The legal basis in the Treaty for legislative initiatives in the field of the working environment is dependent on the interpretation of Article 153(1)(a) of the Treaty on the Functioning of the European Union (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’.
The issue arose when, in 1990, the Commission, adopted a proposal, based on Article 118 (now Article 153 TFEU), for a directive concerning certain aspects of the organisation of working time, which resulted in the adoption of Council Directive 93/104/EC in 1993. The UK challenged the legal basis of the directive in the European Court of Justice, but the Court rejected the challenge, which was based on its view that the Treaty provision allowed only for ‘minimum requirements’ in the sense of the lowest common denominator. According to the Court, ‘the significance of the expression ‘minimum requirements’ in Article 118 is simply ... that the provision authorises Member States to adopt more stringent measures than those which form the subject-matter of Community action’. Instead, the standards adopted can look to Member States where health and safety of workers is given a much higher priority, not a minimal level of concern. The principle thus established has important implications for raising EU labour standards in the working environment.
The significance of this judgement at the time was due to the fact that the scope for social policy proposals eligible for qualified majority voting (QMV) was very limited. It gave the Commission the legal authority to propose measures concerning any and all working conditions, which affect health and safety in the working environment, in the broad sense defined by the Court, and ask for approval by the Council of Ministers in QMV.
The term ‘working environment’ became of central importance due to the insertion of a new Article 118A into the Treaty of Rome by the Single European Act (now part of Article 153(1) TFEU). The new article allowed for the adoption of directives with a view ‘to encouraging improvements, especially in the working environment, as regards the health and safety of workers’. Crucially, legislative proposals based on the new Article 118A could be adopted by QMV in the Council of Ministers. This was of great importance, as it enabled the Commission to use the new Article to advance the social policy of the Community via the new possibility of QMV and avoid a single Member State veto. One immediate result was the adoption of the 1989 framework directive on health and safety at work (Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work) and subsequent ‘daughter’ directives.
Improvement of the working environment is now a core part of EU health and safety policy, with the Commission stating that, within the context of creating more and better jobs, which is one of the EU’s key social policy objectives, a safe and healthy working environment is an essential element of the quality of work. For example, the Commission communication ‘Improving quality and productivity at work: Community strategy 2007-2012 on health and safety at work’ outlines the options for further action to make workplaces across Europe safer and healthier.