CELEX: 62001CC0425
Language: en
Date: 2002-12-05
Title: Opinion of Advocate General Stix-Hackl delivered on 5 December 2002. # Commission of the European Communities v Portuguese Republic. # Failure of a Member State to fulfil obligations - Incomplete transposition of Directive 89/391/EEC - Safety and health of workers. # Case C-425/01.

OPINION OF ADVOCATE GENERALSTIX-HACKL delivered on 5 December 2002  (1)
         Case C-425/01 Commission of the European CommunitiesvPortuguese Republic
            ((Failure to fulfil obligations – Improvement of health and safety protection of workers at work – Council Directive 89/391/EEC – Workers' representatives with specific responsibility for health and safety protection of workers – Election – Procedural law))
            
      
         
        I ─ Introduction
      
      1.  In bringing this action, the Commission seeks a declaration that the Portuguese Republic has failed to fulfil its obligations
      under Articles 4, 10, 11 and 12 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  
      
         			(2)
         		 (
      the Directive).
      
      2.  The Commission's complaints concern the absence of regulations to govern the procedure for the election of workers' representatives
      with specific responsibility for the health and safety protection of workers (
      hereinafter: workers' special representatives).
       II ─ Legal Framework
      
      
      
      A ─
       Directive 89/391/EEC
      
      3.  Article 3(c) provides:workers' representative with specific responsibility for the safety and health of workers: any person elected, chosen or designated
      in accordance with national laws and/or practices to represent workers where problems arise relating to the safety and health
      protection of workers at work.
      
      4.  Article 4(1) provides:Member States shall take the necessary steps to ensure that employers, workers and workers' representatives are subject to
      the legal provisions necessary for the implementation of this Directive.
      
      5.  The rights of workers' special representatives are laid down in Articles 10 to 12.
      
      
      
      B ─
       National law
      
      6.  Article 10 of Decree-Law No 441/91 of 14 November 1991  
      
         			(3)
         		 (
      the Decree-Law) provides: Workers' representatives 
      (1) Workers' representatives responsible for the safety, hygiene and health protection of workers at work shall be elected by
      workers in a direct, secret ballot in accordance with the d'Hondt system. 
      
      (2) Only lists of trade union organisations which represent workers of the undertaking, or lists signed by at least 20% of workers
      of the undertaking are entitled to participate, and no worker may sign more than one list or stand for election on more than
      one list. 
      
      (3) Each list shall present the same number of candidates and representatives as there are positions available. 
      
      (4) The number of workers' representatives may not exceed: 
      (a) in undertakings with fewer than 61 workers ─ one workers' representative; 
      
      (b) in undertakings with 61 to 150 workers ─ two workers' representatives; 
      
      (c) in undertakings with 151 to 300 workers ─ three workers' representatives; 
      
      (d) in undertakings with 301 to 500 workers ─ four workers' representatives; 
      
      (e) in undertakings with 501 to 1 000 workers ─ five workers' representatives; 
      
      (f) in undertakings with 1 001 to 1 500 workers ─ six workers' representatives; 
      
      (g) in undertakings with more than 1 500 workers ─ seven workers' representatives. 
      
      
      (5) The term of office of the workers' representative(s) shall be three years. 
      
      (6) Workers' representatives may be replaced in the event of a resignation or total incapacity, by candidates and/or representatives,
      in the order of the relevant list. 
      
      (7) Workers' representatives to whom the aforementioned provisions apply shall be allowed five hours in every month to carry out
      their duties. 
      
      (8) Leave granted under the foregoing provision shall not be granted in addition to any leave to which the worker may be entitled
      as a member of other workers' representative bodies.
      
      
      7.  Article 23(2)(b) of the Decree-Law provides the legal basis for the adoption of regulations to govern the election procedure
      for workers' special representatives.
       III ─ Pre-litigation procedure proceedings before the Court
      
      8.  The Directive was required to be implemented by Member States by 31 December 1992.
      
      9.  Following a complaint, the Commission formed the view that the Directive has not been properly implemented in Portugal, because
      no regulations have been adopted to govern the election procedure for the appointment of workers' special representatives.
       The Commission, therefore, requested the Portuguese Republic, by letter dated 26 January 2000, to submit its observations
      within two months.
      
      10.  Since the written response of the Portuguese Government dated 4 April 2000 had, in the opinion of the Commission, failed to
      assuage its concerns, by letter of 2 February 2001, the Commission sent the Portuguese Republic a reasoned opinion in which
      it complained that the absence of regulations governing the electoral procedure for workers' special representatives was in
      breach of Articles 4, 10, 11 and 12 of the Directive, and called on the Portuguese Republic to adopt the necessary measures
      within two months, that is, by 2 April 2001.  The Portuguese Government responded in writing on 18 June 2001, expressing the
      view that fulfilment of its obligations under the Directive did not require the adoption of any further regulations governing
      the electoral procedure.
      
      11.  Since the Commission had formed the view that the Portuguese Republic had failed to fulfil its obligations, by application
      of 22 October 2001 registered at the Court of Justice on 29 October 2001, it brought an action against the Portuguese Republic
      before the Court of Justice pursuant to Article 226 EC.
      
      12.  The Commission claims that the Court should
      (1) declare that the Portuguese Republic has failed to fulfil its obligations under Articles 4, 10, 11 and 12 of Directive 89/391/EEC;
      
      
      (2) order the Portuguese Republic to pay the costs. 
      
      
       IV ─ Examination of the grounds for the application
      
      
      
      A ─
       Arguments of the parties
      
      13.  The Commission argues that, by failing to adopt regulations to govern the procedure for electing workers' special representatives,
      the Portuguese Republic is preventing workers and their representatives from exercising their rights under Articles 4, 10,
      11 and 12 of the Directive, and thus jeopardising the health and safety of workers in the workplace.
      
      14.  The Commission relies on the settled case-law of the Court of Justice, according to which, to ensure legal certainty, a directive
      must be implemented nationally in such a way as to ensure that the legal situation of individuals is sufficiently clear and
      precise to enable them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national
      courts.  
      
         			(4)
         		  In the absence of regulations to govern election procedures for workers' special representatives, it is impossible for workers
      to ascertain the full extent of their rights and, where appropriate, to enforce them before the courts.
      
      15.  According to the Commission, Article 10 of the Decree-Law does lay down principles for the election of workers' special representatives.
       But the essential conditions of a proper election of workers' special representatives can only be established by legislation
      on electoral procedure.  Under the law then in force in Portugal, there were no such provisions concerning the entitlement
      to vote, the openness of the ballot, polling stations, counting of votes, publication of the results of the ballot and election
      appeals.  Workers were thus being prevented from holding elections for workers' special representatives.
      
      16.  According to the information available to the Commission, workers' special representatives had been elected in only a small
      number of undertakings in Portugal, which, in the Commission's view, was a result of the absence of legislation governing
      the electoral process.  In response to the Portuguese Government's contention that workers' special representatives had been
      elected in a variety of undertakings in Portugal, despite the continued absence of specific regulations to govern the electoral
      process, the Commission counters that the Portuguese Government has not provided the Commission with details of the number
      and identity of such undertakings.  The Commission maintains that it was not possible, therefore, to examine whether such
      elections were common practice or simply occurring in individual undertakings.  In the opinion of the Commission, therefore,
      there was no guarantee that the relevant elections were being conducted generally in Portugal and that workers' special representatives
      were performing their functions.
      
      17.  Besides, by creating a legal basis for the adoption of legislation to govern the electoral process (Article 23(2)(b) of the
      Decree) and having asserted to the Commission that appropriate legislation was already being drafted, Portugal had itself
      acknowledged the need for legislation to govern the electoral process to supplement the principles laid down in Article 10
      of the Decree-Law.
      
      18.  The Portuguese Government takes the view that Article 10 of the Decree-Law constitutes the comprehensive implementation of
      its obligations under Article 4 of the Directive, enabling workers to elect workers' special representatives, so that these
      may exercise their rights under Articles 10 to 12 of the Directive.
      
      19.  According to the Portuguese Government, Article 10 of the Decree-Law applies to all undertakings in the public and private
      sectors and the general economy and comparable regulations apply to the civil service.  The aforementioned article incorporates
      all the provisions necessary for a democratic election and also covers the legal status of the workers' special representatives:
      
      
      ─
         elections are carried out by the undertakings (paragraphs 2 and 4); 
      
      
      
      ─
         all workers of the undertaking are entitled to vote and stand for election (paragraphs 1 and 2 at the end); 
      
      
      
      ─
         election is by list (paragraph 2); 
      
      
      
      ─
         nomination rights for lists belong to trade union branches which represent the workers of the undertaking, or at least 20%
         of the workers of the undertaking (paragraph 2); 
      
      
      
      ─
         number of candidates and substitute members per list (paragraph 3); 
      
      
      
      ─
         maximum number of workers' special representatives in each undertaking (paragraph 4); 
      
      
      
      ─
         method for electing workers' special representatives (d'Hondt) (paragraph 1); 
      
      
       in addition
      
      
      
      ─
      duration of the workers' special representatives' mandate (paragraph 5);   
      
      
      
      ─
      grounds and procedure for replacing a workers' special representative (paragraph 6);  
      
      
      
      ─
      amount of time available per month for carrying out the function of workers' special representative (paragraphs 7 and 8).
       
      
      
      20.  Article 23(2)(b) of the Decree-Law also provides for the mandatory adoption of regulations to govern the electoral process.
       Such regulations have not yet, however, been adopted.  Contrary to the Commission's assumption, however, this did not in
      any way deter workers from electing workers' special representatives.  For the electoral law was already directly available
      through Article 10(1) and (2) of the Decree-Law.
      
      21.  Furthermore, it was ensured that the management of undertakings could not prevent such elections or prevent elected workers'
      special representatives from exercising their rights.  For, under general employment law, management was already prohibited
      from taking any type of measure that could interfere with or penalise the exercise of workers' rights.  Notice of termination
      of employment may, under Portuguese employment law, only be given on lawful grounds; giving notice to a worker or a workers'
      representative because he has exercised his rights is unlawful.
      
      22.  In so far as the Commission's claim against the Portuguese Government is that the electoral law in respect of workers' special
      representatives does not govern, for example, the entitlement to vote, polling stations, time and place of elections, counting
      of votes and publication of the results, the Portuguese Government rejects the claim, pointing out that only the method of
      election and entitlement to vote are essential to all elections.  And these are governed by Article 10 of the Decree-Law.
      
      23.  Regarding the Commission's claim that the absence of regulations for appealing against the results of an election constitutes
      a failure to implement the Directive properly, the Portuguese Government argues that if an election of a workers' special
      representative is not carried out in accordance with Article 10 of the Decree-Law, the general law applies.  Under Article
      2(2) of the Portuguese law of civil procedure, a claim may be lodged in respect of any statutory infringement, and necessary
      measures may be demanded where appropriate.
      
      24.  As evidence that the lack of legislation governing the electoral process does not prevent workers from electing their representatives,
      the Portuguese Government points to the fact that there are numerous examples in Portugal of elections for workers' representatives
      being conducted in accordance with Portuguese employment law, without special legal regulations of a procedural nature.  Thus,
      for example, a trade union and its constitution were directly elected/adopted by resolution of a workers' general meeting,
      by a simple majority of those present. Regular elections of union representatives are also conducted in undertakings without
      special regulations for the election process.
      
      25.  Besides, the Portuguese Government has already demonstrated to the Commission, with the submissions of figures for elections
      of workers' special representatives that have already taken place in Portuguese undertakings, that the lack of legislation
      governing the electoral process is manifestly not preventing workers from holding such elections.  In the meantime, the competent
      Portuguese authorities have been notified of other undertakings in which such elections have been held; in all, the Portuguese
      Government is now aware of 94 such undertakings.  The exact number is not known, however, as there is currently no obligation
      in Portugal to give notice in this respect.  The Portuguese Government does, however, acknowledge that the numbers are not
      satisfactory.  Besides, the Commission has not, to date, required the Portuguese Government to notify the number and identity
      of the undertakings in which such elections have taken place.  But the Portuguese Government continues to be willing to provide
      such information as it has available.
      
      
      
      B ─
       Assessment
      
      26.  The Directive contains in particular the definition of  
      workers' representatives with specific responsibility and their rights and obligations in the context of their participation in the health and safety protection of workers.  The
      Directive does not, however, expressly determine whether and, if so, which provisions relating to the electoral procedure
      Member States should adopt for the election of workers' special representatives.  In addition, the Directive does not expressly
      require workers' special representatives to be appointed on election only, giving workers, in that sense therefore, a right
      to an election.  Rather, Article 3(c) of the Directive defines workers' special representatives as persons  
      elected, chosen or designated.
      
      27.  To that extent, the Commission's complaint should perhaps be interpreted as meaning that  
       if  a Member State provides for workers' special representatives to be appointed to that office by being elected, then it is
      not enough to standardise the conditions for such an election, which, it is not disputed, were introduced by the Portuguese
      Republic by Article 10 of the Decree-Law.  The Commission takes the view that more detailed regulations for the electoral
      procedure are additionally required.
      
      28.  In the absence of express requirements in the Directive in this respect, the Commission's view could only be endorsed if it
      could be assumed that the regulations for the electoral process, which the Commission requires, are undoubtedly necessary
      to enable workers to elect workers' special representatives and thus to exercise their rights in this regard  
       in practice .
      
      29.  First it should be noted that an election of workers' special representatives ─ as any other democratic election ─ requires
      certain fundamental rules to have been established.  These include in any event
      
      
      ─
         right to vote and stand for elections, 
      
      
      
      ─
         form of candidature (e.g. direct election or lists), 
      
      
      
      ─
         form of ballot (e.g. open or secret), 
      
      
      
      ─
         establishing the majority required (e.g d'Hondt or simple majority). 
      
      Article 10(1) to (3) of the Decree-Law fulfils these criteria for the democratic right to vote.
      
      30.  The provision thus also contains rules for the entitlement to vote, which the Commission had claimed were absent.  As well
      as the absence of rules concerning the entitlement to vote, the Commission also refers mainly to the absence of rules about
      the openness of elections, polling stations, the counting of votes, the publication of ballot results and electoral appeals.
       
      
         			(5)
         		
      31.  It must be noted that the Court has, in its settled case-law, emphasised that a national measure for transposing a directive
      must be sufficiently clear and precise for the individual to be in a position to ascertain the full extent of his rights,
      and to rely on them before the national courts, where appropriate.  
      
         			(6)
         		
      32.  As far as the regulations which the Commission considers to be lacking are concerned, it must be noted in relation to electoral
      appeals that the Portuguese law of civil procedure ─ according to the unchallenged representations made by the Portuguese
      Government in this respect ─ contains general rules which should also apply to the election of workers' special representatives,
      where the elections do not accord with the legislation available (in particular in this instance, Article 10 of the Decree-Law).
       The possibility of an electoral appeal is thus laid down in law.
      
      33.  As far as the system of counting votes is concerned, the Court has, in the  
       De Dapper and Others   case,  
      
         			(7)
         		 had to consider this question in relation to the election of staff representatives of officials in the European Parliament.
       The Court held: Pursuant to Article 10 of the Regulations,  
      
         			(8)
         		 the committee of tellers is to prepare the ballot-papers.  Since no other provisions on the detailed organisation of the
      ballot have been laid down in the rules, it must be inferred from the said provisions that the committee of tellers was empowered
      to select for the casting and counting of votes any sufficiently reliable procedure compatible with the requirements of freedom
      and secrecy of the ballot.
      
      34.  The Court consequently considered that the existence of express provisions for the system of counting votes is not fundamental
      to the ability in practice to conduct elections of workers' representatives.
      
      35.  Therefore, if there is an adequate legal avenue for challenging an election, and the counting of votes can be freely selected
      by those responsible for the conduct of the election, having regard to the criteria named by the Court, the question arises
      whether the absence of the remaining procedural rules for the election of workers' special representatives named as examples
      by the Commission (in particular, the function of the polling station, the form of publication of ballot results, and the
      openness of elections, which the Commission has not described in more detail) could prevent workers in Portugal from exercising
      their rights under the Directive.
      
      36.  If, by openness of elections, the Commission means the question of an open or secret ballot, Article 10(1) of the Decree-Law
      fulfils this requirement, in so far as it requires a  
      direct and secret ballot.  If it means the publication and/or announcement of elections, the following remarks apply, and they apply also to
      the matter of the polling station and the form of publication of the ballot result:
      
      37.  It is to be noted that, in the context of an action for failure to fulfil obligations, it is incumbent on the Commission to
      prove the alleged failure to fulfil obligations,  
      
         			(9)
         		 and in the instant case, therefore, that, due to the absence of specific national measures, national legislation fails to
      meet the requirements of the Directive.
      
      38.  In the present case, however, the Commission mainly confines itself to the assertion that the absence of specific procedural
      legislation for the election of workers' special representatives leaves workers in a state of such uncertainty about such
      elections that they would not even conduct one.  As evidence of this, the Commission relies upon the number ─ which is indeed
      very limited ─ of 94 undertakings in Portugal in which, according to the information given by the Portuguese Government, elections
      for workers' special representatives have been conducted.
      
      39.  As a matter of principle, there may, however, be a variety of reasons why elections for workers' representatives are not conducted.
       The Commission has not succeeded in demonstrating that the deciding factor is the absence of a specific electoral law, and,
      in particular, the absence of regulations to govern the openness of elections, polling stations, counting of votes, publication
      of ballot results and electoral appeals.
      
      40.  In particular, the Portuguese Government has ─ as the Commission does not dispute ─ submitted that ordinary workers' representatives
      are regularly and widely elected in Portugal without standard rules for the electoral procedure, from which one may conclude
      that workers in Portugal are clearly not fundamentally prevented from electing their representatives by the lack of available
      rules of electoral procedure, such as those described by the Commission.
      
      41.  As to the argument put forward by the Commission, that the Portuguese Government had not provided it with sufficient information
      about the identity and number of undertakings in which elections for workers' special representatives had taken place without
      a law of electoral procedure, it may ultimately be concluded that the Directive itself neither contains such reporting obligations
      for Member States, or any regulation according to which corresponding reporting obligations are to be imposed on undertakings
      in Member States.  It cannot, therefore, be assumed that the Portuguese Republic was obliged to obtain such data.  The Portuguese
      Republic thus fully complied with its duty to participate in actions for failure to fulfil obligations  
      
         			(10)
         		 by providing the Commission, on demand, with the data available.  The Commission cannot draw from this any wider conclusions
      about any failure to fulfil obligations.
      
      42.  In all, therefore, it must be concluded that the Commission has not proved the alleged failure to fulfil obligations by any
      failure properly to implement the Directive.
        V ─ Conclusion
      
      43.  On that basis, it is proposed that the Court
      (1) dismisses the Commission's claim; 
      
      (2) orders the Commission to pay the costs. 
      
      
      
       1 –
         
           Original language: German.
      
      2 –
         
         OJ 1989 L 183, p. 1.
      
      3 –
         
         . Diário da República I , Series A, No 262 of 14 November 1991.
         
      
      4 –
         
         Case C-236/95  
             Commission  v  
             Greece  [1996] ECR I-4459, paragraph 13, and Case C-143/83  
             Commission  v  
             Denmark  [1985] ECR 427, paragraph 10.
         
      
      5 –
         
         The Commission did not rely upon the argument that the absence of other rules than those of the electoral procedure could
            equally prevent workers from conducting elections of workers' special representatives. Such rules could include regulations
            for the workers' special representatives' mandate, and protection against measures by the employer against carrying out the
            mandate or participating in elections. It is sufficient, therefore, to point out here that Article 10 of the Decree-Law and
            Portugal's general employment law may, on the face of it, according to the Portuguese Governments' thus far undisputed contentions
            in this respect, contain adequate provisions in this regard.
         
      
      6 –
         
         See Case C-143/83 cited in note 4 above.
      
      7 –
         
         Case 54/75  
             De Dapper and Ors  v  
             Parliament  [1977] ECR 471, paragraphs 36/40.
         
      
      8 –
         
         Decision of the General Assembly of the European Parliament on the basis of Annex II, Article 1(2)  
            Staff regulations of officials (not published in the Official Journal). 
         
      
      9 –
         
         E.g. Case C-160/94  
             Commission  v  
             Spain  [1997] ECR I-5851, paragraph 17.
         
      
      10 –
         
         According to Article 10 EC, see, e.g., Cases 192/84  
             Commission  v  
             Greece  [1985] ECR 3967 and Case C-137/91  
             Commission  v  
             Greece  [1992] ECR I-4023.