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European Court supports UK safety laws

HEALTH AND SAFETY EXECUTIVE News Release (C007:07) issued by The Government News Network on 14 June 2007

(CASE C127-05 EUROPEAN COMMISSION v UNITED KINGDOM)

Today the European Court of Justice (ECJ) upheld one of the key elements of British health and safety law - the use of the key phrase "so far as is reasonably practicable".

Speaking at the Yorkshire Branch of the Institute of Occupational Safety and Health, Bill Callaghan, Chair of the Health and Safety Commission (HSC) welcomed this decision. Mr Callaghan said:

"I am pleased by this outcome. The Court has rejected the European Commission's claim that the use of "so far as is reasonably practicable" does not implement the Framework Directive. Quite clearly we have been effective in protecting people as currently we have the best occupational safety record in Europe."

"We continue to believe that the right way forward is a proportionate and risk-based approach protecting employees and others effectively, whilst allowing commonsense to be applied when deciding on what protective measures to adopt."

The European Commission challenged the use of the phrase because the directive, which lays down EU employers' duties to protect the health and safety of their workers, has no such qualification. The UK robustly defended the case and today the ECJ dismissed the European Commission's case and ordered it to pay the UK Government's costs.

Notes for editors:

1. The EC brought the case against the UK in the ECJ, challenging the UK's implementation of European Directive 89/391/EEC, on the introduction of measures to encourage improvements in the safety and health of workers at work (The Framework Directive). The Commission's action was founded on the UK's use of the phrase "so far as is reasonably practicable" in section 2(1) of the Health and Safety at Work etc. Act 1974 (HSWA). The EC believed that this amounts to defective implementation of the Directive, which does not contain such a qualification.

2. The EC referred the case to the ECJ (Case C-127/05) on 21 March 2005. An oral hearing at the ECJ in Luxembourg took place on 13 September 2006 and an Opinion, favorable to the UK, was delivered by the Court's Advocate General on 18 January 2007. This is the end of the proceedings: There is no appeals procedure.

3. The EC's claim (as reproduced in the Official Journal) is that the Court should declare that:

"In restricting the duty upon employers to ensure the safety and health of workers in every aspect related to the work to a duty to do this 'so far as is reasonably practicable', the United Kingdom has failed to fulfil its obligations under Articles 5(1) and 5(4) of Council Directive 89/391/EEC of 12th June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work."1

4. The EC's complaint is based upon section 2(1) of the Health and Safety at Work etc. Act 1974 which states that it shall be the duty of every employer to ensure 'so far as is reasonable practicable' (SFAIRP) the health, safety and welfare at work of all his employees. The EC considers the SFAIRP qualification placed upon the employers' duty is incompatible with Articles 5(1) and 5(4) of the Directive.

5. The Framework Directive Article 5(1) imposes 'a duty to ensure the health and safety of workers in every aspect related to the work'. Article 5(4) provides that the Directive "shall not restrict the option of Member States to provide for the exclusion or the limitation of employers' responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care."

6. The UK did not accept that it has failed to properly implement the Framework Directive. The UK believes that the wording of s2 (1) of the HSWA, as interpreted by the UK courts, achieves the aims of the article. Furthermore, this is demonstrated by the UK's health and safety performance record, which is among the best in Europe.

7. The 'so far as reasonably practicable' wording has been a long standing feature of English law and predates even the Health and Safety at Work etc. Act 1974 (HSWA). It introduces flexibility into the law and contrasts with some other Member State legal systems where the law is written in absolute terms but courts can apply flexibility and proportionality in their judgements. There is a strong body of case law, such as Edwards v National Coal Board 1949, (which revolved around whether it was reasonably practicable to prevent any possibility of a rock fall in coal mines) on which its current interpretation is now based.

8. Great Britain's achievements in health and safety performance are commendable on an international basis. Though some care is needed when making comparisons between countries, the EU has published the chart, reproduced in Figure 3 below, showing the annual rate of workplace fatalities in 15 Member States (2003 figures). On this basis Great Britain has the lowest rate of 1.1 per 100,000 workers compared with the EU average of 2.5.

1 http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2005/c_143/c_14320050611en00180019.pdf
Figure 3. EU comparisons for rate of fatal injuries

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