C-473/99
ECLI:EU:C:2001:206
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OPINION OF MR GEELHOED — CASE C-473/99
OPINION OF ADVOCATE GENERAL GEELHOED delivered on 5 April 2001 1
In the present case, the Commission of the By letter of 30 May 1997, the Commission European Communities asks the Court to sent to the Austrian Government a letter of declare, in accordance with Article 226 EC, formal notice under Article 169 of the EC that, by failing to adopt all necessary Treaty (now Article 226 EC) inviting it to measures to implement Commission Direc- submit observations regarding the alleged tive 95/30/EC of 30 June 1995 adapting to failure within two months. The Austrian technical progress Council Directive Government informed the Commission 90/679/EEC on the protection of workers that the Directive would probably be from risks related to exposure to biological implemented in December 1997. agents at work (seventh individual Direc- tive within the meaning of Article 16(1) of Directive 89/391/EEC), the Republic of Austria has failed to fulfil its obligations under that directive. 2
I — Procedure and forms of order sought
2. As Austria had still failed to take the necessary measures, the Commission sent a reasoned opinion to Austria on 2 July 1998, asking Austria to take the necessary 1. The time-limit for implementation of the measures within two months from the date Directive expired on 30 November 1996. of notification of the opinion. By letter of 3 September 1998, the Austrian Govern- ment informed the Commission that part of 1 — Original language: Dutch. the necessary measures had already been 2 — OJ 1995 L 155, p. 41 ('the Directive'). adopted, and that the other part was in
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preparation. Then, by letters of 4 and Länder (Provinces) (Burgenland, Kärnten, 15 September, 16 October and 23 Novem- Niederösterreich, Oberösterreich, Salzburg, ber 1998, 10 February, 8 and 9 April 1999, Steirmark, Tirol, Wien and Vorarlberg) had the Austrian Government informed the not come into force or had not been Commission of the measures that had been communicated to it. Although Austria has adopted in order to implement the Direc- adopted a number of implementing mea- tive. sures, also after 2 September 1998, imple- mentation is still not complete.
3. The Commission's application was lodged at the Court on 10 December 1999. A hearing has not taken place. On the basis of the documents received the Court asked the parties on 20 November 2000 to provide further explanations in writing. Both parties have replied. 5. The Austrian Government does not deny the infringement. It points out that under the Austrian Federal Constitution, imple- mentation of the Directive is characterised by the splitting of competences between the Federal State and the Länder. In addition to the general division of powers under the Federal Constitution, the present case involves a particular division of the com- petences concerned between the Federal State, the Lander, and local authorities in the fields of education and civil service law. In particular, implementation requires close 4. In its application, the Commission sub- coordination between the Länder and the mits that the Republic of Austria did not Federal State in order to ensure a uniform adopt the laws and administrative provi- level of protection. It has provided the sions necessary to fulfil the obligations Court with a detailed list describing the under the Directive by 30 November state of implementation of the Directive. 1996. It claims that upon the expiry of We may conclude from this information the two month period given in the reasoned that implementation has been almost opinion, that is, 2 September 1998, various entirely completed on all administrative measures at federal level and in all nine levels.
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II — Assessment of the Commission's sions, practices or circumstances to justify application its failure to comply with its obligations and time-limits in a directive. 4
6. Under the first sentence of Article 2(1) of 8. The Court has repeatedly held that the the Directive, the Republic of Austria had subject of an action under Article 226 EC is to implement the Directive in national law determined by reference to the reasoned by 30 November 1996 and immediately opinion of the Commission. The existence inform the Commission thereof. This obli- of an infringement of the Treaty is to be gation also arises under the third paragraph determined by reference to the situation in of Article 249 EC, under which a Directive the Member State as it stood at the end of shall be binding on each Member State as the period laid down in the reasoned to the result to be achieved, as well as under opinion. Subsequent changes may not be Article 10 EC. 3 taken into consideration. 5It follows from the documents in the case that the Republic of Austria had not, by the expiry of the time-limit on 2 September 1998, adopted all the measures necessary to fulfil its obligations under the Directive. The action brought by the Commission must be con- sidered to be well founded.
7. Austria does not dispute that it has not adopted all the measures necessary to implement the Directive in national law. Its argument that internal difficulties delayed implementation cannot be accepted. The Court has repeatedly held that a Member State may not plead provi- 4 — Case C-83/00 Commission v Netherlands [2001] ECR I-2351, paragraph 10. 3 — See, amongst others, Case C-439/98 Commission v Italy 5 — See, especially, Case C-185/96 Commission v Greece [1998] [2000] ECR I-1565. ECR I-6601, paragraph 18.
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I I I— Conclusion
On the basis of the reasons set out above, I propose that the Court should:
(1) declare that, by failing to adopt, within the time-limit laid down by the Directive, the laws, regulations and administrative provisions necessary to comply with Commission Directive 95/30/EC of 30 June 1995 adapting to technical progress Council Directive 90/679/EEC on the protection of workers from risks related to exposure to biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/ EEC), the Republic of Austria has failed to fulfil its obligations under that directive;
(2) order the Republic of Austria to pay the costs in accordance with Article 69(2) of the Rules of Procedure.
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