Commission of the European Communities v Italian Republic.
Date: 2002-10-24
7 Articles 43 and 44 of Decree Law No 626/94, which are also contained in Title IV, provide as follows:
`Article 43
Employer's obligations
1. For the purposes of selecting PPE, the employer shall:
(a) carry out an analysis and evaluation of such risks as cannot be prevented by other means;
(b) establish what kind of PPE is needed in order to prevent the risks referred to in paragraph (a), having regard to any other risks posed by the PPE itself;
(c) assess, on the basis of the information provided by the manufacturer of the PPE and the instructions for use referred to in Article 45, the features of the PPE available on the market and compare them with those identified pursuant to paragraph (b);
(d) adapt his choice in the event of any significant change in the relevant factors.
2. The employer, once again on the basis of the instructions for use referred to in Article 45, shall determine the manner in which PPE should be used, with particular reference to duration of use, by reference to the following factors:
(a) significance of the risk
(b) frequency of exposure to that risk
(c) characteristics of each worker's work station;
(d) performance of the PPE.
3. The employer shall provide the worker with PPE that complies with the requirements of Article 42 and the Decree referred to in Article 45(2).
4. The employer shall:
(a) ensure that PPE is operational and hygienic by maintaining and repairing it and providing necessary replacements;
(b) ensure that PPE is used only for the prescribed purposes, other than in specific exceptional circumstances, in accordance with the information provided by the manufacturer;
(c) provide intelligible instructions for workers;
(d) ensure that all PPE is for personal use and, where the circumstances require that PPE be used by more than one person, adopt appropriate measures to ensure that such use does not pose any risk to health or hygiene for any user;
(e) inform the worker in advance of the risks from which the PPE protects them;
(f) make available, at the undertaking's premises or at the manufacturing site, appropriate information on each piece of PPE;
(g) provide appropriate training and if necessary organise specific practical courses on good practice and use of PPE.
5. Practical courses shall in any event be necessary
(a) in respect of any PPE which, in application of Decree Law No 475 of 4 December 1992, belongs to the third category;
(b) in respect of equipment for the protection of hearing.
Article 44
Workers' obligations
1. Workers shall attend the training programmes and practical courses organised by the employer in cases where it is deemed necessary under Article 43(4)(g) and Article 43(5).
2. Workers shall use PPE provided for them in accordance with the information and training received by them and any practical courses.
3. Workers:
(a) shall handle the PPE provided with care;
(b) shall not alter it of their own accord.
4. When they have finished using PPE, workers shall follow the procedures laid down in regard to its return.
5. Workers shall inform their employer or manager or person in charge immediately of any defect or fault affecting any PPE provided for them.'
21 It must first of all be recalled that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23, and Case C-323/01 Commission v Italy [2002] ECR I-4711, paragraph 8).
23 It should also be borne in mind in that connection, that, according to settled case-law on the transposition of directives into national law, it is essential that the national law effectively guarantees application of the directive in full, that the legal position under national law will be sufficiently precise and clear and that individuals are made fully aware of their rights and, where appropriate, may rely on them before the national courts (see, inter alia, Case C-365/93 Commission v Greece [1995] ECR I-499, paragraph 9, and Case C-144/99 Commission v Netherlands [2001] ECR I-3541, paragraph 17).