WRITTEN QUESTION E-0648/04 by María Bergaz Conesa (GUE/NGL) to the Commission. Incorrect transposition of Directive 89/391/EEC into Spanish law.
Date: 2004-03-08
Institutions: European Parliament, Provisional data
Subjects: Spain, damage, indemnification, infringement procedure (EU), interpretation of the law, labour law, military personnel, national implementing measure, occupational safety, police, public administration, right of action

3.4.2004

EN

Official Journal of the European Union

C 84 E/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?

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

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 (1) 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-132/04).

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
level to transpose the Directive or where it has been transposed incorrectly and/or
taken at national
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. I-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).

C 84 E/832

Official Journal of the European Union

EN

3.4.2004

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
the loss and damage caused by a breach of
State must make reparation for the consequences 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) 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.

(2004/C 84 E/0926)

WRITTEN QUESTION P-0654/04

by Reinhold Messner (Verts/ALE) to the Commission

(2 March 2004)

Subject: Brenner axis

Is the Commission aware that the situation along the Brenner axis between Kufstein and Verona (air and
noise pollution and fine dust particles) has become intolerable for the residents of the narrow Alpine
valleys? Pollution levels frequently rise far above the permitted limit, resulting in damage to the health of
those affected. With the referendum decision in Switzerland not to build a second tube for the Gotthard
tunnel and EU enlargement, heavy goods transit traffic will increase even more spectacularly.

In view of these facts, are counter-measures not urgently required?

The real costs provide a key to the short-term solution. To cut down on the volume of empty vehicles and
waste transporters, the tolls for all HGVs could be raised in this sensitive area. It is a choice between
protecting the health of people living along this stretch of road or unchecked goods traffic.

In the long term, this unjustifiable situation must be rectified using a concept adapted to the future
(base tunnel and modern logistics), and an EU ban on transit, to force all heavy goods transit traffic off the
Brenner motorway and under the mountain or onto the railway tracks. In this regard, I refer once again to
the ATT3 project and ask why the Commission does not immediately announce an exemption for this
sensitive area with regard to the toll fee between Kufstein and Verona. Why have some of the profits made
north and south of the Brenner Pass not been invested in the planned base tunnel included in the TEN
guidelines adopted in 1996, and why is this 21st-century project relying on 19th-century logistics?

Answer given by Mrs de Palacio on behalf of the Commission

(6 April 2004)

The Commission is aware of the problems on the Brenner axis to which the Honourable Member refers.
It takes a coordinated approach to the problem of land transport in sensitive areas. This consists of various