Britain fails to restrict health and safety legislation

BRITAIN might have substantially expanded the scope of EU action on health and safety instead of restricting it, Commission sources were saying yesterday. "They have shot themselves in the foot," one official claimed

The European Court of Justice made clear in its ruling on the Working Time Directive that it accepted a broad interpretation of the concepts of health and safety.

This clarifies previous ambiguities about the clause and would in theory, allow the Commission to propose wide-ranging workplace legislation for approval by the Council of Ministers under a treaty clause (Article 118A) that allows for majority instead of unanimity voting.

Sources close to the Commissioner for Social Affairs, Mr Flynn, made clear, however, yesterday that they have no plans to do so.

The judgment, with resonances of the ruling of the Irish Supreme Court in the "X" case, accepted a definition of health from the World Health Organisation as being implicit in the EC Treaty: "a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity".

Britain had contended that health and safety in the workplace should refer to employments which were clearly physically dangerous, such as mining or work in oil rigs. Legislation for the "normal" workplace was unnecessary and anti-competitive.

The court found against Britain, that the legal base of the directive was well founded, that the measures being taken were proportionate to their end, that the Council of Ministers had not exceeded its powers or infringed essential procedures.

It found in Britain's favour that the Council of Ministers had not established a link between the health of workers and the directive's requirement that the mandatory weekly continuous rest period of 24 hours should "in principle" include Sunday.

The reference to Sunday was therefore removed from the legislation - ironically it had not been present in the Commission's original proposal but had been inserted at German insistence.

The court, sitting as a grande chambre of 13 judges, ordered Britain to pay the costs of the action, although Belgium, Spain and the Commission, which also participated in the hearings, will have to pay their own costs.

The court emphasised that its function was not to review the worth of legislation but its legality. And, where the principal aim of legislation was clearly in line with the protection of health and safety, it found that Article 118A could be used as a legal base even if the legislation had other ancillary effects on the establishments and functioning of the internal market.

It found that the wording of Article 118A cannot be given a restrictive interpretation.

On the issue of proportionality, the court found that in the sphere of the protection of the health and safety of workers the minimum requirements of the Council of Ministers may go beyond the lowest level of protection established by the member states.

Crucially, in this regard, the Council "must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments.

Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion".

On examination of the individual provisions, with the exception of the reference to Sunday, the court found that the Council had not exceeded the limits of its discretion.

The European Court of Justice, based in Luxembourg, is the EU's court and functions primarily in adjudication on the treaties of the community and disputes between member states and the institutions.

The court does report on the size of majorities.