C-439/98
ECLI:EU:C:1999:627
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OPINION OF MR ALBER — CASE C-439/98
O P I N I O N OF ADVOCATE GENERAL ALBER delivered on 16 December 1999 *
A — Introduction Preliminary proceedings
3. Since the Commission had received no information concerning the transposition of Directive 95/30, it wrote to the Italian Republic on 30 May 1997 and gave it the 1. In the present action for failure to fulfil opportunity to submit its observations as obligations under the Treaty, the Commis- provided for in Article 169 of the EC sion claims that the Italian Republic has Treaty (now Article 226 EC). It is apparent not transposed Commission Directive from the notes from the Permanent Repre- 95/30/EC of 30 June 1995 adapting to sentation of Italy of 11 July 1997 and technical progress Council Directive 28 October 1997 that the Italian authori- 90/679/EEC on the protection of workers ties drafted certain measures in order to from risks related to exposure to biological transpose Directive 95/30. Since the Com- agents at work (seventh individual Direc- mission subsequently received no further tive within the meaning of Article 16(1) of information, however, it delivered a rea- Directive 89/391/EEC) 1('Directive 95/30') soned opinion in accordance with Arti- into national law or has not communicated cle 169 of the Treaty on 12 January 1998 the relevant provisions to the Commission. and requested the Italian Republic to take the necessary measures within two months. No reply to that reasoned opinion was received from the Italian Republic.
2. Article 2(2) of Directive 95/30 provides Procedure before the Court of justice that Member States are to 'bring into force the laws, regulations and administrative provisions necessary to comply with [that] Directive by 30 November 1996. They shall immediately inform the Commission 4. By application of 26 November 1998, thereof.' registered at the Court Registry on 3 December 1998, the Commission there- fore brought an action against the Italian * — Original language: German. Republic for failure to fulfil its obligations 1 — OJ 1995 L 155, p. 41. under the Treaty.
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COMMISSION V ITALY
5. The Commission claims that it is com- ing to technical progress Directive 90/679/ mon ground that, pursuant to Article 2 of EEC. 4The competent ministry considered Directive 95/30, the Italian Republic was it appropriate, for reasons of procedural required to bring into force the laws, economy, to transpose Directives 95/30, regulations and administrative provisions 97/59 and 97/65 by a single decree, since necessary to comply with that directive by the same requirements were to be satisfied 30 November 1996. That obligation is also in each case. The Ministry of Labour and based on the third paragraph of Article 189 Social Security transmitted a proposal to of the EC Treaty (now Article 249 EC) and that effect to the ministries concerned for Article 5 of the EC Treaty (now Article 10 their comments. The Italian Republic states EC). that that procedure will soon be complete and requests that in those circumstances the Commission withdraw the application.
6. Since the Commission did not receive any information concerning the procedure 8. The Commission claims that the Court being followed for the purpose of transpos- should: ing the directive or the text of the relevant laws, regulations or administrative provi- sions, it can only be concluded that the Italian Republic did not transpose the directive within the prescribed period or (1) declare that, by not adopting the laws, that it did not inform the Commission that regulations and administrative provi- it had done so and that, accordingly, it sions necessary to comply with Com- failed to fulfil its obligations under Com- mission Directive 95/30/EC of 30 June munity law. 1995 adapting to technical progress Directive 90/679/EEC on the protec- tion of workers from risks related to exposure to biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Council 7. The Italian Republic does not dispute Directive 89/391/EEC), or by not com- those complaints. It merely states that the municating those provisions, the Italian transposition procedure was initiated but Republic has failed to fulfil its obliga- was not pursued because of the adoption by tions under that directive; the European Commission of Directives 97/59/EC 2and 97/65/EC 3further adapt-
2 — Commission Directive 97/59/EC of 7 October 1997 adapt- (2) order the Italian Government to pay ing to technical progress Council Directive 90/679/EEC on the protection of workers from risks related to exposure to the costs. biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/ EEC) (OJ 1997 L 282, p. 33). 3 — Commission Directive 97/65/EC of 26 November 1997 4 — Council Directive 90/679/EEC of 26 November 1990 on the adapting, for the third time, to technical progress Council protection of workers from risks related to exposure to Directive 90/679/EEC on the protection of workers from biological agents at work (seventh individual Directive risks related to exposure to biological agents at work within the meaning of Article 16(1) of Directive 89/391/ (OJ 1997 L 335, p. 17). EEC) (OJ 1990 L 374, p. 1).
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OPINION OF MR ALBER — CASE C-439/98
B — Analysis adopted in October and November 1997 respectively, by which time Directive 95/30 should have already been transposed for more than a year. 9. Pursuant to Article 2 of Directive 95/30, that directive should have been transposed into Italian law by 30 November 1996. The Italian Republic does not dispute that it has not brought into force the laws, regulations 10. Therefore, it must be declared that the and administrative provisions necessary to Italian Republic has failed to fulfil its comply with that directive. It merely claims obligations under Directive 95/30. that it initiated the appropriate procedure with a view to adopting the necessary decree but then discontinued that proce- dure because the Commission had adopted further directives which the Italian Repub- lic wished to transpose together with Directive 95/30. However, that does not Costs alter the fact that the Italian Republic was under an obligation to adopt the provisions necessary to transpose Directive 95/30 within trie prescribed period. In the present 11. Under Article 69(2) of the Rules of case, moreover, it should be observed that Procedure of the Court, the unsuccessful the later Directives 97/59 and 97/65, were party is to be ordered to pay the costs.
C — Conclusion
12. In the light of the foregoing considerations, I propose that the Court should:
(1) declare that by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with Commis- sion Directive 95/30/EC of 30 June 1995 adapting to technical progress Council Directive 90/679/EEC o n the protection of workers from risks related
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COMMISSION V ITALY
to exposure to biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Italian Republic has failed to fulfil its obligations under that directive;
(2) order the Italian Republic to pay the costs.
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