The European Union (EU) today exercises a major influence on worldwide health and safety law and policy. In 1995, the Union comprised the following Member States: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom. It will probably expand in years to come.
The forerunner of the Union, the European Community, was created in the 1950s by three treaties: The European Coal and Steel Community Treaty (ECSC) signed in Paris in 1951, and the European Economic Community (EEC) and European Atomic Energy Community (EAEC) Treaties signed in Rome in 1957. The European Union was formed with the entry into force of the Maastricht Treaty (concluded in 1989) on 1 January 1992.
The Community has four institutions, namely, the Commission, the Council, the Parliament and the European Court of Justice. They derive their powers from the treaties.
The Commission is the Community’s executive body. It is responsible for initiating, proposing and implementing Community policy, and if a Member State fails to fulfil its obligations under the treaties, the Commission can take proceedings against that Member State in the European Court of Justice.
It is composed of seventeen members appointed by the governments of Member States for a renewable four-year period. Each Commissioner is responsible for a portfolio and has authority over one or more Directorates General. One such Directorate General, DG V, is concerned with Employment, Industrial Relations and Social Affairs, and it is from within this Directorate General (DG V/F) that health and safety and public health policies are both initiated and proposed. The Commission is assisted in its health and safety law and policy-making role by the Advisory Committee on Safety, Hygiene and Health Protection at Work and the European Foundation for the Improvement of Living and Working Conditions.
Advisory Committee on Safety, Hygiene and Health Protection at Work
The Advisory Committee was established in 1974 and is chaired by the Commissioner responsible for the Directorate-General for Employment, Industrial Relations and Social Affairs. It consists of 96 full members: two representatives each of government, trade unions, and employers’ organizations from each Member State.
The role of the Advisory Committee is to “assist the Commission in the preparation and implementation of activities in the fields of safety, hygiene and health protection at work”. Because of its constitution and membership, the Advisory Committee is much more important and pro-active than its title suggests, so that, over the years, it has had a significant influence on strategic policy development, acting alongside the European Parliament and the Economic and Social Committee. More specifically, the Committee is responsible for the following matters within its general frame of reference:
- conducting exchanges of views and experience regarding existing or planned regulations
- contributing towards the development of a common approach to problems existing in the fields of safety, hygiene and health protection at work and towards the choice of Community priorities as well as measures necessary for implementing them
- drawing the Commission’s attention to areas in which there is an apparent need for the acquisition of new knowledge and for the implementation of appropriate educational and research projects
- defining, within the framework of Community action programmes, and in cooperation with the Mines Safety and Health Commission, (i) the criteria and aims of the campaign against the risk of accidents at work and health hazards within the undertaking; and (ii) methods enabling undertakings and their employees to evaluate and to improve the level of protection
- contributing towards keeping national administrations, trade unions and employers’ organizations informed of Community measures in order to facilitate their cooperation and to encourage initiatives promoted by them aiming at exchanges of experience and at laying down codes of practice
- submitting opinions on proposals for directives and on all measures proposed by the Commission which are of relevance to health and safety at work.
In addition to these functions, the Committee prepares an annual report, which the Commission then forwards to the Council, the Parliament and the Economic and Social Committee.
The Dublin Foundation
The European Foundation for the Improvement of Living and Working Conditions, located in Dublin, was established in 1975 as a specialized, autonomous Community body. The Foundation is primarily engaged in applied research in the areas of social policy, the application of new technologies, and the improvement and protection of the environment, in an effort to identify, cope with and forestall problems in the working environment.
European Agency for Health and Safety at the Workplace
The European Council has recently established the European Agency for Health and Safety at the Workplace in Bilbao, Spain, which is responsible for collating and disseminating information in its sector of activities. It will also organize training courses, supply technical and scientific support to the Commission and forge close links with specialized national bodies. The agency will also organize a network system with a view to exchanging information and experiences between Member States.
The European Parliament
The European Parliament exercises an increasingly important consultative role during the Community’s legislative process, controls a part of the Community’s budget jointly with the Council, approves Community Association agreements with non-member countries and treaties for the accession of new Member States, and is the Community’s supervisory body.
The Economic and Social Committee
The Economic and Social Committee is an advisory and consultative body which is required to give its opinion on a range of social and vocational issues, including health and safety at work. The Committee draws its membership from three main groups: employers, workers and an independant group comprising members with a wide spectrum of interests including professional, business, farming, the cooperative movement and consumer affairs.
There are four main instruments available to the Community legislator. Article 189 of the EEC Treaty as amended provides that “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.”
It is stated that “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” Regulations are directly enforceable in Member States. There is no need for further implementation. Indeed, it is not permissible for legislatures to consider them with a view to that end. In the field of health and safety at work, regulations are rare and those that have been made are administrative in nature.
Directives and decisions
It is stated that “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” Directives are instructions to Member States to enact laws to achieve an end result. In practice, directives are used mainly to bring about the harmonization or approximation of national laws in accordance with Article 100. They are therefore the most appropriate and commonly used instruments for occupational health and safety matters. In relation to decisions, it is stated that “A decision shall be binding in its entirety upon those to whom it is addressed.”
Recommendations and opinions
Recommendations and opinions have no binding force but are indicative of policy stances.
The European Communities made a decision in the mid-1980s to press ahead strongly with harmonization measures in the field of health and safety. Various reasons have been put forward to explain the developing importance of this area, of which four may be considered to be significant.
First, it is said that common health and safety standards assist economic integration, since products cannot circulate freely within the Community if prices for similar items differ in various Member States because of variable health and safety costs imposed on business. Second, 10 million people a year are the victims of, and 8,000 people a year die from, workplace accidents (out of a workforce which numbered 138 million people in 1994). These grim statistics give rise to an estimated bill of ECU 26,000 million paid in compensation for occupational accidents and diseases annually, whilst in Britain alone the National Audit Office in their Report Enforcing Health and Safety in the Workplace estimated that the cost of accidents to industry and the taxpayer is £10 billion per year. It is argued that a reduction of the human, social and economic costs of accidents and ill-health borne by this workforce will not only bring about a huge financial saving but will also bring about a significant increase in the quality of life for the whole Community. Third, the introduction of more efficient work practices is said to bring with it increased productivity, lower operational costs and better industrial relations.
Finally, it is argued that the regulation of certain risks, such as those arising from massive explosions, should be harmonized at a supranational level because of the scale of resource costs and (an echo of the first reason canvassed above) because any disparity in the substance and application of such provisions produces distortions of competition and affects product prices.
Much impetus was given to this programme by the campaign organized by the Commission in collaboration with the twelve Member States in the European Year of Health and Safety, which took place during the 12-month period commencing 1 March 1992. This campaign sought to reach the whole of the Community’s working population, particularly targeting high-risk industries and small and medium-sized enterprises.
Each of the founding treaties laid the basis for new health and safety laws. The EEC Treaty, for example, contains two provisions which are, in part at least, devoted to the promotion of health and safety, namely articles 117 and 118.
Community Charter of the Fundamental Social Rights of Workers
To meet the challenge, a comprehensive programme of measures was proposed by the Commission in 1987 and adopted by the Council in the following year. This programme contained a series of health and safety measures grouped under the headings of safety and ergonomics, health and hygiene, information and training, initiatives concerning small and medium enterprises, and social dialogue. Added impetus to these policies was provided by the Community Charter of the Fundamental Social Rights of Workers, adopted in Strasbourg in December 1989 by 11 of the 12 Member States (the United Kingdom abstained).
The Social Charter, as agreed in December 1989, covers 12 categories of “fundamental social rights” among them are several of practical relevance here:
- Improvement of living and working conditions. There should be improvement in working conditions, particularly in terms of limits on working time. particular mention is made of the need for improved conditions for workers on part-time or seasonal contracts and so on.
- Social protection. Workers, including the unemployed, should receive adequate social protection and social security benefits.
- Information, consultation and participation for workers. This should apply especially in multinational companies and in particular at times of restructuring, redundancies or the introduction of new technology.
- Health protection and safety at the workplace.
- Protection of children and adolescents. The minimum employment age should be no lower than the minimum school-leaving age, and in any case not lower than 15 years. The hours which those aged under 18 can work should be limited, and they should not generally work at night.
- Elderly persons. Workers should be assured of resources providing a decent standard of living upon retirement. Others should have sufficient resources and appropriate medical and social assistance.
- Disabled people. All disabled people should have additional help towards social and professional integration.
Member States are given responsibility in accordance with national practices for guaranteeing the rights in the Charter and implementing the necessary measures, and the Commission is asked to submit proposals on areas within its competence.
Since 1989, it has become clear that within the Community as a whole there is much support for the Social Charter. Undoubtedly, Member States are anxious to show that workers, children and older workers should benefit from the Community as well as shareholders and managers.
The 1989 Framework Directive
The principles in the Commission’s health and safety programme were set out in another “Framework Directive” (89/391/EEC) on the introduction of measures to encourage improvements in the safety and health of workers at work. This makes a significant step forward from the approach witnessed in the earlier “Framework Directive” of 1980. In particular, the 1989 Directive, while endorsing and adopting the approach of “self-assessment”, also sought to establish a variety of basic duties, especially for the employer. Furthermore, the promotion of “social dialogue” in the field of health and safety at work was explicitly incorporated into detailed provisions in the 1989 Directive, introducing significant requirements for information, consultation and participation for workers and their representatives at the workplace. This 1989 Directive required compliance by 31 December 1992.
The Directive contains re-stated general principles concerning, in particular, the prevention of occupational risks, the protection of safety and health and the informing, consultation and training of workers and their representatives, as well as principles concerning the implementation of such measures. This measure constituted a first attempt to provide an overall complement to the technical harmonization directives designed to complete the internal market. The 1989 Directive also brought within its scope the provisions of the 1980 Framework Directive on risks arising from use at work of chemical, physical and biological agents. It parallels the ILO Convention concerning Occupational Safety and Health, 1981 (No. 155) and its accompanying Recommendation (No. 161).
The overall objectives of the 1989 Directive may be summarized as being:
- humanization of the working environment
- accident prevention and health protection at the workplace
- to encourage information, dialogue and balanced participation on safety and health by means of procedures and instruments
- to promote throughout the Community, the harmonious development of economic activities, a continuous and balanced expansion and an accelerated rise in the standard of living
- to encourage the increasing participation of management and labour in decisions and initiatives
- to establish the same level of health protection for workers in all undertakings, including small and medium-sized enterprises, and to fulfil the single market requirements of the Single European Act 1986; and
- the gradual replacement of national legislation by Community legislation.
General duties placed upon the employer include duties of awareness, duties to take direct action to ensure safety and health, duties of strategic planning to avoid risks to safety and health, duties to train and direct the workforce, duties to inform, consult and involve the workforce, and duties of recording and notification.
The Directive provided similar safeguards for small and medium-sized enterprises. It is stated, for example, that the size of the undertaking and/or establishment is a relevant matter in relation to determining the sufficiency of resources for dealing with the organization of protective and preventive measures. It is also a factor to be considered in relation to obligations concerning first aid, fire fighting and evacuation of workers. Furthermore, the Directive included a power for differential requirements to be imposed upon varying sizes of undertakings as regards documentation to be provided. Finally, in relation to the provision of information, it is stated that national measures “may take account, inter alia, of the size of the undertaking and/or establishment”.
Under the umbrella of the 1989 Directive, a number of individual directives have also been adopted. In particular, “daughter” directives have been adopted on minimum safety and health requirements for the workplace, for the use of work equipment, for the use of personal protective equipment, for the manual handling of loads, and for work with display screen equipment.
The following Directives have also been adopted:
- Council Directive of 20 December 1993 concerning the minimum safety and health requirements for work on board fishing vessels (93/103/EEC)
- Council Directive of 12 October 1993 amending Directive 90/679/EEC on the protection of workers from risks related to exposure to biological agents at work (93/88/EEC)
- Council Directive of 3 December 1992 on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (92/104/EEC)
- Council Directive of 3 November 1992 on the minimum requirements for improving the safety and health protection of workers in mineral-extracting industries that involve drilling (92/91/EEC)
- Council Directive of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breast-feeding (92/85/EEC)
- Council Directive of 24 June 1992 on the minimum requirements for the provision of safety and/or health signs at work (92/58/EEC)
- Council Directive of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (92/57/EEC)
- Council Directive of 31 March 1992 on the minimum safety and health requirements for improved medical treatment on board vessels (92/29/EEC)
- Council Directive of 23 April 1990 on the contained use of genetically modified micro-organisms. (90/219/ EEC)
Since the passage of the Maastricht Treaty, further measures have been passed, namely: a Recommendation on a European schedule of industrial diseases; a directive on asbestos; a directive on safety and health signs at the workplace; a directive on medical assistance on board vessels; directives on health and safety protection in the extractive industries; and a directive introducing measures to promote improvements in the travel conditions of workers with motor disabilities.
The Single Market
The original Article 100 has been replaced by a new provision in the Treaty of European Union. The new Article 100 ensures that the European Parliament and the Economic and Social Committee must be consulted in all cases and not simply when the implementation of a directive would involve the amendment of legislation in one or more Member States.