CELEX: C2001/079/21
Language: en
Date: 2001-03-10 00:00:00
Title: Case C-464/00: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat des Landes Oberösterreich by order of 15 December 2000 in the case of Primetzhofer Stahl- und Fahrzeugbau GmbH v Land Oberösterreich

10.3.2001                 EN                     Official Journal of the European Communities                                         C 79/11
       (b) does not ensure that an additional ophthalmological              —    According to Article 9(3) of Directive 90/270/EEC,
             test is carried out whenever necessary as a result of               workers are entitled to receive ‘special corrective
             the regular eye and eyesight tests;                                 appliances appropriate for the work concerned’, where
                                                                                 this proves necessary following testing and the wearing
                                                                                 of normal corrective appliances is not possible. Such a
                                                                                 provision is the logical and necessary corollary to rules
       (c)   does not define the conditions for providing the
                                                                                 requiring the carrying out of eye and eyesight tests, and
             workers concerned with corrective appliances                        examination by an oculist where necessary, with a view
             appropriate for the work concerned.
                                                                                 to offering complete protection of the health and safety
                                                                                 of workers at risk.
—      Order the Italian Republic to pay the costs.
                                                                            —    However, in Article 55 of Decree-Law 626/94 no pro-
                                                                                 vision is made which expressly guarantees such a right.
                                                                                 Article 55(5) merely states: ‘expenditure in respect of
                                                                                 providing special corrective appliances appropriate for
                                                                                 the work concerned is to be borne by the employer’,
                                                                                 which is clear, but not sufficient to identify the precise
Pleas in law and main arguments
                                                                                 criterion establishing the right of workers to benefit from
                                                                                 such provisions.
The Commission finds that the Italian Republic has failed to
fulfil its obligations under Article 9(1) to (3) insofar as:                (1) OJ 1990 L 156, p. 14.
                                                                            (2) Council Directive of 12 June 1989, OJ 1989 L 183, p. 1.
—      Italian legislation is to be regarded as incompatible with
       Directive 90/270/EEC as regards regular eye and eyesight
       tests for workers who have commenced work with display
       screen equipment. Article 9(1) of the abovementioned
       directive provides that all workers working on display
       screen equipment are entitled to regular eye and eyesight
       tests after commencing display screen work in order to
       prevent visual difficulties which may be due to display
       screen work, as well as other possible illness, connected            Reference for a preliminary ruling by the Unabhängiger
       with overexposure to radiation emitted by display equip-             Verwaltungssenat des Landes Oberösterreich by order of
       ment. The workers concerned, therefore, are to be                    15 December 2000 in the case of Primetzhofer Stahl- und
       regarded as workers at risk for the purposes of Directive                    Fahrzeugbau GmbH v Land Oberösterreich
       89/391. However, according to the wording of Article
       55(2) of Decree Law No 626/94, regular tests to take
       place at least every two years, are made available only to                                     (Case C-464/00)
       two specific classes of worker: those who were initially
       classified as fit, with corrective lenses, for work on display
       equipment and those over 45 years of age. Workers                                               (2001/C 79/21)
       under 45 years of age who were initially passed fit to
       work on video equipment without corrective lenses are
       thus wholly excluded from the protection afforded by                 Reference has been made to the Court of Justice of the
       Article 9(1) of the directive.                                       European Communities by order of 15 December 2000 by the
                                                                            Unabhängiger Verwaltungssenat des Landes Oberösterreich,
                                                                            which was received at the Court Registry on 22 December
                                                                            2000, for a preliminary ruling in the case of Primetzhofer
—      However, the Commission would draw attention to the                  Stahl- und Fahrzeugbau GmbH v Land Oberösterreich on the
       fact that workers excluded by virtue of the Italian                  following questions:
       legislation from the regular eye and eyesight tests pro-
       vided for by Article 9(1) of Directive 90/270/EEC are
       in practice excluded also from the ophthalmological                  (a)  Do the rules of a Member State under which the court
       examination provided for by Article 9(2), since usually it                (the independent body) in the review procedure must also
       is the former test which shows signs of eyesight problems.                act of its own motion and determine the course of the
       In any event, even if Article 55(4) of Decree-Law 626/94                  preliminary investigation constitute an infringement of
       mentions the possibility of such an examination, the                      the first half of the final sentence of Article 2(8) of
       legislation does not offer any assurance that it will be                  Council Directive 89/665/EEC of 21 December 1989 on
       carried out in every case where the normal regular eye                    the coordination of the laws, regulations and administrat-
       and eyesight test shows that further analysis is necessary,               ive provisions relating to the application of review
       thus significantly reducing the level of protection pro-                  procedures to the award of public supply and public
       vided for by the directive itself.                                        works contracts? (1)
 ---pagebreak--- C 79/12                EN                     Official Journal of the European Communities                                        10.3.2001
(b) If that question is answered in the negative: Does the first               (c)   a national central bank,
      half of the final sentence of Article 2(8) of Council
      Directive 89/665/EEC of 21 December 1989 on the                          (d) a statutory body representing its members’ interests,
      coordination of the laws, regulations and administrative
      provisions relating to the application of review pro-                    (e)   a partially State-controlled undertaking which is
      cedures to the award of public supply and public                               operated for profit?
      works contracts require an interpretation of the national
      legislation to the effect that the court (the independent          2.    If the answer to at least part of the above question is in
      body) clarifies of its own motion, without specific                      the affirmative:
      assertions (and certainly without relevant offers of evi-
      dence) made by one of the parties, whether the invitation                Are the provisions precluding the abovementioned
      to tender in question is not an individual project, but                  national rules directly applicable, in the sense that persons
      merely a part-project and — in the event that the latter is              obliged to disclose data may rely on them to prevent the
      the case — whether the overall project has an estimated                  application of conflicting national rules?
      contract value of more than EUR 5 million, or is such a
      view prohibited precisely because the onus of proof and
      obligation to produce evidence imposed on the party
      constitutes the essential difference between a procedure in
      which both sides are heard and inquisitorial proceedings?
                                                                         Appeal brought on 22 December 2000 by the European
(1) OJ 1989 L 395, p. 33.
                                                                         Parliament against the judgment delivered on 26 October
                                                                         2000 by the Fourth Chamber of the Court of First Instance
                                                                         of the European Communities in Joined Cases T-83/99,
                                                                         T-84/99 and T-85/99 between Ripa di Meana and Others
                                                                                          and the European Parliament
                                                                                                 (Case C-470/00 P)
Reference for a preliminary ruling by the Verfassungsge-                                           (2001/C 79/23)
richtshof, Vienna, by order of 12 December 2000 in the
case of the Rechnungshof against 1. Österreichischer
Rundfunk, 2. Wirtschaftskammer Steiermark, 3. Marktge-                   An appeal against the judgment delivered on 26 October 2000
meinde Kaltenleutgeben, 4. Land Niederösterrreich,                       by the Fourth Chamber of the Court of First Instance of the
5. Oesterreichische Nationalbank, 6. Stadt Wiener                        European Communities in Joined Cases T-83/99, T-84/99 and
Neustadt, 7. Austrian Airlines, Österreichische Luft-                   T-85/99 between Ripa di Meana and Others and the European
                           verkehrs-AG                                   Parliament was brought before the Court of Justice of the
                                                                         European Communities on 22 December 2000 by the Euro-
                                                                         pean Parliament, represented by A. Caiola and G. Ricci, acting
                         (Case C-465/00)                                 as Agents, with an address for service in Luxembourg.
                          (2001/C 79/22)                                 The appellant claims that the Court should:
                                                                         1.    set aside the judgment of the Court of First Instance of
Reference has been made to the Court of Justice of the                         26 October 2000 in Cases T-83/99 and T-84/99 Carlo
European Communities by order of the Verfassungsgerichts-                      Ripa di Meana and Leoluca Orlando and the European
hof, Vienna, by order of 12 December 2000, received at the                     Parliament;
Court Registry on 28 December 2000 for a preliminary ruling
in the case of the Rechnungshof against 1. Österreichischer             2.    in consequence, declare the applications of the said
Rundfunk, 2. Wirtschaftskammer Steiermark, 3. Marktgemein-                     applicants at first instance inadmissible and unfounded,
de Kaltenleutgeben, 4. Land Niederösterrreich, 5. Oesterreichi-                and
sche Nationalbank, 6. Stadt Wiener Neustadt, 7. Austrian
Airlines, Österreichische Luftverkehrs-AG on the following              3.    order the applicants at first instance to pay the whole of
questions:                                                                     the costs of the proceedings before the Court of First
                                                                               Instance and the Court of Justice.
1.    Are the provisions of Community law, in particular those
      on data protection, to be interpreted as precluding
      national rules which require a State body to collect and           Pleas in law and main arguments
      pass on data on income for the purpose of publishing the
      names and income of employees of:                                  The European Parliament puts forward three pleas in law in
                                                                         support of its appeal, two of which relate to admissibility and
      (a)   a regional or local authority,                               the third to the substance, the last being subdivided into
                                                                         various parts and supported by a number of legal arguments.
      (b) a broadcasting organisation governed by public law,            Its grounds of appeal are as follows: