Focus

An Overview on European Union Legislation on Health and Safety at Work

October 2002
by Reinhart Eisenberg, European Lawyer based in Brussels, Belgium

1. General

1.1. Impact of European Union (EU) legislation

EU legislation on health and safety at work plays an important role because of its impact on the working conditions in all enterprises and the working life of all workers everywhere in the EU Member States. Obviously the impact on employers and their enterprises is likewise important.

An EU Directive, the normal legal act in this area, is binding for Member States as regards the objectives to be achieved. Member States have a double task:

transpose Directives correctly, completely and in due time in national legislation,
ensure, by efficient means of implementation and enforcement and everywhere in the country, compliance with this legislation.

A great part of legislation adopted by Member States during the last years in the area of health and safety at work has been triggered by EU legislation. This direct link has not always become obvious to EU citizens.

EU Directives in our area contain minimum requirements. The idea is that there must be a bottom line which is the same in all Member States. No Member State may fall short of these minimum requirements. However, there is no obstacle for any Member State to go beyond the bottom line in the interest of still better health and safety at work provisions.

The States which are candidates for accession to the EU must fulfil the same obligations. This is a heavy task because the candidate countries have an average frequency of occupational accidents which is well above the average for the EU. Moreover, the existing EU legislation ("acquis communautaire") is voluminous and complex and efficient implementation and enforcement structures need, in particular, sufficient well trained and well paid personnel..

1.2 Typical decision-making process

Which is, at present and in application of the "co-decision procedure", the normal decision-making process as regards an EU Directive (cf. EC Treaty Articles 137 and 251)?

The point of departure is the "Tandem Principle" according to which no Directive can be adopted by the European Parliament and the Council without a proposal submitted by the European Commission: No legislation without a Commission proposal. Council and European Parliament depend on the Commission's initiative.

As regards the preparation of Commission proposals, two advisory committees, composed by Member States' representatives, play an important role: the Advisory Committee on Safety, Hygiene and Health Protection at Work and the Safety and Health Commission for the Mining and Other Extractive Industries. In September 2002, the Commission submitted a proposal for merging the two bodies into a single Advisory Committee on Health and Safety at Work, with a view to rationalising the EU machinery before the accession of new Member States.

The European Agency for Health and Safety at Work, established in Bilbao (Spain) in 1994, has the task of providing technical, scientific and economic information in the area of health and safety at work. Its future role will be increased, especially as regards collation and dissemination of information on good practice, awareness raising and risk anticipation.

Here is the typical scenario: The Council examines, at its first and second levels (Working Party and Committee of Permanent Representatives), the Commission proposal and receives the opinion of the European Parliament after its first reading and the result of the consultation of the Economic and Social Committee and the Committee of the Regions. The Council adopts a Common Position which is communicated to the European Parliament and published in the Official Journal of the European Communities, "C" series. The Commission informs the European Parliament of its position.

The European Parliament now proceeds with its second reading on the basis of the Council's Common Position. If the Council does not approve all the Parliament amendments, the President of the Council, in agreement with the President of the European Parliament, convenes a meeting of the Conciliation Committee. This Committee is composed of the actually 15 members of the Council or their representatives and an equal number of representatives of the European Parliament and has the task of reaching agreement on a joint text. The Commission takes part actively in the proceedings of the Committee.

If the Committee has approved a joint text, each of the two Institutions has a period of six weeks to approve it. If either or the two Institutions fail to approve the text within that period, it shall be deemed not to have been adopted.

Under these circumstances the Conciliation Committee strives for a balanced and acceptable solution. On the other hand, the effect of total loss in the case of rejection gives great weight to the Committee's text. In practice its joint text is accepted by the two Institutions.

After adoption the two Presidents shall sign the Directive which shall be published in the Official Journal and enter into force on the date specified in it or, in the absence thereof, on the twentieth day following that of its publication.

The date of transposition - this is the date before which Member States shall bring into force their national provisions necessary to comply with the content of the Directive - lies after the date of entry into force, often several years later.

This procedure is cumbersome and time and energy consuming but guarantees that all different aspects and interests are taken into consideration.

1.3. European social model

Health and safety at work demonstrates the characteristics of the European social model: economic performance and social progress are linked.

Health and safety are essential elements in terms of the quality of work The EU has a positive record here, as the number of occupational accidents fell by nearly 10% between 1994 and 1998. But the absolute figures remain high, with nearly 5 500 deaths and 4.8 million accidents resulting in three days or more off work. In certain Member States and in certain sectors even a return to a rising scale of accidents has been evident since 1999. These figures call for heightened vigilance. They indicate that the "Prevention Principle" set out in the EU Directives has not yet been fully taken on board by the various participants, nor applied effectively on the ground.

A safe and healthy working environment and working organisation are performance factors for the economy and for companies. The exact relations between health at work and competitiveness are more complex than a matter of compliance costs. As far as the economy is concerned, non-quality of work means a loss of productive capacity - 500 million working days lost in 1999 as a result of accidents or health problems - and compensatory payments and benefits. Almost 350 000 people had to change jobs or their place of work or to reduce their working time and nearly 300 000 have varying degrees of permanent disability, of whom 15 000 are entirely excluded from the world of work. Above these human tragedies this is a waste of resources against a background of structural ageing of the working population. At company level, non-quality gives the firm a low public image, vis-à-vis its work force, clients, consumers and the public at large. On the other hand, having a healthy working environment adds to a firm's quality image. Steps taken to improve that environment form part of a general approach to quality management and social responsibility, both of which have a beneficial effect on performance and competitiveness.

1.4. Outline

The EU legislation on health and safety at work can be grouped as follows:

Legal texts of the family of the Framework Directive of 1989,
Legal texts relating to occupational diseases, certain groups of workers and working time.

This overview cannot deal with those legal texts which are normally grouped under other headings but have also a positive impact on health and safety of workers, e.g. product safety or major industrial accidents, nor with important occupational health and safety aspects in sectoral policies, e.g. transports or nuclear energy.

2. Legal texts of the family of the Framework Directive of 1989

2.1. The Framework Directive of 1989

The basic text is Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, adopted by the Council of Ministers (Labour and Social Affairs) on 12 June 1989 (Official Journal of the European Communities No. L 183, 29.6.1989, p. 1).

Its scope is large : all sectors of activity, both public and private, with very few clearly described exceptions.

Article 5 (1), the Directive's fundamental provision, states that "the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work."

This responsibility of the employer has a general nature and cannot be restricted or reduced by legal or other provisions which may exist in this area in the Member State concerned.

The seven main points of the Directive are the following:

the employer shall ensure that an assessment is made of the risks to the safety and health of workers;
he shall take the necessary preventive measures;
he shall ensure that the workers and/or their representatives receive the necessary information, in particular on safety and health risks, preventive measures, first aid, fire fighting;
he shall ensure that each worker receives adequate and job-specific safety and health training;
he shall consult workers and/or their representatives and allow them to take part in discussions on all questions relating to safety and health at work;
on the other hand, each worker has the obligation to take care as far as possible of his/her own safety and health and to make correct use of machinery, tools, dangerous substances, personal protective equipment, etc.;
the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.

We keep in mind that the Directive's basic principle is risk prevention which requires risk assessment by the responsible employer.

2.2. The Individual Directives of the Framework Directive of 1989

The 16 (soon 17) Individual Directives constitute a huge set of detailed legislation, each Directive comprising normally several annexes, which can be presented as follows:

Workplace: 6 Individual Directives
no. 1 Workplace	89/654/EEC	OJ No. L 393, 30.12.1989, p. 1
no. 8 Construction Sites	92/57/EEC	OJ No. L 245, 26.8.1992, p. 6
no. 11 Boreholes	92/91/EEC	OJ No. L 348, 28.11.1992, p. 9
no. 12 Mining	92/104/EEC	OJ No. L 404, 31.12.1992, p. 10
no. 13 Fishing Vessels	93/103/EC	OJ No. L 307, 13.12.1993, p. 1
no. 15 Explosive Atmospheres	1999/92/EC	OJ No. L 23, 28.1.2000, p. 57

Equipment: 5 Individual Directives
no. 2 Work Equipment	89/655/EEC	OJ No. L 393, 30.12.1989, p. 13
	Modifications:
	95/63/EC	OJ No. L 335, 30.12.1995, p. 28
	2001/45/EC	OJ No. L 195, 19.7.2001, p. 46
no. 3 Personal Protective Equipment	89/656/EEC	OJ No. L 393, 30.12.1989, p. 18
no. 4 Manual Handling of Loads	90/269/EEC	OJ No. L 156, 21.6.1990, p. 9
no. 5 Display Screen Equipment	90/270/EEC	OJ No. L 156, 21.6.1990, p. 14
no. 9 Safety Signs at Work	92/58/EEC	OJ No. L 245, 26.8.1992, p. 23

Chemical, Physical and Biological Agents: 4 (soon 5) Individual Directives
no. 6 Carcinogens	90/394/EEC	OJ No. L 196, 26.7.1990, p. 1
	Modifications:
	97/42/EC	OJ No. L 179, 8.7.1997, p. 4
	1999/38/EC	OJ No. L 138, 1.6.1999, p. 66
	Consolidation proposed but not yet accomplished
no. 7 Biological Agents	2000/54/EC	OJ No. L 262, 17.10.2000, p. 21
	= Consolidation of 90/679/EEC OJ No. L 374, 31.12.1990 p. 1, modified by 93/88/EEC, 95/30/EC. 97/59/EC and 97/65/EC
no. 14 Chemical Agents	98/24/EC	OJ No. L 131, 5.5.1998, p. 11
no. 16 Physical Agents (Vibration)	2002/44/EC	OJ No. L 177, 6.7.2002, p. 13

no. 17 Physical Agents (Noise); this item, likewise taken from the Commission proposal on Physical Agents (1993), has reached the stage of a Council Common Position on 29 October 2001; the adoption of a Directive can be expected in the nearer future.

Certain groups of workers: 1 Individual Directive
no. 10 Pregnant Workers	92/85/EC	OJ No. L 348, 28.11.1992, p. 1

2.3. Impact on previous legislation

On 27 November 1980 the Council had adopted Directive 80/1107/EEC on the Protection of Workers from the Risks related to Exposure to Chemical, Physical and Biological Agents at Work ("Framework Directive of 1980", OJ No. L 327, 3.12.1980, p. 8), modified by Directive 88/642/EEC (OJ No. L 356, 24.12.1988, p. 74), which gave rise to four Individual Directives:

·	Lead	82/605/EEC	OJ No. L 247, 23.8.1982, p. 12
·	Asbestos	83/477/EEC	OJ No. L 263, 24.9.1983, p.25
	Modifications:	91/382/EEC	OJ No. L 206, 29.7.1991, p. 16
		98/24/EC	OJ No. L 131, 5.5.1998, p. 11
·	Noise	86/188/EEC	OJ No. L 137, 24.5.1986, p. 28
·	Modification:	98/24/EC	OJ No. L 131, 5.5.1998, p. 11
·	Certain Agents and Work Activities	88/364/EEC	OJ No. L 179, 9.7.1988, p. 44

With effect from 5 May 2001, the Framework Directive of 1980 and its two Individual Directives "Lead" and "Certain Agents and Work Activities" have been repealed by the Chemical Agents Directive (1998).

In reaction to cases of liver cancer in the plastics industry, the Council had adopted on 29 June 1978 Directive 78/610/EEC (Protection of Workers Exposed to Vinyl Chloride Monomer, OJ No. L 197, 22.7.1978, p. 12). The Directive (1999) on the Second Modification of the Carcinogens Directive repeals the Vinyl Chloride Monomer Directive with effect from 29 April 2003.

The main idea behind these changes was to improve the protection of workers and to bring the respective areas into the broader and more favourable system of the Framework Directive of 1989 and its relevant Individual Directives. As we have seen, this system provides for, inter alia, detailed provisions on information, training, consultation, health surveillance, etc. of workers.

The two remaining Individual Directives of the Framework Directive of 1980, "Asbestos" and "Noise", continue to apply.

As regards the Asbestos Directive:

Subsequent to Council Conclusions of 7 April 1998 on the Protection of Workers against the Risks from Exposure to Asbestos (OJ No. C 142, 7.5.1998, p. 1), calling for the improvement of the legislation in this area, a third modification is underway. The Council has adopted its Common Position on this issue on 23 September 2002. The main objective of the amendment is the introduction of a single limit value for workers' exposure, as opposed to the two limit values under the original Directive;
Again, the provisions of the Carcinogens Directive prevail if these are more favourable for safety and health of workers (cf. Article 1 (4) of Carcinogens Directive as amended in 1999).

As regards the Noise Directive, it will be repealed with effect from the date of transposition of the relevant Individual Directive (no. 17 on Noise) of the Framework Directive of 1989, which will be adopted in the nearer future (cf. above).

3. Legal texts on health and safety at work relating to occupational diseases, certain groups of workers and working time

3.1. Occupational diseases

On 22 May 1990 the Commission adopted a Recommendation to the Member States Concerning the Adoption of a European Schedule of Occupational Diseases (90/326/EEC, OJ No. L 160, 26.6.1990, p. 39).

3.2. Certain groups of workers

The Directive 91/383/EEC (OJ No. L 206, p. 19, Workers with a Fixed-Duration or a Temporary Employment Relationship) guarantees that these workers benefit from the same protection as other workers.

The Directive 92/29/EEC (OJ No. L 113, 30.4.1992, p. 19, Medical Assistance on Board Vessels) ensures seamen the necessary medical assistance.

The Directive 94/33/EC (OJ No. L 216, 20.8.1994, p. 12, Protection of Young People at Work) prohibits child labour and provides rules for the protection of adolescents.

In April 2002, the Commission submitted a proposal for a Council Recommendation concerning the application of legislation governing health an safety at work to self-employed workers. This proposal, actually under examination by the Council instances, is motivated, inter alia, by the increasing growth of the number of self-employed workers in all Member States, especially in high risk areas like construction, transport or agriculture, by the fact that, in many areas, self-employed and salaried workers have to work closely together, and by the higher rate of fatal accidents in comparison with salaried workers.

3.3. Working time

Working time is also an issue of health and safety at work.

The Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ No. L 307, 13.12.1993, p. 18, "Working Time Directive") encompasses minimum provisions on daily and weekly rest periods, annual leave, maximum weekly working time, night work, etc.

The Court of Justice of the European Communities in Luxembourg, in its judgement of 12 November 1996 (C - 84/94) on recourse by the United Kingdom which contested that working time was an issue of health and safety at work, confirmed that the Directive was correctly based on Article 118 a of the EC Treaty and was in conformity with the principles of subsidiarity and proportionality as specified in Article 5 of the Treaty.

The Working Time Directive has been modified by Directive 2000/34/EC (OJ No. L 195, 1.8.2000, p. 41) in order to introduce new provisions on groups of workers which had been excluded in 1993, e.g. doctors in training, mobile workers and offshore work, workers on board seagoing fishing vessels.

As regards working time in the transport sector:

two Directives (1999/63/EC, OJ No. L 167, 2.7.1999, p. 83, and 1999/95/EC, OJ No. L 14, 20.1.2000, p. 29) relate to seamen; the first of them implements an Agreement concluded between social partners;
Directive 2000/79/EC (OJ No. L 302, 1.12.2000, p. 35) relates to mobile personnel in civil aviation and implements an Agreement concluded between social partners;
Directive 2002/15/EC (OJ No. L 80, 23.3.2002, p. 35) concerns the organisation of the working time of persons whose occupation is the performance of road-transport activities.

4. Outlook

4.1. Commission proposal on physical agents

The Commission proposal on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (1993) covered noise, vibration as well as electrical and magnetic fields and waves and their combinations.

As already mentioned, the Council singled out the aspects of vibration and noise with a view to establishing Individual Directives nos. 16 and 17 of the Framework Directive of 1989. However, the other aspects covered by the Commission proposal remain on the table. These aspects have a direct link to new technologies and are of great sensitivity because important political and enormous economic interests are at stake. Their examination will take place later.

4.2. New developments

The European Social Agenda approved by the Nice European Council (Heads of State and Government, 7 - 9 December 2000, OJ No. C 157, 30.5.2001, p. 4) provides for, in particular on the basis of a Commission communication in 2002, the development of the Community strategy on health and safety at work:

to consolidate, adapt and, where appropriate, simplify existing standards;
to respond to new risks such as work-related stress, by initiatives on standards and exchanges of good practice;
to promote the application of legislation in small and medium-sized enterprises, taking into account the special constraints to which they are exposed, to apply them by means of a specific programme;
to develop, from 2001 onwards, exchanges of good practice and collaboration between labour inspection institutions in order to satisfy the common essential requirements more effectively.

Subsequent to this mandate, the European Commission presented on 11 March 2002 a Communication "Adapting to changes in work and society: a new Community strategy on health and safety at work 2002 - 2006". In this document the Commission recalls that health and safety at work now constitutes one of the EU's most concentrated and most important social policy sectors and that, because the EU can call on such a substantial corpus of legislation, it is essential for the social policy agenda to set out a Community strategy. This strategy covering the period 2002 - 2006 has three novel features:

It adopts a global approach to well-being at work, taking account of changes in the world of work (changes in society: women, older workers; changes in form of employment) and the emergence of new risks, especially of a psycho-social nature (e.g. stress, harassment, etc.). As such it is geared to enhancing the quality of work, and regards a safe and healthy environment as one of the essential components.
It is based on consolidating a culture of risk prevention, on combining a variety of political instruments (legislation, social dialogue, progressive measures and best practices, corporate social responsibility and economic incentives) and on building partnerships between all the players in the area of safety and health.
It points up the fact that an ambitious social policy is a factor in the competitiveness equation and that having a non-policy engenders costs which weigh heavily on economies and societies.

Already on 3 June 2002, the Council (Employment and Social Policy) adopted at unanimity a Resolution on a New Community Strategy on Health and Safety at Work (2002 - 2006) (OJ No. C 161, 5.7.2002, p. 1). In this Resolution, the Council welcomes the Commission communication which it considers as a valuable framework for further effective implementation of Article 137 of the EC Treaty and shares the Commission's opinion that Community policy on health and safety at work should have as its purpose a constant improvement in well-being at work, in physical, mental and social terms.

The Council stresses the need to:

Recognise a safe and healthy working environment as one of the key ingredients in quality of employment,
Consolidate a risk-prevention culture,
Show that an effective policy on health and safety is a factor in competitiveness while, conversely, lack of political intervention makes for increased costs,
Base any possible Community instrument on an adequate technical knowledge on both risks and risk prevention strategies,
Involve all parties concerned, public authorities and social partners in carrying out the strategy.

It calls on the Member States to:

Develop and implement co-ordinated prevention policies, geared to national conditions, with measurable targets set in this context for reducing accidents at work and occupational illnesses,
Ensure better implementation of the legislation in force, in particular through more effective inspection and monitoring, through making available to businesses suitable advisory services, as well as through improved occupational risk-prevention training and the adoption of measures aimed specifically at high-risk sectors,
Include basic occupational prevention principles in educational curricula and further training schemes and organise health and safety awareness and promotion campaigns.

Moreover, it calls the Commission and the Member States to step up work in hand on harmonisation of statistics on accidents at work and occupational illnesses.

The Council calls on the Commission to:

Include in the social agenda scoreboard the measures necessary to put the strategy into practice, together with a timetable,
Submit to it any proposal needed for achieving the objectives set out in the new strategy,
Promote co-operation between the Member States and the social partners at European level, with a view to the future enlargement of the EU, through the rationalisation of the existing advisory bodies and the Bilbao Agency.

Finally, the Council calls on the social partners to:

Play an active part in disseminating the basic principles of this new strategy at European, national, regional and individual business level,
Promote and publicise in the workplace the proper application of occupational risk-prevention principles,
Provide members of their respective organisations with access to competent advisory services and appropriate training in health an safety,
Cooperate with their countries' authorities on designing and implementing Member States' national policies concerning the sphere covered by Article 137 of the EC Treaty,
Cooperate, at individual business level, in designing the working environment in such a way as to protect the health and safety of workers and in implementing the relevant arrangements for the protection of workers.

At the Council meeting of Health Ministers of 26 June 2002, the Spanish Presidency briefed the Council on promoting health at work, recalling the above Resolution of 3 June 2002. It underlined that a healthy and well trained active population is fundamental for the EU's future social and economic well-being and that health at work is an important factor of the general health situation in the Member States.

4.3. Old and new challenges

Applying Community law effectively is essential for the improvement of the quality of the work environment. It is also, perhaps in the first place, essential for respecting the basic principle of the Community: the Community is based on law and the respect of law.

The 19th Annual Report by the European Commission on implementation of Community law (2001) of 28 June 2002 shows deficiencies in several Member States as regards the transposition of Directives in the area of health and safety at work. It can be expected that the Commission will, subject to the powers bestowed to it by the EC Treaty, adopt a rigorous approach to ensuring that Directives are properly transposed and the law is properly applied. In this respect, a fundamental role will also fall to the Senior Labour Inspectors Committee.

The better application of existing law in the Member States is not only a legal but also a political question. The accession of new Member States will happen sooner or later. The applicant countries make great efforts in order to transpose the EU law in their national legislation and to ensure the application and enforcement of this new national legislation. This is a difficult process which will need our attention for a long time.

How can the applicant countries be required to respect EU Directives if actual Member States do not respect them?

Much has been achieved but much remains to be done, in areas where legislation already exists and in new areas. There are still too many accidents, too many illnesses and too many victims, and there are still too high, avoidable costs. The human and economic bill is still much too high and must be brought down.