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A reminder from the Supreme Court of the effect of the Framework Directive. Lord Reed and Lord Hodge said,

The Framework Directive
74. We turn next to the issues of substantive law which are raised in the appeal. Before considering the regulations which were relied upon, it is helpful to consider their background in EU law, partly because the regulations have to be construed as far as possible so as to give effect to EU law, and also in view of the Extra Division’s criticism of the Lord Ordinary’s remarks about the direction of the law being to level safety upwards.

75. Article 153 of the Treaty on the Functioning of the European Union requires the EU to support and complement the activities of the member states in a number of fields, including “improvement in particular of the working environment to protect workers’ health and safety”, and permits the European Parliament and Council to adopt Directives for that purpose. It is clear from the case law of the Court of Justice that article 153, and in particular the concepts of “working environment”, “safety” and “health”, are not to be interpreted restrictively: see, for example, United Kingdom v Council of the European Union (Case C-84/94) [1996] ECR I-5755, para 15.

76. It was under the predecessor of article 153, namely article 118a of the EEC Treaty, that the Council adopted Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (“the Framework Directive”). In the preamble, the recitals refer repeatedly to improving safety and health in the working environment, and to harmonising the relevant national laws, so that competition is not at the expense of safety and health. As the Lord Ordinary correctly stated, safety is to be levelled upwards.

77. As we shall explain, the Framework Directive provides a basis for “daughter” Directives addressing particular aspects of health and safety at work. It is necessary to refer to only a few of the articles of the Framework Directive itself.

Article 1(1) states that the object of the Directive is to introduce measures to encourage improvements in the safety and health of workers at work. To that end, according to article 1(2), it contains general principles and general guidelines for the implementation of those principles.

Article 1(3) provides that the Directive is without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work.

Under article 4(1), member states are required to take the necessary steps to ensure that employers and others are subject to the legal provisions necessary for the implementation of the Directive.

78. Article 5(1) provides that the employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.

Article 5(4) permits member states to provide for the exclusion or 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.”

79. Article 6(1) provides that, within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, and shall “aim to improve existing situations.”

80. Article 6(2) sets out the general principles of prevention which are to form the basis of the measures taken under paragraph 1. They include:
“(a) avoiding risks;
(b) evaluating the risks which cannot be avoided; …
(h) giving collective protective measures priority over individual protective measures; and
(i) giving appropriate instructions to the workers.”
These principles are fundamental to the panoply of “daughter” Directives, and to the legislation transposing them into domestic law. Where possible, risk is to be avoided rather than reduced; means of collective protection are to be preferred to means of individual protection (such as PPE); and merely giving instructions to the workers is to be the last resort.

81. Another fundamental principle is the assessment of risk. That principle is set out in article 6(3)(a), and is especially relevant to the present case. It requires the employer to “evaluate the risks to the safety and health of workers”, and provides that “Subsequent to this evaluation and as necessary, the preventive measures and the working and production methods implemented by the employer must:- assure an improvement in the level of protection afforded to workers with regard to safety and health”.

82. Finally, in relation to the Framework Directive, article 16(1) requires the Council to adopt individual Directives in the areas listed in the annex, including “personal protective equipment”. In terms of article 16(3), the provisions of the Framework Directive are to apply in full to all the areas covered by the individual Directives, without prejudice to more stringent or specific provisions contained in those Directives.

Emphasis added. Edited for ease of reading.

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