C-425/01

COMMISSION v PORTUGAL

O P I N I O N OF ADVOCATE GENERAL STIX-HACKL delivered on 5 December 2002 1

I — Introduction I I — Legal Framework

1. In bringing this action, the Commission seeks a declaration that the Portuguese A — Directive 89/391/EEC Republic has failed to fulfil its obligations under Articles 4, 10, 11 and 12 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work 2('the Directive').

3. Article 3(c) provides:

2. The Commission's complaints concern the absence of regulations to govern the procedure for the election of workers' representatives with specific responsibility for the health and safety protection of 'workers' representative with specific workers ('hereinafter: workers' special rep- responsibility for the safety and health of resentatives'). workers: any person elected, chosen or designated in accordance with national laws and/or practices to represent workers 1 — Original language: German. where problems arise relating to the safety 2 —OJ 1989 L 183, p. 1. and health protection of workers at work.'

6. Article 10 of Decree-Law No 441/91 of 14 November 1991 3 ('the Decree-Law') provides: (a) in undertakings with fewer than 61 workers — one workers' repre- sentative;

'Workers' representatives

(b) in undertakings with 61 to 150 workers — two workers' repre- sentatives; (1) Workers' representatives responsible for the safety, hygiene and health protection of workers at work shall be elected by workers in a direct, secret (c) in undertakings with 151 to 300 3 — Diário da República I, Series A, No 262 of 14 November workers — three workers' repre- 1991. sentatives; I - 6028

COMMISSION v PORTUGAL

(d) in undertakings with 301 to 500 (8) Leave granted under the foregoing workers — four workers' repre- provision shall not be granted in addi- sentatives; tion to any leave to which the worker may be entitled as a member of other workers' representative bodies.'

(e) in undertakings with 501 to 1 000 workers — five workers' repre- sentatives; 7. Article 23(2)(b) of the Decree-Law pro- vides the legal basis for the adoption of regulations to govern the election pro- cedure for workers' special representatives. (f) in undertakings with 1 001 to 1 500 workers — six workers' represen- tatives;

10. Since the written response of the Por- (2) order the Portuguese Republic to pay tuguese Government dated 4 April 2000 the costs. had, in the opinion of the Commission, failed to assuage its concerns, by letter of 2 February 2001, the Commission sent the Portuguese Republic a reasoned opinion in which it complained that the absence of regulations governing the electoral pro- cedure for workers' special representatives was in breach of Articles 4, 10, 11 and 12 IV — Examination of the grounds for the of the Directive, and called on the Por- application tuguese Republic to adopt the necessary measures within two months, that is, by 2 April 2001. The Portuguese Government responded in writing on 18 June 2001, expressing the view that fulfilment of its obligations under the Directive did not A — Arguments of the parties require the adoption of any further regu- lations governing the electoral procedure. 13. The Commission argues that, by failing to adopt regulations to govern the pro- cedure for electing workers' special repre- sentatives, the Portuguese Republic is pre- 11. Since the Commission had formed the venting workers and their representatives view that the Portuguese Republic had from exercising their rights under Articles 4, failed to fulfil its obligations, by appli- 10, 11 and 12 of the Directive, and thus cation of 22 October 2001 registered at the jeopardising the health and safety of Court of Justice on 29 October 2001, it workers in the workplace. brought an action against the Portuguese Republic before the Court of Justice pur- suant to Article 226 EC.

15. According to the Commission, Article 10 of the Decree-Law does lay down principles for the election of workers' special representatives. But the essential 17. Besides, by creating a legal basis for the conditions of a proper election of workers' adoption of legislation to govern the elec- special representatives can only be estab- toral process (Article 23(2)(b) of the lished by legislation on electoral procedure. Decree) and having asserted to the Com- Under the law then in force in Portugal, mission that appropriate legislation was there were no such provisions concerning already being drafted, Portugal had itself the entitlement to vote, the openness of the acknowledged the need for legislation to ballot, polling stations, counting of votes, govern the electoral process to supplement publication of the results of the ballot and the principles laid down in Article 10 of the election appeals. Workers were thus being Decree-Law. prevented from holding elections for wor- kers' special representatives.

— elections are carried out by the under- takings (paragraphs 2 and 4); in addition

— all workers of the undertaking are entitled to vote and stand for election — duration of the workers' special repre- (paragraphs 1 and 2 at the end); sentatives' mandate (paragraph 5);

— election is by list (paragraph 2); — grounds and procedure for replacing a workers' special representative (para- graph 6);

— nomination rights for lists belong to trade union branches which represent the workers of the undertaking, or at least 20% of the workers of the under- — amount of time available per month for taking (paragraph 2); carrying out the function of workers' special representative (paragraphs 7 and 8).

— number of candidates and substitute members per list (paragraph 3); 20. Article 23(2)(b) of the Decree-Law also provides for the mandatory adoption of regulations to govern the electoral process. Such regulations have not yet, however, been adopted. Contrary to the Commis- — maximum number of workers' special sion's assumption, however, this did not in representatives in each undertaking any way deter workers from electing wor- (paragraph 4); kers' special representatives. For the elec- I - 6032

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25. Besides, the Portuguese Government has already demonstrated to the Commis- sion, with the submissions of figures for elections of workers' special representatives 23. Regarding the Commission's claim that that have already taken place in Portuguese the absence of regulations for appealing undertakings, that the lack of legislation

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OPINION OF MRS STIX-HACKL — CASE C-425/01

governing the electoral process is mani- Article 3(c) of the Directive defines wor- festly not preventing workers from holding kers' special representatives as persons such elections. In the meantime, the com- 'elected, chosen or designated'. petent Portuguese authorities have been notified of other undertakings in which such elections have been held; in all, the Portuguese Government is now aware of 94 such undertakings. The exact number is not known, however, as there is currently no obligation in Portugal to give notice in this respect. The Portuguese Government does, 27. To that extent, the Commission's com- however, acknowledge that the numbers plaint should perhaps be interpreted as are not satisfactory. Besides, the Commis- meaning that if a Member State provides sion has not, to date, required the Por- for workers' special representatives to be tuguese Government to notify the number appointed to that office by being elected, and identity of the undertakings in which then it is not enough to standardise the such elections have taken place. But the conditions for such an election, which, it is Portuguese Government continues to be not disputed, were introduced by the Por- willing to provide such information as it tuguese Republic by Article 10 of the has available. Decree-Law. The Commission takes the view that more detailed regulations for the electoral procedure are additionally required.

— right to vote and stand for elections,

31. It must be noted that the Court has, in its settled case-law, emphasised that a — form of candidature (e.g. direct elec- national measure for transposing a direc- tion or lists), tive must be sufficiently clear and precise for the individual to be in a position to ascertain the full extent of his rights, and to rely on them before the national courts, where appropriate. 6

— form of ballot (e.g. open or secret),

35. Therefore, if there is an adequate legal 33. As far as the system of counting votes is avenue for challenging an election, and the concerned, the Court has, in the De Dapper counting of votes can be freely selected by and Others case, 7had to consider this those responsible for the conduct of the question in relation to the election of staff election, having regard to the criteria representatives of officials in the European named by the Court, the question arises Parliament. The Court held: whether the absence of the remaining procedural rules for the election of wor- kers' special representatives named as examples by the Commission (in particular, the function of the polling station, the form of publication of ballot results, and the openness of elections, which the Commis- sion has not described in more detail) could 'Pursuant to Article 10 of the Regulations, 8 prevent workers in Portugal from exercis- the committee of tellers is to prepare the ing their rights under the Directive. ballot-papers. Since no other provisions on the detailed organisation of the ballot have been laid down in the rules, it must be inferred from the said provisions that the committee of tellers was empowered to select for the casting and counting of votes any sufficiently reliable procedure compat- 36. If, by openness of elections, the Com- ible with the requirements of freedom and mission means the question of an open or secrecy of the ballot.' secret ballot, Article 10(1) of the Decree- Law fulfils this requirement, in so far as it requires a 'direct and secret' ballot. If it means the publication and/or announce- ment of elections, the following remarks apply, and they apply also to the matter of the polling station and the form of pub- lication of the ballot result: 34. The Court consequently considered that the existence of express provisions for the system of counting votes is not

the alleged failure to fulfil obligations, 9 40. In particular, the Portuguese Govern- and in the instant case, therefore, that, due ment has — as the Commission does not to the absence of specific national meas- dispute — submitted that ordinary wor- ures, national legislation fails to meet the kers' representatives are regularly and requirements of the Directive. widely elected in Portugal without standard rules for the electoral procedure, from which one may conclude that workers in Portugal are clearly not fundamentally prevented from electing their represen- tatives by the lack of available rules of electoral procedure, such as those described by the Commission. 38. In the present case, however, the Com- mission mainly confines itself to the asser- tion that the absence of specific procedural legislation for the election of workers' special representatives leaves workers in a state of such uncertainty about such elec- tions that they would not even conduct one. As evidence of this, the Commission relies upon the number — which is indeed very limited — of 94 undertakings in Por- tugal in which, according to the infor- mation given by the Portuguese Govern- ment, elections for workers' special repre- sentatives have been conducted. 41. As to the argument put forward by the Commission, that the Portuguese Govern- ment had not provided it with sufficient information about the identity and number of undertakings in which elections for workers' special representatives had taken place without a law of electoral procedure, it may ultimately be concluded that the Directive itself neither contains such repor- 39. As a matter of principle, there may, ting obligations for Member States, or any however, be a variety of reasons why regulation according to which correspond- elections for workers' representatives are ing reporting obligations are to be imposed not conducted. The Commission has not on undertakings in Member States. It succeeded in demonstrating that the decid- cannot, therefore, be assumed that the ing factor is the absence of a specific Portuguese Republic was obliged to obtain electoral law, and, in particular, the such data. The Portuguese Republic thus absence of regulations to govern the open- fully complied with its duty to participate ness of elections, polling stations, counting in actions for failure to fulfil obligations 10 of votes, publication of ballot results and by providing the Commission, on demand, electoral appeals.

(1) dismisses the Commission's claim;

(2) orders the Commission to pay the costs.

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