(1986), the ECJ held that an individual employed by a government could sue that government in the national court under the provisions of an unimplemented directive as though it had been implemented, a privilege not available to non‐government employees. Employment in the National Health Service was held to be government service. This right extends to employees of local authorities, universities, police forces, firefighters, in fact all those employed by public authorities. The European Court further developed the law in Francovich v. Italian Republic (1992) when it held that an individual may in some circumstances sue a government for damages for failure to enact a directive within the specified period.
Decisions are rulings given by the Commission in individual cases and may be addressed to a state, an organisation or an individual. They are binding only on the individual addressed. Recommendations are persuasive, but not legally binding. Salvatore Grimaldi was born in Italy, but had worked for a long period in mining and construction in Belgium. He was diagnosed as suffering from an osteoarticular or angioneurotic impairment of the hand (Dupuytren’s contracture), which he claimed was an occupational disease caused by the use of a pneumatic drill. This was not a prescribed disease under Belgian law, and Grimaldi was refused social security compensation. He appealed to the European Court.
The European Commission has made recommendations, most recently in 2003, setting out a ‘European schedule of occupational disease’, including ‘illness for over‐exertion of the peritendonous tissue’, and calling on Member States to introduce legislation granting compensation to those workers affected by such diseases and also to those able to prove that their disease was caused by work but unable to take advantage of domestic law because the disease was not prescribed. This recommendation places emphasis on the need for Member States to make their statistics on occupational diseases compatible with the European schedule, so that information on the causative agent or factor, the medical diagnosis and the gender of the patient is available for each case of occupational disease. The European Court held that recommendations could not confer rights directly on individuals, but should be taken into consideration by national courts when interpreting domestic legislation, e.g. in cases of ambiguity (Grimaldi v. Fonds des Maladies Professionelles (1990)).
The European Treaties and laws made thereunder deal primarily with matters relating to the establishment of free trade. Much of our law is unaffected by a European dimension. The EU treaties are not concerned with the law of theft, the grounds for divorce, the validity of wills or the need to obtain the consent of a patient to medical treatment. But a free market demands that no enterprise should be able to obtain an unfair advantage by ignoring essential safety measures imposed by law on its competitors. Every producer must start from the same baseline. Member States are unwilling to pass laws to protect the health of workers or the community which demand costly expenditure if other States are permitted to maintain nineteenth century practices.
The EC Treaty anticipated the need to deal with social as well as economic problems: ‘Member States agree upon the need to promote improved working conditions and an improved standard of living for workers…’. Article 137 provided that the Commission had the task of promoting close cooperation between Member States in the social field, particularly in matters relating to employment, labour law and working conditions, basic and advanced vocational training, social security, prevention of occupational accidents and diseases, occupational hygiene, and the right of association and collective bargaining between employers and workers. In 1997, the Treaty of Amsterdam made further important changes to permit the United Kingdom to accede to the European Social Charter which it had rejected at the negotiations in Maastricht in 1991.
In 1974, an Advisory Committee on Safety, Hygiene and Health Protection was established to assist the Commission. It had a significant influence on the development of policy. A series of Action Programmes were adopted. The Committee reported annually. In 2003 its functions were transferred to an Advisory Committee for Health and Safety at Work.
The adoption of directives to implement the Commission’s initiatives was hampered by the necessity to obtain unanimity among Member States. It was possible for only one State to veto any measure in the Council of Ministers. In 1987, however, the Single European Act came into operation. The countries of Europe agreed to establish a truly common market, with the abolition of all barriers to trade, by 1992. The resultant amendments to the Treaty of Rome included Article 138. Under this Article, it was now possible to adopt directives laying down minimum health and safety standards which exceeded recognised standards in Member States. Qualified majority voting gave larger nations more votes than smaller ones, but allowed even one of the ‘Big Four’ (France, Germany, Italy and the United Kingdom) to have legislation forced on it by the other Member States.
Similar principles apply to the enactment of directives in the field of consumer safety. The EU Council may by a qualified majority approve standards for electrical and other goods. In this area, the standards are both minimum and maximum, lest states attempt to protect the home producer by keeping out goods which do not conform to unnecessarily high standards. The long‐term solution is to establish European standards to replace those of the individual countries, and European organisations have been created to bring this about: Comité Européen de la Normalisation (CEN) and Comité Européen de la Normalisation Electronique (CENELEC) (for electrical apparatus).
The Single European Act (Article 157) for the first time included specific provisions allowing the Council of Ministers to legislate by a qualified majority in the area of environmental protection by, for example, setting minimum standards for toxic emissions into the atmosphere and water purity. States are permitted to set higher standards for themselves, unless this conflicts with the free market. In EC Commission v. Denmark (1989) a Danish law stating that beer and soft drinks could only be marketed in reusable containers, for which a deposit must be charged, was upheld by the European Court, even though to some extent it discriminated against foreign producers, because it reduced the quantity of litter damaging the environment.
The pace of change was considerably expedited by the new system. Between 1970 and 1985 only six health and safety at work directives were adopted by the European Council. In July 1987, however, a third Action Programme on safety, health and hygiene at work was adopted. A long list of measures was proposed by the Commission, including 15 new directives. By 1989 a ‘Framework’ Directive for the Introduction of Measures to Encourage Improvements in Safety and Health of Workers was approved by the Council of Ministers. This has been enacted into UK law by the Management of Health and Safety at Work Regulations (1992, amended 1999) which require employers to assess risks to employees, provide them with health surveillance, give them information and training and appoint competent persons to supervise a safe system of work.
Shortly after, five ‘Daughter Directives’ containing more specific provisions about health, safety and welfare provision in the workplace (heating, lighting, ventilation, cleanliness and so on), machinery and work equipment safety, personal protective equipment, visual display units and the handling of heavy loads were passed. These are now incorporated into UK law as the Workplace (Health, Safety and Welfare) Regulations 1992, Provision and Use of Work Equipment Regulations 1998, Personal Protective Equipment at Work Regulations 1992, Health and Safety (Display Screen Equipment) Regulations 1992 and Manual Handling Operations Regulations 1992. All these regulations are discussed in detail in Chapter 5, and are regularly reviewed and sometimes updated.
In 1994 a European Agency for Safety and Health at Work was established in Spain. It is charged with the following tasks:
to collect and disseminate technical, scientific and economic information in Member States to identify existing national priorities and programmes;
to collect technical, scientific and economic information on research into safety and health at work and on other research activities and to disseminate the results of that research;
to promote and support co‐operation
