Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 21 March 2002. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Article 9(3) of Directive 90/270/EEC - Protection of workers' eyes and eyesight - Special corrective appliances appropriate for the work concerned - Incomplete transposition. - Case C-455/00.



European Court reports 2002 Page I-09231



Opinion of the Advocate-General

1. The Commission seeks a declaration by the Court of Justice that the Italian Republic has failed to fulfil its obligations under Article 9(3) of Council Directive 90/270/EEC of 29 May 1990 (hereinafter the Directive'), because its law does not specify the circumstances in which the workers concerned must be provided with special corrective appliances for particular activities.

I - The Community legislation

2. The Directive meets the requirements of Article 118a of the EEC Treaty, under which the Council is to adopt by means of directives, minimum requirements designed to encourage improvements, especially in the working environment, to ensure a better level of protection of workers' safety and health'.

3. Specifically, it is an individual directive within the meaning of Article 16(1) 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.'

4. Under Article 9(1) of the Directive, workers are to be entitled to an appropriate eye and eyesight test carried out by a person with the necessary capabilities 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 ophthalmological examination (Article 9(2)).

5. Article 9(3) provides:

If the results of the test referred to in paragraph 1 or of the examination referred to in paragraph 2 show that it is necessary and if normal corrective appliances cannot be used, workers must be provided with special corrective appliances appropriate for the work concerned.'

6. Article 11(1) required Member States to bring into force, by 31 December 1992 at the latest, the measures necessary to comply with the provisions of the Directive.

II - The Italian legislation

7. The Directive was incorporated into Italian law by Decree Law No 626/94 of 19 September 1994.

8. Under the heading Health supervision', Article 55 of the Decree Law provides:

1. Before being assigned to any of the activities listed under this title, workers shall undergo a medical examination, for the purpose of detecting possible structural malformation, and an eye and eyesight test, all carried out by the competent doctor. If the results of the medical examination show that it is necessary, other specialist tests shall be carried out.

2. Depending on the results of the examinations provided for in paragraph 1, workers will be placed in one of the following two categories:

(a) fit, with or without corrective lenses;

(b) unfit.

3. Workers classified as "fit, with or without corrective lenses", and also those over 45 years of age, shall undergo regular medical check-ups at least every two years.

4. A worker shall, on request, undergo an ophthalmological examination if he suspects that his eyesight has been affected and this has been confirmed by the competent doctor.

5. Expenditure in respect of providing special corrective appliances appropriate for the work concerned is to be borne by the employer.'

9. Law No 422 of 29 December 2000 containing Provisions adopted in order to fulfil Italy's obligations as a Member of the European Communities - Community Law 2000' amended Article 55(3) and (4) of Decree Law No 626 of 1994 and inserted two provisions between them:

3. Workers shall undergo a medical examination within the meaning of Article 16.

3a. Medical examinations shall be carried out pursuant to paragraphs 1 and 2.

3b. Such examinations shall - except in particular cases which the competent doctor considers need to be reviewed at different intervals - take place every two years for workers classified as fit with corrective lenses and for those over forty-five years of age, and in all other cases every five years.

4. A worker shall, on request, undergo an ophthalmological examination if he suspects that his eyesight has been affected and this has been confirmed by the competent doctor, or if the examination provided for in paragraphs 1 to 3 shows it to be necessary.'

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 untimely, led the Commission to withdraw the first two pleas in law.

III - The failure to fulfil obligations

11. The provision which the Commission claims has not been transposed is clear and precise. Article 9(3) of the Directive recognises the right of workers to receive special corrective appliances appropriate for the work concerned, if the results of the tests referred to in Article 9(1) or (2) show that they are necessary and the wearing of normal appliances is not possible.

12. The Commission says that Decree Law No 626/94 contains no provision expressly guaranteeing workers that right. It acknowledges that Article 55(5) provides that expenditure in respect of providing special corrective appliances is to be borne by the employer but, in its view, that is not sufficient to identify the precise condition establishing' the workers' entitlement to such appliances.

13. The defendant Government has adopted two separate lines of defence, although both propose a systematic interpretation of the aforementioned Decree Law.

14. In the first, which it puts forward in its reply, it argues that Article 55 of the Decree Law must be interpreted in conjunction with Articles 41 et seq., which govern the rights and obligations of workers and employers with regard to the personal protective equipment referred to in Council Directive 89/656/EEC of 30 November 1989, which has a different and wider scope than the Directive to which this action relates.

15. The Commission is right to dismiss that argument as being of no avail since the object of the personal protective equipment to which Directive 89/656 refers is the preventive care of workers, while the special corrective appliances here at issue are designed to remedy situations where the relevant medical check-ups reveal a current risk, which is already manifest, to the worker's health.

16. In other words, the requirement that the employer provide workers with personal protective equipment, does not guarantee effective implementation of the right conferred on them by Article 9(3) of the Directive, which requires that workers using display screen equipment must be provided with special corrective appliances if ordinary personal protective appliances are inadequate.

17. In its rejoinder, the Italian Republic, perhaps aware that its defence was weak, resurrected an argument which it had put forward in the administrative procedure but abandoned in its reply. It maintains that, on a systematic interpretation of the various paragraphs of Article 55, in conjunction with Article 16, of the Decree Law, it has correctly incorporated Article 9(3) of the Directive into its national law.

18. I consider the defendant Member State to be incorrect on that point. The scheme of Article 9 of the Directive is clear. Workers who use display screen equipment are entitled to receive eye and eyesight tests and, when necessary, ophthalmological examinations. If the results of any of those tests reveal it to be necessary, and provided that normal corrective appliances cannot be used, they are entitled to be provided with special appliances, at no financial cost.

19. It may be inferred from the most recent version of Article 55, read in conjunction with Article 16, that employees who work with display screens must undergo medical check-ups before being assigned to that activity and, thereafter, periodically, including specialist examinations and ophthalmological tests. However, at no point is a right to special corrective appliances conferred on them if the results of those examinations and tests reveal that to be necessary. It is true that Article 55(5) requires that the employer bear the costs of providing the aforementioned appliances, but it does not follow from that that, if the competent doctor so prescribes following the medical examinations and checks he has carried out, workers have an unconditional right to be supplied with them.

20. To put it another way, the Italian legislation provides that expenditure in respect of supplying special corrective appliances is to be borne by the employer, but does not stipulate, as required by Article 9(3) of the Directive, that, if the result of the medical examinations and tests shows it to be necessary, that is to say, if the relevant doctor so prescribes, workers are entitled to be supplied with them.

21. In a sphere like that of the protection of workers by health and safety provisions - which is so closely linked to the improvement in living and working conditions by which the Community legislature has laid great store, in imposing precise obligations on the European institutions and the Member States, - the adjustment of national laws to the requirements of the Treaty and the secondary legislation adopted with that end in view must be clear and unconditional. When, as in this case, a Directive is minimalist in its approach, indicating the lowest standard to be reached by the laws of the Member States, it must be transposed in a way that leaves no room for the slightest doubt that the rights and obligations which it lays down have been effectively incorporated into the national legal system. The principle of cooperation which underlies Article 10 EC requires that directives be incorporated into the national legal order with sufficient accuracy.

22. In the light of the above considerations, I conclude that the Italian Republic has failed to fulfil its obligations, as alleged by the Commission, and that the action should therefore be upheld.

IV - Costs

23. The defendant State must be ordered to pay the costs of the proceedings, pursuant to Article 69(2) of the Rules of Procedure. In its reply the Commission withdrew two of the three pleas on which the action was based, but that withdrawal does not alter the picture to be taken into account in making an order as to costs. The conduct of the Italian Republic, which complied with its obligations only belatedly and partially, compelled the Commission to bring the action under Article 226(2) EC, and therefore Italy must bear the costs of the case.

V - Conclusion

24. I propose that the Court of Justice should uphold the action, and:

(1) declare the first two grounds of the application to have been withdrawn by the Commission.

(2) declare that the Italian Republic has failed to fulfil its obligations under Article 9(3) of Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), on the ground that its law does not specify the circumstances in which workers are entitled to be provided with special corrective appliances for particular activities.

(3) order the Italian Republic to pay the costs.