C-455/00

4 — Article 118a of the EEC Treaty was introduced on 1 July 1987 with the Single European Act and subsequently (with 1 — Original language: Spanish. amendments) became Article 118a of the EC Treaty. 2 — Directive on the minimum safety and health requirements Articles 117 to 120 of the EC Treaty have been replaced for work with display screen equipment (fifth individual by Articles 136 EC to 143 EC. Specifically, the provisions Directive within the meaning of Article 16(1) of Directive contained in Article 118a are now in Article 137(1), (2) and 89/391/EEC) (OJ 1990 L 156, p. 14). (5) EC. With regard to the legislative development of the 3 — The Commission's claim was directed, in principle, against provision, reference may be made to the Opinion delivered the defendant Member State's failure to comply with by Advocate General Saggio in Case C-11/99 Dietrich Article 9(1), (2) and (3) of the Directive but, in the light [2000] ECR I-5J89, particularly point 2. of the information provided in the reply, it withdrew the 5 — See point 17 of my Opinion in Joined Cases C-74/95 and proceedings in relation to Article 9(1) and (2) and is C-129/95 Criminal proceedings against X [1996] ECR continuing the action in respect of Article 9(3). I-6609.

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encourage improvements in the safety and 6. Article 11(1) required Member States to health of workers at work.' 6 bring into force, by 31 December 1992 at the latest, the measures necessary to comply with the provisions of the Direc- tive.

4. Under Article 9(1) of the Directive, workers 7are to be entitled to an appropri- ate eye and eyesight test carried out by a person with the necessary capabilities I I — The Italian legislation before commencing display screen work, at regular intervals thereafter, and if they experience visual difficulties which may be due to display screen work. If the results of those tests show that it is necessary, workers are to be entitled to an ophthal- 7. The Directive was incorporated into mological examination (Article 9(2)). Italian law by Decree Law No 626/94 of 19 September 1994. 8

2. Depending on the results of the exam- inations provided for in paragraph 1, workers will be placed in one of the 9. Law No 422 of 29 December 2000 following two categories: containing 'Provisions adopted in order to fulfil Italy's obligations as a Member of the European Communities — Community Law 2000' 11 amended Article 55(3) and (4) of Decree Law No 626 of 1994 and inserted two provisions between them: (a) fit, with or without corrective lenses;

'3. Workers shall undergo a medical (b) unfit. examination within the meaning of Article 16. 1 2

3. Workers classified as "fit, with or without corrective lenses", and also those over 45 years of age, shall 3a. Medical examinations shall be carried undergo regular medical check-ups at out pursuant to paragraphs 1 and 2. least every two years.

4. A worker shall, on request, undergo an ophthalmological examination if he 12. The Commission says that Decree Law suspects that his eyesight has been No 626/94 contains no provision expressly affected and this has been confirmed guaranteeing workers that right. It by the competent doctor, or if the acknowledges that Article 55(5) provides examination provided for in para- that expenditure in respect of providing graphs 1 to 3 shows it to be necess- special corrective appliances is to be borne ary.' 13 by the employer but, in its view, that is not sufficient to identify the 'precise condition establishing' the workers' entitlement to such appliances.

10. This amendment is the one which, in the Commission's view, amounted to belated fulfilment by the Italian Republic of its obligations under Article 9(1) and (2) of the Directive and which, although 13. The defendant Government has untimely, led the Commission to withdraw adopted two separate lines of defence, the first two pleas in law. although both propose a systematic inter- pretation of the aforementioned Decree Law.

III — The failure to fulfil obligations

14. In the first, which it puts forward in its reply, it argues that Article 55 of the 11. The provision which the Commission Decree Law must be interpreted in con- claims has not been transposed is clear and junction with Articles 41 et seq., which govern the rights and obligations of workers and employers with regard to the 13 — The translation is mine. personal protective equipment referred to

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16. In other words, the requirement that the employer provide workers with per- sonal protective equipment, 16 does not guarantee effective implementation of the right conferred on them by Article 9(3) of 19. It may be inferred from the most recent the Directive, which requires that workers version of Article 55, read in conjunction using display screen equipment must be with Article 16, that employees who work provided with special corrective appliances with display screens must undergo medical if ordinary personal protective appliances check-ups before being assigned to that are inadequate. activity and, thereafter, periodically, including specialist examinations and oph- thalmological tests. However, at no point is 14 — Directive on the minimum health and safety requirements for the use by workers of personal protective equipment at a right to special corrective appliances the workplace (third individual directive within the meaning of Article 16(1) of Directive 89/391, OJ 1989 L 393, p. 18). 15 —SeeArticle 2(1). 17 — See the pleading dated 29 October 1998 (Annex II to the 16 — Article 43(3) of Decree Law No 626/94. application).

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conferred on them if the results of those to be reached by the laws of the Member examinations and tests reveal that to be States, it must be transposed in a way that necessary. It is true that Article 55(5) leaves no room for the slightest doubt that requires that the employer bear the costs the rights and obligations which it lays of providing the aforementioned down have been effectively incorporated appliances, but it does not follow from into the national legal system. 19 The prin- that that, if the competent doctor so pre- ciple of cooperation which underlies scribes following the medical examinations Article 10 EC requires that directives be and checks he has carried out, workers incorporated into the national legal order have an unconditional right to be supplied with sufficient accuracy. with them.

21. In a sphere like that of the protection of workers by health and safety provisions — 23. The defendant State must be ordered to which is so closely linked to the improve- pay the costs of the proceedings, pursuant ment in living and working conditions by to Article 69(2) of the Rules of Pro- which the Community legislature has laid cedure. 20 In its reply the Commission great store, in imposing precise obligations withdrew two of the three pleas on which on the European institutions and the the action was based, but that withdrawal Member States, 18 — the adjustment of national laws to the requirements of the Treaty and the secondary legislation 19 — It is settled case-law of the Court of Justice that in order to adopted with that end in view must be implement a directive it is essential for national law to guarantee that the national authorities will effectively clear and unconditional. When, as in this apply the directive in full, that the legal position under national law should be sufficiently precise and clear, and case, a Directive is minimalist in its that individuals are made fully aware of their rights (see, approach, indicating the lowest standard for example, the judgments in Case 29/84 Commission v Germany [19851 ECU 1661, paragraph 23; Case C-365/93 Commission v Greece [1995] ECR I-499, paragraph 9; and Case C-144/99 Commission v Netherlands [2001] ECR I-3541, paragraph 17). 18 — See Articles 136 EC and 137 EC. 20 — Revised text published in OJ 2001 C 34, p. 1.

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does not alter the picture to be taken into and partially, compelled the Commission to account in making an order as to costs. The bring the action under Article 226(2) EC, conduct of the Italian Republic, which and therefore Italy must bear the costs of complied with its obligations only belatedly the case.