Health and safety
According to the International Labour Organization (ILO) and the World Health Organization (WHO), health and safety at work is aimed at the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations; the prevention among workers of leaving work due to health problems caused by their working conditions; the protection of workers in their employment from risks resulting from factors adverse to health; the placing and maintenance of the worker in an occupational environment adapted to his or her physiological and psychological capabilities; and, to summarise, the adaptation of work to the person and of each person to their job.
Health and safety is given a wide definition in the Union context, going beyond the avoidance of accidents and prevention of disease to include all aspects of the worker’s well-being. The competence of the EU to intervene in the field of health and safety at work is defined by the provision in Article 153(1 and 2) TFEU, which authorises the Council to adopt, by means of directives, minimum requirements as regards ‘improvement in particular of the working environment to protect workers’ health and safety’ (a provision originating in the Single European Act 1986). The significance of this broad scope of ‘health and safety’ is immense, as it underpins the potential of EU health and safety policy to prescribe minimum standards to protect all aspects of the worker’s well-being.
The adoption of the Single European Act in 1986 gave new impetus to the occupational health and safety measures taken by the Community. It represented the first time that health and safety at work had been dealt with in an operational provision in the EEC Treaty, under the new Article 118A EEC. This article allowed the Council of Ministers to adopt directives intended to protect workers’ health and safety at work by qualified majority, thus speeding up the adoption process at the Council. Of significant importance to the level of protection in Member States is that directives adopted under Article 118A (now Article 153(2) TFEU) lay down minimum requirements concerning health and safety at work. According to this principle, the Member States must raise their level of protection if it is lower than the minimum requirements set by the directives. Beyond this, the provisions adopted shall not prevent any Member State from maintaining or introducing more stringent measures for the protection of working conditions.
On the other hand, Article 100A EEC (now Article 114 TFEU) – the objective of which was to remove all barriers to trade in the single market and to allow the free movement of goods across borders – is also relevant for health and safety at work, as directives under Article 100A EEC are intended to ensure the placing on the market of safe products, including machinery and personal protective equipment. The area of health and safety at work has been one of intense activity on the part of the EU and it is estimated that approximately two-thirds of all social policy directives are in this field. The pattern of activity has been characterised by unevenness, however, with periods of more or less activity and changes in EU strategy in this area. The period following the adoption of the Single European Act was particularly fruitful, producing, most importantly, the general Framework Directive on health and safety (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). This was soon followed by a further six ‘daughter’ directives, which came into effect by 1 January 1993. Since then, Union law has produced a number of further directives covering conditions in the workplace, requirements as to work equipment and exposure to dangerous substances (chemical, physical and biological agents). The principal and general measure concerned with health and safety at the workplace is Council Directive 89/654/EEC on the minimum health and safety requirements for the workplace. It is the first individual directive within the meaning of Article 16(1) of Directive 89/391/EEC. Beyond this, there are further directives concerned with specific workplaces or industries.
However, changing social priorities in the 1990s, reflected in an emphasis on competitiveness and employment, changed the context of the EU’s agenda on health and safety, leading to less legislative output and a turn towards more soft law measures. In recent years, the emphasis has been on ‘innovative approaches’, such as ‘partnerships’ and ‘benchmarking’.
Enforcement and compliance
Although the Union law on health and safety applies equally to all Member States and is guaranteed supremacy over national law, the implementation and enforcement of that law inevitably reflects the different national traditions of enforcement, with consequences for the consistency of its application across the EU. Since the beginning of the 1990s, Community documents setting out the features of Community occupational health and safety policy have argued that poor implementation and enforcement of Union law on health and safety have become a core concern of Community policy in this field. The argument has been used to prioritise some attempts (not always successful) to implement the existing acquis communautaire in the field rather than the adoption of new regulations.
In this context, the European Agency for Safety and Health at Work was established in 1994, and the Commission has made increasing use of its control powers to incite Member States to better implementation. The Senior Labour Inspectors’ Committee (SLIC) was established in 1995 to ‘give its opinion to the Commission, either at the Commission’s request or on its own initiative, on all problems relating to the enforcement by the Member States of Community law on health and safety at work’.
However, there are important limits on the initiatives of the Commission and the Agency to ensure better implementation, and ultimately it is the responsibility of the Member States, each with its own administrative and industrial relations traditions, to ensure the enforcement of EU law on health and safety.
Failure by Member States to comply with the EU law on health and safety allows for the Commission to complain of such violations to the European Court of Justice (ECJ) under Article 258 TFEU. However, this success in achieving compliance as regards transposition of directives does not imply that the EU law is being respected in practice in the Member States. The Commission does not have the resources to enable it to adequately monitor implementation of EU law on health and safety within the Member States, and the anticipated reports on practical implementation in the case of each directive have not been forthcoming.
The general framework directive establishes the principle of employee involvement in the enforcement of health and safety, but does not deal with other aspects of enforcement, such as the role of civil (employers’ liability) or criminal liabilities. Thus, although national law must define the obligations of employers and employees consistently with EU law, the enforcement of those obligations in accordance with national traditions is not necessarily the same in all EU Member States. Some problems of transnational enforcement of employer obligations are being addressed. The Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition of financial penalties makes it possible for enforcement agencies to collect financial penalties for health and safety offences from companies based in other Member States.
The ECJ gave its judgement on 14 June 2007 in proceedings brought by the European Commission against the United Kingdom (Case 127/05) for failing to properly fulfil its obligations under the Framework Directive on health and safety. The Commission’s argument is that the ‘so far as is reasonably practicable’ restriction upon the employer’s duty to ensure health and safety at work, included in the UK Health and Safety at Work Act 1974, is incompatible with the principles of the European directive, according to which employers should be liable unless they can prove that the ‘harmful occurrence’ was due to ‘extraneous events with no link to the working conditions controlled by the employers’. Despite the arguments brought forward by the Commission, the ECJ ruling accepted the restriction of the duty upon employers.
See also: complaints to the European Court of Justice; enforcement of EU law; infringements of EU law; noise; occupational accidents and diseases; protective equipment; risk assessment; working environment.
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