C-110/00

OPINION OF MR GEELHOED — CASE C-110/00

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 3 May 2001 1

1. In the present case, the Commission of in view of Austria's constitutional structure the European Communities has applied to internally, a series of special implementing the Court, pursuant to Article 226 EC, for measures are necessary, that is to say at the a declaration that the Republic of Austria level of the Länder. The Austrian Govern- has failed to fulfil its obligations under ment adds, in its defence, that, although the Commission Directive 97/59/EC of 7 Octo- time-limit laid down in the reasoned opi- ber 1997 adapting to technical progress nion has already expired, a number of Council Directive 90/679/EEC on the pro- measures have been adopted at both the tection of workers from risks related to federal and Länder levels. The Commission exposure to biological agents at work took note of that information, but at the (seventh individual Directive within the same time found that the Directive has not meaning of Article 16(1) of Directive yet been completely implemented in a 89/391/EEC). 2 number of areas nor at all levels of the Federal State.

2. Member States were required under Article 2 of the Directive to adopt all necessary laws, regulations and adminis- trative provisions at the latest on 31 March 1998. They were to inform the Commission immediately of such measures.

4. In an action under Article 226 EC, the issue of whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it was at the end of the period 3. Neither in the pre-litigation nor in the prescribed in the reasoned opinion. As litigation phase has the Government of Austria had not fulfilled its obligations Austria denied the infringement. It has and even now has not completely fulfilled explained the state of affairs in relation to its obligations under the Directive, the the legislative process and pointed out that, Commission's application must be allowed. In that regard, I would note that, according to settled case-law, reliance on the internal 1 — Original language: Dutch. constitutional structure cannot be pleaded 2 — OJ 1997 L 282, p. 33, hereinafter 'the Directive'. as a defence.

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