Last Thursday the ECJ gave judgment for the UK in infraction proceedings brought by the Commission. This is a major victory for the UK; and it might even turn out, one day, to be a milestone in the history of the EU. If its history really is going the UK’s way, as Tony Blair often used to argue.
The Commission’s complaint was that the UK was in breach of the Health and Safety Framework Directive, 83/391 – it’s the general directive, if you like, which is supplemented by a series of more detailed directives relating to particular types of workplace hazards and work sectors. Article 5.1 of the Framework Directive provides that
The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
The Commission argued that the UK’s implementing legislation, section 2(1) of the Health and Safety at Work Act 1974, fails to impose such a duty. It provides that
It shall be the duty of every http://www.gooakley.com/ employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
In essence, the debate was simply about the meaning of the phrase “so far as is reasonably practicable”. In the Commission’s view, the Directive imposes an absolute duty on employers to do everything technically possible – not merely practicable – to avoid hazards at work; and after the fact of any accident, it imposes absolute, strict liability. It does not permit employers to balance risks against the financial burden of eliminating or reducing them.
The UK’s stance was that no real-world health and safety legislation can be read in this way. Financial considerations necessarily have to be taken into account, or else industry would grind to a halt – lots of risks are very minor, or remote, yet would cost millions to eliminate. The Directive does not impose such a heavy burden on employers, and it’d be a bad idea if it did: employers have an incentive to take all reasonable preventive measures if they know that by doing so, they discharge their legal duties.
The ECJ’s judgment took a very long time to come (the hearing was last September) and has all the hallmarks of having been much argued about. It fudges the issues slightly, by ruling that the Commission failed to make out its case – it was not as Gafas Ray Ban outlet ringing an endorsement of the UK’s approach as it might have been. However, a victory for the UK it is – and an important one. It’s still relatively rare to successfully defend infraction proceedings, and to do so in the social field is especially notable.
I think the judgment is potentially a milestone for two reasons: first, it’s a rejection of a bureaucratic, legalistic approach from the Commission that gives undue weight to (in my view a bad and) expansionist interpretation of legal texts, and not enough to the realities of economic life and workers’ rights, and which merely sees member states as inherently foot-dragging. It’s an approach that should have gone out decades ago, and which is not consistent with the EU’s supposed aim of being the world’s most competitive economy, the so-called Lisbon agenda.
On the other hand, it’s an endorsement of the UK’s approach to health and safety at work, of which it can rightly be proud. Not only is this approach pretty successful in protecting workers – it’s also accepted by employers and unions alike. It takes account of economic reality while requiring a high standard of risk aversion – backed by criminal sanctions. Exactly the kind of approach Europe needs; and a very New Labour sort of thing.
Has Tony Blair’s vision finally conquered the EU?
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