OPINION OF
ADVOCATE GENERAL STIX-HACKL
delivered on 30 March 2004(1)

Case C-168/03

Commission of the European Communities
v
Kingdom of Spain

(Failure to fulfil obligations – Directive 89/655/EEC – Safety and health requirements for the use of work equipment – Work equipment already in operation)

I – Introduction

1. These infringement proceedings concern the question whether the Kingdom of Spain has infringed Community law in that when it transposed Council Directive 89/655/EEC of 30 November 1989 concerning the minimum health and safety requirements for the use of work equipment by workers at work, (2) (hereinafter ‘the Directive’) in the version of Council Directive 95/63/EC of 5 December 1995 amending Directive 89/655/EEC concerning the minimum safety and health requirements for the use of work equipment by workers at work (3) (hereinafter: ‘the amending Directive’) it provided an additional adjustment period for work equipment already in use prior to the entry into force of the Spanish provisions on 27 August 1997.

II – Legal framework

A – Community law

2. Article 4(1) of the Directive reads in abridged form as follows:

‘Rules concerning work equipment

(1) Without prejudice to Article 3, the employer must obtain and/or use:

(a): work equipment which, if provided to workers in the undertaking and/or establishment for the first time after 31 December 1992, complies with…

(ii): the minimum requirements laid down in Annex I … ;

(b): work equipment which, if already provided to workers in the undertaking and/or establishment by 31 December 1992, complies with the minimum requirements laid down in Annex I no later than four years after that date.’

3. The amending Directive adds the following sentence to No 1 (General comment) in Annex I to the Directive:

‘The following minimum requirements, in as much as they apply to work equipment in use, do not necessarily call for the same measures as the essential requirements concerning new work equipment.’

No 2 and No 3 of Annex I contain general and specific minimum requirements for work equipment.

B – National law

4. The sole transitional provision in Real Decreto (Royal Decree) No 1215/1997 of 18 July 1997 laying down minimum health and safety requirements for the use of work equipment by workers (4) (hereinafter the Royal Decree) contains transitional rules for the use of work equipment already in use prior to the entry into force of the Royal Decree on 27 August 1997.

5. Article 1(2), (3) and (4) provide that the employment authorities may authorise plans to bring work equipment into conformity with the requirements in Annex I to the Directive (hereinafter ‘conformity plans’), if, for specific objective reasons, it is impossible in certain sectors for work equipment covered by the Directive to be brought into conformity with Annex I to the Directive within 12 months (5) of the entry into force of the Royal Decree.A

6. A precondition for authorisation of this kind is a reasoned request on the part of the most representative associations of employers in the sector. In addition, the opinions of the employees’ representatives, the Inspectorate for Labour and Social Security and the National Institute for Health and Safety at Work are to be heard. A decision relating to a request for the authorisation of a conformity plan will take into consideration the severity and impact of the technical problems of adaptation and the existence of alternative preventative measures for guaranteeing adequate health and safety protection for employees. The authorisation granted may be full or partial. The request must be made within nine months of the entry into force of the Royal Decree and the decision taken within the ensuing three months. The duration of the conformity plan must not exceed five years. The plan in question may be used as a basis by the undertakings within its purview to request its application; this will then be reviewed again by the competent authorities and can be either rejected, or granted in full, partially or subject to conditions by means of a new administrative measure.

III – History, pre-litigation procedure and action

7. The Court of Justice held in its judgment of 26 September 1996 (6) that the Kingdom of Spain has infringed the Directive by failing to adopt any transposition provisions within the time allowed for implementation. Subsequent to this, the Royal Decree was issued in 1997 in order to transpose the provisions of the Directive into Spanish law.

8. Since the Commission was of the opinion that the transitional rules provided in the Royal Decree for work equipment already in use prior to its entry into force infringe the Directive, in 2000 it once again brought Treaty infringement proceedings against the Kingdom of Spain. Having given the Kingdom of Spain the opportunity to state its opinion, on 1 July 2002 the Commission issued a reasoned opinion in which it invited the Kingdom of Spain to adopt measures bringing Spanish legislation into conformity with the Directive within two months. The Spanish Government responded by letter of 31 July 2002 in which it disputed the infringement of the Treaty.

9. By application of 10 April 2003, lodged at the Registry of the Court of Justice on 11 April 2003, the Commission brought an action against the Kingdom of Spain pursuant to Article 226 EC.

The Commission contends that the Court should:

(1): declare that, by providing in Article 1 of the sole transitional provision of Royal Decree No 1215/1997 of 18 July 1997, laying down minimum health and safety requirements for the use of work equipment by workers, an additional adjustment period for work equipment already available to workers at the undertaking and/or establishment prior to 27 August 1997, the Kingdom of Spain has failed to fulfil its obligations under Articles 10 and 249 EC and Article 4(1)(b) of Council Directive 89/655/EEC of 30 November 1989, as amended by Directive 95/63/EC of 5 December 1995;

(2): order the Kingdom of Spain to pay the costs.

The Kingdom of Spain proposes that the Court should:

–: dismiss the action and order the Commission to pay the costs.

IV – The infringement of the Treaty

A – Principal arguments

10. The Commission submits that the Spanish provisions relating to the possibility of conformity plans give rise to a transitional period exceeding the transitional period provided for in Article 4(1)(b) of the Directive, because they permit the use of old work equipment that does not conform to the Directive after 31 December 1996, possibly up to 27 August 2003. A rule of this kind is not covered by the general comment in Annex I to the Directive, as amended by the amending Directive, since the general comment does not permit any extension of the transitional period in Article 4(1)(b) of the Directive.

11. The Spanish Government submits that Article 4(1)(b) of the Directive does not preclude the Spanish provisions relating to the conformity plans. It refers first of all to the fact that the contested national provisions no longer had any practical effect after 27 August 2003. However, the main argument of the Spanish Government is that the rule relating to the conformity plans does not extend the transitional period in Article 4(1)(b) in the Directive. Instead, it implements the possibility introduced by the amended general comment in Annex I to the Directive that work equipment already in use may be subject to less strict requirements than those in No 2 and No 3 of Annex I to the Directive.

B – Assessment

12. The obligations under Community law to implement the Directive are derived, on the one hand, directly from the Directive and, on the other, from Article 249(3) EC and Article 10 EC. The specific question in this case is whether the Spanish provisions relating to the conformity plans represent an infringement of Article 4(1)(b) of the Directive.

13. Regarding the argument of the Spanish Government concerning the expiry of the single transitional provision in the Royal Decree on 27 August 2003, it should first be noted that, according to consistent case-law of the Court, the material time for assessing the existence of an infringement of the Treaty is the end of the period laid down in the reasoned opinion. (7) This period expired on 1 September 2002. At this time, conformity plans, which in principle could be authorised up to 27 August 2003, could still be applied so that the national legal situation to which the Commission objected was still in existence at the material time.

14. Regarding the parties’ arguments relating to the relationship between Article 4(1)(b) and the amended general comment on Annex I to the Directive, the following should be stated:

15. It follows from Article 4(1)(b) of the Directive that, if work equipment was already in use in the Member States on 31 December 1992 (hereinafter ‘old work equipment’), then it could still be used until 31 December 1996 in all cases, namely independently of the degree of risk it presented to employees. However, according to the original version of the Directive, from 1 January 1997 it would have been possible to continue to use this old work equipment only if it had conformed unrestrictedly to the requirements in Annex I No 2 and No 3 to the Directive.

16. However, prior to this date, the amending Directive came into force on 19 January 1996. (8) Since Article 4(1)(b) of the Directive in the amended version refers to ‘Annex I’, from that time onwards, the Kingdom of Spain was entitled to adopt national legislation for old work equipment taking into account the general comment as supplemented by the amending Directive. The amended general comment means that since that date the Member States do not necessarily have to ‘call for the same measures as the essential requirements concerning new work equipment’.

17. Since, according to Article 4(1)(b) in the original version of the Directive, the Member States could authorise old work equipment for a specific period, even if it in no way conformed to the requirements in Annex I, they could definitely also authorise old work equipment under the original version of the Directive if it only partially conformed to the requirements for new work equipment, in so far as ‘not necessarily … the same measures’ would be required for them.

18. The general comment for Annex I as supplemented by the amending Directive can, therefore, probably only be understood as modifying Article 4(1)(b) of the Directive to the extent that from that time on the Member States were entitled to adopt legislation under which old work equipment that – by analogy – does ‘not necessarily [fulfil] the same’ requirements as new work equipment could still be used after 31 December 1996 and in fact – so it seems – with no time-limit. However, old work equipment that does not conform in any way to the requirements in Annex I to the Directive, could no longer be used after 1 January 1997.

19. However, from the words ‘not necessarily’ it is not really possible to derive any indications regarding the level of protection applicable to old work equipment. At the most they lay down a general principle that the authorisation of old work equipment has to be based to some extent on the content of Annex I. Therefore, it seems that no particularly high requirements can be placed on national implementing provisions.

20. In substance, therefore, the system of conformity plans appears to satisfy the requirements of the amended general comment in Annex I to the Directive:

The authorisation of the conformity plans is expressly dependent upon a guarantee that the standard of the old work equipment ensures health and safety at work. The involvement of the unions and the national authorities responsible for health and safety at work is also intended to safeguard the interests of the employees to be protected. Moreover, it is not a blanket approval – the authorisation of old work equipment takes place following a two-stage examination (conformity plans and individual approvals, possibly with conditions) in each of which consideration is given to the different interests. Finally, the arrangement for bringing old work equipment into conformity is subject to a time-limit.

21. However, the material scope of the provisions relating to the conformity plans is not compatible with Article 4(1)(b) of the Directive.

22. Although it is true that the amended general comment in Annex I to the Directive can modify the substance of the rules on the further use of old work equipment, it cannot modify the rule in Article 4(1)(b) of the Directive establishing the cut-off date delimiting the work equipment which, as ‘old’ work equipment, may be covered by the derogation. This still only covers work equipment already in use on 31 December 1992. (9)

23. However, the Royal Decree encompasses all work equipment in use before 27 August 1997. Hence, under the Spanish legislation, it is, in principle, possible that even work equipment that was only used for the first time after 31 December 1992 could be approved on the basis of a conformity plan even though it does not conform to the requirements of No 2 and No 3 of Annex I to the Directive.

24. Consequently, the Kingdom of Spain has not fulfilled its obligations under Community law pursuant to Article 4(1)(b) in conjunction with the general comment in Annex I to the Directive as amended by the amending Directive, because the Royal Decree permits work equipment used only for the first time after 31 December 1992 not to conform with the requirements of No 2 and No 3 of Annex I to the Directive.

V – Conclusion

25. It is therefore proposed that the Court should:

(1): declare that, in so far as Article 1 of the sole transitional provision of Royal Decree No 1215/1997 of 18 July 1997 laying down minimum health and safety requirements for the use of work equipment by workers provides an additional adjustment period also for work equipment that was made available to the workers in the undertaking or establishment only after 31 December 1992, the Kingdom of Spain has infringed its obligations under Article 10 EC and Article 249 EC and Article 4(1)(b) in conjunction with the general comment in Annex I to Council Directive 89/655/EEC of 30 November 1989, as amended by Directive 95/63/EC of 5 December 1995.

(2): order the Kingdom of Spain to pay the costs.

1 –: Original language: German.

2 –: OJ 1989 L 393, p. 13.

3 –: OJ 1995 L 335, p. 28.

4 –: BOE No 188 of 7 August 1997, p. 24063.

5 –: Although the reasoned opinion stated that this first general transitional period of 12 months (Article 1(1) of the Royal Decree) was in itself an infringement, in the application the Commission expressly restricted its objections to the legal provisions relating to the conformity plans.

6 –: Case C‑79/95 Commission v Spain [1996] ECR I‑4679.

7 –: Judgment in Case C‑384/99 Commission v Belgium [2000] ECR I‑10633, paragraph 16.

8 –: Article 191(2) of the EC Treaty (now Article 254(2) EC): on the 20th day after publication in the Official Journal of European Communities (in the Spanish version: 30 December 1995).

9 –: Therefore, the mere fact of depreciation, natural wear and so forth will mean that this further use of old work equipment will gradually lose its significance.