«(Failure of a Member State to fulfil obligations – Directive 89/655/EEC – Incomplete transposition)»

Opinion of Advocate General Mischo delivered on 26 September 2002

Judgment of the Court (Sixth Chamber), 10 April 2003

Summary of the Judgment

Social policy – Protection of health and safety of workers – Directive 89/655 concerning the minimum safety and health requirements for the use of work equipment by workers at work – Transposition requiring the putting into effect of minimum required standards – Insufficiency of legislation limited to requiring the necessary adaptation of the safety regulations to progress (Council Directives 89/391 and 89/655)

Directive 89/655 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work), as amended by Directive 95/63, is not transposed with the necessary clarity and precision by national legislation which requires the necessary adaptation of the safety regulations to progress, in line with the approach taken by the directive, but without putting into effect its minimum requirements.

JUDGMENT OF THE COURT (Sixth Chamber) 10 April 2003 (1)

(Failure of a Member State to fulfil obligations – Directive 89/655/EEC – Incomplete transposition)

In Case C-65/01,

Commission of the European Communities, represented by A. Aresu, acting as Agent, with an address for service in Luxembourg,

applicant,

Italian Republic, represented by U. Leanza, acting as Agent, and D. Del Gaizo, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws and regulations necessary to transpose into national law the minimum mandatory requirements and, therefore, by failing to guarantee the protection of workers, the Italian Republic has failed to fulfil its obligations under Article 4(1) of, and the sixth sentence of paragraph 2.1, the second sentence of paragraph 2.2, the second to fourth sentences of paragraph 2.3, and the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to, Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1989 L 393, p. 13), as amended by Council Directive 95/63/EC of 5 December 1995 (OJ 1995 L 335, p. 28), hereinafter Directive 89/655.

Legal framework

Community legislation

Article 4(1)(a) and (b) of Directive 89/655 provides: Without prejudice to Article 3, the employer must obtain and/or use:

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

the minimum requirements laid down in Annex I, to the extent that no other Community directive is applicable or is so only partially;

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.

The third subparagraph of paragraph 2.1 of Annex I to Directive 89/655, that is to say its fourth, fifth and sixth sentences, provides: If necessary, from the main control position, the operator must be able to ensure that no person is present in the danger zones. If this is impossible, a safe system such as an audible and/or visible warning signal must be given automatically whenever the machinery is about to start. An exposed worker must have the time and/or means quickly to avoid hazards caused by the starting and/or stopping of the work equipment.

Paragraph 2.2 of Annex I to Directive 89/655 is worded as follows: It must be possible to start work equipment only by deliberate action on a control provided for the purpose. The same shall apply:

to restart it after a stoppage for whatever reason,

for the control of a significant change in the operating conditions (e.g. speed, pressure, etc.),

unless such a restart or change does not subject exposed workers to any hazard. This requirement does not apply to restarting or a change in operating conditions as a result of the normal operating cycle of an automatic device.

Therefore, in order to determine whether the fact that the operating resources, namely the buses, were not transferred precludes the classification as a transfer of an undertaking, the referring court must take account of the particular circumstances of the case before it.

In this respect, it is apparent from the order for reference that compliance with the new technical and environmental standards required by the contracting authority as regards operating resources did not enable, from both an economic and legal point of view, the successful tenderer to take over the operating resources of the undertaking previously holding the contract for the public transport services at issue in the main proceedings. It would not have been sensible, from an economic point of view, for a new operator to take over an existing bus fleet consisting of vehicles which, having reached the end of the period of operation authorised and not complying with the constraints imposed by the contracting authority, could not be operated.

In other words, the decision of the new operator not to take over that undertaking’s operating resources was dictated by external constraints, whereas, as the Advocate General observed in point 54 of her Opinion, nothing in the statement of facts at issue in the case which gave rise to the judgment of 25 January 2001, Liikenne (C‑172/99, EU:C:2001:59) indicates that that was the situation in that case.

It is also clear from the information provided by the referring court, summarised in paragraph 16 above, that, in view of the technical and environmental standards required by the contracting authority, the undertaking which formerly held the contract for the public transport services at issue in the main proceedings would itself have been forced, if it had submitted a tender for that contract and had been awarded it, to replace its operating resources in the near future.

In that context, the fact that there is no transfer of operating resources, in so far as it results from legal, environmental or technical constraints, does not therefore necessarily preclude the taking over of the activity concerned from being classified as a ‘transfer of an undertaking’ within the meaning of Article 1(1) of Directive 2001/23.

It is therefore for the referring court to determine whether other factual circumstances among those referred to in paragraphs 24 to 26 above support the conclusion that the identity of the entity concerned has been retained and, therefore, that there has been a transfer of an undertaking.

In this respect, it should be pointed out, in the first place, as the Advocate General noted in point 40 of her Opinion, that the order for reference shows that the new operator provides a bus transport service which is essentially similar to that provided by the previous undertaking; that service has not been interrupted and has probably been operated on many of the same routes for many of the same passengers.

In the second place, the referring court points out that the presence of experienced bus drivers in a rural area such as the district of Oberspreewald-Lausitz is crucial for the purpose of ensuring the quality of the public transport service concerned. It notes, in particular, that they must have sufficient knowledge of routes, timetables in the area served and fare conditions, as well as of other regional bus routes, railway routes and existing connections, in order to be able not only to sell tickets but also to provide passengers with the information they need to complete the planned journey.

In that context, it should be borne in mind that, since a group of workers engaged in a joint activity on a permanent basis may constitute an economic entity, such an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessor to that task. In those circumstances, the new employer takes over a body of assets enabling him to carry on the activities or certain activities of the transferor undertaking on a regular basis (judgment of 20 January 2011, CLECE, C‑463/09, EU:C:2011:24, paragraph 36 and the case-law cited).

Thus, in the case in the main proceedings, to the extent that, as was noted in paragraphs 32 and 35 above, the fact that the operating resources necessary for the pursuit of the economic activity were not transferred does not necessarily preclude the entity at issue in the main proceedings from retaining its identity, the taking-over of the majority of the drivers must be regarded as a factual circumstance to be taken into account in order to classify the transaction concerned as a transfer of an undertaking. In this respect, it is apparent from the facts at issue in the main proceedings that the members of staff taken on by the new operator are assigned to the same or similar tasks and hold specific qualifications and skills which are essential to the pursuit, without interruption, of the economic activity concerned.

In the light of all the foregoing considerations, the answer to the questions referred is that Article 1(1) of Directive 2001/23 must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that, in the context of the takeover by an economic entity of an activity the pursuit of which requires substantial operating resources, under a procedure for the award of a public contract, the fact that that entity does not take over those resources, which are the property of the economic entity previously engaged in that activity, on account of legal, environmental and technical constraints imposed by the contracting authority, cannot necessarily preclude the classification of that takeover of activity as a transfer of an undertaking, since other factual circumstances, such as the taking‑over of the majority of the employees and the pursuit, without interruption, of that activity, make it possible to establish that the identity of the economic entity concerned has been retained, this being a matter for the referring court to assess.

[Signatures]

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Articles 43, 44, 48, 49, 69, 71, 77, 80, 133, 157, 165, 209, 220 and 374 of Decree No 547 of the President of the Republic of 27 April 1955 (GURI No 158, of 12 July 1955, general supplement, p. 3), as amended by Legislative Decrees Nos 626/94, in its version of 19 September 1994, and 242/96 of 19 March 1996 (hereinafter DPR No 547/55) provide: Article 43 Mechanisms which transform a rotary movement into a reciprocating movement or vice versa such as slides, crank arms, eccentric gears, cranks and others, must be appropriately guarded. Guards on frames for the cutting of stones, marble and the like may be dispensed with, unless there are particular dangers, where the moving parts are inaccessible or the engine power does not exceed one horsepower or the speed 60 revolutions per minute. Article 44 Parts of trees projecting from a machine or its supports by more than a quarter of their diameter must be cut back to that size or protected by means of a guard fixed to an immobile part.... Article 48 Manual cleaning, oiling or greasing of parts of a machine that are in motion are prohibited, unless this is necessary because of particular technical requirements, in which case appropriate methods must be used to avoid any danger. The prohibition laid down by this article must be brought to the attention of workers by clearly visible notices. Article 49 It is prohibited to carry out any repair or adjustment to parts while they are in motion. If it is necessary to carry out such operations when the machine is in motion, appropriate precautions must be taken to ensure the safety of the worker. The prohibition laid down in paragraph 1 must be brought to the attention of workers by clearly visible notices.... Article 69 If, for actual technical or operational reasons, it is impossible to protect or isolate effectively the moving parts or the danger zones of the machines, other measures must be taken to eliminate or reduce the danger, such as recourse to appropriate tools, automatic feeders, additional devices for stopping the machine and starting mechanisms with multiple simultaneous controls.... Article 71 In the cases provided for in Articles 69 and 70, if any person is at risk of being caught, dragged or crushed by unprotected or incompletely protected work equipment and if that equipment has considerable inertial force, the stop mechanism of the machine must not only be provided with a control within the immediate reach of the hands or other parts of the worker's body, but it must also include an effective braking system enabling the machine to be stopped in the shortest possible time. ...... Article 77 The starting controls of the machines must be arranged in such a way as to avoid accidental starting or engagement or be equipped with appropriate devices to fulfil the same function.... Article 80 Every starting of complex machinery, which is operated by several workers positioned at various places and not perfectly visible by the person whose task it is to set the machinery in motion, shall be preceded by an agreed acoustic signal.... Article 133 Rolling mills and presses which, by reason of their dimensions, power, velocity or other working conditions, present particularly serious specific dangers, such as rolling mills (mixers) for rubber, presses for rubber strips and the like, must be equipped with a control enabling the immediate halting of the rollers. The control system must be designed and arranged so that the machine can be stopped by being pressed simply and lightly by any part of the worker's body should his hands be caught in the moving rollers. Apart from the braking system, the stop mechanism referred to in the previous paragraph must also include a system enabling the simultaneous reversing of the movement of the rollers before their final stop.... Article 157 The reels of wire-drawing machines must be equipped with a device, which can be activated directly by the worker, enabling the machines to be stopped immediately in case of necessity.... Article 165 Platen printing presses and similar machines which are not provided with automatic feeders must be equipped with a device enabling the machine to be stopped automatically by a single blow of the worker's hand, should he be in danger between the fixed bed and the moving plate, or they must be equipped with another appropriate safety device of proven effectiveness.... Article 209 A rapid halting system must be provided at each loading and unloading position on vertical hoists with moving surfaces.... Article 220 Inclined surfaces must be equipped with a safety device which can bring about the rapid halting of the wagons or trains should the traction systems break or slacken, if that proves to be necessary because of the length and gradient of the run, the operating speed or other particular features of the installation, and in any event if they are used, even sporadically, for the transport of persons. If it is not possible, for technical reasons relating to the particular features of the installation or its operation, to use the device referred to in paragraph 1, the systems of traction and wagon-coupling must present a safety coefficient of at least eight: in such a situation, the use of inclined surfaces for the transport of persons is prohibited. In any event, the traction and coupling systems, like the safety devices, must be checked monthly.... Article 374... Plant, machinery, equipment, tools and instruments, including protection equipment, must have the qualities of resistance and suitability demanded by the requirements of work safety and must be maintained in a good state of repair and efficiency. When maintenance manuals are supplied with the equipment referred to in paragraph 2, they must be kept up to date.

Pre-litigation procedure

10Taking the view that Directive 89/655 had not been completely transposed into Italian law within the prescribed period, the Commission initiated the procedure for infringement. After giving the Italian Republic formal notice to submit its observations, in particular concerning the minimum requirements of Annex I to that directive, the Commission, on 4 August 1999, issued a reasoned opinion requesting that Member State to adopt the measures necessary to comply therewith within a period of two months from the date of its notification.

11The Italian Republic refrained from replying to that opinion. Since the Commission's consideration of the legislation forwarded by the Italian authorities at the start of the pre-litigation procedure did not lead it to conclude that Directive 89/655 had been transposed satisfactorily, it decided to bring this action.

The action

12The Commission, after becoming aware of the observations of the Italian Republic in its defence, withdrew its complaint concerning the second sentence of paragraph 2.3 of Annex I to Directive 89/655.

The failure to transpose the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655

13The Italian Government claims to have transposed the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655 by Article 80 of DPR No 547/55.

14According to the Italian Government, the Commission fails to have regard to the connection, in paragraph 2.1 of the Annex to Directive 89/655, between the three sentences which form the third subparagraph of that provision. The sentence with regard to which the infringement is alleged by the Commission, namely the sixth sentence of that paragraph, is an extension of the two previous ones ─ because it was incorporated as the third and last sentence of that subparagraph ─ and, therefore, its function is to specify the sense and purpose of the warning required by the second sentence of that subparagraph.

15Article 80 of DPR No 547/55 concerns machinery at which several workers are positioned (exposed persons) who are not perfectly visible to the operator responsible for setting the machinery in motion. According to the Italian Government, it is to such machinery that the third subparagraph of paragraph 2.1 of Annex I to Directive 89/655 refers when it speaks of equipment with a main control position. In so doing, it necessarily refers to equipment operated in such a way as to require several working and control positions, that is to say exactly the equipment envisaged by Article 80 of DPR No 547/55.

16The Italian Government maintains that the warning required by that article is not a general warning but an agreed acoustic signal. It submits that such a signal alerts the exposed persons to the start of a process which, after a certain time ─ known to those concerned and appropriate to the nature of the possible dangers presented by the process ─ results in the effective setting in motion of work equipment. Because of that awareness, those exposed to the attendant hazards can avoid them if the warnings are correctly effected.

17According to that government, reading the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655 as detached from the fourth and fifth sentences of that paragraph is not permissible.

18The Commission claims that the Italian Government is relying on a manifestly mistaken premiss by assuming that the function of the requirement for a warning, with the non-transposition of which it is charged, is to specify the sense and purpose of the warning signal required for the setting in motion of the machine in cases where the operator cannot be sure of the absence of anyone from the danger zones. It is incorrect to assert that the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655 is a sort of extension to the fourth and fifth sentences of that paragraph and constitutes no more than detailing of the content of those sentences. On the contrary, according to the Commission, it is precisely that sixth sentence which, by enabling an exposed person quickly to avoid the hazard, fulfils the decisive role of the fundamental requirement to be mandatorily observed.

19The Commission argues that Article 80 of DPR No 547/55 requires only the necessity of an agreed acoustic signal. It is thus a transposition not of the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655, but of the fifth sentence thereof. If that sixth sentence is not completely transposed, it would be easy to point to situations in which any warning signals relating to the starting or stopping of work equipment would not enable the exposed workers to move rapidly out of danger. The requirement that such workers must be able to remove themselves rapidly from situations of risk is totally lacking in the Italian legislation. It provides for the agreed acoustic signal as the only obligation. The Commission argues that such obligation is insufficient to fill the serious gap resulting from the lack of a general requirement concerning the practical possibility for those concerned to withdraw themselves promptly from dangerous situations.

Findings of the Court

20It should be borne in mind that, according to settled case-law, in relation to the transposition of a directive into the legal order of a Member State, it is essential for national law to guarantee that the national authorities will effectively apply the directive in full, that the legal position under national law should 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 (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).

21In the light of those considerations, it is necessary to consider whether the provisions of Italian law satisfy the requirements of Directive 89/655.

22In the terms of the minimum requirement laid down by the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655, in danger zones, [a]n exposed worker must have the time and/or the means quickly to avoid hazards caused by the starting and/or stopping of the work equipment. That requirement is additional to the necessity, arising from the fifth sentence of the said paragraph 2.1, to require an audible and/or visible warning signal.

23In this case, while the necessity for the setting in motion of complex machinery to be preceded by an agreed acoustic signal, required by Article 80 of DPR No 547/55, constitutes a transposition of the fifth sentence of paragraph 2.1 of Annex I to Directive 89/655, that provision does not, on the other hand, satisfy the requirements of the sixth sentence of that paragraph.

24Consequently, it must be held that the Italian Republic has failed to fulfil its obligations under the sixth sentence of paragraph 2.1 of Annex I to Directive 89/655.

The failure to transpose the second sentence of paragraph 2.2 of Annex I to Directive 89/655

25The Italian Government claims to have transposed the second sentence of paragraph 2.2 of Annex I to Directive 89/655 by Article 77 of DPR No 547/55.

26According to that government, that article requires, in essence, the existence both of a device on the machine (that is, a coordinated set of physical components designed to procure a certain result) to control its starting, consisting of a system (over which the operator must exercise physical control) which, for reasons to do with physical structure and positioning on the machine, must be such as not to cause accidental starting, and of a logical starting system which functionally prevents it from being set in motion unintentionally.

27The Italian Government submits that Article 77 of DPR No 547/55 attains the objectives set out in the first sentence of paragraph 2.2 of Annex I to Directive 89/655. First, that national provision requires in negative terms (the avoidance of accidental starts) what the directive requires in positive terms (a deliberate action) and, second, it is an absolutely general provision, since it is not limited to the specific cases mentioned in the second sentence of paragraph 2.2.

28The Commission claims that Article 77 of DPR No 547/55 refers, in extremely vague and general terms, to the positioning of the controls on the machines whereas Directive 89/655 lays down the requirement of a deliberate action to restart or to change the operating conditions of a machine. The contents of the Italian and Community provisions are therefore different and inconsistent, the objective aimed at by the latter provision not being pursued with all the necessary efficacy by the former. Referring to Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 7, the Commission submits that Article 77 of DPR No 547/55 is too vague and general for the purpose of properly transposing the minimum level of protection prescribed by Directive 89/655. Claiming to transpose a specific protection requirement, such as that set out in the second sentence of paragraph 2.2 of Annex I to Directive 89/655, by means of a general provision such as that appearing in Article 77 of DPR No 547/55, does not appear to the Commission to be sufficient, since it risks seriously jeopardising the effective safety of the workers concerned. In those circumstances, they would not be in a position to ascertain the full extent of their rights and rely on them before the competent courts.

Findings of the Court

29It should be borne in mind that, according to settled case-law, in relation to the transposition of a directive into the legal order of a Member State, it is essential for national law to guarantee that the national authorities will effectively apply the directive in full, that the legal position under national law should 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 (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).

According to the minimum requirement laid down by the second sentence of paragraph 2.2 of Annex I to Directive 89/655, restarts after a stoppage, for whatever reason, and control of a significant change in the operating conditions (for example speed, pressure, etc.), must be possible only by deliberate action on a control provided for the purpose, unless such a restart or change does not subject exposed workers to any hazard.

30In this case, Article 77 of DPR No 547/55 provides that the starting controls of the machines must be arranged in such a way as to avoid accidental starting or engagement or be equipped with appropriate devices to fulfil the same function.

31That general provision does not transpose, in a sufficiently precise and clear manner, the specific requirements laid down in the second sentence of paragraph 2.2 of Annex I to Directive 89/655. In particular, it contains no reference to a significant change in the operating conditions of the machine.

32It must therefore be held that the Italian Republic has failed to fulfil its obligations under the second sentence of paragraph 2.2 of Directive 89/655.

The failure to transpose the third and fourth sentences of paragraph 2.3 of Annex I to Directive 89/655

Arguments of the parties

33The Italian Government claims to have transposed the third and fourth sentences of paragraph 2.3 of Annex I to Directive 89/655 by Articles 69 and 71, which are formulated in completely general terms, as well as by Articles 133, 157, 165, 209 and 220 of DPR No 547/55.

34According to the Italian Government, Article 69 of DPR No 547/55 provides that, where there are risks, because it is impossible otherwise effectively to protect or isolate moving parts or danger zones, other measures must be taken, such as recourse to appropriate tools, automatic feeders or additional devices supplementing the ordinary mechanisms for stopping the machine; the former measures are intended to eliminate the risk and the latter seek to reduce it.

35Article 71 of DPR No 547/55 contains provisions which are even stricter, not only concerning the presence of the stop mechanism of a machine in motion, but also in relation to the positioning of the control system and to the characteristics of the braking system which must be achieved following the operation of the mechanism.

36The Italian Government maintains that Articles 133, 157, 165, 209 and 220 of DPR No 547/55 implement the principle laid down in the second sentence of paragraph 2.3 of Directive 89/655 even more concretely, by modulating it in relation to the specific type of risk presented by the machines respectively covered by those provisions.

The Commission claims that none of the provisions relied upon by the Italian Government transposes the third and fourth sentences of paragraph 2.3 of Annex I to Directive 89/655. It maintains that, in this respect, the directive has opted for a solution involving detailed technical requirements appropriate for the purpose of covering each type of risk, and requires the Member States to transpose them precisely and punctiliously, so as to avoid any ambiguity in the practical application of the national provisions intended to protect the safety of workers. In the Commission's submission, the Italian provisions cannot be regarded as complying with the requirements of clarity and precision called for to ensure the proper transposition of the third and fourth sentences.

Findings of the Court

38According to the minimum requirements set out in the third and fourth sentences of paragraph 2.3 of Annex I to Directive 89/655, the work equipment's stop control must have priority over the start controls. When the work equipment or the dangerous parts of it have stopped, the energy supply of the actuators concerned must be switched off.

39In this case, none of the national provisions relied upon by the Italian Republic set out those specific technical requirements. Those provisions transpose only the first and second sentences of paragraph 2.3 of Annex I to Directive 89/655.

40It must therefore be held that the Italian Republic has failed to fulfil its obligations under the third and fourth sentences of paragraph 2.3 of that directive.

The failure to transpose the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Directive 89/655

Arguments of the parties

41The Italian Government claims to have transposed the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Directive 89/655 by a general provision, namely the second paragraph of Article 374 of DPR No 547/55, which carries criminal sanctions, and by four specific provisions of that decree, namely Articles 43, 44, 48 and 49.

42Furthermore, the Italian Government maintains that, in relation to safety, the application in the national legal order of the provisions of ordinary legislation, such as the decrees which have successively been adopted in relation to prevention of accidents, constitutes only the minimum level of implementation required of employers to whom that legislation applies, with the result that their conduct, if it falls short of that level, constitutes an offence. That principle was established by Article 2087 of the Italian Civil Code and is repeated in Article 4(5)(b) of Legislative Decree No 626/94. In addition, that government points out that the persons required to give effect to the principle laid down in Article 374 of DPR No 547/55 must seek and apply the best up-to-date solutions in relation to safety. The general nature of the provisions of that article is only apparent.

43The Italian Government acknowledges having chosen an approach other than that of Directive 89/655, but submits that the national legislation reaches the same safety objective as that pursued by the directive. Its approach encourages progress in terms of safety linked to the development of techniques of prevention.

The Commission submits that none of the five provisions of DPR No 547/55 to which the Italian Government refers properly transposes the technical requirements of Directive 89/655. The approach chosen by the Italian authorities consists, in practice, of establishing a legislative framework containing, first, specific provisions whose content is objectively different to that of the requirements of the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Directive 89/655 and, second, three general principles which do not guarantee in a clear and unequivocal way the minimum level of protection required by the directive. The Commission maintains that the Italian scheme obeys a logic which is certainly entitled to respect, but which is different from and incompatible with that of the directive, giving those concerned a lower level of clarity and precision and, in the end, jeopardising their ability to ascertain their rights and vindicate them before the national courts.

Findings of the Court

45The minimum requirements set out in the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Directive 89/655 concern the guards and protection devices for the moving parts of work equipment which present risks of mechanical contact which could lead to accidents. Such devices must not give rise to any additional hazard or be easily removed or rendered inoperative and they must not restrict more than necessary the view of the operating cycle of the equipment. In addition, they must be located at sufficient distance from the danger zone.

46In this case, the specific provisions relied upon by the Italian Republic, namely Articles 43, 44, 48 and 49 of DPR No 547/55, do not require observance of the requirements mentioned in the preceding paragraph.

47As for the general national provisions, namely Article 2087 of the Italian Civil Code, Article 4(5)(b) of Legislative Decree No 626/94 and Article 374 of DPR No 547/55, none of them transposes those requirements in a sufficiently precise and clear manner.

48The Italian Government cannot justify the infringement with which it is charged by invoking the argument that it has put into operation legislation based on the necessary adaptation of the safety regulations to progress. Such an approach, which, moreover, itself arises from 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 (OJ 1989 L 183, p. 1), does not relieve a Member State of the obligation to bring into force the minimum requirements of Directive 89/655.

49It must therefore be held that the Italian Republic has failed to fulfil its obligations under the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Directive 89/655.

50By not transposing completely the minimum requirements prescribed by Annex I to Directive 89/655, the Italian Republic has also failed to fulfil its obligations under Article 4(1) of the directive, which refers to those requirements.

51It must therefore be held that, by failing to adopt the laws and regulations necessary to transpose into national law the minimum mandatory requirements, the Italian Republic has failed to fulfil its obligations under Article 4(1) of and the sixth sentence of paragraph 2.1, the second sentence of paragraph 2.2, the third and fourth sentences of paragraph 2.3, and the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Directive 89/655.

Costs

52Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber) hereby:

1Declares that, by failing to adopt the laws and regulations necessary to transpose into national law the minimum mandatory requirements, the Italian Republic has failed to fulfil its obligations under Article 4(1) of and the sixth sentence of paragraph 2.1, the second sentence of paragraph 2.2, the third and fourth sentences of paragraph 2.3, and the second to fifth indents of the second sentence of paragraph 2.8 of Annex I to Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), as amended by Council Directive 95/63/EC of 5 December 1995;

2Orders the Italian Republic to pay the costs.

Puissochet

Gulmann

Macken

Colneric

Cunha Rodrigues

Delivered in open court in Luxembourg on 10 April 2003.

Registrar

President of the Sixth Chamber

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Language of the case: Italian.