Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland: (Case C-127/05)

ECJ: President of Chamber A Rosas, Judges A Tizzano, A Borg Barthet, U Lõhmus and A Ó Caoimh, Advocate General P Mengozzi: 13 September 2006

The Commission of the European Communities took the view that section 2(1) of the Health and Safety at Work etc Act 1974, which imposed a duty on every employer "to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees", represented an incorrect implementation of article 5(1) of Council Directive 89/391/EEC in that it unduly limited both the general duty of safety to which employers were subject and the no-fault liability which, in the Commission's submission, article 5(1) imposed on employers in the event of an accident, subject only to the force majeure provision in article 5(4) which was to be narrowly interpreted.

The Commission applied to the Court of Justice for a declaration that, by so restricting the duty on employers the United Kingdom had failed to fulfil its obligations under article 5(1) and (4) of the Directive.

The Court of Justice held:
Article 5(1) of Directive 89/391 simply embodied the general duty of safety to which employers were subject, without specifying any form of liability, and therefore did not require the imposition of no-fault liability on employers. The Commission had not indicated in precisely what way it alleged that the "so far as is reasonably practicable" clause offended against the duty on employers required by the Directive; and, since, therefore, the Commission had not established that the "so far as is reasonably practicable" clause limited, in disregard of article 5(1) and (4) of the Directive, either employers' responsibility, by excluding a form of no-fault liability, or the duty of employers to ensure the safety and health of workers, it had not established that the United Kingdom had failed to fulfil its obligations under article 5(1) and (4) of the Directive.

The application was dismissed.

Appearances: M-J Jonczy and N Yerrell for the Commission; David Anderson QC and David Barr (Solicitor, Department of Work and Pensions).