Case C-428/04: Action brought on 6 October 2004 by the Commission of the European Communities against the Republic of Austria
Date: 2004-12-18
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, national implementing measure, occupational health, occupational safety

C 314/4

EN

Official Journal of the European Union

18.12.2004

The judgment relies essentially on the concept that the situation
resulting from the adoption of the Second and Third Steel Aid
Codes was characterised by elements of uncertainty and lack of
clarity, which are attributable to the Commission.

certainty,
incompatible with the common market.

in order to avoid repayment of state aid which is

(1) OJ C 239 of 25.9.2004

Against this, the appellant puts forward the following four
pleas in law:

Firstly, by describing the legal situation resulting from the
adoption of the First, Second and Third Steel Aid Codes as
‘being characterised by uncertainty and lack of clarity’,
the
Court contradicts its own case-law. According to the judgment
in Case T-129/96 Preussag Stahl v Commission [1998] ECR II-
609, paragraph 43, the derogations laid down in the Codes to
the principle of the absolute prohibition of aid in Article 4(c)
of the ECSC Treaty can be granted only during a period which
those Codes determine. It follows from this case-law, which has
been confirmed by the European Court of Justice, that neither
the First nor the Second Steel Aid Codes could produce legal
effects after 31 December 1981 and 31 December 1985
respectively. Since the Third Steel Aid Code came into force, it
was perfectly clear that the Commission ‘shall be informed of
plans to grant aid to the steel
industry under schemes on
which it has already taken a decision under the EEC Treaty’
(Article 6(1) of
the Third Steel Aid Code, OJ L 340,
18.12.1985, p. 1). However, the first two State Aid Codes were
not applied in the contested decision and are not relevant to
the dispute. In any event, contrary to the finding of the Court
of First Instance in the contested judgment, the first two State
Aid Codes could not produce any effects outside the sphere of
the ESCS.

Secondly, the Court has not required any evidence of the fact
that the Commission actually had ‘awareness of the aid received
by the applicant’. Moreover, the Court has failed to examine
the question of whether the annual reports, which were regu-
larly submitted by the applicant, would have actually made it
possible to identify non-notified aid.

Thirdly, the Court seems to be of the view that the transmis-
sion of documents to the Commission outside of the procedure
laid down by Article 88 EC could exclude the duty to pay back
illegal aid by the mere reliance of the applicant on the principle
of legal certainty.

Finally, the judgment could be detrimental to the system of
control of aid by the Commission, as it deviates from the
consistent case-law of the Court, according to which an under-
taking which has benefited from aid may only in principle
entertain a legitimate expectation that the aid is lawful if it has
been granted in compliance with the procedure laid down in
that article. A diligent operator should normally be able to
determine whether that procedure has been followed (Case C-
5/89 Commission v Germany [1990] ECR I-3437, paragraph
14). In this judgment, the Court held that undertakings bene-
fiting from aid could not rely on the principle of the protection
legal
legitimate expectations, based on the principle of
of

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

Austria

(Case C-428/04)

(2004/C 314/07)

Justice of

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

The applicant claims that the Court should rule as follows:

I. The Republic of Austria has failed to fulfil its obligations
under Articles 2, 7, 11, 12, 13 and 18 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 L 183, 29.6.1989, p. 1), by:

1. failing to adopt, to date, and notwithstanding the expiry
of the period for transposition, the following legislation,
by means of which the directive should have been trans-
posed into Austrian law, namely:

(a) the Landeslehrer-Dienstrechtsgesetz (LDG)
Rules applying to Teachers in the Länder)

(General

(b) the Beamten-, Kranken- und Unfallversicherungsge-
Insurance

setz (Law on Sickness and Accident
Schemes for Civil Servants)

(c) the Allgemeines Sozialversicherungsgesetz (ASVG)

(Law on General Sickness Insurance Schemes)

or in the event that these measures have since been
adopted, by failing to notify them to the Commission;

2. failing to transpose, or not properly transposing, the
the directive into Austrian law,

following Articles of
namely:

(a) Article 2(1), concerning teachers

in ‘öffentlichen

Pflichtschulen’ in the Tirol

(b) Article 7(3)

(c) Article 8(2)

18.12.2004

EN

Official Journal of the European Union

C 314/5

(d) Article 11(2)

(e) Article 12(4)

(f) Article 13(2)(a) and (b)

II. Order the Republic of Austria to pay the costs.

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 Govern-
ment promised would transpose the Directive (namely the
Landeslehrer-Dienstrechtsgesetz (LDG), the Beamten-, Kranken-
und Unfallversicherungsgesetz and the Allgemeines Sozialversi-
cherungsgesetz (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 provi-
sions 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
in
‘Pflichtschulen’ in the Tirol.

transposition measures

teachers

relate

to

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 under-
taking, 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 remuner-
ated work, they do not stipulate who should bear the cost of
such training.

Finally, the Commission complains that Article 13(2)(a) and (b)
the Directive has not been completely transposed into
of
Austrian law. Contrary to Article 13(2)(b), the concept of ‘work
equipment’ within the meaning of Article 15 of the Arbeitneh-
merInnenschutzgesetz (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.

Reference for a preliminary ruling by the Landesgericht
Klagenfurt by decision of that court of 13 August 2004 in
the case of A-Punkt Schmuckhandels GesmbH against
Claudia Schmidt

(Case C-441/04)

(2004/C 314/08)

Reference has been made to the Court of Justice of the Euro-
pean Communities by decision of the Landesgericht Klagenfurt
(Austria) of 13 August 2004,
(Klagenfurt Regional Court)
received at the Court Registry on 21 October 2004, for a preli-
minary ruling in the case of A-Punkt Schmuckhandels GesmbH
against Claudia Schmidt on the following questions:

1. Are Articles 28/30 EC to be interpreted as guaranteeing the
freedom of the defendant, in the course of her trade, to sell
silver jewellery by way of calling on private individuals for
the purposes of selling, and collecting orders for, silver
jewellery?

2. If so, does a rule of a Member State which prohibits the sale
of silver jewellery by way of calling on private individuals
for the purposes of selling, and collecting orders for, silver
jewellery constitute a restriction on the free movement of
goods within the meaning of Articles 28/30 EC?