30. Legal consequences of non-compliance

The preceding sections deal with the formation pathway, the state of the evidence and the duties. This section deals with what happens if those duties are not met. The account is confined to the law in force and gives the source for every statement. What matters is that in all four legal systems set out here the sanction attaches to the duty omitted and not to damage to health that has occurred.

Germany: administrative offence, criminal offence and recourse

The German Hazardous Substances Ordinance lists the breaches of its central duties in section 22 paragraph 1. The provision begins: “Anyone acting intentionally or negligently commits an administrative offence within the meaning of section 26 paragraph 1 number 8 letter b of the Chemicals Act who”. For the matter dealt with here three numbers are relevant. Number 1a covers the risk assessment which, contrary to section 6 paragraph 8 sentence 1, is not documented, or is not documented correctly, completely or in time. Number 3 covers anyone who allows an activity to begin contrary to section 7 paragraph 1, that is, before the risk assessment has been carried out and the necessary protective measures taken. Number 5 covers anyone who, contrary to section 7 paragraph 7 sentence 1, does not check the function and the effectiveness of the technical protective measures, or does not check them in time [103].

The range of the fine follows not from the ordinance itself but from the Chemicals Act. Section 26 paragraph 3 grades the maximum amounts; for breaches under section 26 paragraph 1 number 8 letter b, that is, for the provisions on the protection of employees, the fine is up to 50,000 euros [104].

Above the administrative offence the criminal law begins, and it does so without any damage having to have occurred. Section 22 paragraph 2 of the Hazardous Substances Ordinance provides: “Anyone who by an act described in paragraph 1 endangers the life or the health of another person or property of significant value belonging to another is liable to punishment under section 27 paragraphs 2 to 4 of the Chemicals Act.” [103] Section 27 paragraph 2 of the Chemicals Act provides for imprisonment of up to five years or a fine for intentional endangerment, and paragraph 4 for imprisonment of up to two years or a fine for negligent conduct. The attempt is punishable under paragraph 3. The element of the offence is the endangerment of life or health, not its injury [105].

This construction is of considerable significance for the matter dealt with here. An occupational disease caused by chromium(VI) appears with a latency of years to decades. A criminal provision that required the damage to have occurred would in practice remain without effect over that period. The endangerment offence, by contrast, applies at the point at which the activity is carried out without an assessment and without protective measures.

To this is added the recourse of the accident insurance institution. Under section 110 of the German Social Code Book VII, persons whose liability is limited under sections 104 to 107 are liable to the social insurance institutions for the expenses incurred as a result of the insured event if they “caused the insured event intentionally or through gross negligence”. The fault need relate only to the act or omission that caused the insured event. In amount, the liability is limited to the claim for damages under civil law; instead of a pension, the capitalised value may be demanded. The institution may waive the claim in whole or in part at its equitable discretion [106]. Where an occupational disease is recognised and carries many years of pension, treatment and rehabilitation costs, this recourse is regularly the largest item in economic terms, and it falls on the person whose liability towards the employee is itself limited.

On the environmental side, section 326 paragraph 1 of the German Criminal Code applies. It covers anyone who collects, transports, treats, recovers, stores, deposits, discharges, disposes of or trades in waste outside a facility authorised for that purpose or in substantial deviation from a prescribed or authorised procedure, provided the waste falls within one of the hazard categories listed. These include waste that is “carcinogenic, toxic for reproduction or mutagenic for humans”. The sentencing range is up to five years' imprisonment or a fine, and for negligent conduct under paragraph 5 number 1 up to three years [107]. Insulation materials, deposits and ashes containing chromate come within this consideration as soon as they are handled as waste; the classification then follows not from the as-delivered condition but from the in-use condition.

Netherlands: duty of substitution, bestuurlijke boete and economic offence

The Dutch Arbeidsomstandighedenbesluit governs activities involving carcinogenic substances in chapter 4 section 2. Article 4.17 bears the heading “Voorkomen van blootstelling; vervangen” and requires technical and organisational measures that prevent the possibility of exposure at source as far as possible, above all by replacing the carcinogenic, mutagenic or reprotoxic substances or processes, “voor zover dit technisch uitvoerbaar is”, with substances or processes in which the employees are not endangered or are endangered less [109]. The priority of substitution is thus framed as in German law, but with the benchmark of technical feasibility.

Non-compliance with the duties under the Arbeidsomstandighedenwet and the provisions based on it is an overtreding under article 33 paragraphs 1 and 2. Article 34 paragraph 1 assigns the imposition of the bestuurlijke boete to an official designated for that purpose. Under article 34 paragraph 3 the fine is at most the amount of the fifth category under article 23 paragraph 4 of the Dutch Criminal Code [108]; since 1 January 2026 that amount has been 110,000 euros, and the amount of the sixth category 1,100,000 euros [111]. Where a breach of the same kind occurred within the preceding five years, the fine is increased by 100 per cent under article 34 paragraph 5, and where there were two earlier breaches or where the breaches are classified as serious, by 200 per cent under paragraphs 6 and 7; for serious breaches paragraph 9 extends the period considered to ten years [108].

The criminal provision is in article 32 of the Arbeidsomstandighedenwet: “Het is de werkgever verboden handelingen te verrichten of na te laten in strijd met deze wet of de daarop berustende bepalingen indien daardoor, naar hij weet of redelijkerwijs moet weten, levensgevaar of ernstige schade aan de gezondheid van een of meer werknemers ontstaat of te verwachten is.” [108] The benchmark is therefore not positive knowledge alone but also what the employer must reasonably know. Article 1 number 1 of the Wet op de economische delicten expressly lists article 32 of the Arbeidsomstandighedenwet as an economic offence. Under article 2 paragraph 1 of the same Wet these offences are misdrijven in so far as they are committed intentionally, and otherwise overtredingen. Article 6 paragraph 1 number 1 provides, for the offence committed intentionally, imprisonment of up to six years, a community service order or a fine of the fifth category, and number 4 provides, for the overtreding, detention of up to one year, a community service order or a fine of the fourth category [110].

United Kingdom: COSHH and the Health and Safety at Work etc. Act

Regulation 7(1) of the Control of Substances Hazardous to Health Regulations 2002 provides: “Every employer shall ensure that the exposure of his employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled.” Regulation 7(2) makes the priority of substitution clear: “substitution shall by preference be undertaken”, whereby the employer replaces the use of the hazardous substance, so far as is reasonably practicable, with a substance or a process that removes or reduces the hazard. Where prevention of exposure to a carcinogen is not reasonably practicable, regulation 7(5) additionally requires the total enclosure of the process and handling systems so far as is practicable, the prohibition of eating, drinking and smoking in areas that may be contaminated, the regular and occasion-related cleaning of floors, walls and other surfaces, the marking of the areas and installations concerned with suitable warning signs, and safe storage, handling and disposal in closed and clearly labelled containers [113].

These duties are backed by criminal sanctions. Under section 33(1)(c) of the Health and Safety at Work etc. Act 1974 it is an offence to contravene health and safety regulations or any requirement imposed under them. Section 33(2) refers to Schedule 3A for the mode of trial and the maximum penalty. There the offence under section 33(1)(c) is triable either summarily or on indictment; on indictment the maximum penalty is imprisonment of up to two years, a fine or both, and summarily imprisonment up to the general limit in a magistrates' court, a fine or both. The summary ceiling of 20,000 pounds that formerly applied has fallen away; the wording in force names only “a fine” [112]. Here too criminal liability does not presuppose damage to health that has occurred but attaches to the breach of the rules.

United States: OSHA penalties, criminal provision and procurement law

In the United States the standard 29 CFR 1910.1026 applies to chromium(VI), with a permissible exposure limit of 5 µg/m³ and an action level of 2.5 µg/m³ (Section 18). The civil penalties under section 17 of the Occupational Safety and Health Act are adjusted annually for inflation. For assessments after 15 January 2026 they are up to 16,550 US dollars per violation for serious and other-than-serious violations as well as for breaches of posting requirements, up to 16,550 US dollars per day for failure to abate after the period set has expired, and up to 165,514 US dollars per violation for willful or repeated violations [114]. Since every item concerned can be cited separately, the total amount is not limited by these individual amounts.

To this is added the criminal provision in section 17(e): an employer who wilfully violates a standard issued under section 6 and thereby causes the death of an employee is punished by a fine of up to 10,000 US dollars or by imprisonment of up to six months or by both; after a first conviction the range rises to 20,000 US dollars or one year [114]. In procurement law there is in addition the clause DFARS 252.223-7008 set out in section 18, which attaches to the supply and not to the exposure.

What the four legal systems have in common

The points of attachment lie consistently before the damage. Germany sanctions the missing documentation, the taking up of the activity without an assessment and the omitted check on effectiveness, and makes the endangerment of life or health a criminal offence. The Netherlands penalise non-compliance with the duties by a fine and make criminal the act or omission of which the employer knows or must reasonably know that danger to life or serious damage to health arises or is to be expected from it. The United Kingdom attaches to the breach of the Regulations. The United States attach to the breach of the standard and raise the range in cases of intent and repetition.

For the matter dealt with here, a clear evidential position follows from this. Since the protective measures under the German TRGS 561 already apply where chromium(VI) contamination cannot be ruled out (Section 6), and since a negative measurement result without a statement of the recovery rate on the same matrix permits no conclusion as to the content (Section 17), what decides a dispute is not the measurement but the documentation: whether a risk assessment exists that covers the material pairing of chromium-alloyed hot component and basic insulation material, whether the substitution check was carried out and reasoned, and whether the effectiveness of the measures taken has been verified.

A missing or incorrect assessment of a chromium(VI) exposure is therefore not a marginal question of works organisation in any of the four legal systems. It carries a fine, at the upper end a criminal penalty, and in the event of damage it triggers the recourse of the social insurance institution.