Commission of the European Communities v Republic of Austria.
Date: 2006-04-06
38. However, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, in particular, Case C-323/01 Commission  v Italy [2002] ECR I-4711, paragraph 8, and Case C-510/04 Commission  v Belgium [2005] ECR I-0000, paragraph 7).
49. Article 7(1) of the Directive imposes a principal obligation on the employer, which is to designate one or more workers to carry out activities related to the protection and prevention of occupational risks.  Article 7(3) provides for the obligation to                                                                                                                                                         enlist competent external persons or services (Case C-49/00 Commission v Italy  [2001] ECR I-8575, paragraph 23). However, as the Court has already held, that obligation is merely subsidiary to that laid down in Article 7(1), since it arises only ‘if such protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment’ (see Case C-441/01 Commission v Netherlands [2003] ECR I-5463, paragraph 20).
50. Article 7 of the Directive therefore places the obligations imposed on employers in an order of precedence (see Commission v Netherlands , cited above, paragraph 21).
51. That interpretation is supported by the wording of Article 11(2) of the Directive, which refers, in (b), to the designation of workers provided for in Article 7(1) of that directive and, in (d), to the enlistment, provided for in Article 7(3), of competent external services while adding, in respect of the latter reference only, the phrase ‘where appropriate’ (see Commission v Netherlands , cited above, paragraph 22).
52.  In order to ensure full applicability of the Directive in a clear and precise manner, its transposition into the national law of the Member States must reflect the order of precedence laid down in Article 7 of the Directive  (see Commission v Netherlands , cited above, paragraph 23).
53. As the Court has also held, since the aim of the Directive is to promote the balanced participation of employers and workers in activities related to protection against and prevention of occupational risks, it is therefore by giving precedence to the organisation of such activities within the undertaking that the effectiveness of the Directive can be ensured to the greatest possible extent. Allowing employers to choose between the organisation of such activities within the undertaking or the enlistment of competent  external services does not contribute to ensuring the effectiveness of the Directive but constitutes a failure to fulfil the obligation to ensure its full applicability (see Commission v Netherlands , cited above, paragraphs 54 and 55).
63. The aim of the Directive is not only to improve the protection of workers against accidents at work and the prevention of occupational risks; it is also intended to introduce specific measures to organise that protection and prevention. It thus states a number of means regarded by the Community legislature as being suitable to facilitate achievement of the set purpose ( Commission v Netherlands , cited above, paragraph 38). If the latter had intended to limit the scope of the first subparagraph of Article 8(2) of the Directive by providing, in respect of undertakings of a given size or carrying on certain activities, for a restriction on the obligation of designation of workers responsible for the activities in question, it would have stated so expressly.
74. In that regard, the 11 th  and 12 th  recitals in the preamble to the Directive show that the objectives of the latter include a dialogue and balanced participation between employers and workers with a view to adopting the measures necessary for the protection of workers against accidents at work and occupational diseases (see Commission v Netherlands , cited above, paragraph 39). Article 11(2) of the Directive is a concrete expression of that objective.
98. As regards, first, the obligation on workers under Article 13(2)(a) of the Directive, it must be noted that in an action based on Article 226 EC it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see Case C-287/03 Commission  v Belgium  [2005] ECR I-3761, paragraph 27 and the case-law cited).
99. The transposition of a directive into national law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific express legal provision of national law and the general legal context may be sufficient if it actually ensures the full application of the directive in a sufficiently clear and precise manner (see, inter alia, Case C-58/02 Commission  v Spain  [2004] ECR I-621, paragraph 26 and Case C-6/04 Commission  v United Kingdom [2005] ECR I-0000, paragraph 21).