise level exceeding a daily average of 85 dB(A). Their claims were dismissed by the Juzgado de lo Socialwhich held that Gerardo complied with Royal Decree 286/2006which transposes Directive 2003/10. According to that courtthe noise-attenuating effect of the individual hearing protection equipment must be taken into account when determining whether the conditions of the work station are to be considered arduous.
16 The applicants in the main proceedings brought an appeal before the referring court.
17 That court states that the dismissal by the Juzgado de lo Social of the claims of the applicants in the main proceedings is consistent with the recent case-law of the Tribunal Supremo according to which the noise-attenuating effect of the individual hearing protection equipment must be taken into account when determining whether the worker is exposed to arduous conditions at his work station. According to the national courtthat case-lawinterpreting the concept of ‘arduousness’ in the light of Directive 2003/10 and of the national law transposing it infers from them that they are intended to protect the worker against health risks connected with actual exposure to noise. It follows that there is no arduousness where individual hearing protection equipment allows reduction of the noise reaching the ear to a level of under 80 dB(A).
18 The national court expresses doubts with regard to the compatibility of that case-law of the Tribunal Supremo with Directive 2003/10. In that regardthe national courtwhile accepting that the disputes in the main proceedings concern an extra payment thatas suchis not governed by that directiveconsiders that the directive must first be interpreted in order to determine whether or not the applicants in the main proceedings are entitled to that payment.
19 It considers that the obligation set out in Article 27 of the Collective Agreementto make an extra payment in respect of arduous working conditions depends on compliance by the employer with the obligations arising from Directive 2003/10 and Royal Decree No 286/2006. It would undermine the effectiveness of that directive if an employer could escape from the obligation to make such an extra payment simply by making hearing protection available to its employeeseven if it has not complied with the requirements of that directive regarding the preventive obligations established under it.
20 In those circumstancesthe Tribunal Superior de Justicia de Castilla y Léon decided to stay the proceedings and to refer the following questionsworded identically in each caseto the Court for a preliminary ruling:
‘(1) Are Articles 35(2)6 and 7 of Directive 2003/10 … to be interpreted as meaning that a company in which the workers’ daily noise exposure level is above 85 dB(A) (measured without taking account of the effect of hearing protectors) fulfils the obligations to take preventive measures laid down in that Directive in respect of physical working conditions by providing those workers with hearing protectors so thatwith the level of attenuation provided by those protectorsthe workers’daily noise exposure level is reduced to less than 80 dB(A)?
(2) Is Article 5(2) of Directive 2003/10 … to be interpreted as meaning that the programme of technical and/or organisational measures which must be adopted by a company in which the workers’ daily noise exposure level is above 85 dB(A) (measured without taking account of the effect of hearing protectors) is intended to reduce the noise exposure level to below 85 dB(A)?
(3) If question 1 is answered in the negativedoes Directive 2003/10 … preclude a national rule or judicial approach which exempts a company from making a monetary paymentwhich in principle it must pay to workers affected by daily noise exposure levels of over 85 dB(A)because the company has provided those workers with hearing protectors whose attenuating effect causes daily exposure to remain under 80 dB(A)?’
Consideration of the questions referred
The first and second questions
21 By its first two questionswhich should be considered togetherthe national court asksin essencewhether Directive 2003/10 is to be interpreted as meaning that an employer in a company in which the workers’daily noise exposure level is above 85 dB(A)measured without taking account of the effect of individual hearing protectorsfulfils the obligations resulting from that directive by simply providing the workers with such hearing protectors so that the daily noise exposure level is reduced to less than 80 dB(A)and whether Article 5(2) of that Directive is to be interpreted as meaning that it is intended to reduce the daily noise exposure level to below 85 dB(A)measured without taking account of the effect of the individual hearing protectors.
22 To answer those questionsreference should be made to the legal framework established by Directive 2003/10.
23 Firstunder Article 5(1)first subparagraphof that directivethe risks arising from exposure to noise are to be eliminated at their source or reduced to a minimumtaking account of technical progress and of the availability of measures to control the risk at source.
24 To that endthe second subparagraph of Article 5(1) provides that the reduction of those risks is to be based on the general principles of prevention and details the measures to promote that objective.
25 Under Article 5(2) of Directive 2003/10the employer is to establish and implement a programme of measures intended to reduce the exposure to noise if the upper exposure action values are exceeded. To that endif follows from Article 3(1)(b) and Article 3(2)second sentenceof that directive that that exposure value is fixed at 85 dB(A)which is to bemeasured without taking into account the effect of the individual hearing protectors.
26 Thenunder Article 6 of that directiveindividual hearing protectors are to be made available to workers where the noise exposure exceeds the exposure action values‘if the risks arising from exposure to noise cannot be prevented by other means’.
27 Finallyunder Article 7(1) of Directive 2003/10the exposure of the worker is under no circumstances to exceed the exposure limit valuesthat isaccording to Article 3(1)(a) and Article 3(2)first sentenceof that directivea level of 87 dB(A)measured taking account of the effect of the individual hearing protectors.
28 ThusDirective 2003/10 establishes a hierarchy between the obligations of the employer.
29 Firstthe employer is obligedunder Article 5(2) of that directiveto implement a programme intended to reduce the noise exposurewhere the workers are exposed to a noise level exceeding 85 dB(A)measured without taking into account the effect of the individual hearing protectors.
30 It is only in the event that that programme does not allow such noise exposure to be reduced that Article 6 of Directive 2003/10 sets outsecondlythe additional obligation to make individual hearing protectors available to workers.
31 Thirdly and finally Article 7 of that directive provides specific obligations for the case where use of individual hearing protectors does not prevent exposure limit values being exceeded.
32 It therefore follows from the clear wording and arrangement of these provisions that an employer cannot fulfil its obligations under Article 5(2) of Directive 2003/10 by simply providing the workers with individual hearing protectorsbut that it must implement a programme intended to reduce exposure to noise where workersare exposed to a noise level exceeding 85 dB(A)measured without taking into account the effect of the use of individual hearing protectors.
33 That reading of Directive 2003/10 is supported by recital 10 in the preambleaccording to which that directive is based on the concept of prevention so that priority is given to reducing the risks at source and collective protection measures have priority over individual protection measures.
34 In the light of the foregoing the answer to the first two questions must be that Directive 2003/10 is to be interpreted as meaning that an employer in a company in which the workers’daily noise exposure level is above 85 dB(A)measured without taking account of the effect of individual hearing protectorsfails to fulfil the obligations resulting from that directive by simply providing the workers with such hearing protectors so that the daily noise exposure level is reduced to less than 80 dB(A)as that employer is obliged to implement a programme of technical or organisational measures intended to reducesuch noise exposure to a level of less than 85 dB(A)measured without taking into account the effect of the individual hearing protectors.
The third question
35 By its third questionthe national court asksin essenceif Directive 2003/10 is to be interpreted as meaning that it requires an employerwho has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure levelto make an extra payment to workers who are exposed to a noise level above 85 dB(A)measured without taking into account the effect of the individual hearing protectorseven where it has made such hearing protectors available to those workersthe effect of which is to reduce the daily noise exposure level to below 80 dB(A).
36 With regard to that questionit should be recalled thataccording to the Collective Agreementan extra payment is due to persons who work in particularly arduous conditionsand such arduousness may result from exposure to noise.
37 In this regardthe national court states thataccording to the recent case-law of the Tribunal Supremosuch arduousness is absent where the individual hearing protectors have the effect of reducing the noise reaching the ear to a level of less than 80 dB(A). According to the national courtthat case-law is based on an interpretation of Directive 2003/10 according to which its objective is to protect the worker against the health risks connected with actual exposure to noise.Such a restrictive interpretation would undermine theeffectiveness of that directive. An employer could thus escape from the obligation to make such an extra payment simply by making individual hearing protectors available to its workerseven if it has not complied with the requirements of that directive regarding the preventive obligations established under it.
38 In this regardit is important to point out thatas the European Commission has observedDirective 2003/10 does not governas such either the making of an extra paymentin respect of the arduousness of a work station due to noise exposure or the issue of whether the effect of individual hearing protection can or must be taken into account to determine the noise exposure threshold that gives rise to the obligation to make such an extra payment.
39 AccordinglyDirective 2003/10 does not require that failure by the employer to comply with the preventive obligations established underthat directive should be penalised by the obligation to make an extra payment.
40 Howeverwith regard to the questions of the national courtit should be pointed out that those preventive obligations intended to reduceas far as possiblethe noise exposure at source by implementing a programme of technical or organisational measuresfall within the objective of Directive 2003/10 of protecting the health of workers.
41 Furtheraccording to established case-lawthe freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (Case C-268/06 Impact [2008] ECR I-2483paragraph 40 and case-law cited) and to ensurewhere the directive is intended to create rights for individualsthat they can where appropriaterely on them before the national courts (Case C-361/88 Commission v Germany [1991] ECR I-2567paragraph 15).
42 It follows that national law must be interpreted so as to enable workers to effectively require their employer to comply with the preventive obligations established under Directive 2003/10 whichas is clear from recital 10is specifically intended to contribute to the protection of workers.
43 In the light of the abovethe answer to the third question must be that Directive 2003/10 must be interpreted as meaning that it does not require an employer to make an extra payment to workers who are exposed to a noise level above 85 dB(A)measured without taking into account the effect of individual hearing protectors on the sole ground that it has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure level. Howevernational law must provide appropriate mechanisms to ensure that a worker who is exposed to a noise level exceeding 85 dB(A)measured without taking into account the effect of individual hearing protectorscan require the employer to comply with the preventive obligations set out in Article 5(2) of that directive.
Costs
44 Since these proceedings arefor the parties to the main proceedingsa step in the action pending before the national courtthe decision on costs is a matter for that court. Costs incurred in submitting observations to the Courtother than the costs of those partiesare not recoverable.
On those groundsthe Court (Seventh Chamber) hereby rules:
1. Directive 2003/10/EC of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (noise) (Seventeenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)as amended by Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007must be interpreted as meaning that an employer in a company in which the workers’ daily noise exposure level is above 85 dB(A)measured without taking account of the effect of individual hearing protectorsfails to fulfil the obligations resulting from that Directive by simply providing the workers with such hearing protectors so that the daily noise exposure level is reduced to less than 80 dB(A)as that employer is obliged to implement a programme of technical or organisational measures intended to reduce such noise exposure to a level of less than 85 dB(A)measured without taking into account the effect of the individual hearing protectors.
2. Directive 2003/10as amended by Directive 2007/30must be interpreted as meaning that it does not require an employer to make an extra payment to workers who are exposed to a noise level above85 dB(A)measured without taking into account the effect of the individual hearing protectors on the sole ground that it has not implemented a programme of technical or organisational measures intended to reduce the daily noise exposure level. Howevernational law must provide appropriate mechanisms to ensure that a worker who is exposed to a noise level above85 dB(A)measured without taking into account the effect of the individual hearing protectorscan require the employer to comply with the preventive obligations set out in Article 5(2) of that directive.
[Signatures]
* Language of the case: Spanish.