CELEX: 62002CJ0335
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 Court Registry on 20 September 2002, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing to define the necessary capabilities and aptitudes for persons designated
to carry out activities related to protection against and prevention of occupational risks, the Grand Duchy of Luxembourg
has failed to fulfil its obligations under Articles 10 EC and 249 EC and Article 7(8) 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),
Article 7 of Directive 89/391, entitled
Protective and preventive services, provides, in paragraph 8, that the Member States are to define the capabilities and aptitudes which the workers and the
external persons or services designated to carry out activities related to protection against and prevention of occupational
risks in the undertaking and/or establishment must have.
Taking the view that some provisions of Directive 89/391, in particular Article 7(8), had not been fully transposed by the
Grand Duchy of Luxembourg, the Commission initiated an infringement procedure. On 18 October 1999, after having given the
Member State formal notice to submit its observations, the Commission issued a reasoned opinion calling on that State to take
the measures necessary to comply with the reasoned opinion within two months of its notification. Having received no information
to the effect that the transposition of Article 7(8) of that directive had been completed, the Commission brought the present
action.
The transposition of Article 7(8) of Directive 89/391 entails the adoption by the Member States of laws or regulations which
comply with the requirements of that directive and which are brought to the attention of the undertakings concerned by appropriate
means, so as to enable them to be aware of their obligations in the matter and the competent national authorities to check
that those measures are complied with (Case C-49/00
Commission
v
Italy
[2001] ECR I-8575, paragraph 36).
The Grand Duchy of Luxembourg does not deny its failure to adopt the provisions necessary for the transposition of Article
7(8) of Directive 89/391.
In those circumstances, the action brought by the Commission must be regarded as well founded.
Accordingly, it must be held that, by failing to define the necessary capabilities and aptitudes for persons designated to
carry out activities related to protection against and prevention of occupational risks, the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 7(8) of Directive 89/391
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 Commission has applied for costs to be awarded against the Grand
Duchy of Luxembourg and the latter has been unsuccessful, the Grand Duchy of Luxembourg must be ordered to pay the costs.
On those grounds,
THE COURT (Fourth Chamber)
hereby:
1.
Declares that, by failing to define the necessary capabilities and aptitudes for persons designated to carry out activities
related to protection against and prevention of occupational risks, the Grand Duchy of Luxembourg has failed to fulfil its
obligations under Article 7(8) 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.
Orders the Grand Duchy of Luxembourg to pay the costs.
Timmermans
Edward
von Bahr
Delivered in open court in Luxembourg on 22 May 2003.
R. Grass
C.W.A. Timmermans
Registrar
President of the Fourth Chamber
–
Language of the case: French.