Commission of the European Communities v United Kingdom  (C/127-05)
In this case, the Commission tried to attack the UK’s use of the term ‘so far as reasonably practicable’ on the grounds that its use was a breach of Art 5 of the Framework Directive
By way of background, it is helpful to know that the Framework Directive (Directive 89/391) was aimed at encouraging the health and safety of workers. It sets the framework for later detailed ‘daughter’ health and safety directives which have collectively become known as ‘the Six Pack’.
Art 5 of the Framework Directive says,
“1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.
2. Where, pursuant to Article 7 (3), an employer enlists competent external services or persons, this shall not discharge him from his responsibilities in this area.
3. The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.
4. This 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.
Member States need not exercise the option referred to in the first subparagraph.”
The court decided that Article 5(1) set out a general duty of safety without specifying any form of liability. It followed therefore that the rejection of the UK and Ireland’s proposals to incorporate the words “so far as is reasonably practicable” into the text of the Directive did not mean that the intention of the Community was to impose liability upon employers whether or not they were at fault.
The point was further made that the objectives of the Framework Directive could be achieved without imposing a blanket no fault liability upon employers.
It followed that the commission had not proved its case.
Here is what the court said,
“As A.G. Mengozzi observed at point AG82 of his opinion, it is apparent from the wording of that sub-paragraph that it is intended to clarify the scope of certain provisions of Directive 89/391 by explaining the margin of manoeuvre available to the Member States in transposing those provisions into national law. On the other hand, it cannot be inferred from that provision, on the basis of an interpretation a contrario , that the Community legislature intended to impose upon Member States a duty to prescribe a no-fault liability regime for employers.
Lastly, it must be held that the Commission has not shown in what respect the objective of Directive 89/391 , consisting in “the introduction of measures to encourage improvements in the safety and health of workers at work”, cannot be attained by means other than the setting up of a no-fault liability regime for employers.
It follows from the above that the Commission has not established, to the requisite legal standard, that, in excluding a form of no-fault liability, the disputed clause limits, in disregard of Art.5(1) and (4) of Directive 89/391 , employers’ responsibility.
The extent of the duty on employers to ensure the safety and health of workers
Secondly, it is necessary to analyse the Commission’s complaint inasmuch as it alleges that the United Kingdom did not correctly transpose Art.5(1) of Directive 89/391 as regards the extent of the general duty on employers to ensure the safety and health of workers.
In that regard, although the Commission submits that the duty on the employer is absolute, it expressly acknowledges that that duty does not imply that the employer is required to ensure a zero-risk working environment. In its reply, the Commission also acknowledges that, as a result of carrying out a risk assessment, the employer may conclude that the risks are so small that no preventive measures are necessary. In those circumstances, the key point, according to the Commission, is that the employer would remain responsible if an accident were to occur.
As is apparent from para. of this judgment, the Commission has not established that, in excluding a form of no-fault liability, the disputed clause limits, in disregard of Art.5(1) and (4) of Directive 89/391 , employers’ responsibility. Nor has it succeeded in establishing in what respect the disputed clause, which concerns employers’ criminal liability, can affect the extent of the employer’s general duty to ensure safety resulting from those provisions.
Although the disputed clause lays down a proviso to the employer’s duty to ensure the safety and health of workers in every aspect related to the work as regards what is “reasonably practicable”, the significance of the proviso depends on the precise content of that duty. With regard to the arguments put forward by the Commission set out in para. of this judgment, the Commission has not sufficiently clarified its interpretation of the content of that duty, apart from civil or criminal liability in the event of accident, and irrespective of the obligations stemming from Art.5(2) and (3) and Arts 6 to 12 of Directive 89/391 . Consequently, the Commission has not established in what way the disputed clause, considered in the light of the national case law cited by both parties, infringes Art.5(1) and (4) of Directive 89/391 . …
Consequently, it must be held that the Commission has not established that the disputed clause limits, in disregard of Art.5(1) of Directive 89/391 , the duty of employers to ensure the safety and health of workers. It follows that the failure to fulfill obligations has not been made out as regards that second part of the complaint either.
Having regard to all the foregoing considerations, it must be concluded that the Commission has not established to the requisite legal standard that, in qualifying the duty on employers to ensure the safety and health of workers in every aspect related to the work by limiting that duty to what is reasonably practicable, the United Kingdom has failed to fulfil its obligations under Art.5(1) and (4) of Directive 89/391.”
The upshot: if the implementation of s47 HSWA 1974 does take the ‘reasonably practicable’ route it will be difficult to argue that this breaches the Framework Directive: however, there may be scope for arguing in a given case that the use of the reasonable practicability defence may not be an act of appropriate transposition in the implementation of the daughter Directives provided it can be shown that the objective of those Directives was defeated by the granting an employer that particular defence.
Importantly, it was said in CEC v UK 2007 that Art.5(4) of the Framework Directive set out the margin of manoeuvre which was available to the Member States when they were transposing the Directive into national law.
There are two approaches to this –
(a) you might say that Art 5(4) sets out the only grounds for avoiding full compliance – an approach which seems hinted at in Hide v The Steeplechase Company Ltd  EWCA Civ 545; or
(b) you might say that Art 5(4) sets out an extra option in addition to the flexibility offered in the process of transposition. This appears to be what the ECJ was saying.