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Action brought on 6 October 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-428/04)

(2004/C 314/07)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 6 October 2004 by the Commission of the European Communities, represented by Nicola Yerrell and Horstpeter Kreppel, with an address for service in Luxembourg.

The applicant claims that the Court should rule as follows:

Pleas in law and main arguments:

The period allowed for transposition of Directive 89/391/EEC (‘the Directive’) into Austrian law expired on 31.12.1993.

The Commission takes the view that the transposition of the Directive remains incomplete or insufficient.

Firstly, the legislative provisions which the Austrian Government promised would transpose the Directive (namely the Landeslehrer-Dienstrechtsgesetz (LDG), the Beamten-, Kranken- und Unfallversicherungsgesetz and the Allgemeines Sozialversicherungsgesetz (ASVG)), have not been adopted, and in the event that they have since come into force, they have not been notified to the Commission.

Secondly, with regard to certain provisions (in total six) of that directive, the Commission notes that, in the legislative provisions communicated by the Austrian authorities, the Directive has been incompletely or incorrectly transposed.

The Commission also complains that even though the scope of Article 2(1) of Directive 89/391/EEC is exhaustive, none of the national transposition measures relate to teachers in ‘Pflichtschulen’ in the Tirol.

Under Article 7 of the Directive, the employer is obliged to designate one or several employees to carry out activities related to the prevention of occupational risks, on condition that he has suitably qualified personnel available to him. In the Commission's view, Article 7 of the Directive favours risk management within the undertaking, as Article 7(3) only provides for recourse to qualified personnel outside the undertaking, when there is a lack of qualified personnel within the company (see on this point the judgment in Case C-441/01, Commission v Netherlands [2003]. However, the Austrian transposition measures allow the employer to choose whether to entrust protective activities either to safety specialists from within the company or outside the company.

Article 8(2) (Duty to take the necessary measures for first aid, fire-fighting and evacuation of workers) does not provide for any exception for small undertakings in the Commission's view. However, under the Austrian transposition measures, small undertakings are exempt from this obligation.

The Commission is of the view that the measures transposing Article 11(2) of the Directive do not cover certain duties to inform on the part of the employer, as provided for in that Article.

Article 12(4) of the Directive states that the training referred to in that Article may not be at the workers' expense.

Whilst the Austrian transposition measures stipulate that time spent attending such training is to be considered as remunerated work, they do not stipulate who should bear the cost of such training.

Finally, the Commission complains that Article 13(2)(a) and (b) of the Directive has not been completely transposed into Austrian law. Contrary to Article 13(2)(b), the concept of ‘work equipment’ within the meaning of Article 15 of the ArbeitnehmerInnenschutzgesetz (ASchG) (Law on the Protection of Workers) and Article 15 of the Bundesbedienstetenschutzgesetz (B-BSG) (Law on the Protection of Federal State Personnel) does not cover dangerous substances. Furthermore, the obligation laid down in Article 13(2)(b) to return personal protective equipment to its proper place after use has not been transposed into Austrian law.

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