The safety obligations for manufacturers and suppliers of …

Articles 23 and 57 of Decree-Law No 81/2008, which contain the consolidated law on health and safety at work, are at the heart of this sentence from the Court of Cassation, Article 23, which with para. Article 57 provides that “Manufacture, sale, rental and concession in the use of work equipment, personal protective equipment and systems that do not comply with applicable laws and regulations on health and safety at work”, and Article 57, which laid down the sanctions for those who do not themselves comply with the rules.

In the case in question, the Supreme Court was called upon to rule on the appeal made by the legal representative of a company which, with the conformity judgments which the first two levels of the trial had, had been sentenced to imprisonment of one month and fifteen days. for the crime referred to in paragraph 1 of the aforementioned Article 23, with reference to the permission to use some hoists that were used to maintain a structure of pylons at a height, which in turn was used to support light and sound projectors. The defendant in the appeal sought the annulment of the judgment, arguing that he did not belong to the category of manufacturers or suppliers referred to in Article 23, and further arguing that Article 57 in any event does not provide for a specific criminal sanction for granting the use of work equipment.

In fact, since the entry into force of Legislative Decree No. 81/2008, an incomplete agreement had already been found between what is stated in § 23 and the punishment in § 57. Here the Supreme Court has now found an opportunity to provide clarifications on the issue, which, however, was inappropriate after a careful reading of the rules themselves. For the purposes of applying the security obligations, the Court of Cassation in fact argued that the manufacture of work equipment, a plant or a PPE means the activity of their creation, while delivery means an activity which in any case interferes with their circulation, e.g. as sale, rental or concession in use.

The Court of Cassation therefore ultimately considered the appeal unfounded and rejected it, accompanied by its decision, emphasizing that when the penalty provision refers to “supplier”, it refers to evidence of the person who “sells”, “rents” or “assigns in use “an asset, and in the present case it can not be said with certainty that the defendant at least did not disturb the circulation of the work equipment in question.

The case, the judgment, the appeal of cassation and the reasons

The Court of Appeal upheld the judgment of the Court of Justice, according to which the legal representative of a company was sentenced to one month and fifteen days’ arrest for it in Art. 1, in Legislative Decree no. 23, para. 81/2008. The accused appealed the cassation decision and stated some reasons.

For the first reason, the applicant complained about the incorrect application of the Penal Code in relation to Articles 23 and 57 of Legislative Decree 81 of 2008. The applicant noted in particular that the Penal Code is addressed only to manufacturers and suppliers of equipment. , and that, with reference to the disputed hoists, he did not fall into those categories and further argued that no criminal sanction was provided for those granting them in use.

The appellant also refers, with reference to the challenge of the infringement of Art. 23, emphasized, with another reason, that all hoists were equipped with the CE mark with normal behavior during the function tests and again specified with a third reason, in relation to the connection between charge and punishment, which was the grant of use. of work equipment that is not in accordance with the legislation on safety at work were challenged, with a change made at the request of the Attorney General, while the original charge was related to having used them. In any event, he added, he had never been challenged with the production or manufacture that constitutes the criminally relevant conduct.

Judgments of the Court of Cassation

The appeal was considered unfounded by the Court of Cassation, which upheld the correctness of the contested judgment. According to art. 23, para. 1, in fact, emphasized the same, the manufacture, sale, rental and allocation of the use of work equipment, personal protective equipment and systems that do not comply with applicable laws and regulations on the subject is prohibited. and safety in the workplace, and with art. 57, para. 2, the sanction was imposed on producers and suppliers who infringe the provisions of Article 23.

If manufacturing, the Supreme Court continued, indicates the activity of creating equipment, devices and systems, the supply generically includes the activity of all those who interfere in the circulation of such goods, so much so that ‘art. 23 deals with “sale”, “rental” and “concession in use”, while the sanction provision refers generically to the “supplier”, who is obviously the one who “sells”, “rents” or “gives in use” the goods. . And there is no doubt that, in the present case, the applicant has at least disrupted the circulation of the equipment.

With the charge, Section III added, the “concession in use” of six electric chain hoists had been challenged, which performed the function of supporting a metal lattice structure at height on which luminous projectors were installed. / sound without the CE conformity mark required by applicable law. The equipment therefore consisted not only of the hoists, but they were, although equipped with conformity, instead part of an overall system, which for the construction methods should have been subject to legal control, so much so that the original manufacturer of the hoists, as it was acknowledged in the first sentence, had prevented their start-up in the condition they were in, precisely because they were products that were not ready for use in themselves.

In the light of the foregoing findings, it cannot ultimately be said, according to Title III, that in the specific case there has been a violation of the rights of the defense. The principle of correlation between imputation and punishment is in fact violated when in the facts, respectively described and considered, it is not possible to identify a common core, with the consequence that they are placed in a heterogeneity relationship and significant incompatibility, which sets conditions for , that the accused can not defend himself.

According to the Court of Cassation, the groundlessness at the conclusion of the grounds of appeal as well as of the others led to the appeal being rejected with the claim to pay the costs of the case.

Gerardo Porreca

Court of Cassation Section III – Penalty no. 8555 of March 14, 2022 (up November 25, 2021) – Pres. Petruzzellis – Est. Cerroni – PM Seccia – Ric. MP. For the purposes of safety obligations, the manufacture of equipment means the activity of its creation and the supply of an activity which in any case disrupts its circulation, such as sale, rental and concession in use.

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