EN Official Journal of the European Union CE 84/831

(2004/C 84 E/0925)

WRITTEN QUESTION E-0648/04

by María Bergaz Conesa (GUE/NGL) to the Commission

(8 March 2004)

Subject: Incorrect transposition of Directive 89/391/EEC into Spanish law

Judging that Spain failed to transpose correctly into national law, within the prescribed period, the legal, regulatory and administrative provisions of Directive 89/391/EEC (1) on the introduction of measures to encourage improvements in the safety and health of workers at work, the Commission has launched infringement proceedings.

Can the Commission state what stage these infringement proceedings have now reached?

Can the Commission confirm, with regard to this directive, that in cases where a Member State has failed to transpose a given directive into national law within the prescribed period, individuals have rights they can invoke before a national court against the authorities of the Member State in question?

Is the Commission aware of the exclusion of non-civilian employees in the Spanish civil service from the scope of Law 31/1995 on the prevention of risks at work? Does this exclusion comply with EU legislation in this area?

Answer given by Mr Dimas on behalf of the Commission

(27 April 2004)

The Commission began infringement proceedings against Spain as it considered that the latter had not correctly transposed Directive 89/391/EEC (2) on the introduction of measures to encourage improvements in the safety and health of workers at work, in so far as the scope of Law 31/1995 on the prevention of risks at work excludes non-civilian employees in the civil service. These infringement proceedings are currently before the Court of Justice (Case C-1 32/04).

The Commission refers to the case law of the Court of Justice in relation to the possibility of individuals invoking the provisions of this Directive in national courts where the necessary measures have not been taken at national level to transpose the Directive or where it has been transposed incorrectly and/or incompletely.

According to this case law, the national courts are under a duty to interpret national law, as far as possible, in conformity with the Directives and in such a way as to achieve the results pursued by the Directives.

Where such a harmonious interpretation is not possible, an individual can rely directly on a directive against a Member State, e.g. in an application against a public employer, if the content of the directive in question is sufficiently clear and unconditional to have direct effect. In such a case, every court of a Member State must apply Community law in its entirety and protect the rights which Community law confers directly on individuals, setting aside any provision of national law which may conflict with it (see e.g. Case 106/77 Simmenthal [1978] ECR 629, paragraph 21 and Case C-188/00 Kurz [2002] ECR 10691, paragraph 69).

In addition, a Member State may also be liable for any loss or damage caused to individuals as a result of its breach of Community law (see in particular the judgments of 19 November 1991, Francovich and others, C-6/90 and C-9/90, ECR p. 1-5357, paragraph 35; of 5 March 1996, Brasserie du pêcheur and Factortame, C-46/93 and C-48/93, ECR p. I-1029, and of 4 July 2000, Haim, C-424/97, ECR p. I-5123).

In these judgments the Court of Justice noted that the principle that Member States are obliged to make good loss or damage caused to individuals by breaches of Community law for which they can be held responsible is applicable where the national legislature was responsible for the breaches.

In the case of a Member State which fails to fulfil its obligation under the third paragraph of Article 249 of the EC Treaty to take all the measures necessary to achieve the result prescribed by a directive, the full effectiveness of that rule of Community law requires that there should be a right to reparation where three conditions are met, that is to say, first, that the result prescribed by the directive should entail the granting of rights to individuals; secondly, that it should be possible to identify the content of those rights on the basis of the provisions of the directive; and thirdly, that there should be a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties.

Subject to that reservation, it is in accordance with the rules of national law on liability that the Member State must make reparation for the consequences of the loss and damage caused by a breach of Community law for which it can be held responsible, given that the conditions laid down by the applicable national legislation must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation.

(1) OJ L 183, 29.6.1989, p. 1.

(2) 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 L 183, 29.6.1989.