C-111/00
ECLI:EU:C:2001:212
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OPINION OF MR GEELHOED — CASE C-111/00
OPINION OF ADVOCATE GENERAL GEELHOED delivered on 5 April 2001 1
1. In this case, the Commission of the variant Creutzfeldt-Jakob disease. A second European Communities is seeking a adjustment to the annex is connected with declaration by the Court pursuant to Arti- the possible occupational transmission of cle 226 EC that the Republic of Austria has human and animal transmissible spongi- failed to comply with its obligations under form encephalopathies (TSEs). Commission Directive 97/65/EC of 26 November 1997 adapting, for the third time, to technical progress Council Direc- tive 90/679/EEC on the protection of workers from risks related to exposure to biological agents at work. 2
3. Under Article 2 of the Directive, the Member States are required to bring into force all the necessary laws, regulations and administrative provisions by 30 June 1998.
2. Article 1 of the Directive amends Annex III to Directive 90/679/EEC. The amendments to the annex stem from new 4. The Austrian Government did not dis- scientific evidence concerning the transmis- pute the infringement either in the pre- sibility to humans of the bovine spongiform litigation procedure or in the proceedings encephalopathy (BSE) agent. Therefore, it before the Court. It set out the situation as is necessary to adjust the classification of regards the legislative process and also the BSE agent and make reference to pointed out that in view of Austria's constitutional structure a number of sepa- rate implementing measures were necessary 1 — Original language: Dutch. internally, that is to say at Lander level. In 2 — OJ 1997 L 335, p. 17 (hereinafter: 'the Directive'). its rejoinder the Austrian Government
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COMMISSION v AUSTRIA
stated that the necessary measures had 5. In the case of an action under Arti- since been adopted at federal level and that cle 226 EC, the question whether a Mem- matters were at an advanced stage at ber State has failed to fulfil its obligations Länder level. The Commission took note must be determined by reference to the of this information but nevertheless situation in the Member State as it stood at observed that the Directive had still not the end of the period laid down in the been transposed in full in all sectors and at reasoned opinion. Since the Republic of all levels of the federal State. Austria did not, and, moreover, still has not, complied with its obligations under the Directive, the Commission's application must be granted. In this regard I should also note that the Court has consistently held that a reference to the internal con- stitutional structure cannot be accepted as a defence. 3
3 — See, most recently, pigment of 1 5March 2001 in Case C-83/00 Commission v Netherlands [2001] ECR I - 2 3 5 1 , , paragraph 10.
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OPINION OF MR GEELHOED — CASE C-111/00
Conclusion
6. In the light of the facts and circumstances set out above, I propose that the Court should:
(1) declare that, by failing to adopt the laws, regulations and administrative measures necessary to implement Commission Directive 97/65/EC of 26 November 1997 adapting, for the third time, to technical progress Council Directive 90/679/EEC on the protection of workers from risks related to exposure to biological agents at work, the Republic of Austria has failed to fulfil its obligations under that directive.
(2) order the Republic of Austria to pay the costs pursuant to Article 69(2) of the Rules of Procedure.
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