Case C-168/03

Commission of the European Communities

v

Kingdom of Spain

(Failure of a Member State to fulfil obligations – Directives 89/655/EEC and 95/63/EC – Incomplete transposition – Additional adjustment period)

Summary of the Judgment

Social policy – Protection of the safety and health of workers – Directive 89/655 concerning the minimum safety and health requirements for the use of work equipment by workers at work – Compliance with the minimum requirements – Work equipment in use – Grant of an additional adjustment period – Conditions

(Council Directive 89/655, as amended by Art. 4(1)(b) of Directive 95/63, and Annex I, point 1, para. (2))

The second paragraph of point 1 of Annex I to Directive 89/655 concerning the minimum safety and health requirements for the use of work equipment by workers at work, as amended by Directive 95/63, according to which the minimum requirements laid down in that directive, inasmuch as they apply to work equipment in use, do not necessarily call for the same measures as the essential requirements concerning new work equipment, must be understood as meaning that it also amends to some extent the scope of Article 4(1)(b) of Directive 89/655 in its original version, which obliges the employer to obtain and/or use work equipment which, if already provided to workers in the undertaking and/or establishment by 31 December 1992, complies with the minimum requirements laid down in the Annex to the directive no later than four years after that date.

Thus, the concession in relation to work equipment in use after 31 December 1996 must be understood in the light of the minimum requirements laid down in Annex I to Directive 89/655, as amended, which, according to the second paragraph of point 1 thereof, continue to apply to that equipment. Inasmuch as the lastmentioned provision states that, as regards such equipment, the minimum requirements do not necessarily call for the same measures as the essential requirements concerning new work equipment, it must be interpreted as increasing the opportunities for choice in the field of technical solutions if the measures taken are capable of securing the protection which those provisions are intended to achieve.

The transposition of Directive 89/655, as amended, is not carried out with the necessary clarity and precision by national provisions which make no reference to the rules contained in Annex I to the directive and which, for that reason, grant an additional adjustment period for work equipment already provided to workers in the undertaking and/or establishment before 27 August 1997.

(see paras 33-38)

JUDGMENT OF THE COURT (Second Chamber) 14 September 2004 (1)

(Failure of a Member State to fulfil obligations – Directives 89/655/EEC and 95/63/EC – Incomplete transposition – Additional adjustment period)

In Case C-168/03,ACTION under Article 226 EC for failure to fulfil obligations,brought on 11 April 2003,

applicant,

v

defendant,

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 30 March 2004,

gives the following

‘1.

…’

‘1.

…

‘Addition to the Annex of the supplementary minimum requirements applicable to specific work equipment referred to in point 3 thereof shall be adopted by the Council in accordance with the procedure laid down in Article 118a of the Treaty.’

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 1992. They shall forthwith inform the Commission thereof.’

‘The Annex (which becomes Annex I) to Directive 89/655/EEC is amended as follows:

1.…’

(b)

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 5 December 1998. They shall forthwith inform the Commission thereof.’

‘Sole transitional provision. Adjustment of work equipment.

1.Nevertheless, if certain sectors are not in a position, for specific, duly substantiated, objective reasons relating to their work equipment, to comply with the time-limit laid down in the preceding subparagraph, the employment authorities may in exceptional cases, on receipt of a reasoned request from the most representative associations of employers in the sector and after consultation with the most representative trade unions in the sector, authorise a plan to bring work equipment into conformity having a duration of no more than five years and which reflects the severity, impact and extent of the objective situation relied on. The plan in question must be submitted to the employment authorities within a maximum period of nine months from the entry into force of this Royal Decree and must be approved within a maximum period of three months, after which the absence of an express decision shall mean that the request is rejected.

The conformity plan shall apply to the undertakings concerned on submission of a request by those undertakings to the employment authorities for their approval, its application must be linked to consultation with workforce representatives, the plan must state the severity, impact and extent of the technical difficulties which prevent the prescribed time-limit being met, and also provide details of the steps taken to comply with it and the alternative preventive measures which guarantee appropriate health and safety conditions for the workplace in question.

…’

On those grounds, the Court (Second Chamber) hereby:

Signatures.