Quesito 001 – 1/1/15 – UE – Con riferimento all’art. 2 comma 2 lettera a) D.Lgs. 105/15 [Art. 2(2)(a) Dir. 2012/18/UE] relativo all’ esclusione degli stabilimenti, impianti o depositi militari, l’esclusione si applica a stabilimenti in cui siano presenti sostanze pericolose e che: (1) Non sono di proprietà o controllati dalle forze militari, ma conducono attività militari o servizi? (2) Non sono di proprietà o controllati dalle forze militari, ma forniscono beni militari o servizi alle forze armate? (3) Non sono di proprietà o controllati dalle forze militari e forniscono beni non-militari o servizi alle forze armate? (4) Sono di proprietà o controllati dalle forze militari, ma conducono attività non-militari?
Question: Does the exclusion cover establishments where dangerous substances are present and which are:
(1) not owned/controlled by the armed forces but performing military activities or services?
(2) not owned/controlled by the armed forces but supplying military goods or services to the armed forces?
(3) not owned/controlled by the armed forces and supplying non-military goods or services to the armed forces?
owned and/or controlled by the armed forces but performing non-military activities?
Answer: Member States who have fully ratified the ILO convention no 174 will be
expected to implement measures in accordance with this Convention. In areas which are not covered by the Seveso-III-Directive, e.g. pipelines, it is assumed that Member States are extending the scope of the Seveso-III-Directive in their national laws or taking appropriate separate initiatives.
Answer: Military establishments are excluded because their inclusion could have as a consequence the divulgation of information which could adversely affect public security or national defence.
The exclusion reflects Article 346 of the Treaty on the Functioning of the European Union (TFEU) according to which:
“1. The provisions of the Treaties shall not preclude the application of the following rules:
(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;
(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions or competition in the internal market regarding products which are not intended for specifically military purposes.”
In the light thereof, the exclusion should apply to all sites where military operations take place or where military products are produced or where military products/equipment are present or stored, irrespective of whether these establishments are directly operated by the military/Ministry of Defence or by a private company under an arrangement with the military/Ministry of Defence (situations (1) and (2)).
It would also, in principle, apply to establishments owned or controlled by the military, irrespective of the type of activities taking place since such establishments have arguably been set up to serve military defence purposes (situation (4)).
It would not apply, however, to private companies supplying products or providing services to the military, which are not intended for specifically military purposes (situation (3)). Their situation would not differ from that of any other establishment handling or storing dangerous substances. These private companies are not expected to possess any information which would deserve protection under the exception of national defence/public security.
It is important to note that nothing would prevent a Member State from applying stricter rules than what is prescribed by the Directive – in accordance with Article 193 TFEU.