Application and Scope of European Union Directives on Health and Safety Law

Within the European Union the implementation of measures relating to health and safety at work at the workplace affects the lives of 214 million workers and their families. The European Union, rather than the governments of Member States, is now the main focus for the development of health and safety regulation within Europe and is an important influence on standards world-wide. The European Union is the world's largest trading bloc, accounting for about one fifth of all world trade. Its common trade policy enables its 27 members to speak with one voice on the international stage. The EU considers that trade policy is closely linked with the aim of sustainable development of economic activities. Today, the reach of EU health and safety laws extends far beyond the borders of the European Union. The protection of workers in their working environment is an integral part of a homogeneous European Economic Area (EEA), of which Norway, Iceland and Liechtenstein are members. Switzerland enjoys privileged access to the enlarged internal market but is not a member of the EEA. Health and safety at work is an integral part of the social policy of the EEA Agreement. It is not directly part of the fundamental freedoms but accompanies the rules establishing these freedoms in order to provide for their proper functioning. (Articles 66 and 67 (1) of the EEA Agreement) In addition, the EU is currently in the process of developing a coherent policy framework for its new neighbourhood. The policy is targeted at Ukraine, Belarus, Moldova, Russia, Armenia, Azerbaijan, Georgia and the ten southern Mediterranean countries participating in the Euro-Mediterranean Partnership. But perhaps more importantly countries throughout the world are now adopting these standards. David Vogel, Professor of Business and Public Policy at the University of California at Berkeley has recently pointed out that

“the relative impact of EU regulation on US public policy and US business has been dramatically enhanced.  Even if a country does not adopt the [European] standards, the firms that export to the EU do.  And since most firms do export to the EU, they have adopted the EU’s more stringent standards.” (FT 2007)

Intervention is not limited to the United States it extends, for example, to the burgeoning new markets of China and India. EU Health and Consumer Protection Commissioner Kuneva, who has recently completed a visit to China, is currently addressing some of these new challenges by seeking to improve the safety of Chinese manufactured non-food consumer goods.

EU health and safety law strives to incorporate the social dimension, decent work and sustainable development in the multilateral trade policy via the international co-operation of the Union and its Member States. It is embedded in many areas of EU legislative activity including, for example, agriculture, environment, transport, energy and employment. Closely aligned are the developments in EU Health and Consumer Protection Policy. The Programme of Community Action in the field of Public Health (2003-2008), adopted by the European Parliament and the Council, for example, aims to improve health information and knowledge, to respond rapidly to health threats and to promote health and prevent diseases by addressing health determinants across all policies and activities whilst the rapid exchange (RAPEX) notifications system of the General Product Safety Directive (GPSD) may provide technical support for the relevant aspects of REACH (Registration, Evaluation and Authorisation of Chemicals), regarding downstream users. The three central standard-setting bodies are CEN, CENELEC and ETSI. The latter was founded in 1988 and grants membership to a variety of organisations, including national bodies, across the world. It currently has 688 members drawn from 55 countries. CEN, the European Committee for Standardization was founded in 1961 by the national standards bodies in the European Economic Community and EFTA countries and CENELEC which comprises the National Electrotechnical Committees of the same twenty-eight States was founded in 1973. All of these contribute to the objectives of the European Union and European Economic Area with voluntary technical standards. The trend shows no sign of abating. The Portuguese EU Presidency has declared jobs and social issues as its top priorities over the next six months.

The Development of the ‘Statute Book’

As mentioned above, over the last fifty-five years a vast body of regulatory measures has been developed to safeguard health and safety and welfare in the workplace. This process commenced with the foundation of the European Coal and Steel Community in 1951, the European Economic Community 1957 and the European Atomic Energy Community 1957. At first, the Communities confined themselves to the encouragement of research, the promotion of exchanges of experience and the development of common guidelines in legislation. But the improvement of health and safety standards in the workplace was regarded as important and politically expedient given a failure to agree on other areas of employment policy, and it was readily accepted that it should be the duty of the European Commission to initiate, promote and develop a European wide preventive policy with regard to occupational health and safety risks and subsequently a clearly defined policy was developed with regard to occupational risks. These measures were facilitated by the introduction of Article 118a of the Single European Act 1986 and the 1989 Community Charter of the Fundamental Social Rights of Workers and Part X of the Commission’s 1989 Action Programme. The result was a huge and dramatic flow of health and safety legislation in the period 1989 –1992, described by two commentators as nothing short of volcanic. (Bourn and Neal (1994)). This was achieved by the issue of a large number of directives – a mechanism which facilitated some flexibility in implementation, while, at the same time, establishing requirements for Member States to introduce a basic safety-net of protective provisions into their national systems. The two framework Directives of 1980 and 1989 were particularly significant (80/1107/EEC and 89/391/EEC). The establishment of the legislative base referred to earlier was largely completed by 1994 but since then measures have been updated to ensure their continuing relevance.

Over the last ten years the position concerning health and safety policy direction and the flow of directives has changed markedly. (Neal (2004))  There has been a move towards reclassifying and reordering existing directives, a move towards updating earlier directives in line with technical progress and a move towards “soft law” solutions. The authors of European social policy in this period chose a route of less regulatory intervention, as can be seen in the 1993 Green Paper (European Social Policy: Options for the Union, COM (93) 551 final) and the 1994 White Paper (European Social Policy- The Way Forward for the Union: COM (94) 333 final) and stressed the need for employment and competitiveness rather than social rights. This shift can be clearly seen in the General Framework for Action in the field of occupational health and safety 1994 – 2000, presented in 1993, (Commission, COM 93 (560) final)) in the Fourth Action Programme 1996 – 2000, presented in 1995, (Commission, COM 95 (282) final) and a Commission Communication of 11^th March 2002 entitled: Adapting to change in work and society: a new Community strategy on health and safety at work 2002-2006. This latter Communication stated that the new ‘strategy, which covers the period 2002 – 2006, has three novel features: to consider an ambitious social policy as a factor in the competitiveness equation; a global approach to well-being at work; and a combination of policy instruments to consolidate a culture of risk prevention. A new Commission Communication of 21^st February 2007 entitled: Improving quality and productivity at work: Community strategy 2007-2012 on health and safety at work signalled a continuation of this theme. The report on the evaluation of the Community strategy on health and safety at work 2002-2006 (SEC (2007) 214) concludes by saying that this strategy has re-launched prevention policies at national level, presented coherent and convincing arguments in favour of a partnership to achieve common objectives and obliged interested parties in the prevention field to give strategic consideration to how these objectives might be attained; moreover, it has raised public awareness of the importance of health and safety at work by presenting these objectives as integral parts of quality management and as determining features of economic performance and competitiveness.

Priorities in health and safety change according to the nature of the work available. The reduction in large labour intensive and dangerous industries throughout Europe has led to a corresponding decline in fatal and serious injuries. There has been a corresponding increase in recorded musculoskeletal injuries and occupational health illnesses. Back pain and repetitive strain injury, are the biggest health and safety problem facing European workers today. Studies show that they affect more than 40 million workers in all sectors across the European Union and account for 40-50% of all work-related ill-health. In the United Kingdom, it has been estimated that back pain alone costs the National Health Service, business and the economy an estimated £5 billion per year, and 5.4 million days lost in sick leave due to RSI-related illnesses. In a consultation document issued in November 2004, the Commission says that whilst such disorders are in principle covered by general European Union health and safety legislation, most of it is over a decade old and does not apply specifically to work-related and musculoskeletal disorders. Some countries have laws to tackle the problem and others have not. The problems for business that arise from these disorders: production losses, sick leave, medical, compensation and insurance costs, the loss of experienced staff and the cost of recruiting and training new staff, and the impact on the quality of work have been highlighted by the European Commission The main cause of these disorders is poor ergonomic conditions. The three main risk factors are lifting and moving heavy loads, repetitive movements, and strenuous working postures. Changes in the content and organisation of work in recent decades have resulted in an intensification of work, which is commonly regarded as a cause of stress and this is another key issue. The response has been the European social partners’ framework agreement on work-related stress. This agreement recognises work – related stress as a joint concern and the urgent need to tackle the risks for workers. With regard to the increase of work related stress factors causing long term absenteeism or disability, this agreement could be an instrument to improve the quality of work and keep workers in employment. In March 2007 the EU Commission embarked on the second stage of consultation of the social partners on work – related musculo-skeletal disorders.

The Lisbon Summit (European Council, 23 and 24 March 2000) highlighted the essential linkage between Europe’s economic strength and its social model. Accordingly, the European Union is to become by 2010, ‘the most competitive and dynamic knowledge-based economy of the world, capable of sustainable economic growth with more and better jobs and greater social cohesion. This goal is to be reached ‘without abandoning the core values of solidarity, social justice and social right upon which the Union is built. But progress was now slow, although hidden away amongst the economic justifications underlying the Luxembourg and Cardiff processes, one finds the observation that,

“Improving the quality of work increases the quality of output of that work and thus strengthens the competitive position of European companies. The European Union needs to continue to combine good social conditions with high productivity and the provision of high quality goods and services.  This is a key feature of the European social model.  More and better employment in a dynamic and competitive economy strengthens social cohesion.”

“Quality of work … is based on high skills, fair labour standards and decent levels of occupational health and safety and includes facilitating occupational and geographical mobility.”

The European Agency, the European Foundation and SLIC

In 1995 a new European Agency for Safety and Health at Work was established in Bilbao, Spain, to work alongside the European Foundation for Living and Working Conditions based in Dublin and established some twenty years earlier. In that same year the Senior Labour Inspectors Committee (SLIC) was established as an official advisory committee for the Commission. (95/319/EC)  Its aim is to improve co-operation between Member States and the Commission and to encourage the effective and consistent application of European Union legislation in the Member States. The SLIC consists of two senior representatives of each Member State’s labour inspectorate. A similar number of observers from EEA countries act as observers. It is both a forum in which national experts from the Member States and the Commission work closely together and exchange information and a network of officials working towards the effective enforcement of Community social legislation. It defines common principles for labour inspection in the field of health and safety at work and develops methods of assessing the national systems of inspection in relation to those principles; promotes improved knowledge and mutual understanding of the different national systems and practices of labour inspection, methods and legal frameworks for action and develops exchanges between national labour inspection services on their experiences in monitoring the enforcement of secondary Community legislation on health and safety at work, so as to ensure its consistent application throughout the Community.

Extended Scope of Health and Safety Legislation

In 1996 the European Court of Justice (Case C-84/94) gave European health and safety legislation new scope by adopting the definition of health accepted by the World Health Organisation. The World Health Organisation describes health as a state of complete physical, mental and social well-being and not simply a question of not being injured or ill. This means taking a broad view of what is the 'working environment', embracing all factors affecting health and safety in employment, not merely exposure to dangerous procedures or hazardous substances.

All of this activity must be seen in the context of developments in social policy activity and regulation from the mid 1990s onwards health and safety at work is seen as a right constituting objectives or basic principles, which cannot be set in place in the absence of legislative or financial provisions.

Regulation, Sanctioning and Enforcement at the Global Level

As has been indicated, the developments described above have global significance and one in which the European Union and the International Labour Organisation share a strong common interest. The ILO was formed in 1919 as an autonomous body associated with the League of Nations and later, following the latter’s demise, became a specialized agency of the United Nations in 1946. Based from the beginning on the inseparability of peace and social justice, the aims and principles of the ILO were reaffirmed and strengthened by the Declaration of Philadelphia (1944) which brought the organization into the struggle against poverty and insecurity. Since its inception in 1919, the ILO has undergone some fundamental changes. Whilst it has carried on with its standard setting role it has in recent decades, involved itself in technical programmes on a large scale, working with other UN bodies such as the World Health Organisation and the UN Institute for Training and Research.  Formed in Europe from the richer industrialized nations it has typically turned its attention to the developing countries where the need for its work is the greatest, although, as will be seen, its work in Central and Eastern Europe is important, relevant and necessary.

The ILO is important in the context of this paper for the international labour standards which it promulgates, amongst which are those related to Article III (g) of the Philadelphia Declaration- “adequate protection for the life and health of workers in all occupations.” ILO standards take two main forms – Conventions and Recommendations. When Conventions are ratified by Member States the latter is under a binding international obligation to ensure that its law and practice is in conformity with the Convention.  Recommendations on the other hand are not binding in this sense but provide guides for national action. Although the ILO lacks the close integration of a regional organization such as the European Union, or the right of individual petition available through the European Convention on Human Rights, it would be a mistake to assume that its promulgated standards are merely precatory expressions of hope. The system of reporting from Member States, the investigation of committees, particularly with the Committee of Experts, and the procedures for dealing with complaints and representations, show that the system is intended to have normative effect. Under Article 24 of the ILO Constitution, complaints relating to the non-observance of a Convention may be lodged by industrial associations of employers or workers. Because of the diverse national conditions within which the ILO norms have to operate, the system is designed to allow considerable flexibility in national implementation. Part XIII of the Treaty of Versailles included labour inspection among the general principles forming the foundation of the ILO in 1919. Two Priority Conventions, The Labour Inspection Convention, 1947 (No. 81) – ratified by all EU Member States; [and its Protocol of 1995] and The Labour Inspection (Agriculture) Convention, 1969 (No. 129) are now at the centre of the ILO's activities in this area whilst No. 150 (Labour Administration) and No. 155 (Occupational Safety and Health and Working Environment are also significant.

The International Association of Labour Inspection was established in 1972 in order to provide professional support to labour inspection organisations throughout the world. The aims of the Association are to promote the professionalism of IALI members on all aspects of labour inspection; to provide an international forum for the exchange of experience in, and views about, labour inspection and the implementation of occupational health and safety and other employment legislation; to be responsive to the needs of members and to develop rolling programmes of events and activities that reflect those needs and to disseminate information about all such matters through its Congresses and conferences, and through its web-site, reports and other publications, in order to increase the impact and effectiveness of labour inspection. Since its inception, IALI has worked in close partnership with the International Labour Office (ILO) and it was formally admitted to the ILO’s list of International Non-Governmental Organisations in 1978.

The 1981 ILO Conference passed the Convention concerning Occupational Safety and Health and the Working Environment. Introducing this new general standard, the Chair of the Conference justified the need for a “comprehensive document that would determine the fundamental forms and direction of activities aimed at the protection of man at work”. The ILO thus moved towards a comprehensive standard which applied to all branches of economic activity and to all workers (including public employees) in the branches of economic activity covered. Each Member State in consultation with representative organisations of employers and workers must formulate, implement and periodically review a coherent national policy on occupational health and safety, occupational health (including well being) and the working environment. The inclusion of “well-being” shows that a wide view is taken of health and safety.  The aim of the policy is to prevent accidents and injury to health (once again) including well being) arising out of, linked with or occurring in the course of work by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment.

Enforcement at the European Union and Member State Level

To date, the European Union has principally concentrated on harmonising the ‘law on the statute book’ and European measures have replaced national measures. However, rules only exist if they are observed. Unfortunately, there is good reason to suspect that there may not be full compliance with European Union rules by business. Member States might compete with a laxity of enforcement in order to attract capital or conversely Member States could compete with strict standards to attract labour or to appear to be environmentally friendly. Even with strong political determination, such harmonisation of the law will not be easy, given the diversity of cultures in Europe- both the popular cultures and the political, legal and administrative cultures – and the differences in regulatory styles. (Vervaele, 1999) For these reasons the enforcement of health and safety law and legal sanctioning is problematic in many of the new Member States. Professor Charles Woolfson of the University of Glasgow, who has carried out original research in the Baltic States has said:

“Without the ‘embeddedness’ of occupational health and safety systems in a viable industrial relations framework, both management and employee participation in occupational health and safety are unlikely to provide the basis for emerging safety cultures and ‘best practice’ to secure themselves.  Furthermore, the Commission’s current advocacy of ‘soft law’ approaches fails to take account of or provide the means to counterbalance the current deregulatory climate prevailing in the accession states.” (Woolfson, 2004)

In the infringement procedure the EU Commission has the capacity to exert more direct pressure on defecting Member States than any other international organisation. It provides a strong framework. The infringement process can be invoked when a Member State fails to follow agreed rules in the form of either late or incorrect transposition as well as the none or incorrect application of a directive. Treaty infringement proceedings are procedures which establish whether a Member State has failed to fulfil an obligation imposed on it by Community law. Where for example a Member State fails to implement a directive before the date for implementation, the Commission may institute Treaty infringement proceedings under Article 226. Under Article 227 the proceedings may be instituted by another Member State. However, this latter provision is seldom utilised.

Prior to referring Treaty infringement proceedings before the Court of Justice, the Member State is given the opportunity to submit its observations. If the dispute is not settled at that stage, action may be instituted in the Court of Justice. Where the Court of Justice finds that the Treaty has been infringed, the offending Member State is required to take the measures necessary to conform. If the offending Member State fails to comply with a judgement given against it, a further court ruling may result in the payment of a lump sum fine or penalty by the Member State. The financial sanctions available to the European Court of Justice have in practice been used to good effect.

Additionally, national courts may request the European Court of Justice to interpret EU –legislation in the light of a specific national case. In combination with the mechanism of direct effect it allows individuals (under specific conditions) to sue their state authorities for non- or incorrect implementation of EU rules. (Van Gend en Loos (C26/62) and more specifically for EU Directives in Van Duyn (C-41/74)) The Court of Justice responds in the form of a judgement rather than an advisory opinion; this highlights the mandatory nature of its ruling. The preliminary ruling issued in the form of a judgement is binding on the referring court in deciding the outcome of the case. The objective of the preliminary ruling procedure is to secure a uniform interpretation of Community law throughout the European Union. Preliminary rulings account for more than fifty percent of the workload of the European Court of Justice each year.