CELEX: 62001CJ0425
Failure of a Member State to fulfil obligations
Incomplete transposition of Directive 89/391/EEC
Safety and health of workers

By application lodged at the Registry of the Court of Justice on 26 October 2001, the Commission of the European Communities
brought an action under Article 226 EC for a declaration that the Portuguese Republic has failed to fulfil its obligations
under Articles 4 and 10 to 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 (OJ 1989 L 183, p. 1).
Legal framework
Community legislation
Under Article 3(c) of Directive 89/391, the term
workers' representative with specific responsibility for the safety and heath of workers means
any person elected, chosen or designated in accordance with national laws and/or practices to represent workers where problems
arise relating to the safety and health protection of workers at work.
Article 4 of Directive 89/391 provides that Member States are to take the necessary steps to ensure that employers, workers
and workers' representatives are subject to the legal provisions necessary for the implementation of the directive.
Under Article 10 of that directive, entitled
Worker information, workers and/or their representatives in the undertaking and/or establishment are to receive information on the safety and
health risks in the workplace and on protective and preventive measures and activities.
Article 11 of Directive 89/391, entitled
Consultation and participation of workers, provides:
1.
Employers shall consult workers and/or their representatives and allow them to take part in discussions on all questions relating
to safety and health at work.
This presupposes:
─
the consultation of workers,
─
the right of workers and/or their representatives to make proposals,
─
balanced participation in accordance with national laws and/or practices.
2.
Workers or workers' representatives with specific responsibility for the safety and health of workers shall take part in a
balanced way, in accordance with national laws and/or practices, or shall be consulted in advance and in good time by the
employer with regard to:
(a)
any measure which may substantially affect safety and health;
(b)
the designation of workers referred to in Articles 7(1) and 8(2) and the activities referred to in Article 7(1);
(c)
the information referred to in Articles 9(1) and 10;
(d)
the enlistment, where appropriate, of the competent services or persons outside the undertaking and/or establishment, as referred
to in Article 7(3);
(e)
the planning and organisation of the training referred to in Article 12.
3.
Workers' representatives with specific responsibility for the safety and health of workers shall have the right to ask the
employer to take appropriate measures and to submit proposals to him to that end to mitigate hazards for workers and/or to
remove sources of danger.
4.
The workers referred to in paragraph 2 and the workers' representatives referred to in paragraphs 2 and 3 may not be placed
at a disadvantage because of their respective activities referred to in paragraphs 2 and 3.
5.
Employers must allow workers' representatives with specific responsibility for the safety and health of workers adequate time
off work, without loss of pay, and provide them with the necessary means to enable such representatives to exercise their
rights and functions deriving from this Directive.
6.
Workers and/or their representatives are entitled to appeal, in accordance with national law and/or practice, to the authority
responsible for safety and health protection at work if they consider that the measures taken and the means employed by the
employer are inadequate for the purposes of ensuring safety and health at work.
Workers' representatives must be given the opportunity to submit their observations during inspection visits by the competent
authority.
Article 12(3) of Directive 89/391 provides that workers' representatives with a specific role in protecting the safety and
health of workers are to be entitled to appropriate training.
National legislation
Directive 89/391 was transposed into Portuguese law by the Decreto-lei No 441/91 que estabelece o regime jurídico de enquadramento
da segurança, higiene e saúde no trabalho (Decree-Law No 441/91 establishing the framework legal regime for safety, hygiene
and health at work) of 14 November 1991 (
Diário da República
I, No 262 of 14 November 1991), as amended by Decree-Law No 133/99 of 21 April 1999 (
Diário da República
I, No 93 of 21 April 1999), and by Article 24 of Law No 118/99 of 11 August 1999 (
Diário da República
I, No 186 of 11 August 1999, hereinafter
Decree-Law No 441/91).
Article 3(d) of Decree-Law No 441/91 defines
workers' representative as
a person elected under conditions laid down by the law to represent workers in the fields of safety, hygiene and health at
work.
Article 10 of Decree-Law No 441/91 establishes the main strands of the process for the election of workers' representatives:
1. Workers' representatives for safety, hygiene and health at work shall be elected by the workers by direct secret ballot
according to the principle of representation based on the d'Hondt system.2. Only lists of persons lodged by trade unions which have members among the workforce of the undertaking, or lists of persons
signed by at least 20% of the workers of the undertaking may stand for election, provided that no worker may sign or appear
on more than one list.3. Each list must contain the same number of candidates as there are positions available and the same number of substitutes.4. The number of workers' representatives may not exceed:
(a)
In undertakings with fewer than 61 workers ─ one representative;
(b)
In undertakings with 61 to 150 workers ─ two representatives;
(c)
In undertakings with 151 to 300 workers ─ three representatives;
(d)
In undertakings with 301 to 500 workers ─ four representatives;
(e)
In undertakings with 501 to 1 000 workers ─ five representatives;
(f)
In undertakings with 1 001 to 1 500 workers ─ six representatives;
(g)
In undertakings with more than 1 500 workers ─ seven representatives.
5. Workers' representatives shall hold office for three years.6. Representatives may be replaced only in the event of resignation or when definitively prevented from acting, and then by
candidates and substitutes in the order in which they appear on the relevant list.7. Workers' representatives referred to in the above paragraphs shall be allowed five hours per month for the performance
of their tasks.8. Time allowed under the foregoing paragraph cannot be added to any time-off to which the worker is entitled for taking part
in other workers' representative bodies.
Article 23(2)(b) of Decree-Law No 441/91 provides for the adoption of further legislation, particularly concerning the
election process for workers' representatives under Article 10 and the system for their protection.
As regards central, regional and local public authorities, the election of workers' representatives has been provided for
by Decree-Law No 191/95 of 28 July 1995 (
Diário da República
I, No 173 of 28 July 1995), and is currently governed by Articles 4 and 5 of Decree-Law No 488/99 of 17 November 1999 (
Diário da República
I, No 268 of 17 November 1999).
Pre-litigation procedure
By letter of formal notice of 26 January 2000, the Commission drew the attention of the Portuguese authorities to the non-compliance
of the national measures transposing Directive 89/391 with the obligations arising therefrom.  The Commission criticised the
lack of legislation relating to the process of election of workers so far as concerns safety and health at work and to the
system for their protection.
On 4 April 2000, the Portuguese authorities stated, in reply to the letter of formal notice, that the fact that there is no
legislation does not mean that it is impossible to hold elections nor that those which are held are not conducted democratically.
Furthermore, the Portuguese authorities contended that, in certain undertakings, workers have elected their representatives
for safety, hygiene and health at work.  They also maintained that the preparation of the national legislation relating to
the election of workers' representatives for safety, hygiene and health at work had been started, but had not yet been completed.
By letter of 2 February 2001, the Commission sent the Portuguese Republic a reasoned opinion requesting it to take the measures
necessary to comply, within two months, with Directive 89/391.
In reply to that reasoned opinion, the Portuguese authorities informed the Commission that the national legislation relating
to the election of workers' representatives for safety, hygiene and health at work was ready for adoption.
Since it received no subsequent information about the adoption of the heralded national measures, the Commission brought this
action.
The merits
The Commission claims that, in so far as there is no clear and precise legislation in Portugal relating to the process of
election and to the system of protection of workers' safety and health at work representatives, workers cannot be made fully
aware of their rights protected by Directive 89/391 and rely on them, where appropriate, before the national courts.  The
Commission maintains that, if such legislation were not necessary, Article 23(2)(b) of Decree-Law No 441/91, which provides
for the adoption of further legislation concerning the process of election of workers' representatives, would be superfluous.
The Commission also claims that, while Article 10 of Decree-Law No 441/91 governs certain essential aspects of the election
of workers' representatives, that article does not cover practical aspects of the election process.  Some fundamental aspects
such as, in particular, entitlement to vote, notice of the election, operation of polling stations, counting of votes, declaration
of results and the possibility of challenging results are not regulated.  It follows that the legal conditions necessary for
workers to be able to elect their safety and health at work representatives and, therefore, to exercise the rights conferred
on them by Decree-Law No 441/91 are not currently met.  Since it is through those representatives that workers have access
to the rights which are conferred on them by Decree-Law No 441/91, and by Directive 89/391, the lack of such representatives
prevents them enjoying such rights.
At the outset it is appropriate to recall that, under Article 3(c) of that directive
workers' representative with specific responsibility for the safety and heath of workers means any person elected, chosen or designated in accordance with national laws and/or practices to represent workers where
problems arise relating to the safety and health protection of workers at work.
It is clear from that provision that Directive 89/391 does not oblige the Member States to provide for an election procedure
for workers' representatives with specific responsibility for the safety and health of workers, but envisages other possibilities
for choosing or designating such representatives.
In addition, if a choice of the election procedure has been made by a Member State, Directive 89/391 does not expressly require
the national legislation to state all the detailed rules applying to that procedure.
However, where a Member State provides that workers' representatives with such responsibility must be elected, it is for that
Member State to ensure that workers can elect their representatives in accordance with national legislation and/or practices.
As the Portuguese Government argued, Article 10 of Decree-Law No 441/91 provides rules concerning the election of workers'
representatives for safety, hygiene and health at work.  That article contains, in particular, provisions relating to the
right to vote, conditions of eligibility, method and type of ballot, as well as the fixing of the majority required.  The
Portuguese Government also declared that Article 2(2) of the Portuguese Code of Civil Procedure provides for the possibility
of challenging election results before the courts.
As regards the system of protection of workers' representatives, the Portuguese Government states that the Portuguese national
legislation prohibits employers preventing, in any way whatever, the exercise by workers of their rights, or dismissing them
or subjecting them to penalties by reason of such exercise.  Article 10 of Decree-Law No 441/91 provides, in addition, that
workers' representatives are entitled to a certain amount of working time each month to perform their tasks.
In view of the foregoing, it is apparent that the Portuguese legislation satisfies the obligations arising from Directive
89/391 in that it regulates the essential questions relating to the election of workers' representatives with special responsibility
for the protection of safety and health, thus enabling workers to elect their representatives, and laying down provisions
which are intended to protect them in the performance of their tasks.
Article 23(2)(b) of Decree-Law No 441/91, providing for the adoption of further legislation relating to the process for election
and protection of workers, is a provision for the exclusive use of the national legal order not covered by the obligations
of the Portuguese Republic under Directive 89/391.
Furthermore, even if the number of undertakings which have held elections seems somewhat small, that fact is not sufficient
to demonstrate that workers have no effective possibility of electing their representatives with special responsibility for
the protection of the safety and health of workers.
In those circumstances, it must be held that the Commission has not established that the Portuguese Republic has failed to
fulfil its obligations under Directive 89/391.
Therefore, the action must be dismissed.
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party's pleadings.  Since the Portuguese Republic applied for the Commission to be ordered to
pay the costs and the Commission has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders the Commission of the European Communities to pay the costs.
Wathelet
Timmermans
Jann
von Bahr
Rosas
Delivered in open court in Luxembourg on 12 June 2003.
R. Grass
M. Wathelet
Registrar
President of the Fifth Chamber
–
Language of the case: Portuguese.