General principles of EU OSH legislation

Introduction

The European Union sets legislation in the form of directives, based on the legal foundation established in Article 153 of the Treaty on the Functioning of the European Union. EU legislature has established a system of basic principles of safety and health management, which must be transposed into national law by the Member States. Thus the principles are applicable in all Member States of the European Union. In 2017, safety and health of the workers was acknowledged as one of the key principles in the Commission recommendation on the Pillar of Social Rights. ^[1]

The most important legal act is the European Framework Directive (1989/391/EEC), which establishes general principles for managing safety and health, such as responsibility of the employer, rights and duties of the workers, using risk assessments to continuously improve company processes, and workplace health and safety representation. All subsequent Directives within the meaning of Article 16 (1) of the Framework Directive follow these common principles.

As one of the first fields of EU legislation, the practical implementation of the Framework Directive and 23 further OSH Directives was evaluated. As one key finding, the evaluation report confirms that, “the goal-orientated approach enshrined in the Framework Directive and in the common processes and mechanisms is relevant, works effectively, and provides a clear overall structure for implementing OSH management." The evaluation report gives recommendations on the further development of the EU-OSH legislation, especially with regards to new and emerging risks and the coherence between prescriptive and goal-oriented provisions. ^[2]

The system of EU OSH legislation

The European Union enacts Directives in the field of occupational safety and health (OSH) based on the legal foundation of Article 153 of the treaty on the functioning of the European Union. ^[3] The European Directives are transposed into national law by the legislatures in each Member State. The European Directives on OSH set minimum standards for protecting workers. Member States may exceed those standards when transposing the Directives, but they may not lower existing ones. It is Council Directive 1989/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (generally referred to as the "Framework Directive") that states there is no justification for reducing existing protection levels in individual Member State. ^[4]

EU legislation has established a homogenous system of basic OSH management principles, which are more closely described in the Article What are occupational safety and health management systems and why do companies implement them? These management principles are applicable EU wide. Previously, each EU Member State had its own system to regulate OSH.

The common principles were introduced by Directive 1989/391/EEC.^[1] They were specified further by nineteen individual directives or daughter Directives, based on Article 16 (1) of the Framework Directive. Last but not least, there are other specific EU Directives, which are not based on the Framework directive, but have direct and indirect impact on OSH.

Council Directive 1989/391/EEC - The "Framework" Directive

Directive 1989/391/EEC) is often referred to as the “Framework Directive" and the 'basic law' on occupational safety and health in the EU. ^[5] It established the instrument of risk assessment in European OSH legislation, which, when it was adopted in 1989, was a revolutionary principle for the legal systems and OSH management systems of many countries OSH Management and organisation. Instead of merely complying with prescriptions and limit values, employers can decide on improvement measures that best meet the risk profile of the company. The Framework Directive can thus be considered a milestone for workplace prevention measures Occupational safety and health risk assessment methodologies. Further important provisions of the Directive are:^[5][6]

• Establishing an equal level of safety and health for the benefit of all workers. However, domestic workers, certain public and military services, and self-employed are exempt.
• Ascribing responsibility to employers for preventing ill-health at work; obliging employers to take appropriate measures to make work safer and healthier.
• Defining role and key elements of risk assessment, such as hazard identification, workers participation, adopting adequate measures (with the priority of eliminating risk at source), documentation and periodical re-assessment.
• With the new obligation for prevention processes in the companies, the Directive implicitly raises the question for new forms of safety and health management as part of general management processes.

The individual OSH Directives within the meaning of Art. 16 (1) – overview

There are single Directives (sometimes referred to as 'daughter Directives') that set out the principles and instruments of the Framework Directive with regards to specific hazards at work (e.g. exposure to dangerous substances, or physical agents), single tasks (e.g. manual handling of loads, working with visual display units), different workplaces of elevated risk (e.g. temporary work sites, extractive industries, fishing vessels). It also considers how these factors combine for sensitive workers, such as pregnant women and breastfeeding mothers. The individual Directives define how risks are to be assessed, and the setting and measuring limit of values at the workplace. Article16 paragraph 3 of the Framework Directive states that its general provisions shall apply in full to all the areas covered by each individual Directive.^[1]

The 19 individual Directives within the scope of Article16 paragraph 1 of the Framework Directive which are currently in force are: (for further information, please visit the legislation section of the EU-OSHA web site^[7])

• Directive 1989/654/EEC on minimum safety and health requirements for the workplace: The object of this Directive is to introduce minimum measures designed to improve the working environment, in order to guarantee a better standard of safety and health protection (first individual Directive) ^[8];

• Directive 2009/104/EC concerning the minimum safety and health requirements for the use of work equipment by workers at work which repealed Directive 89/655/EEC (second individual Directive) ;^[9]

• Directive 1989/656/EEC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace: This Directive lays down minimum requirements for the assessment, selection and correct use of personal protective equipment (third individual Directive); ^[10] See also: PPE;

• Directive 1990/269/EEC on minimum safety and health requirements for the manual handling of loads involving risk: This Directive shall ensure that workers are protected against the risks involved in the manual handling of heavy loads especially contribute to the prevention of musculoskeletal disorders (forth individual Directive);^[11] See also Risk factors for musculoskeletal disorders in manual handling of loads;

• Directive 1990/270/EEC on minimum safety and health requirements for work with display screen equipment: The aim of this Directive is to implement specific minimum measures to ensure the safety and health of workers using display screen equipment (fifth individual Directive);^[12] See also:Musculoskeletal disorders in visual display unit (VDU) tasks;

• Directive 2004/37/EC on the protection of workers from risks related to the exposure to carcinogens and mutagens: This Directive sets out the minimum requirements for protecting workers who have been exposed to carcinogens and mutagens (sixth individual Directive);^[13] See also: Carcinogenic, mutagenic, reprotoxic (CMR) substances;

• Directive 2000/54/EC on the protection of workers from risks related to exposure to biological agents at work: This Directive is designed to establish specific minimum requirements designed to guarantee a better standard of safety and health for workers exposed to biological agents at work (seventh individual Directive);^[14] See also: Biological agents;

• Directive 1992/57/EEC on the implementation of minimum safety and health requirements at temporary and mobile work sites: This Directive aims at promoting better working conditions in the construction sector (building and civil engineering) ^[15]Health in the Construction Industry (eighth individual Directive);

• Directive 1992/58/EEC on the provision of health and safety signs at work introduces an harmonized system of safety signs that shall help to reduce the risk of accidents at work and occupational diseases (ninth individual Directive);^[16]

• Directive 1992/85/EEC on the protection of pregnant women, women who have recently given birth and women who are breastfeeding establishes guidelines for assessing the risks related to specific tasks, movements and postures (e.g. heavy lifting, handling loads, night work), related to the exposure to chemical, physical and biological agents, and to physical and mental stress which are considered to be particularly dangerous for pregnant or breastfeeding women and their child (tenth individual Directive); ^[17] See also: New and expectant mothers;

• Directive 1992/91/EEC concerning the minimum requirements for improving the safety and health protection of workers in the mineral- extracting industries through drilling: The object of this Directive is to improve the safety and health conditions of workers in the extractive industries concerned with exploration for and exploitation of minerals by means of boreholes (onshore and offshore), with a higher than average risk (eleventh individual Directive); ^[18]

• Directive 1992/104/EEC on minimum safety and health protection of workers in the surface and underground extractive industries: This Directive aims primarily to improve the safety and health protection of workers in the surface and underground extractive industries which is considered to be a sector of elevated risk for the workers’ health (twelfth individual Directive); ^[19]

• Directive 1993/103/EC concerning the minimum safety and health requirements working on board of fishing vessels: The Directive sets out minimum practical measures with a view to encouraging an improvement in the health and safety of workers on board fishing vessels (thirteenth individual Directive) ^[20] See also: Accident prevention in fisheries;

• Directive 1998/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work: The aim of this Directive is to lay down minimum requirements for the protection of workers from risks to their safety and health arising, or likely to arise, from the effects of chemical agents that are present at the workplace or as a result of any work activity involving chemical agents (fourteenth individual Directive);^[21] see also: Dangerous substances (chemical and biological);

• Directive 1999/92/EC on the protection of the health and safety of workers from the risks from explosive atmosphere: This directive establishes and harmonize minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (fifteenth individual Directive);^[22] see also: Prevention of fires and explosions;

• Directive 2002/44/EC on the protection of the health and safety of workers from the risks arising from the exposure to mechanical vibration: This Directive aims to improve the protection of workers against the risks arising from exposure to mechanical vibration by laying down minimum requirements with regard to the protection of health and safety vibration (sixteenth individual Directive);^[23] see also: Vibration, Risk factors for musculoskeletal disorders development: hand-arm tasks, repetitive work

• Directive 2003/10/EC on the protection of the health and safety of workers from the risks arising from the exposure to noise. This Directive lays down minimum requirements for the protection of workers against the risks resulting from exposure to noise, and notably risks to hearing (seventeenth individual Directive);^[24] See also: Noise;

• Directive 2006/25/EC on the protection of the health and safety of workers from the risks arising from the exposure to artificial optical radiation: This Directive lays down minimum harmonized requirements for the protection of workers against the risks arising from exposure to artificial optical radiation (nineteenth individual Directive);^[25] See also: Introduction to UVR at work (e.g. UVA, laser, etc.);

• Directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) ^[26]: This Directive is the 20th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC and repeals Directive 2004/40/EC on electromagnetic fields which used to be the eighteenth individual Directive.^[27] It establishes minimum requirements concerning the protection of workers from the risks arising from exposure to electromagnetic fields and waves Electromagnetic fields.

Further Directives with OSH relevance – overview

The system of the protection of the safety and health of workers is completed by other relevant Directives which are not based on Article16 paragraph 1 of the Framework Directive whose provisions are mainly aimed at technical aspects of OSH. The provisions of the Framework Directive 1989/391/EEC also apply unless other more specific provisions exist (lex specialis). The legal basis of the mentioned Directives is also Art. 153 TFEU^[3].

The following Directives are also relevant to aspects of OSH (for further information, please visit the legislation section of the EU-OSHA web site^[7]:

• Directive 1991/383/EEC supplementing measures to encourage OSH improvements for workers with fixed-duration employment contracts or temporary workers,^[28] see also: Temporary Workers.

• Directive 1994/33/EC on the protection of young people at work.^[29] The Directive establishes stricter rules for the effective protection of workers under eighteen years of age. See also: Young workers.

• Directive 2003/88/EC concerning certain aspects of the organisation of working time^[30]. Directive 2003/88/EC applies to rest time, holidays and shift work. Further Directives on the working time of seafarers and drivers are Directive 1999/63/EC,^[31] Directive 2002/15/EC^[32] and Dir 2005/47/EC.^[33] See also: Working time.

• Directive 2009/148/EC on the protection of workers from the risks related to exposure to asbestos at work^[34], see also: Asbestos.

• Directive 2010/32/EU on the prevention from sharp injuries in the hospital and healthcare sector which implements a Framework Agreement by the social partners.^[35] See also: Prevention of sharp injuries.

• Directive 2013/59/Euratom, which is based on the treaty establishing the European Atomic Energy Community, lays down basic and uniform safety standards for protecting workers and the general public against the dangers arising from ionising radiation (see: ^[7][36]Ionising radiation at workplaces). It repealed the old Directive 1996/29/Euratom.^[37]

Legislation on product safety and market harmonisation with OSH relevance

There are other Directives and Regulations relevant to OSH which derive from the market harmonisation competence of the EU. Those Directives and Regulations mainly aim at the general technical safety of products and are based on Art. 114 TFEU. European legislation in this field follows the so-called “New Approach". In a first step, the European Union issues provisions that set the frame in relation to product safety. Subsequently, the European Standardisation Organisations receive a mandate for issuing technical standards. These standards ensure the compliance with the legislative requirements. In 2008, the New Approach was revised and new rules of market surveillance and product compliance came into force. The Commission subsequently issued a set of new Directives and Regulations on product safety and market harmonisation as part of the “New Legislative Framework", replacing older Directives. ^[38]

OSH is one aspect of the Directives and Regulations on product safety (e.g. besides consumer protection and free circulation of goods) and because of the special exposure of the workers a very sensitive field of their application. Especially Directive 2006/42/EC^[39] on machinery safety as well as Regulation 2016/425 on personal protective equipment (PPE) ^[40] are highly relevant. Further examples are the Directives on pressure equipment and presseure vessels ^[41] and the Regulation (EU) No. 305/2011 on construction products. ^[42] They establish safety standards on products which are frequently used by workers at their workplace. In cases of overlapping provisions the provisions of the OSH Directives must be treated as legis specialis. ^[43]

Also with regard to dangerous substances at the workplace the REACH and CLP Regulations have implications that employers should be beware of. The REACH Regulation (EC) No.1907/2006 ^[44] introduces a new safety sheet containing information from the registration process during which risks associated with each use of the substance have to be evaluated. The data sheet contains information on the properties, the safe use and risk management of the chemical substance. The safety sheets are provided by importer, manufacturers and suppliers of the substances and the information must be respected by the employer when workers handle the substance e.g. in the workplace risk assessment or in training measures REACH effects/impact on workplaces. The CLP Regulation (EC) No.1272/2008^[45] transposes the UN globally harmonised standard (GHS) and introduces new rules on the classification, labelling and packaging of substances and mixtures. Substances and mixtures are categorised in hazard categories. The provisions have immediate implications for the safety data sheets, risk management measures and the safe handling of dangerous substances at the workplace Labelling of chemicals.

More information on the Directives and Regulations on product safety and chemical safety can be retrieved from the legislation entry point of the EU-OSHA. ^[7]

Common terms and principles of EU OSH legislation

The scope of the OSH legislation

EU OSH legislation is built around the terms 'working environment' and 'health'. Both terms are not defined in the EU legislation itself but important for the context and understanding.

The term 'Working environment' derives from the Scandinavian OSH tradition and was introduced in the negotiations on European Social Policy by the Danish delegation. It goes beyond the prevention of work related accidents and sickness and includes the humane design of work processes and work organisation and aspects of health promotion. The European Court of Justice (ECJ) acknowledged this broad interpretation in the judgement C-84/94 of 12 Nov.1996.^[43]

'Health' is also acknowledged by the ECJ in the same decision^[43] in the definition of the World Health Organisation (WHO) as the 'state of complete physical, mental and social well-being and not merely the absence of disease or infirmity'.^[46]

Terminology

In Article 3, the Framework Directive defines various terms which are essential for understanding of the European legislation on OSH.^[1]

a) The worker: A Worker is any person employed, including trainees and apprentices, but excluding domestic workers and self-employed persons.
b) The employer: The Employer is any natural or legal person who has an employment relationship with a worker and has responsibility for the undertaking and/or establishment.
c) Workers' representative with specific responsibility for the safety and health: A workers' representative with specific responsibility for the safety and health of workers is any person elected or designated in accordance with national laws / and / or practices to represent workers where OSH problems arise.
d) Prevention: Prevention means all steps or measures taken or planned at all stages of work in the undertaking to prevent or reduce occupational risks.

The principals of OSH management (esp. risk assessment)

The risk assessment Occupational safety and health risk assessment methodologies is a core OSH management process, which resulted from the Framework Directive (Art. 6 paragraph 1 and Art. 9 paragraph 3 Dir 1989/391/EEC^[3]). Instead of merely complying with prescriptions and limit values, the employer can take improvement measures that meet best the risk profile of the tasks and workplaces in the company. With the introduction of the risk assessment, the chances for improving OSH in the work place have grown, but also the employer’s responsibility. The periodical risk assessment requires and fosters preventive measures and a continuous improvement process within the company. The aim is to get better each time. In order to ensure this, the Directive sets out principles to be observed when carrying out the risk assessment.

European legislation makes the employer responsible for prevention in the company. While single duties can be delegated to specialists, the overall responsibility cannot. "The employer shall have the duty to ensure the safety and health of the workers in every aspect related to the work" (Article 5 paragraph 1, Dir 1989/391/EEC^[3]) The role of legislation in occupational safety and health management

Risk assessment is the process of evaluating risks to workers’ safety and health from workplace hazards. It is a systematic examination of all aspects of work that considers: what could cause injury or harm, whether the hazards could be eliminated and, if not, what preventive or protective measures are, or should be, in place to control the risks.^[47] It is embedded in a continuous improvement circle, which follows the PDCA (Plan-Do-Check-Act) methodology What are occupational safety and health management systems and why do companies implement them?. It is a step-by-step approach, which requires continuity and frequent re-checking. Risk assessment, in its most literal sense, refers to the process of risk evaluation, ranking and classification.^[47] In a broader sense, it requires hazards and risks to be identified, as well as the risk control – i.e. taking adequate prevention measures. It also requires documentation and subsequent monitoring of measures. For more details, see the Commission Guideline^[47] and the OSH Wiki article on Occupational safety and health risk assessment methodologies.

As previously mentioned, risk assessment and risk management require defined processes and regularity. Risk assessment is not a stand-alone activity; rather, it should be done on a regular basis, and in cases that indicate a reassessment is required, such as^[47]:

• Checking prevention measures when former measures were found to be inadequate;
• When new state of the art risk assessment and control measures are available;
• Introducing new technology, organisation, or other activity that alters the workplace;
• Accidents or incidents (e.g. near misses) at the workplace;
• Complaints by workers or their representatives;
• Remarks made by national inspection authorities.

Hierarchy of prevention measures

The Framework Directive also establishes a hierarchy of measures for risk prevention in the company Hierarchy of prevention and control measures, Hierarchy of controls applied to dangerous substances which is also known as the 'general principle of prevention'^[1] and consists of:

• avoiding risks;
• evaluating the risks which cannot be avoided;
• combating the risks at source;
• adapting work to the individual, especially regarding workplace design, choice of work equipment and working/production methods; the aim is to alleviate monotonous work and predetermined work-rates, and to reducing their effect on health;
• adapting to technical progress;
• replacing dangerous activities with non/less dangerous;
• developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships, and the working environment;
• prioritising collective protective measures over individual ones;
• giving staff appropriate instructions.

Hence, the employer must first consider how to avoid or eliminate risk at source. If this is not possible, technical or organisational means shall be used to limit the risk, before taking individual measures (e.g. providing personal protection equipment or staff training).

Training

Directive 1989/391/EEC also defines general legal requirements for staff training In its provisions on the general obligations of the employers Article 6 says^[1]: ‘Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.’ Article 12 gives details how and when the training should be provided and who should be included OSH training.

Training is not only the responsibility of the employer. Directive 1989/391/EEC also sets out a number of workers’ obligations (Article 13).^[1] Each worker shall be responsible as far as possible for taking care of their own safety and health and that of others affected by their acts or omissions at work, in accordance with the training and instructions given by the employer.

As previously mentioned, training is subordinate to other prevention measures in the hierarchy of general prevention principles. However, OSH experts consider training as complementary to control measures because prevention measures must be explained to the workers as the target group. They should be involved in discussion and testing, see also: Hierarchy of prevention and control measures.

Health surveillance

Article 14 of the Framework Directive^[1] obliges the employer to ensure that 'all workers receive health surveillance appropriate to the health and safety risks they incur at work.' It is left up to national transposition and national legislation to ensure that an adequate system of health surveillance is established. In addition to regular checks, the Directive gives workers the right to ask for health surveillance.

While the Framework Directive is rather vague on this point and leaves it up to the Member States, some daughter Directives have established requirements, limit values and measures for the health surveillance of workers, which must be respected by the Member States when transposing them into national law.

• An example of this is Article10 of Dir 1998/24/EC,^[2] which establishes such rules for workers handling chemical agents. Annex II of the Directive^[2] as well as Dir 2000/39/EC^[48], Dir 2006/15/EC^[49], Dir 2009/161/EU^[50], Dir 2017/164/EU ^[51] and Dir 2019/1831/EU ^[52] set out limit values; see also: Occupational exposure limit values.
• Another example is Article 14 of Dir 2000/54/EC which requires vaccinations of workers who are exposed to biological hazards, ^[3] see also: Prevention of sharp injuries, and Biological agents.

For a complete overview on the Directives that make reference to health surveillance and their requirements, please consult: Health screening and surveillance.

The participation of the workers

The Framework Directive sets out various ways for workers to participate in OSH. Article11 details two forms of participation:

• Consultation of workers or their representatives in paragraph 1;
• Consultation of workers or their representatives with specific responsibility for the safety and health of workers (paragraph 2).

The Framework Directive does not define the form of representation. This European law leaves it to the national legislature and to the traditions of collective bargaining to find adequate forms of representation. It is up to national law to decide whether workers should be informed (or only their representatives). Hence, the details of the participation in the context of Article11, paragraph 1, differ significantly across EU Member States^[53]

Article 11 (1) also obliges the employer to consult worker representatives or the workers directly in case that no representation is established. It also allows workers to take part in OSH discussions. Workers and their representatives also have the right to make proposals. (Occupational safety and health management systems and workers’ participation, Methods and effects of worker participation).

Article 3c of the Framework Directive introduces the function of the safety and health representative as a worker representative on OSH issues. A worker representative with specific OSH responsibility can either be elected, chosen or designated, in accordance with national laws or representation practices. Consequently, participation in the context of Article 11, paragraph 2 also differs across EU Member States^[53][54] (Methods and effects of worker participation).

Directive 1989/391/EEC does not explicitly oblige employers to allow workers (or their representatives) to participate in the risk assessment. However, it is strongly recommended by OSH experts and the European Commission to generally involve the workers concerned by the risk assessment as well as their representatives, ^[47][55] as effective risk prevention may require the participation and expertise of the workers concerned to correctly assess the risks (Occupational safety and health risk assessment methodologies).

Finally, the employer is obliged to inform the workers about the risks at work and the protection and prevention measures (Article 10), and provide them with the results of the risk assessment (Article 6).^[5]

These forms of participation also apply to the individual directives within Article16 of Directive 1989/391/EEC (see overview ^[7]).

The obligations of the workers

As previously mentioned, the Framework Directive sets out a list of workers’ obligations (Article 13). ^[1] These obligations shall ensure that workers contribute to their own safety and the safety of the co-workers by respecting rules, practices and prevention measures set out by the employer. The labour inspectorate can impose a fine on workers who do not comply, in accordance with national legislation (for example in Austria: ^[56]).

In general, workers must follow the OSH training and instructions given by the employer, such as ^[57]:

• correctly using equipment, tools or substances, related to their work;
• using personal protective equipment when indicated;
• not arbitrarily changing or removing safety devices;
• informing the employer of situations or incidents that pose a danger;
• cooperating with the company’s safety experts.