Focus

Focus Archive

An Overview on European Union (EU) Legislation on Health and Safety at Work

July 2001
Reinhart Eisenberg
Copyright © Reinhart Eisenberg

1. Role of EU legislation

The European social model is characterised by the indissoluble link between economic performance and social progress. In this context EU legislation on health and safety at work plays an important role because of its direct impact on the working conditions in all enterprises and the working life of all workers in the 15 EU Member States.

Indeed, an EU Directive, the normal legal act in this area adopted on a European Commission proposal, is binding for Member States as regards the objectives to be achieved. Member States have a double task:

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

The 13 States which are candidates for accession to the EU must fulfil the same obligations. This is a heavy task because the existing EU legislation ("acquis communautaire") is voluminous and complex and because efficient implementation and enforcement structures need, in particular, sufficient well trained and well paid personnel.

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,
• Other legal texts on health and safety at work.

2. The Framework Directive of 1989 and its Individual Directives

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 N° 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, as the Directive's basic principle is the personal responsibility of the employer, this principle entails the adoption of preventive measures which in its turn requires risk assessment.

The Individual Directives of the Framework Directive of 1989

The 15 (soon 17) Individual Directives constitute a huge set of detailed legislation, each Directive comprising normally several annexes, which can be arranged in five groups:

Workplace: 6 Individual Directives

n° 1 Workplace 1989

n° 8 Construction Sites 1992

n° 11 Boreholes 1992

n° 12 Mining 1992

n° 14 Fishing Vessels 1993

° 15 Explosive Atmospheres 1999

Equipment: 4 Individual Directives

n° 2 Work Equipment 1989

n° 3 Personal Protective Equipment 1989

n° 4 Manual Handling of Loads 1990

n° 5 Display Screen Equipment 1990

Chemical, Physical and Biological Agents: 3 (soon 5) Individual Directives

n° 6 Carcinogens 1990

n° 7 Biological Agents 1990

n° 14 Chemical Agents 1998

n° 16 Vibrations; this subject, picked out of the broader Commission proposal on Physical Agents (1993), has reached the stage of a Council Common Position (in the procedure with the European Parliament) in June 2001

n° 17 Noise; as regards this subject, likewise taken from the Commission proposal on Physical Agents, a Council Common Position, agreed in principle in June 2001, will be adopted in the nearer future

Groups of workers: 1 Individual Directive

n° 10 Pregnant Workers 1992

Other Issues: 1 Individual Directive

n° 9 Safety Signs at Work 1992

Three Individual Directives have been modified: Work Equipment once (1995), Carcinogens twice (1997, 1999), Biological Agents four times (1993, 1995, 1997).

A second modification of the Work Equipment Directive ("Scaffolding") has reached the stage of a Council Common Position in March 2001.

The Biological Agents Directive has been consolidated in 2000. The consolidation of the Carcinogens Directives has been proposed but not yet achieved.

Impact on previous legislation

On 27 November 1980 the Council of Ministers had adopted Directive 80/1107/EEC on Chemical, Biological and Physical Agents at Work ("Framework Directive of 1980"), modified in 1988, which gave rise to 4 Individual Directives:

• Lead 1982,
• Asbestos 1983 (modified 1991 and 1998),
• Noise 1986 (modified 1998),
• Certain Agents and Work Activities 1988.

The Chemical Agents Directive (1998) repealed the Framework Directive of 1980 and its two Individual Directives "Lead" and "Certain Agents and Work Activities" with effect from 5 May 2001.

In reaction to cases of liver cancer in the plastics industry, the Council of Ministers had adopted on 29 June 1978 Directive 78/610/EEC (Vinyl chloride monomer). 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, namely "Asbestos" and "Noise", continue to apply. Again, however, as regards the Asbestos Directive, the provisions of the Carcinogens Directive prevail if these are more favourable for safety and health of workers. Moreover, a new Noise Directive is underway (cf. above).

3. Other legal acts on health and safety at work

The legal texts besides the texts of the family of the 1989 Framework Directive relate mainly to four areas:

• Groups of workers,
• Working time,
• Chemical, physical and biological agents,
• Occupational diseases.

Groups of workers

The Council Directive on Part Time Workers and Temporary Workers of 1991 guarantees that these workers benefit from the same protection as other workers.

The Council Directive concerning Medical Assistance on Board Vessels of 1992 ensures seamen the necessary medical assistance.

The Council Directive on Youth Protection of 1994 prohibits child labour and provides rules for the protection of adolescents.

Working time

Working time is also a question of health and safety at work. The Council Directive on Working Time of 1993 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 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 (health and safety of workers) of the EC Treaty.

The Working Time Directive has been modified in June 2000 in order to cover sectors and activities which had been excluded in 1993.

As regards working time in the transport sector:

• two Directives of 1999 relate to seamen; one of these Directives implements an Agreement concluded between social partners;
• one Directive of 2000 r relates to mobile personnel in civil aviation; it implements an Agreement concluded between social partners;
• a Directive concerning mobile personnel in road transport has reached the stage of a Council Common Position in March 2001.

Chemical, physical and biological agents

Subsequent to the Council Directive on Asbestos of 1983 (modified 1991 and 1998), Council Conclusions of 7 April 1998 on the protection of workers against the risks from exposure to asbestos call for the improvement of the legislation in this area.

Apart from the Council Directive of 1978 on Vinyl chloride monomer (cf. above under 2), three Commission Directives on indicative limit values apply. As regards the implementation of Council Directive 98/24/EC (Chemical Agents), Commission Directive 2000/39/EC of 8 June 2000 is relevant.

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.

4. Outlook

Existing European Commission proposals

Among the Commission proposals which are already on the table of the Council, the proposal of 1993 on Physical Agents covered noise, vibrations as well as electrical and magnetic fields and waves and their combinations.

As already mentioned the Council singled out the point of vibrations with a view to establishing the 16th Individual Directive of the 1989 Framework Directive.

Likewise, the point of noise will reach soon the stage of a Council Common Position with a view to establishing a 17th Individual Directive of the 1989 Framework Directive which will replace the Noise Directive of 1986 (cf. above under 2).

The proposal on the other aspects covered by the Commission document remains 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. However, health and safety of workers should not be subordinated to any other interests.

European Social Agenda

The European Social Agenda approved by the Nice European Council (Heads of State and Government) (7 – 9 December 2000) 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.

Application of EU legislation - Open method of coordination

Behind the last-mentioned item lies the problem of non-compliance with national legislation on health and safety at work.

Labour Inspectors have to ensure that existent legislation is respected; they are working for the rule of law and are men and women of great merit. Their work should be supported as far as possible.

Indeed, already the adoption of an EU Directive is a cumbersome operation.

The transposition of EU legislation in national legislation may even be more complicated.

But the application and the enforcement of such national legislation everywhere in the country are often the most problematic elements in the chain.

With a view to reacting on deficiencies in the transposition of EU legislation and the application and enforcement of national legislation of EU origin, and without prejudice to the mechanisms of judicial control provided for in the EC Treaty, new working methods should be envisaged. In this respect, the open method of coordination introduced by the Lisbon European Council (23 – 24 March 2000), inspired by the model of the Luxembourg process regarding European employment strategy, is of practical interest and deserves attention. This method aims at setting indicators at European level and comparing the Member States' performances.

Permanent challenge

Much has been achieved. This overview could not deal with those legal acts which are normally grouped under other headings (e.g. product safety; major industrial accidents) but which have also an impact on the safety of workers, nor with occupational health and safety aspects in sectoral policies, e.g. transports and nuclear energy. There was no room either to describe the role played by the different actors in the legislative process.

But much remains to be done. There are still too many accidents and too many victims, and there is still too great expenditure. The final human and economic bill which is too high must be brought down.

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Reinhart Eisenberg is an Honorary Director of the General Secretariat of the EU Council of Ministers and lives in Brussels.

For 20 years he participated in the establishment of legal texts of the EU Council of Ministers in the area of social policy.

When he joined the General Secretariat in 1966, he had studied Law, had been trained in Germany and France and had worked at the Law Faculty of the Free University of Berlin.

Reinhart Eisenberg holds a degree of Doctor in Law of the University of Paris.

Under the auspices of the General Secretariat he edited in 1997 and 2001 a collection of texts (2 volumes in French) on European Social Policy.
E-mail: reisenberg@brutele.be