Advocate-General finds Dutch health and safety legislation breaches EU law

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The Dutch model of occupational health services may be due for far-reaching revision, following the January 2003 opinion of the Advocate-General of the European Court of Justice in a case brought by the European Commission against the Netherlands. The Advocate-General's opinion - generally followed by the Court - stated that Article 14 of the Dutch Working Conditions Act is in conflict with the provisions on protective and preventive services in the 1989 health and safety framework Directive. The Dutch law allows companies to choose between using internal and external experts to provide such services, but the Advocate-General stated that the Directive gives priority to the former.

On 16 January 2003, the Advocate-General of the European Court of Justice (ECJ) issued an opinion (on case C-441/01 Commission v the Netherlands) to the effect that Article 14 of the Dutch Working Conditions Act (Arbeidsomstandighedenwet) is in conflict with European Union regulations on protective and preventive services.

Background

The Advocate-General’s conclusion signals the approaching end to a protracted dispute on the Dutch transposition of Article 7 of the 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- the 'framework' health and safety Directive. Article 7 states that 'the employer shall designate one or more workers to carry out activities related to the protection and prevention of occupational risks for the undertaking and/or establishment' (paragraph 1). Paragraph 3 states that 'if such protective and preventive measures cannot be organised for lack of competent personnel in the undertaking and/or establishment, the employer shall enlist competent external services or persons.'

Article 7 of the framework Directive prompted the establishment of the Dutch system of occupational health services (OHS) in 1994. Although worded slightly differently to the current Article 14, Article 17 of the Working Conditions Act at that time specified that the employer shall enlist (or organise) services from:

In theory, Dutch employers therefore have a free choice in organising competent support in implementing their OHS policy. However, in practice, it appears that the Dutch transposition of Article 7 of the framework Directive generally results in companies choosing to engage the services of an external service. With respect to a number of elements of OHS policy, especially concerning absence from work and risk assessment and evaluation, a certified OHS must be engaged. The certification requirements are so high that most companies are prevented from meeting them internally and are therefore forced to seek solutions with an external service.

Even on paper the Dutch transposition of the Directive fell short, according to the European Commission. In July 1997 the Commission sent a reminder that the framework Directive did not in fact offer a free choice between engaging in-house employees or an external company to provide protective and preventive services, but that an assessment first had to be made to determine if such expertise could be organised internally. The defence put forward by the Dutch government was rejected by the Commission, which issued a 'reasoned opinion' in December 1998 exhorting the Dutch government to amend the Working Conditions Act in this respect. When the Dutch government refused to comply with this request, the Commission took the matter to the ECJ in December 2001, claiming that the Netherlands was in breach of its obligations under Article 7 of Directive 89/391/EEC. The case was heard on 28 November 2002.

Hierarchy

The Commission reiterated its assertion that the employer may only engage external personnel to provide protective and preventive services if the opportunity to do so within the company itself does not exist in an adequate form. The Netherlands put forward various arguments in its defence, all of which were rejected. For example, according to the Dutch government Article 7 does not contain any hierarchy between the two options (internal and external services), while the Advocate-General asserted that it is evident from the structure of the Article that this hierarchy is completely clear (ie that internal services have priority). The second line of defence, that external occupational health services are generally more knowledgeable and are therefore capable of achieving better results, was also rejected by the Advocate-General. In written submissions, the Commission had put forward research results produced by the German institute Sozialforschung und Gesellschaftspolitik indicating that engaging external expertise did not necessarily benefit work safety. For that matter, several Dutch research programmes also substantiate this conclusion.

Quality

The Advocate-General endorsed the Commission’s argument that there are significant arguments for giving precedence to internal specialists in the provision of protective and preventive services: they are familiar with the specific situation of the company, understand the dangers associated with concrete company-related activities, are aware of earlier cases, and can be easily approached by employees because they are permanently available within the company. 'Moreover, this increases opportunities for raising awareness among all employees of the importance of these tasks, so that potential inconveniences associated with them will not be experienced as measures imposed by an external party,' the Advocate-General stated.

A third argument made by the Dutch government was that external services are often engaged because of the high demands the Dutch law sets for expertise and that because of these high demands a high level of quality is provided. The Advocate-General responded that it is not a question of assessing the level of quality but purely whether the preference between the two options (internal and external) has been correctly transposed into the national legislation: 'The circumstance that, in establishing the competency of the employees and of external services, the Netherlands has set higher standards than other Member States, does not relieve this Member State of its obligation to honour the order of precedence specified in Article 7, paragraphs 1 and 3, of the Directive.'

Dutch legislation may have to change

The Advocate-General concluded that, in his view, the ECJ should rule that the Kingdom of the Netherlands has failed to meet its obligations under Article 7 of the Directive. In a formal sense, the Advocate-General’s opinion is little more than a non-binding recommendation to the ECJ. The Court is therefore not bound to adopt this recommendation. In practice, however, the Court usually does adopt such recommendations.

It may therefore be expected that the ECJ will rule that Dutch legislation must be amended, and that Dutch companies will increasingly be required to have an internal service aimed at achieving front-line prevention (such as the Belgian system, for example). Only with respect to those tasks for which the internal preventive service possesses inadequate expertise may support from external parties be sought. This could mean that tasks, especially in the area of risk assessment, will once again be taken off the hands of the current occupational health services. Thereby, these occupational health services will, to an even greater extent than is currently the case, become a mere health service instead of a preventive service proper.

Attitude of social partners

The employers will no doubt raise little objection when it comes to scrapping compulsory membership of an external OHS. From a recent study conducted by the Sector Organisation of Occupational Health Services (Branche-Organisatie Arbodiensten) among 1,000 companies, it appears that no more than 30% of the small and medium-sized businesses would enter into a contract with an external service if this was not compulsory. Of the larger companies (with over 100 employees), 41% would terminate the contract.

In contrast, the Dutch Trade Union Federation (Federatie Nederlandse Vakbeweging, FNV) is not pleased with the latest development. While for years FNV may have harshly criticised the quality and especially the lack of independence of occupational health services, it now fears that by dropping the current high demands for expertise, the quality of occupational healthcare will further decrease. In earlier discussions about the provision of OHS in the Netherlands, FNV dubbed possible internal experts in small and medium-sized companies as 'OHS dwarfs'. FNV is also afraid that the independence of possible internal experts will come under even greater pressure than is already the case for commercial external services.

Commentary

Although it is still up to the ECJ to decide, the chances are high that the Dutch system of protective and preventive services will have to be changed, at least partially.

FNV’s stance is striking considering the reasoning of the ECJ's Advocate-General, who linked the preference for internal over external services with the preamble of the framework Directive, in which employee participation is stated as one of the primary motivating factors. According to the Advocate-General, it was this very principle of employee participation that proved decisive in the Directive's preference for organising protection and preventive activities within the company. The description 'OHS dwarfs' for internal experts seems too harsh, given the many examples of high-quality work being done. Last but not least, internal experts are in a much better position to take preventive measures, a field that too often is being neglected by external occupational health services. (Jan Popma, HSI)