EUROPEAN COMMISSION

Brussels, 10.1.2017

SWD(2017) 10 final

COMMISSION STAFF WORKING DOCUMENT

Ex-post evaluation of the European Union occupatinal safety and health Directives
(REFIT evaluation)

Accompanying the document

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

Safer and Healthier Work for All - Modernisation of the EU Occupational Safety and Health Legislation and Policy

{COM(2017) 12 final}
{SWD(2017) 9 final}

Commission Staff Working Document

Ex-post evaluation of the EU occupational safety and health Directives

(REFIT evaluation)

EXECUTIVE SUMMARY    

1.    INTRODUCTION    7

1.1.    Purpose of the evaluation    7

1.2.    Scope of the evaluation    8

2.    BACKGROUND TO EU OSH FRAMEWORK    8

2.1.    Baseline    8

2.2.    Key pillars of the EU OSH Framework    9

3.    EVALUATION CRITERIA AND QUESTIONS    11

4.    METHOD    12

4.1.    Methodology    12

4.2.    Limitations – robustness of findings    13

5.    TRANSPOSITION AND IMPLEMENTATION STATE OF PLAY    16

5.1.    Transposition    16

5.2. Implementation    18

6.    ANSWERS TO THE EVALUATION QUESTIONS    27

6.1. Relevance    27

6.2    Effectiveness    32

6.3.    Efficiency – Assessment of costs, benefits and broader effects    48

6.4    Coherence    60

6.5    EU added value    67

7.    CONCLUSIONS AT EU AND NATIONAL LEVEL    69

Annex 1 - Procedural information    77

Annex 2 - Stakeholder consultation    80

Annex 3 - Methods and analytical models used in preparing the evaluation    89

Annex 4 - Analytical Annex (effectiveness and efficiency)    92

Annex 5 - List of EU OSH Directives under ex-post evaluation    100

Annex 6 - Relevant non-OSH EU legislation    103

Annex 7 - Coherence with EU non-OSH legislation    104

Annex 8 - OSH Glossary    106

Annex 9 - The EU Occupational Health and Safety Legislation intervention logic    110

Annex 10 - Summary of the findings based on the Country Summary Reports    111

Annex 11 – Summary of the findings of the evaluation for OSH Directives    195

EXECUTIVE SUMMARY

Occupational safety and health (OSH) forms an integral part of the European labour market. It is an important element of the European social protection structure. In the context of European integration and realisation of the internal market, a common framework was established through Directive 89/391/EEC (Framework Directive) aiming at securing a minimum level of protection from work-related health and safety risks for the workers of all Member States. This framework built on the existing systems at the time and laid down important common principles of prevention, risk assessment, information, training etc. It established minimum protection levels while allowing Member States to go further if so desired. Building on these common principles, 23 further Directives have been adopted dealing with specific risks and situations. Together this set of rules constitutes the OSH framework.

The Commission is required to regularly evaluate the implementation of the OSH framework. This evaluation report draws from a number of elements, including an independent study, National Implementation Reports (NIRs) from all Member States and numerous consultation mechanisms involving independent experts, inspectors and representatives from industry, workers and Member States. The value of occupational safety and health interventions has to be considered in the light of which interventions at which level are most useful. This exercise also forms part of the Commission's Regulatory Fitness (REFIT) Programme with a special focus on SMEs. The REFIT Programme focuses on efficiency, effectiveness and legislative simplification including avoiding unnecessary regulatory burden.

In overall terms, the evaluation suggests that EU OSH legal framework remains relevant. Ideally, in order to evaluate the full impact of the framework, an assessment would have had to be made at the time of the changes in national law and practice required by the adoption of the directives along with EU-wide monitoring arrangements to check on progress, possibly with additional counter-factual analysis to ascertain what would have been the development across the Member States in its absence. This was not possible due to the lack of a robust 'comparison' group, the lack of prospective data design for the evaluation at the time of the adoption of the Directives as well as the difficulties in differentiating between the impact of the EU legislation and the national legislation as well as other factors (non-OSH legislation, technological progress, structural changes in the labour markets, socio-economic developments etc.).

Looking at the specific directives, the current levels of exposure to the different hazardous agents and the continued existence of previously identified risks still justify their need overall. The EU OSH framework in the EU has been transposed and implemented. The compliance is better in large establishments compared to SMEs and micro-establishments, and varies depending on the type of requirement considered.

On effectiveness, the statistical evidence shows that the incidence and the number of accidents at work have considerably decreased over the evaluation period 1 . The decrease is likely to have been influenced by other external factors and the contribution of the OSH framework to this decrease could not be quantified. However, the different stakeholders consulted expressed their views that the OSH Directives are achieving their aims and do contribute to improving the health and safety of workers. Indeed, the external study found that a majority of stakeholders believe the Directives are effective and the analysis of NIRs also suggests this is the case.

Despite the 9.8% reduction in the percentage of workers with (a) health problem(s) caused or made worse by work over the evaluation period 2 , work-related ill-health in the EU still remains high 3 , with almost 8% of workers suffering from work-related ill-health. In particular, and despite the EU OSH directive on carcinogens and mutagens, work-related cancer remains the first cause of work-related deaths 4 . There were calls from a host of stakeholders, including workers, Member States and some employers for an update of protection in this area also citing the need to catch up with international developments.

Assessment of efficiency is hampered by lack of systematic European monitoring data, and this data challenge needs to be taken into account in any future work and monitoring arrangements 5 .

As to the benefits of reduced levels of work related accidents and ill-health, literature studies suggest that there is indeed a business case for occupational health and safety interventions. Further data from the International Social Security Association assessed the return on prevention index for investments in occupational health and safety to be 2.2 6 . A study contracted by the Commission, assesses that the profitability index for OSH interventions was ranging between 1.29 and 2.89, with a benefit to costs ratio from 1.21 to 2.18 7 . However, the evaluation could not quantify the benefits generated by the EU OSH framework distinct from Member State legislation already in place or with more extensive coverage or providing a higher level of protection.

As to the costs of the EU OSH framework, the evaluation confirmed that on the basis of the available information, administrative and substantive compliance costs vary considerably across Member States and are presumed to be higher per employee in SMEs. Fostering further use of support tools and developing better guidance to enterprises, especially SMEs (in particular as regards the obligation to document the risk assessment) were identified as a possible solution to make complying with the existing legislation simpler (and less costly) for enterprises.

The evaluation also pointed to a number of issues related to the structure and scope of EU OSH framework.

The Framework Directive covers all workplaces and all risks and as such remains relevant. However, it is not always clear what role some of the provisions of the Framework Directive play where no more specific implementing provisions have been developed, particularly in the context of constantly changing organisational setting, technological developments and scientific advances. Consequently, there is a need to consider how to ensure clear, better understood and more effective outcomes from the application of the Framework Directive.

For example, there is a growing incidence of psychosocial risks and musculo-skeletal disorders (MSDs) in the workplace. While the scope of the EU framework covers these risks, the evaluation shows that considerable uncertainty remains over measures that may be appropriate to apply at the workplace or more broadly in society. It is also noted that MSDs and psychosocial risks are related to a complex interaction between occupational and non-occupational factors and therefore particularly challenging. Further analysis would be required to establish what type of action at what level, is needed and appropriate to improve the situation on the work floor.

The overall approach and structure of the OSH acquis was considered by stakeholders to be relevant for OSH management. There are no major inconsistencies between legal provisions and stakeholders raised concerns that any changes to the overall legal structure might have unintended consequences and potentially lead to higher burden for business and lower protection of workers. At the same time, in order to improve efficiency and effectiveness of the acquis the co-existence and complementarity of the Framework Directive and the individual directives could be better explained and clarified.

The six Common Processes and Mechanisms (CPMs) built into the OSH framework are central to its operation and designed to contribute to achieving overall health and safety objectives. The evaluation found that compliance with CPM's is reasonable but that the quality and the implementation of risk assessments and the management of risks should be further enhanced.

Regarding the personal scope, the evaluation of the OSH acquis pointed out that for most of the OSH Directives, some Member States implement more detailed or stringent requirements, with the result that the level of protection differs for some categories of workers such as domestic servants, self-employed persons and certain categories of vulnerable workers.

In terms of enforcement on the ground, the evaluation finds that there is a considerable degree of variation in the number and frequency of inspections across the Member States. Legal requirements combined with inspection are seen to be key determinants in explaining why establishments develop OSH policies and take OSH action, so there is a need to further examine the existing role and impact of Member State use of inspections and broader enforcement actions to target any appropriate future actions, either by the Member States or the EU, with respect to the role of inspection, competence building and guidance to inspectorates.

Finally, it is clear that there is limited data at EU level to assessing the effects, costs and benefits of the EU OSH framework showing the need for a better monitoring framework with appropriate indicators to measure performance. At the same time there is a common understanding that further reporting requirements can cause administrative burden on companies and administrations. A number of new methodologies, studies and tools are being developed to address this by the Commission and the European Agency for Safety and Health at Work (EU-OSHA).

1.    INTRODUCTION    

1.1.    Purpose of the evaluation

In the area of occupational safety and health ('OSH'), the Commission is required, every five years, to produce a single report based on a comprehensive evaluation of the practical implementation of the OSH framework, comprising Directive 89/391/EEC 8 hereafter "the Framework Directive", which is the main piece of legislation in this area, and of 23 related Directives 9 . This comprehensive reporting obligation was introduced by an amendment in 2007 of the Framework Directive 10 simplifying considerably the previous system of individual reports per Directive.

The evaluation draws on national reports from Member States on the practical implementation of the framework and covers specific consultations of social partners (trade unions and employers' organisations), including organisations representing SMEs. The aim is to take stock of the various aspects of the practical implementation of the Directives 11 and inform the other EU institutions and bodies of the results and any suggestions on how to improve the operation of the regulatory framework. The first report formally covers the period 2007 to 2012 but conclusions can in many cases be drawn to date.

In 2012, the Commission launched the Regulatory Fitness and Performance Programme ('REFIT') 12 which aims at the identification of burdens, inconsistencies, gaps and ineffective measures and the adoption of initiatives which result in significant regulatory cost reduction or simplification. This is in line with its "evaluate first" policy, whereby, in principle, the Commission will not examine proposals in areas of existing legislation until the regulatory mapping and appropriate subsequent evaluation work has been conducted 13 .

The Commission included the OSH ex-post evaluation in the REFIT Programme 14 which focuses on efficiency, effectiveness and legislative simplification including avoiding unnecessary regulatory burden. However, due to its broader scope and specific regulatory regime under the Framework Directive, the OSH evaluation covers a broader range of issues and aims at a wider evaluation of the legislation, including on relevance, research and new scientific knowledge. It has a special focus on SMEs.

1.2.    Scope of the evaluation

The ex-post evaluation covers the implementation of the OSH framework in 27 Member States 15 . The 24 Directives listed in Annex 5 are considered by this report while the following Directives are not included:

The Sharp Injuries Directive 2010/32/EU 16 is not covered by the evaluation as it does not contain the above-mentioned obligation to evaluate its implementation as laid down in the Framework Directive 89/391/EEC and related Directives;

The Electromagnetic Fields Directive 2013/35/EU ('EMF') 17 , which entered into force and repealed Directive 2004/40/EC from 29 June 2013 18 . The latter Directive was part of the comprehensive OSH ex-post evaluation system, but the Commission, prior to the expiry of its (prolonged) transposition period, decided to thoroughly reconsider some of its provisions on the basis of new scientific information produced by internationally recognised experts. Subsequently, the new EMF Directive was adopted, after the period covered by the evaluation.

2.    BACKGROUND TO EU OSH FRAMEWORK

This section presents a description of the EU OSH framework, its objectives and the problems it was intended to solve.

2.1.    Baseline 

Occupational safety and health is one of the EU’s longest standing priorities in the social field. Due to a lack of an explicit legislative competence in this area in the Treaty until the mid-1980s, occupational safety and health was seen as an accessory to market harmonisation and the economic policies of the European Economic Community (EEC). The first Directives were adopted on the basis of the general market harmonisation provisions of the EEC Treaty, such as Directive 77/576/ EEC 19 on the harmonisation of national laws on safety signs in the workplace and Directive 78/610/ EEC 20 on the harmonisation of occupational exposure limits to vinyl chloride monomers. As a result, the EU action in the field of health and safety at work was fragmentary and limited to accompanying the needs of market harmonisation.

Since the entry into force of the Lisbon Treaty, the legal basis for OSH policy is Article 153 of the TFEU, stating that the EU is to support and complement the activities of the Member States as regards the "improvement in particular of the working environment to protect workers' health and safety". In this respect, actions for the improvement of OSH can be adopted through legislative (Directives) and non-legislative initiatives. The legislative framework rests on a double foundation: minimum requirements provide on the one hand a level playing field for businesses operating within the single market and on the other hand ensure a high degree of protection to workers. In addition, Member States are free to adopt more stringent protective measures when transposing EU directives into national law.

OSH instruments at international/global level

The ILO adopts international labour standards in the form of conventions and recommendations, including in the field of OSH. A large part of the Framework Directive has to a considerable degree been influenced by prior work that took place within the ILO. This includes a wide range of issues such as risk assessment, control and supervision by the authorities (labour inspection), the obligation to prepare a list of occupational accidents, protective and preventive services, health surveillance, rules on specific risks including cancer, asbestos and chemicals, and on specific sectors, such as construction, mining and agriculture.

The EU OSH legislation adopted in this area is more detailed and covers more aspects than the ILO Conventions; it applies throughout the EU, while ILO conventions can only be ratified by individual States and therefore the levels of ratification vary per convention.

Some subject matters of the conventions fall under the exclusive competence of the EU and therefore Member States should be authorised – by Council decision - before ratifying such ILO rules, whether or not the exclusive competence of the EU covers the whole convention, or only elements of the convention.

2.2.    Key pillars of the EU OSH Framework

Prevention is the guiding principle of the EU OSH Framework. On this basis, the Framework Directive aims at "introducing measures to encourage improvements in the safety and health of workers at work" and contains general principles and common rules concerning the assessment and prevention of occupational risks, the protection of safety and health according to a hierarchy of prevention measures, the elimination of risk and accident factors, the principle of the responsibility of the employer, rights/duties of workers, including the informing, consultation, balanced participation and training of workers and their representatives, health surveillance as well as general guidelines for the implementation of the said principles. The Directive applies to both public and private sectors. It provides that "individual" Directives shall be adopted, inter alia in the areas listed in its Annex (e.g. work places, work equipment, personal protective equipment).

Employer risk assessment is a key element in the prevention and protection system of the Framework Directive, since it obliges employers to effectively take the measures necessary for the safety and health protection of workers, including risk prevention and the provision of information and training of workers. This goal-orientated approach means that instead of merely complying with prescriptions and limit values, employers have the responsibility to decide on improvement measures that best meet the identified risk profile of their company. The Framework Directive can thus be considered an important innovation at the time for workplace prevention measures and culture.

Most of the individual Directives were adopted in the five years following the adoption of the Framework Directive. The legislation has thus been in place for a considerable amount of time.

The individual OSH Directives develop the general principles and instruments/common rules of the Framework Directive with regards to specific hazards at work (e.g. exposure to dangerous substances, or physical agents), to specific activities (e.g. manual handling of loads, working with visual display units), to sectors with higher risks (e.g. construction sites, extractive industries, fishing vessels) and to vulnerable workers, such as pregnant women and breastfeeding mothers. The individual Directives define in more detail how risks are to be assessed, and the setting and measuring of limit values at the workplace.

The general provisions of the Framework Directive apply in full to all the areas covered by each individual Directive, without prejudice to more stringent and/or specific provisions contained in the individual Directives (lex specialis).

The provisions of the Framework Directive and its related Directives are to a large extent goal or process-oriented, combined with provisions of a more prescriptive nature.

Goal or process-oriented regulations set the goals to be achieved, but leave it to the employers / workers involved to decide on the best way to achieve these results. An example is Article 6(1) of the Framework Directive which requires employers to take the measures necessary for the safety and health protection of workers. Such provisions are generally more flexible and allow for different ways to achieve the results to best suit a particular situation. On the other hand, it may be less clear for employers how to comply, or for the workers in relation to Article 13 of the Framework Directive.

Prescriptive provisions lay down in detail what is required to be achieved and the way to obtain the outcome. An example is Article 3(1) of the Noise Directive 2003/10/EC which lays down specific limit values and action values for the exposure to noise. Such provisions are easier to enforce, but they require more frequent updating / modification.

3.    EVALUATION CRITERIA AND QUESTIONS 

The ex-post evaluation has addressed the following five evaluation criteria.

Relevance

Relevance refers to the extent to which a particular intervention is consistent with the needs and problems experienced by the target groups. In the case of the OSH framework, the essential issue examined was therefore whether or not the framework addresses the current and emerging OSH risks prevalent within the Member States.

Effectiveness

Under the effectiveness, the ex-post evaluation assessed whether the EU OSH Directives have achieved their objectives in improving the health and safety of workers and how significant these achievements were. Under this criterion the contribution of various elements to these objectives has been assessed (e.g. common processes and mechanisms - CPMs, derogations and transitional periods). Unintended effects have also been analysed. The CPMs foreseen by the Directives comprise risk assessment processes, training, consultation, participation and information of workers, preventive and protective services and health surveillance.

Efficiency

Under efficiency, the ex-post evaluation has looked at the benefits (e.g. reduction in working days lost due to work-related accidents or health problems; reduction in the number or severity of work-related accidents or health problems); costs which arise for society and employers from fulfilling the requirements of the EU OSH framework's requirements (including administrative and compliance burden). The analysis placed particular emphasis on SMEs, including risk assessment.

Coherence

Under coherence 21 the evaluation assessed whether there are any inconsistencies, overlaps and/or synergies across and between the Directives and whether the Directives interrelate with other measures and/or policies that also cover aspects related to health and safety at work.

EU added value

EU-added value looks for changes which are reasonably assumed to be due to EU intervention rather than any other factors.

4.    METHOD

4.1.    Methodology

Sources of findings

The evaluation is based on three main building blocks:

1) a study by an external contractor ('the study') - commissioned mid-2013. The final report was delivered in December 2015 and covers a total of 24 OSH Directives and their implementation in all Member States (except Croatia), in the period 2007-2012. A validation seminar was held in Brussels on 9 December 2014 to consult stakeholders on preliminary findings, results and conclusions of the study.

2) national reports on the practical implementation of the Directives ('NIRs') established by the Member States (and including the views of social partners) in accordance with Article 17a of the Framework Directive. In the NIRs, Member States provided data following the structure and questionnaire of the report as defined by the Commission 22 . 

3) extensive data collection (including in particular the NIRs, official statistics at national and EU level, past practical implementation reports, Commission communications and other policy documents, other external studies), through mapping of OSH at Member State level, as well as interviews with stakeholders carried out at both EU and Member State level.

Consultation

In parallel the Commission services received input from other sources such as individual Member States, the Advisory Committee for Safety and Health at Work (ACSH) 23 , the Senior Labour Inspectors Committee (SLIC) and the Sectorial Social Dialogue Committee.

The ACSH and, in particular, its Working Party on Evaluation of OSH directives, have assisted the Commission services during the contractor's work. The draft opinion on the external study 24 , put forward by the WP Evaluation, was approved on 24 September 2015 by the ACSH plenary and contained viewpoints agreed between the government, employers' and workers' representatives in the Committee.

The SLIC also prepared a contribution to the ex-post evaluation 25 .

Steps in the evaluation methodology and intervention logic

The figure below presents the key steps in the evaluation methodology.

Figure 1: Steps in the evaluation methodology

Those consisted in particular in:

- Identifying and understanding the hazards which the Directives are meant to prevent.

- Identifying the important provisions of each Directive. The mapping of the provisions served as basis for developing the intervention logic of the EU OSH legislation 26 . As an integral part of this step, a mapping exercise was undertaken in order to understand the way the main provisions of each Directive were transposed and implemented in each Member State. This step aimed also to gather the available data on the level of compliance with the legislation from the EU and national sources.

- Identifying the workplace impacts. This part of the evaluation aimed at assessing to what extent legislation the accompanying tools have influenced the behaviour of establishments and in turn how this has influenced the final health and safety outcomes (accidents at work and different forms of work-related ill-health). This part of the evaluation aimed as well at assessing and better understanding the broader effects of the legislation and possible confounding factors to the outcomes achieved.

- Finally, on this basis, the assessment of relevance, effectiveness, efficiency, coherence and EU added value was undertaken.

4.2.    Limitations – robustness of findings 

Data limitations in the area of occupational health and safety were already highlighted in the Commission Communication from 2004 on the implementation of Directive 89/391/EC 27 .

Since then, substantial efforts have been deployed at the EU level in order to improve the evidence base in this policy field. In December 2008, the European Parliament and the Council adopted Regulation 1338/2008 on Community statistics on public health and health and safety at work 28 . The implementing Regulation (EU) No 349/2011 on statistics on accidents at work was consequently adopted in 2011 29 . In 2007 and 2013 EU Labour Force Survey ('LFS') ad hoc modules were performed to provide complementary evidence on accidents at work and work related health problems. In parallel, data sources were developed by the EU-OSHA agency, including the ESENER and ESENER-2 surveys and by the Eurofound, which conducted its European Working Conditions Surveys (EWCS) in 2005, 2010 and 2015. Together, these sources provide valuable information on several themes pertinent to the policies in the field of health and safety at work.

Nevertheless, the quantification of the impact of EU legislation is a challenging task, requiring very specific input data to be developed for this purpose over time. Several studies conducted at national level highlighted already the difficulties in quantifying the impact of regulatory activities on health and safety final outcomes. National econometric research feasibility studies performed so far in the EU Member States assessed most of the time that given the current evidence and data sources, it is not possible to demonstrate links between regulatory activities and changes in the health and safety outcomes 30 .

The following factors render such work challenging: the complexity of model specification, empirical and methodological problems and the available data sources not being fit for purpose. Those difficulties compound at the EU-level, where the national differences in the implementation of the legislation and collection of outcome indicators and the nature of the EU OSH acquis (mix of goal-oriented and prescriptive approach) are even a greater challenge when attempting to differentiate between the effects of the EU vs. (pre-existing) national legislation, other policy tools developed in the OSH policy field developed at national or EU level, as well as other confounding factors (technological progress, structural changes in the labour markets, socioeconomic developments etc.).

For these reasons, as explained in Chapter 7.3, a fully-fledged cost–benefit analysis for the EU OSH Directives under evaluation could not be undertaken.

To assess the effectiveness of the EU OSH legislation, the evaluation relied, however, to the extent possible on the data developed so far both at the EU and national level, complementing it with results of more targeted studies on specific topics. Though the exact impact of the EU legislation could not be assessed in detail due to methodological challenges mentioned above, the assessment tried to take to the extent possible the impact of other factors, such as cyclical variations on the presented indicators (in particular on the (standardised) accidents at work incidence rates). Whenever the relevant information was not available from the EU datasets the available national data sources were consulted. This was the case, in particular, as regards harmonised data on occupational diseases statistics, unavailable to date at the EU level.

As regards the evaluation study, it faced challenges and limitations in relation to the collection of interview data. Additional difficulties encountered in the framework of the study related to finding an adequate interview coverage for certain sector-specific directives and for SMEs. In such cases mitigating actions were taken by the contractor. Those measures included e.g. additional literature review for those directives for which adequate interviews coverage was not reached.

Furthermore, the assessment of compliance was marked by specific methodological challenges. In this regard, available data allowed for a mapping of the quantitative aspect of compliance (i.e. the extent to which establishments perform specific, measurable OSH-related actions, such as performing risk assessments or formulating an OSH management policy plan). However, the EU OSH framework contains requirements which are essentially quality and content oriented, rather than activity oriented 31 and the mapping exercise revealed that this qualitative aspect of compliance could not be systematically assessed due to a lack of data.

ESENER and ESENER-2 survey data were used to estimate compliance in the external study. In this document, findings from the ESENER surveys as regards certain aspects of compliance and OSH management measures represented, whenever relevant, together with information from other sources (EWCS, National surveys covering inter alia the thematic of compliance, reports from labour inspectorates etc.). The difficulty in triangulating findings from these different sources comes from the different target population and scope of the surveys and administrative data quoted.

5.    TRANSPOSITION AND IMPLEMENTATION STATE OF PLAY

This section presents the overall findings concerning the state of transposition and implementation of the EU OSH acquis in the Member States with cross-Directive references. The assessment focusses on transposition and implementation of the CPMs and of other key requirements of the Directives.

The section is structured in two sub-sections: 1) transposition, including use of derogations and transitional periods, and 2) implementation, with a focus on the assessment of compliance, on the accompanying actions at national and EU level, enforcement and implementation in SMEs and micro-enterprises.

5.1.    Transposition 

The architecture/structure of the national OSH framework

With regard to the architecture/structure of the national OSH framework, most Member States (22) have transposed the Framework Directive by means of an OSH framework act (which was not necessarily newly adopted after the entry into force of the Framework Directive); often existing national OSH legislation has been brought together into one main OSH framework act or an existing OSH act has been amended to comply with the Framework Directive.

The individual OSH Directives are, as a rule, transposed one-to-one through secondary legislation. Some exceptions have been identified which are, seemingly, depending on the Directive(s) involved. The three OSH Directives targeting vulnerable workers are often transposed through a specific act and secondary legislation or directly through the OSH framework act or the Labour Code. Member States also often transpose the two OSH Directives on mineral extracting industries through several pieces of secondary legislation or through e.g. the national Mining Act and secondary legislation. The transposition of the two OSH Directives on vessels follows the same trend, although to a lesser degree.

78 infringement proceedings for failure to transpose the Framework Directive correctly into national legislation have been opened. The transposition seems, in particular, to have caused difficulties in Spain being subject to 26 of the 78 infringement proceedings, although most of the cases have subsequently been closed. Germany has been subject to eight cases, Italy seven and Portugal six. Several other Member States had a limited number of cases.

One of the typical non-conformities seems to be the failure to make the Framework Directive provisions applicable to the public sector or to the use of public installations – i.e. problems with the scope of application. Another typical non-conformity is imprecise implementation of Article 5.1 – i.e. of the employers' duty to ensure the safety and health of workers in every aspect related to the work.

Figure 2. Observed discrepancies in national transposing legislation

Source:    Country Summary Reports.

With regard to the transposition into national legislation of the CPMs, 16 Member States have transposed one or more such requirements through distinct secondary legislation, principally in relation to preventive and protective services and health surveillance. Only four Member States 32 adopted separate OSH legislation for the public and the private sector.

Although a large number of infringement proceedings have been initiated regarding the national transposition of the Framework Directive and, to a lesser degree, of Directive 1999/92/EC (ATEX), Directive 2002/44/EC (vibration), Directive 2003/10/EC (noise), Directive 2006/25/EC (artificial optical radiation) and Directive 98/24/EC (chemical agents), most of them regarded late transposition (non-communication of national measures) and were subsequently closed. Apart from these, few cases of incorrect transposition have been observed in the transposition of the OSH acquis.

Furthermore, for most of the OSH Directives, Member States have implemented more detailed more stringent or more protective requirements. This is the case for example in several Member States for the Directive 92/57/EEC (temporary or mobile construction sites) in relation to the appointment of the health and safety coordinator 33 . Ten Member States 34 have established a broader personal scope of application of the legislation transposing the Framework Directive by including 'domestic servants' in the definition of ‘worker’. Similarly, in a large number of Member States the scope of the legislation transposing Directive 94/33/EC (young people) is broader, for example because it applies to trainees and young students studying in technological or vocational college 35 , because it covers all work carried out for employers, principals, customers and those responsible for schools who let minors do work for them or study 36 or because it covers self-employment of young people.

Derogations and transitional periods

About half of the Member States have applied transitional periods in the implementation of most of the Directives for which such possibility was provided. In the vast majority of cases, Member States who opted for the application of transitional periods have also respected them.

The evaluation shows a mixed picture as to the use of derogations by Member States. The derogations most frequently used are those laid down in Directive 98/24/EC (chemical agents) concerning the prohibition of the use of certain chemical agents and two of the derogations set out in Directive 94/33/EC (young people): the derogation from the prohibition of employment of young people in the case of adolescents where such derogations are indispensable for their vocational training and the derogation from the prohibition of night work for young people in the case of adolescents and in specific areas of activity.

5.2. Implementation

Compliance

The ESENER-2 survey conducted by the Bilbao Agency (Figure 3) shows that complying with legal provisions acts as strong driver for action on OSH, being reported as a major reason by 85% of the surveyed establishments in the EU-28. It was not specified in the questionnaire whether these legal obligations were at the EU, national or even regional level as it was felt that not all respondents would be necessarily aware of the origin or level of the existing legal framework in the case of OSH. Meeting expectations from employees or their representatives was reported to be a major reason to manage OSH by almost four in five establishments (79%) and was closely followed by avoiding fines from the labour inspectorate (78%), which is clearly linked to the fulfilment of the legal obligations.

Figure 3. Major reasons for addressing health and safety (% establishments, EU-28).

Source: European Agency for Safety and Health at Work (EU-OSHA), Second European Survey of Enterprises on New and Emerging Risks (ESENER-2) (2014); Base: Establishments employing 5 employees and more, EU-28.

On the basis of the data collected in the framework of the evaluation study 37 it was found that overall compliance with the EU OSH acquis across the EU and across establishment sizes is good even if it varies across establishment size.

The findings on quantitative compliance with individual provisions common to EU OSH Directives (CPMs) across Member States and establishment sizes are summarized in the table below:

Table 1:    Conclusion of quantitative compliance with CPMs 38

Source:    COWI evaluation team

Regarding the obligation to perform an occupational health and safety risk assessment, which is the cornerstone of the EU OSH legislative framework, ESENER-2 indicates that 76% of establishments in the EU-28 carry out a risk assessment and the majority of them (92%) report having it in a documented form. Compliance varies to a great extent depending on the establishment size (ranging from 69% among microenterprises employing five to nine workers up to 96% among those employing more than 250 people). Substantial differences were also found from Member State to Member State, with highest values in Italy and Slovenia, to the lowest in Luxembourg 39 .

Figure 4: Risk assessments conducted regularly (% of establishments, EU-28)

Source: European Agency for Safety and Health at Work (EU-OSHA), ESENER-2 (2014).

A document explaining responsibilities and procedures on health and safety is available to workers in 90% of all establishments in the EU-28, with a higher prevalence noted in larger establishments. While having such a document is not a legal obligation, it is indicative of adoption by the employer of the systematic approach to health and safety management set out in the directives.

When focusing on those establishments that have other types of workers beyond directly employed people -such as temporary agency workers, subcontractors and self-employed, among others-, 62% of those establishments in the EU-28 that carry out risk assessments report covering these other types of workers in their risk assessments

Looking at those establishments that do not carry out regular risk assessments (Figure 5), the main reasons given for not doing so are that the risks and hazards are already known (83 % of establishments) and that there are no major problems (80 %). It is however not certain to what extent this result reflects the fact that on average the smallest establishments are exposed to fewer risks (or their risk profile is more stable) or if they are simply less aware of the workplace risks.

Interestingly, enterprises in the smallest size classes report less frequently than their larger counterparts that the procedure is too burdensome: 22 % among those employing five to nine people as opposed to 31 % among those employing more than 250 people (Figure 5).

Figure 5. Reasons why workplace risk assessments are not carried out regularly, by establishment size (% establishments, EU-28).

Source: European Agency for Safety and Health at Work (EU-OSHA), ESENER-2 (2014).. Base: establishments in the EU-28 that do not carry out risk assessments regularly.

The ESENER-2 survey also reflects important differences in the access to OSH training depending on the establishment size. Among all respondents of the survey (person who knows most about OSH in the establishment), 68% declared having received training on how to manage health and safety, whereas among those in microenterprises, this figure was only 62 % and in large companies (with more than 250 employees) as high as 93%. Important differences could be observed when considering the thematic coverage of training provided to employees (emergency procedures – 81%, lifting people and heavy loads – 79%, use of dangerous substances – 84%, proper use and adjustment of work equipment furniture – 67%, prevention of psychosocial risks – 37%).

Looking at available data from surveys where respondents are workers, the first findings of the Sixth European Working Conditions Survey (EWCS) 40 show that 9 out of 10 workers report being either well informed or very well informed about health and safety risks related to the performance of their jobs. Again differences were noted depending on the establishment size. In line with the findings of the Flash Eurobarometer on working conditions, more than three quarters (77%) of current workers say health and safety information and/or training is available in their workplace.

As regards health surveillance, ESENER-2 shows that 65% of establishments arrange regular medical examinations to monitor the health of employees. Again, important differences in this respect can be noted depending on the company size (58% for micro and 89% for large enterprises).

The most frequently used health and safety services (being internal or external) are those of occupational health doctors (68%), generalists on health and safety (63%) and experts in health prevention (52%), with again important differences depending on the establishment size (See Figure 6 below).

Figure 6: Use of health and safety services, by establishment size (% establishments in the EU-28).

Source: European Agency for Safety and Health at Work (EU-OSHA), ESENER-2 (2014),.

Important differences in this respect exist between the different Member States, which partially can be explained by the different ways of transposing Articles 7 and 14 of Council Directive of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers.

As regards the consultation and participation of workers, ESENER-2 shows that 81% of all establishments in the EU-28 report involving employees in the design of measures following a risk assessment. The same survey reveals that health and safety issues are discussed 'regularly' between employee representatives and the management in 56% of establishments in the EU-28 that have some form of employee representation.

Focusing on specific OSH representation, ESENER-2 asked about the presence of a health and safety representative and of a health and safety committee (Figure 7). The share of establishments that reported the existence of either one of these two forms was considerably higher than for general employee representation: 61% vs. 30%. This higher incidence is driven by the broad presence of health and safety representatives, which are found in 58% of establishments in the EU-28. Meanwhile, a health and safety committee was reported by 21% of establishments surveyed in ESENER-2. In general health and safety committees tend to be present in those establishments where there is already a health and safety representative and they are more likely to coexist in middle-sized and large establishments.

Figure 7. Establishments with a specific OSH representation in place, by size (% establishments, EU-28).

Source: European Agency for Safety and Health at Work (EU-OSHA), ESENER-2 (2014),.

Concerning differences between Directives, for instance, while the results of the evaluation indicate that Directive 92/91/EEC (extractive industries - drilling) is complied with to a large extent, in contrast, Directive 2006/25/EC (artificial optical radiation) is characterised by a moderate level of compliance, as the issue of artificial optical radiation is regarded as complex. In particular, employers within this field find the technicalities and acquired competency to measure, monitor and assess difficult to understand and/or attain.

Furthermore, both EU and national stakeholders assessed compliance with EU OSH Directives requirements to be higher in large establishments compared to SMEs and micro-establishments. This is supported by quoted above ESENER-2 data, EWCS, the Flash Eurobarometer on Working Conditions, by the NIRs and corroborated during the directive-specific evaluations.

Compliance and specific measures targeting SMESs and micro-enterprises

The most reported challenge for compliance for SMEs, in the NIRs produced by Member States, are the lack of financial, technical and human resources. Other identified challenges include the lack of established OSH traditions, of managerial experience, of information, knowledge and training, of equipment, of financial resources, of ensuring availability and quality of external expert services and of time. The evaluation study found that the most reported reasons by national stakeholders during interviews are that the large enterprises more often have dedicated OSH experts and/or departments that enable them to comply with legislation and international OSH standards; large establishments often have well-established safety and health cultures, partly developed through the accessibility of internal programmes and procedures, which are often a result of investing more financial resources than is available in smaller companies; large enterprises are often particularly concerned about company image and about negative safety and health stories in the media. The complexity of legal obligations was also identified as one of the main barriers for OSH management for SMEs according to the findings of the ESENER-2 survey.

25 Member States have established (a combination of) specific measures to support SMEs and micro-enterprises in the implementation of their legislation transposing the Framework Directive. These specific measures include exemptions, lighter regimes and/or financial incentives. Only a few of the individual Directives have been transposed using additional incentives for SMEs to comply with their requirements. However, many Member States have developed numerous accompanying actions targeted at SMEs, which are typically of a more general nature, not linked to a specific individual Directive.

As regards for example the obligation to conduct and to document risk assessment, the evaluation shows that Member States tend to favour lighter regimes and financial incentives to support SMEs and micro-enterprises; almost half of the Member States make use of financial incentives for SMEs and micro-enterprises to comply with the Framework Directive. Most of the Member States have guidelines on completing a risk assessment. A number of Member States provide specific guidance for particular sectors 41 . An important number of Member States provide guidance specifically addressed to SMEs 42 . Many Member States provide online guidelines and tools on how to conduct a risk assessment and document it, free of charge. Several Member States are involved in using the Online Interactive Risk Assessment web application (OiRA) 43 to develop risk assessment tools. OiRA is developed by the European Agency for Safety and Health at Work 44 .

The quality of guidance and support tools is crucial, as is ensuring that it actually reaches the target audience. Thus, simply looking at the number of guidance documents does not in itself provide evidence of adequate guidance for SMEs 45 .

It has not been possible to assess the quality of the extensive body of guidance listed and described in the study. Nevertheless, despite the quantity of material available there still appear to be a need for more and better guidance to support implementation in SMEs as well as for effective ways of delivering it to the intended user 46 .

Accompanying actions

The number of accompanying actions varies greatly from Directive to Directive, both at the Member State and at the EU level. In addition, EU-level guidance serves mainly as a basis for national-level guidance and rarely reaches individual workers. At the Member State level, there are some Directives for which the number of accompanying actions is limited and there is a general demand for more targeted actions, especially those directed to SMEs. Practical tools, forms and check-lists that enable employers to comply with OSH obligations are considered by stakeholders as the most useful accompanying actions. Sectoral templates for risk assessment (e.g. OIRA) are welcomed by all stakeholders that recognise the potential for simplification and gain of time when using such tools.

According to the study, there appear to have been very few formal evaluations of the utilisation or impact of any such material although some isolated studies of individual measures have been reported 47 .

Enforcement

The evaluation identified general enforcement authorities responsible for occupational safety and health matters, although other authorities may be involved and/or fully responsible for areas covered by certain individual directives, in particular Directive 92/104/EEC (extractive industries - mines and quarries) and Directive 92/91/ (extractive industries - drilling); Directive 92/57/EEC (mobile construction sites); Directive 92/29/EEC (medical treatment on vessels) and Directive 93/103/EC (fishing vessels); and Directives targeting vulnerable workers (Directive 91/383/EEC (temporary workers), Directive 92/85/EEC (pregnant/breastfeeding workers) and Directive 94/33/EC (young people).

While the actual number of inspectors in the EU has remained almost constant in the evaluation period (2007-2012), substantial differences in the evolution of the number of inspectors could be observed between Member States. While in the majority of Member States the number of inspectors has decreased (16), it remained stable or increased in the remaining 11 Member States. Many stakeholders emphasised that there is room for improving enforcement in general, such as the use of more risk-based inspections, as already done in several Member States. Thus focussing inspections on where the main risks are expected to be encountered is thought to be a more efficient use of dwindling resources than a truly random selection would be.

All Member States have criminal and/or administrative sanctions in place, providing not only for imprisonment and/or fines but also for other types of sanctions such as various emergency measures to stop non-compliance, which can also prove very efficient. The strategic priorities for inspection are generally set per sectors or sub-sectors, groups of workers, type of risks or the company size.

Initiatives targeting potentially vulnerable workers

Initiatives targeting potentially vulnerable workers principally address their specific requirements through various forms of guidance, tools and initiatives at a number of levels (government, industry or other stakeholders), rather than through legislation which typically does not go beyond the EU requirements as far as vulnerable workers are concerned. As a consequence, women, pregnant and breastfeeding workers, young people, temporary workers and disabled workers are the most frequently covered groups as they are regulated under EU OSH legislation. Other groups also covered include, in particular, older workers, migrants, part-time workers, and parents. The evaluation found that approaches within establishments with regard to potentially vulnerable groups of workers are often not documented.

6.    ANSWERS TO THE EVALUATION QUESTIONS

This section contains the answer to the evaluation questions across the EU OSH framework.

6.1. Relevance

Since the entry into force of the 24 occupational health and safety Directives, important changes in the labour markets and working methods took place, with a potential impact on the relevance of the OSH legislative framework.

The continued shift towards third sector jobs accompanied with the shrinking of certain industries, the changes in the global supply chains, the technological progress and changes in the working methods are only a few factors which have influenced the profile, the level and the nature of the hazards to which the European workers are subject. The increasing share of women in total employment and the ageing of the EU workforce are other factors shaping the relevance of certain directives for the future. Finally, the evaluation period (2007-2012) was marked by the financial crisis and the subsequent economic crisis with a major impact on the labour markets. While economic output and employment have both started to recover in recent quarters, the employment and social impacts of the crisis will take years to redress 48 . The ongoing structural changes linked to technological advance and innovation (including the development of robotics), globalisation, demographic change and the greening of the economy offer opportunities for the creation of high quality jobs and shifts in work organisation, but also pose new challenges for occupational health and safety management with the emergence of new risks. Certain forms of employment (for ex. remote work, teleworking), mobile workplaces 49 , or specific employment relationships (dependent self-employment, self-employed working de facto as employees) pose new challenges to OSH management.

Last but not least, new scientific evidence available since the entry into force of the 24 occupational health and safety EU Directives have played a crucial role in the understanding of certain occupational hazards, allowing potentially for better prevention.

In this context, the evaluation aimed at assessing, based on the available data sources the current and future relevance of the EU occupational health and safety framework and the factors which could improve the acquis for the future. The criteria used for this purpose were: the labour market coverage of the Directives, the existence of occupational hazards that the Directives were meant to prevent, the latest scientific information as regards these hazards, the labour market developments and changes in working practices which might have impacted some of the provisions of the OSH Directives.

At a general level, statistical data shows that despite progress achieved in some areas over the last years 50 , a need for policy intervention exists in order to safeguard the health and safety of workers at work in the EU. In 2012 3,918 fatal accidents were recorded in the EU-28 51 . The 2013 EU LFS ad hoc module data shows that the percentage of the population suffering from one or more work-related health problems caused or made worse by work, in that year in the EU-27 was on average 7.9% 52 .

The assessment of relevance in relation to labour market coverage showed that almost all of the 24 OSH Directives are relevant in all 27 Member States covered by the evaluation as all Member States have workers employed in relevant industrial sectors who are consequently exposed to relevant risks or who are members of vulnerable groups that are the subject of specific rules.

The main exceptions to this are the two Directives relating to maritime sectors (Directive 93/103/EC (fishing vessels) and Directive 92/29/EEC (medical treatment on board vessels), as a minority of Member States do not have any workers employed within one or both of the maritime and fishing sectors (or at least those parts of these sectors addressed by the two Directives). In such cases, some Member States appear to have taken the administrative action to transpose the provisions whilst others have not done so. A further exception relates to Directive 92/91/EEC (extractive industries – drilling) where, although the provisions of this Directive have been transposed into national legislation in all Member States, approximately 20% of Member States apparently have no drilling industry at present.

Across the EU, the proportion of workers potentially covered by each of the Directives varies. For some Directives, including the Framework Directive and Directive 2009/104/EC (use of work equipment), almost all workers are affected. By contrast, a number of Directives, including the two Directives in the maritime sector, the two Directives in the mineral extractive industries (Directive 92/104/EEC (extractive industries - mines and quarries) and Directive 92/91/ (extractive industries - drilling) and Directive 94/33/EC (young people) are of relevance to less than 1% of the EU workforce.

As regards the assessment of relevance in view of existing work-related hazards, the evaluation found, based on available data 53 , that the provisions for most of the EU OSH Directives remain relevant.

The main possible areas for improvement identified during the evaluation, in relation to the relevance criterion were the following:

- In terms of relevance in scope, the exclusion of domestic servants from the Framework Directive might need to be reconsidered 54 .

- In the changing labour market with the emergence of new forms of work and increasing uncertainty over the status of workers and self-employed, the question of application of health and safety rules to all becomes even more important to prevent accidents and occupational diseases. Considering the recommendations from the NIRs, the conclusions of the external evaluation study, the development of the case-law of the ECJ on the definition of worker in EU law and the treatment of self-employed under construction site and fishing vessel directives, promoting inclusion of self-employed and in particular those self-employed working alongside workers might be considered as a possible action in the context of future-proofing of the OSH Framework. Any future action in that area should take into account the Opinion on that matter issued by the ACSH in 2014 55 , which found that a single EU-wide approach in this area could not conceivably address all the very different national systems fairly and coherently 56 .

- In the Directive 89/654/EEC concerning the minimum safety and health requirements for the workplace, the changes in the nature of some modern workplaces call for a reflection on a potential need to redefine the notion of 'workplace' as defined in this Directive. Suggestions from the NIRs as regards the Annexes to the Directive should be given further consideration 57 .

- As regards Directive 2000/54/EC (biological agents) the classified list of biological agents is out of date and should be updated to improve the relevance of the Directive. As regards Annex V of the Directive, adopting a more flexible approach scoping the measures in accordance with the results of the risk assessments should be considered.

- In relation to Directive 2009/104/EC on the minimum safety and health requirements for the use of work equipment by workers at work, the recommendations from the NIRs to adopt a clearer definition of the notion of 'specific risk' - in order to reduce the inconsistencies in the interpretation of this term in different Member States – should be given further attention.

- In the Directive 89/656/EEC (use of personal protective equipment/PPE) the exclusion from the definition of PPE of equipment used by emergency and rescue services might need to be reconsidered.

- As regards Directive 92/57/EEC on the implementation of minimum safety and health requirements at temporary or mobile construction sites, give consideration to the recommendation given in several national implementation reports, to clarify the status of the coordinator and reinforce his function, namely to clarify the services expected to be provided by coordinators, especially with regard to project design, and to set out the qualifications coordinators should have.

- As regards the Directives 92/29/EEC the review of the compulsory list of medical supplies should be given consideration.

- In terms of relevance related to the state of technological and workplace developments, in the Directive 90/270/EEC (display screen equipment/DSE) the minimum requirements which all DSE workstations must meet (Articles 4 and 5), are widely recognised to be outdated and to not adequately reflect modern computing technologies or ways of working.

- In terms of relevance related to the state of scientific knowledge, the DSE Directive includes provisions aimed at the “Protection of workers’ eyes and eyesight” (Art. 9) even though there is scientific evidence that work with computers does not cause any damage to the eyes or eyesight. The Directive also includes reference to “problems of mental stress” (Art. 3). Up to date epidemiological surveys suggest that the prevalence of such problems amongst DSE users is no different from that amongst the general population.

- Other Directives affected by scientific development are Directives 98/24/EC (chemical agents), 2004/37/EC (carcinogens and mutagens) and 2009/148/EC (asbestos). In particular, contributions received from different stakeholders point to a need for the adoption of further occupational exposure limit values (OELVs) and/or the revision of existing ones. Following concerns reflected in the NIRs, there seems also to be a need to consider the most appropriate approach to managing risks that may arise from exposure to reprotoxic substances. It should also be clarified that risks related to exposure to nano sized particles (nanomaterials) are already covered under the existing Directives.

The individual directives are complementary to the Framework Directive which already covers all risks. Adapting OSH acquis to new risks may in many cases be done more effectively and efficiently through providing interpretative guidance to employers, workers and enforcers on how to apply existing provisions in the new context. In accordance with the better regulation principles legislative action should only be considered in case where the added value can be clearly established. In view of avoiding unnecessary burden on businesses, the exact scope of any modifications of existing legislation and the related costs and benefits should be subject to further discussions with stakeholders in the ACSH and a thorough impact assessment and related SME test.

The analysis of relevance also suggests that improved data is necessary in this area so as to support future policy development. 

Indeed, for many Directives, data about the actual number of workers exposed to different hazardous agents and about the levels of exposure in the populations at risk was not gathered so far at the EU level and information available at national level is scarce. Also as another example, there have been efforts to set up statistical systems to an EU data collection on occupational diseases (e.g. the European Occupational Diseases Statistics). However, this is associated with considerable challenges due to the large variation in Member States' recognition of occupation diseases.

The evaluation found that although some changes in the relative importance of different work sectors (or activities) can be anticipated, the current levels of exposure to the different hazardous agents and the continued existence of previously identified risks justify the need for the action to address those risks.

The evaluation also confirmed the high prevalence of exposure to both risks leading to MSDs and psychosocial risks (Figure 8).

Figure 8: Risk factors reported in the establishments (% of all establishments, EU-28) 58

Source: European Agency for Safety and Health at Work (EU-OSHA), ESENER-2 (2014),.

However, there are and will be new or emerging risks which may not yet be fully addressed in the workplace and it may require some clarification how the existing provisions of the framework directive apply to them. These risks could be related to the demographic changes as well as to the changing world of work (e.g. new technologies and innovations in work organisation and the new products and processes to which they lead, possibly increasing sedentary work and reducing physical activity, changes in work organisation brought about by information technology developments, as well as the increasing workforce diversity, as reflected in new atypical contractual arrangements and work patterns, and a higher job turnover associated with shorter job assignments, especially for younger workers).

6.2    Effectiveness

This section presents the findings on the assessment of the extent to which the OSH framework achieved its aims and what factors have particularly contributed to the achievement of the objectives.

The general aims of the OSH framework are to improve the health and safety situation for workers across the EU. However, the more specific intended impacts, such as – for example – the kinds of occupational diseases to be prevented or reduced are often not identified. This means that, for many Directives, there are no clear parameters against which to measure the progress towards achievement of objectives.

This also reflects the complex interrelations between exposures to various risks at the workplace and specific health and safety impacts – and between different OSH measures targeting various groups of workers, types of risk or sectors and their effects on levels of exposure.

In addition, the existing mixture of Directives representing a goal and process-oriented approach and Directives representing a prescriptive approach results in different ways of evaluating effectiveness. In general, those with specific actions prescribed are more open to confirming compliance, while those Directives which are more goal-setting need suitable outcome measures to confirm that their goal has been achieved.

Four specific evaluation questions were set:

- To what extent have the Directives influenced workers' safety and health, the activities of workers' representatives, and the behaviour of establishments?

- What are the effects on the protection of workers' safety and health of the various derogations and transitional periods foreseen in several of the Directives concerned?

- How and to what extent do the different Common Processes and Mechanisms contribute to the effectiveness of the Directives?

- To what extent do sanctions and other related enforcement activities contribute to the effectiveness of the Directives?

Impact on workers' safety and health, the activities of workers' representatives, and the behaviour of establishments

Accidents at work

Over the evaluation period, a declining trend for accidents at work could be observed in the EU-27.

According to data collected in the framework of the Eurostat data collection European Statistics on Accidents at Work (ESAW) for all economic activity sectors, both the number and the incidence rate of serious accidents at work 59 in the EU-27 declined between 2008 and 2012 by 18.1% and 19.6% 60 respectively (Figure 9)

Figure 9: Non-fatal accidents at work, resulting in an absence from work of more than 3 days, number and incidence rate per 100 000 persons employed, EU27, 2008-2012.

Source: Eurostat, ESAW (online data code hsw_n2_01).

During the same period, the number of fatal work accidents fell by 18.4% while the incidence rate for this category of accidents declined by 19.9% 61 , in the 27 Member States concerned (Figure 10).

Figure 10: Fatal accidents at work, number and incidence rate per 100 000 persons employed, EU27, 2008-2012.

Source: Eurostat, ESAW (online data code hsw_n2_02).

Over this period, the financial and economic crisis which has followed had without any doubt an important impact on the evolution of this indicator. A recent UK HSE study modeled the relationship between injury rates and GDP for Great Britain and estimated that for the last recession; approximately 10% of the fall in injury rates between 2007/08 and 2009/10 is likely to have been due to economic cycle variations 62 .

Most data prior to 2008, collected at EU level according to the ESAW methodology, is available only for a limited number of economic sectors 63 and for a limited number of Member States (EU-15). Looking at those data sets, the standardised incidence rate over the evaluation period fell substantially from 2,736 accidents per 100,000 employed persons in 2007 to 2,073.5 in 2012 for non-fatal accidents at work and from 2.9 accidents per 100,000 employed persons in 2007 to 2.3 in 2012 for fatal accidents at work 64 .

The declining trend is confirmed by national statistics in the NIRs and the Scoreboard exercise for the evaluation of the EU Strategy 2007-2012 on health and safety at work 65 .

An analysis of longer time series based again on the ESAW records, and starting in years just after the adoption of the health and safety Directives 66 , confirms the declining trend over a longer period. The standardised incidence rate of non-fatal accidents at work fell from 1994 to 2012 by 54.3%, while that of fatal accidents declined in the same period by 61.8% 67 in the EU15. More detailed data on the evolution of accidents at work from 1994 until 2012 is available in Annex 4 Figures 1 and 2.

Over the period 2008-2012 a decline in the incidence rate of both fatal and non-fatal accidents leading to an absence of more than three days could be observed in almost all NACE sectors 68 . As regards the share of different sectors in the overall number of accidents, manufacturing accounted for the highest proportion of all accidents (21.2% in 2012) followed by construction (13.3% of all accidents) and the sector of wholesale and retail trade, repair of motor vehicles and motorcycles (13.2%) 69 .

In order to analyse the situation by Member State, the dataset for fatal accidents at work, for the subset of accidents excluding road traffic accidents on board of any mean of transport in the course of work was analysed, providing for most comparable data by Member State. In most Member States both the number and the rate for this subset of fatal accidents at work decreased from 2008 to 2012. At the end of the evaluation period (2012) the incidence rate for this type of fatal accidents ranged from 0.58 in the United Kingdom to 4.7 in Latvia (See Figure 11 below).

Figure 11 Fatal accidents at work, excluding road traffic accidents on board of any mean of transport in the course of work, EU-27, standardised incidence rate (accidents per 100 000 persons employed), NACE Rev.2. sections A_C-N.

Source: Eurostat, ESAW (online data code hsw_mi03)

The EU statistics on the rate of fatal accidents at work, broken down by establishment size enabling to follow the situation in microenterprises and SMEs as compared with large enterprises, available for 2007 70 , show the differences in the standardised incidence rate depending on the size of the enterprise: 3.6 for establishments from 1 to 9 employees; 3.3 for establishments from 10 to 49 employees; 2.7 for establishments from 50 to 249 employees and 1.8 for establishments of 250 employees and more 71 . According to the same source, the standardised incidence rate is higher for SMEs as compared with enterprises with over 250 persons employed also for non-fatal accidents at work. An exception to this trend is the situation in establishments from 1 to 9 employees, featuring a standardised incidence rate for non-fatal accidents of 2,184 against 3,216 for entities with 250 employees or more 72 . At the same time, it should further be studied to what extent under-reporting affects these results.

Data from the EU LFS 73 ad hoc modules on 'accidents at work and other work-related health problems' (reference years 1999, 2007 and 2013) shows a slightly decreasing trend in accidents from 1999 to 2007 74 . At EU27 level (all Member States except the Netherlands), there is no trend visible between 2007 and 2013: in both years the percentage of the workers having had one or more accidents is 3.0%, which corresponds to an incidence rate of 3,000 workers having had an accident per 100,000 workers employed 75 . However, when looking at data by country, 18 Member States showed a negative trend, only 7 a positive trend and 2 no change between the two years. The LFS figure should be interpreted with caution as the EU-27 aggregate does not take into account the Netherlands and several Member States used survey questions which differed to the EU model questionnaire at least for one of the years.

In conclusion, the available EU data collections on accidents at work, as well as information gathered in the NIRs and the Scoreboard exercise of the EU Strategy 2007-2012 on health and safety at work give a strong indication that both the incidence and the number of accidents at work have considerably decreased since the implementation of the EU framework and in particular over the evaluation period. 

The evaluation found that other factors, independently of the EU Directives might have also influenced this trend, in particular the more detailed national legislation (of which the effect cannot be easily dissociated from that of the Directives which they have transposed), other policies, structural changes in the labour markets, working methods and global supply chains. Due to the complexity of interaction between the different factors influencing the evolution of accidents at work, no exact estimate for the fraction of avoided accidents attributable to the entry into force of the Directives exclusively can possibly be established in a sound scientific way in the framework of this evaluation.

However, even though it is qualitative evidence, it is worth emphasizing that the majority of stakeholders interviewed during the evaluation stated that the Directives, by establishing minimum common requirements for occupational health and safety management at work, were successful in achieving their intended aims and benefitted considerably the health and safety of workers, including the reduction in accidents at work. 

Work-related ill health

The EU OSH framework aims at achieving a reduction not only in the incidence and number of accidents at work but also work-related ill-health.

There are significant methodological issues that complicate the evaluation in this respect. Firstly, the individual Directives 76 often cover more than one disease, especially those directives that are of general nature or target specific types of workers (and all diseases are in principle covered by the Framework Directive) or the risks of a disease are covered by more than one Directive.

Secondly, as regards occupational diseases 77 , comparable and harmonised data is not available to date at EU level. This is mainly due to the major differences in the recording and recognition practices within the different social security systems across the Member States. The evaluation relied thus mainly in this respect on available national occupational diseases statistics.

Thirdly, while the evaluation period encompasses the time horizon 2007-2012, in the particular case of many forms of work-related ill-health, this time frame is not appropriate to judge the effectiveness of the policy intervention. Each occupational disease has a different minimum duration of exposure, maximum latent and minimum induction period. The decline or fall in the incidence of recognised occupational diseases in a given Member State during the evaluation period cannot only be attributed to the policy intervention, but also to the differences in the national recognition and recording systems as well as the weight which each disease with its specific exposure, latency and induction period has in the overall aggregate.

Different trends concerning the numbers of recognised occupational disease cases were noted across EU-27. In some Member States, such as France, Italy, Denmark or Germany there was an increase, while in other Member States, such as the United Kingdom, Sweden or Spain a decrease was recorded 78 . In most Member States, which recognise MSDs as occupational diseases, those forms of work-related ill-health constituted a high proportion of recognised cases, showing often increasing trends.

Other impact indicators contributing to the analysis of the effectiveness of Directives derive from the existing population surveys covering the thematic of work-related problems 79 . The 2013 EU LFS ad hoc module data shows that the percentage of the population suffering from one or more work-related health problems caused or made worse by work, in that year in the EU-27 was on average 7.9%. Overall, the percentage of workers aged 15 to 64 that reported a work-related health problem in 2013 decreased by 9.8%, as compared with 2007 for the EU-26 (without France and the Netherlands)  80 , 81 . Again, this assessment must be considered with caution, as the EU-26 aggregate does not take into account two countries and several Member States used survey questions which differed to the EU model questionnaire at least for one of the years.

Another possible measure to be considered is the workers' overall satisfaction of the health and safety conditions which they find at the workplace. In this respect, in a Flash Eurobarometer commissioned in 2014, 85% of respondents expressed satisfaction with the health and safety arrangements at their workplace 82 . At the same time, the EWCS indicates a declining trend with regard to the percentage of workers who consider their health and safety to be at risk because of their work: 23% of workers in 2015 in the EU, compared to 31% in 2000 83 .

Finally, the 500 key stakeholders at EU and Member State level, interviewed in the course of the evaluation, provide further support for the view that the Directives appear collectively to have been reasonably successful in achieving their intended aims and benefitting the health and safety of workers as a result. The justification for this opinion was primarily linked to the role the Directives have played in establishing common, minimum health and safety at work requirements across the EU. Differences could be observed among the different national stakeholders' groups when assessing if the transposed legislation has fulfilled its objectives. The competent national authorities were more positive in their assessment as compared with other stakeholders' groups. Among EU stakeholders, the employers were the most positive when assessing the effects of the EU OSH Directives on the safety and health of workers, while the workers were the least positive. When replying to the question to what extent the national legislation transposing the Directives affected establishments' behaviour for the securing of OSH, the assessment of all stakeholders groups differed according to enterprise size. The aggregated scores of the national stakeholders for the Directives' impact on the behaviour of SMEs was somewhat lower than for larger establishments. Both employer and worker organisations, on average, agreed that the nationally transposed OSH legislation has had a medium impact on SMEs, while national authorities were more optimistic in their assessment. These findings provided by national stakeholders were confirmed during interviews with EU stakeholders.

There are specific challenges related to some particular types of ill-health related to work.

Several studies based on the attributable fraction method 84 underline the burden of occupational cancer in the overall weight of work-related ill-health. According to estimates for 2012 for the EU and other industrialised countries, occupational cancer had a 57% share in all work-related deaths. Other major work-related death causes are circulatory diseases (23%) and respiratory diseases (6%) 85 . A study made in UK in 2010 estimated that 5.3% (8023) cancer deaths were attributable to occupation in 2005 (men: 8.2% (6366); women 2.3% (1657). Attributable estimates for total cancer registrations were 13694 (4.0%); and for men: 10074 (5.7%) and women 3620 (2.1%) 86 . According to a study published in November 2013 87 , around 8,000-8,500 deaths/year from occupational cancer are estimated to occur in Italy.

The hazards leading to cancer are primarily covered in Directive 2004/37/EC (Carcinogens or Mutagens at Work Directive) and Directive 2009/148/EC (Asbestos Directive). Due to the long latent period for this type of diseases, it must be underlined that today's mortality and morbidity cases relate to past exposures, occurring often before the entry into force of the Directives meant to prevent these forms of work-related ill-health.

The evaluation found a decrease in exposure to a number of chemical agents. This does however not seem to be the case for all substances or mixtures classified as carcinogens 1A/1B or mutagens 1A/1B under Regulation (EC) No 1272/2008 88 . In addition, in the majority of the EU Member States, national limit values for highest concern substances and mixtures belonging to the aforementioned IARC groups exist. However, the values often differ by orders of magnitude 89 and therefore lead to different levels of health and safety protection of workers across the EU as well as complex considerations for companies with production across the EU.

In addition, the lack of common definitions for certain process-generated substances or mixtures known as occupational carcinogens and mutagens across Member States contribute to different levels of protection across the EU. This can further contribute to maintain the burden of occupational cancer high in the future, in particular with the ageing of the EU workforce.

There is no indication of an appreciable reduction in MSDs which remain a major type of work-related ill-health. According to the findings of the EU LFS ad hoc module 2013, musculoskeletal disorders were the most prevalent type of work-related health problem. Among respondents in the EU who declared having a work-related health problem, 60.1% pointed to musculoskeletal disorders as to their most serious issue 90 . According to the findings of the EWCS, though the reported exposure to posture-related risks declined over the last years, it still remains at a very high level (43%). Exposure to repetitive movements, tiring and painful positions as well as carrying or moving heavy loads still rank among the most prevalent physical occupational risk factors in the EU 91 .

The hazards associated with MSDs are covered by the Framework Directive and by several specific Directives, most importantly the Manual Handling, the Display Screen and the Vibration Directives. The Work Equipment Directive also includes references to poor working postures from inadequate attention to ergonomics principles which could give rise to posture-related MSDs. The Directives do not relate specifically to all risks leading to MSDs (repetitive movements, tiring of painful positions) nor do they deal with the issue of combined exposure.

Considering psychosocial health problems, different data sources confirmed an increase in the forms of work-related ill-health related to the exposure to psychosocial risks. Indeed, according to the findings of the EU LFS ad hoc module 2013, stress, depression and anxiety were the second largest type of work-related ill-health identified by the respondents. Indeed, 15.9% of respondents of this survey declaring being affected by a work-related health problem over the last 12 months declared that those types of problems were the main type of work-related problems that they have had 92 .

The psychosocial risks need to be seen in a wider context. The WHO suggest that nearly one in two people will suffer from mental illness at some point in their lifetime, while it is estimated that almost 10% of the population suffer from depression in any year while a further 2.6% suffer from a psychotic disorder. Anxiety is also a major issue. Many of the risks to mental health have their source in the professional context (job content, workload and work pace, control, environment and equipment, organisational culture and function, interpersonal relationships at work, role in the organisation, career development, violence and bullying) 93 .

Different data sources show that the extent of exposure to those types of risks and the related costs to society remain very high. In Europe 25% of workers say they experience work-related stress for all or most of their working time, and a similar proportion reports that work affects their health negatively. Psychosocial risks contribute to these adverse effects of work. The incidence of some psychosocial risk factors has fallen since 2005. Fewer people report working long hours and a lack of social support. However, job insecurity has grown, and one-fifth of workers still work long hours or have irregular schedules. Recently, increases in work pressure and violence and harassment have been reported in some countries; this is associated with workplace changes brought on by the economic crisis. Psychosocial risks are of concern to a majority of companies: nearly 80% of managers express a concern about work-related stress, and nearly one in five considers violence and harassment to be of major concern 94 .

The costs of mental ill health have a major impact on workplaces. As part of the work on the European Mental Health Pact, it has been estimated that the total productivity costs of absenteeism due to mental illness was €136 billion in 2007. Mental ill health has a disproportionate influence on absence from work, disability and early retirement. When people develop a mental health problem, they are likely to be out of work for longer, they are more likely to become disabled and they are more likely to retire early. Moreover, data from a number of countries indicate that mental ill health accounts for an increasing proportion of absenteeism, disability and early retirement as time passes. For example, in Germany early retirements due to mental ill health have risen from just over 20% to almost 40% of all retirements due to ill health between 1989 and 2010. The proportion of such mental health related early retirements has continued to rise 95 . Moreover, mental ill health as a cause of absence from work in Germany has also increased – between 1989 and 2012 it has risen 2.5 times while absence due to other health causes has remained substantially the same. These trends in Germany are reflected in data from many other countries across the EU. Data from the UK suggests that not only is there an increase in stress or mental health related disorders as a cause of absence, but that the absences due to these conditions are longer than those for physical health causes 96 .

While there is no EU OSH Directive which lays down detailed provisions on psychosocial risks, the Framework Directive covers this risk and there is a reference to mental stress in the DSE Directive. The analysis of compliance shows some difficulties that establishments face in including these types of risks in the risk assessments. Further evaluation regarding the situation at national level and the costs and benefits of national and social partner/enterprise initiatives to tackle these challenges would seem warranted.

Impact of derogations and transitional periods

As described in the section 5.1., derogations and transitional periods are not considered to have had a major impact on the implementation and effectiveness of the Directives.

Impact of the different CPMs

The six Common Processes and Mechanisms (CPMs) built into the OSH framework are central to its operation and contribute to achieving overall health and safety objectives.

Two factors have been identified which may influence the impact of CPMs. Firstly, the co-existence of the two levels of EU legislation, having its impact on the national legislations: the overarching framework directive and individual directives with provisions specific to some sectors, risks or groups of workers and the fact that obligations described on those two levels are complementary might not always be well understood, particularly amongst SMEs. Furthermore, scientific literature as well as analysis of compliance levels across sectors indicate that not being aware that one is not complying, particularly in SMEs, undermines the effectiveness of the CPMs. This is supported by ESENER data that shows that many, especially small, establishments perceive that no major problems exist at the workplace. Such recognition may primarily be achieved by means of external intervention from inspectors and consequential iterative dialogue (see below).

Turning to the specific CPMs, the relatively good levels of compliance (compliance being a first condition for legislation being potentially effective) with the requirement to perform risk assessments (cf. section 5) above, imply that the CPM may potentially have been effective at ensuring OSH at workplaces. The OSH management infrastructure set up in the establishments in relation to the risk assessments contributes to this goal. This interpretation received support during national and EU stakeholder interviews. Risk assessments are viewed as the foundation for forming and applying a risk prevention strategy rather than as a reactive approach to occupational safety and health. ESENER-2 survey results support this, as 90% of surveyed establishments in the EU-28 that carry out regular risk assessments regard them as a useful way of managing health and safety 97 .

This was a consistent finding across activity sectors and establishment sizes. The 2014 ESENER-2 survey results also show that fewer establishments than in 2009 refrain from conducting risk assessments because the procedure is regarded as too burdensome or because they lack the necessary expertise 98 . But the same survey also reflects the difficulties in taking certain types of risks into account in the risk assessment (only 56% of respondents of the survey declared having sufficient information on how to include psychosocial risks in the risk assessment). While preventive measures are taken in establishments where a given risk was identified as being relevant, their nature and uptake differs between Member States and establishments of different sizes 99 . This links to the difficulties for SMEs in complying with the legislation identified in the previous chapters (lack of sufficient information and training, complexity of legal obligation, lack of resources).

Also the stakeholder interviews conducted in the framework of the evaluation indicate that the provision on risk assessment would benefit from being more closely linked to risk management and the proactive prevention of identified risks on the part of employers, as stakeholders point to a tendency that risk assessment performance occasionally diverts attention away from managing identified risks, particularly in SMEs. This highlights the impact of non-recognition as SMEs tend to believe that, having followed legislative requirements and conducted a risk assessment, they are in compliance. Contrarily, risk assessments in SMEs are often of insufficient quality to ensure adequate risk management as they sometimes lack the resources (human and financial) to identify and manage hazards adequately 100 .

One finding of the evaluation is that while risk assessments performed by external service providers reduce the need to maintain in-house expertise, they often result in a lack of subsequent 'anchoring' in the establishment and consequent risk reduction in comparison to risk assessments performed by internal staff 101 . This is particularly the case when the available external services are of poor quality. As SMEs are more inclined to use external service providers, risk assessments in SMEs may not have the same quality as in larger establishments, nor to the same extent result in an OSH management approach that is integral to the particular business and priorities of the SME. Development of digital risk assessment tools such as EU-OSHA’s OiRA could provide efficiency gains and cost reductions in this respect.

On the subject of protection and preventive services, this CPM is subject to varying assessments regarding its contribution to the safety and health impacts of the OSH acquis by national and EU stakeholders, respectively. While during the stakeholders' interviews national stakeholders do not place significant emphasis on the CPM, EU-stakeholders find it to be the second most contributing CPM. This may be explained by the fact that many external protection and preventive services seem to design and target their products to larger companies which means that their aid is of less use to SMEs, who make the most use of them. This imbalance has reduced the effectiveness of the CPM to some extent. In this context, some Member States have taken measures to improve the quality of available preventive services (e.g. certification, auditing, setting minimum qualifications).

ESENER-2 findings confirm that the existence of a formal OSH employee representation does play a role in OSH risks management. According to this survey, lower proportions of workplace risk assessments are reported among those establishments without a health and safety representative than those with a health and safety representative: 62% versus 87%, respectively. The gap widens with the decrease of the establishment size 102 . Establishments with a formal OSH representation score also better as regards the existence of a document explaining OSH procedures and responsibilities in the establishment, training, support for return to work after long-term absence or routine analysis of sickness absences (See Figure 12 below).

Figure 12: OSH management measures by existence of formal employee representation (% establishments, EU-28)

Source: EU–OSHA (2016) , Second European Survey of Enterprises on New and Emerging Risks (ESENER-2), Overview Report: Managing Safety and Health at Work, European Risk Observatory, p. 75.

Finally, evidence suggests that training and information is a pivotal element in the process of improving the safety and health of workers.

However, a clear indication of a potential need for improvement of the effectiveness of the training of workers is that training on prevention and measures related to psychosocial risks and risks associated with exposure to chemical and biological agents, non-ionising radiation or dust hazards has been provided to less than half of the surveyed worker representatives. Of these, a total of 57 % report that they have received a sufficient amount of training. Important differences were also noted as regards the thematic coverage of training to employees. There is in other words a continued need for training on these matters, and on emerging risks in particular. As these proportions refer to the training of safety and health representatives, it is reasonable to assume that the training of workers is more limited. Interestingly, evidence suggests that worker representatives in SMEs tend to be more satisfied with the training they receive, than those working in larger establishments.

Impact of sanctions and labour inspections

The main responsibility for enforcing EU OSH law lies with national authorities. Article 4 of the Framework Directive 89/391/EEC on safety and health of workers at work requires Member States to ensure adequate controls and supervision, leaving Member States free to organise their enforcement authorities according to their national law and traditions. The body competent for OSH inspections varies from one Member State to another depending on the institutional setting of the country. The Commission supports the efforts of the Member States in this regard through various measures, where appropriate, in particular to ensure that effective and efficient enforcement and monitoring mechanisms are put in place.

National labour inspectorates cooperate closely at EU level on effective and equivalent enforcement of the EU health and safety at work legislation in the context of the Committee of Senior Labour Inspectors (SLIC) 103 . Several activities are being carried-out by SLIC to facilitate cooperation and coordination between inspectorates such as the development of an electronic handbook comprising all OSH enforcement authorities' competences and contact points facilitating mutual assistance among labour inspectorates or the European inspection campaigns.

As regards the effectiveness of enforcement in the area of health and safety 104 , a relatively recent literature review concludes that:

Enforcement is an effective means of securing compliance, creating an incentive for self-compliance and a fear of adverse business impacts such as reputation damage in all sectors and sizes of organisations, including major hazard sectors.

Fear of enforcement is a significant motivator for organisations, there may be value in exploring new types of penalties, charging regimes and enforcement strategies so as to maximise the deterrent effect of enforcement, such as court ordered publicity.

There is evidence that enforcement is an important element in prompting major hazard firms to manage health and safety, including major accident prevention.

Enforcement supported by advice and guidance is considered to be of equal benefit to health hazards as it is to safety risks.

The evaluation confirmed fear of enforcement is a key driver to comply with OSH legislation, as companies rated legal requirements and enforcement as major reasons for developing OSH policies and take OSH action. The EU-OSHA ESENER-2 survey results show that fulfilling legal obligations and avoiding fines from the labour inspectorate is among three main reasons for establishments to address health and safety issues 105 .

Although at macroeconomic level, no strong correlation could be identified between fatal accidents incidence rates in the different Member States and the level of enforcement, evidence based on studies at micro-economic level, including longitudinal data, points to the fact that enforcement, and particularly the combined role of inspectors enforcing legislation and providing guidance on implementation, contributes to the compliance with the OSH acquis. This is particularly true in SMEs and micro-enterprises, where non-compliance is more important than in large companies.

Two major concerns have been identified in this regard in the framework of the EU OSH Directives evaluation:

Firstly, it is the level of enforcement across Member States varies significantly. Secondly, while a strong link between the number of workers per inspector and data on work-related accidents rates could not be established, also given other confounding factors in play, the number of inspections carried out per 100,000 workers appears insufficient and there is a large spread between Member States ranging from 4,000 to 22,000 workers per inspector. The challenge to enforcement is further compounded by falling resources allocated to labour inspectorates in many Member States. Some Member States have experienced a considerable decrease in the number of inspections per 100,000 workers, while, in other Member States, the situation is the opposite. One important observation is that the respective increases or decreases of inspections across Member States is not linked to previous levels of enforcement (e.g. number of inspections per 100,000 workers) and thus does not constitute a process of levelling out inspection frequencies across Member States.

According to SLIC, inspectorates subject to budget cuts have, thus, not affected the number of inspectors/inspections carried out in all Member States, but they can have implications on salary levels and educational/training budgets. Notably, a majority of those Member States, which have managed to increase the number of inspections per 100,000 workers from 2007 to 2012, have done so largely by increasing the number of inspections made by each inspector, i.e. by improving the effectiveness of national inspectorates.

There is also significant evidence that points to the benefits associated with stressing the preventive and advisory role of inspectors. This is particularly true for SMEs because face-to-face interventions, discussions and negotiation allow them to internalise the rules of the OSH acquis and recognize a need for action. However, exploiting this potential to its fullest entails training labour inspectors and providing them with sufficient information and knowledge to cope with emerging risks and new realities 106 .

Overall, the evidence outlined above points to a need for a strong effort in the area of enforcement, and inspections in particular, to ensure the implementation of the directives and to aim for a greater harmonisation in the way the legislation is enforced 107 . The degree to which the inspection strategies developed at Member States level together with other policy tools contributes to better enforcement and compliance needs to be further studied. It is critical that labour inspectors are seen as facilitating compliance with legislation rather than obstacles to business activity. The effectiveness of labour inspections depends largely on the expertise of labour inspectors and their capacity to carry out these inspections.

Effectiveness of current data and systems enabling monitoring of the implementation of the Directives

The evaluation identified that an important challenge in the assessment of effectiveness is related to the effectiveness of current data and systems enabling monitoring of the implementation of EU OSH framework.

As also described in the Commission's better regulation guidelines, part of effective regulation is monitoring to generate evidence on activities and impacts over time in a continuous and systematic way. The guidelines, among other things, state that the monitoring system should provide time series data, which is more reliable in explaining behaviour than one-off data collection exercises.

The Directives, apart from most of them referring to the five-yearly reporting requirement, make little or no reference as to how they will be monitored. As shown in the analysis of effectiveness above, there are some important sources of data at the EU level, which do enable the monitoring of the implementation of the Directives to some extent. ESENER, ESAW, the EU-LFS ad hoc modules of accidents at work and work-related health problems and EWCS do provide valuable input. In some cases, the ongoing work on methodological issues such as under-coverage and underreporting in the ESAW data collection can bring valuable input for future evaluations. The periodicity of the ESENER and EWCS surveys is however not fully aligned with the periodicity of the evaluations. Furthermore, the monitoring of the directives often requires data at a level of detail going beyond the capacities of the existing EU data collections. The absence of longitudinal studies assessing the effects of the policy intervention, of up-to-date data on occupational exposures, the difficulties in matching or linking different data sources necessary to study the effects of the policy intervention, as well as the absence of EU level detailed data on work-related ill-health (including occupational diseases) are other challenges for the evaluation. More up-to-date data on the incidence rates of accidents at work, broken down by enterprise size would be valuable in order to establish the nature of the connexion between the levels of compliance in establishments of different size (micro, small, medium and large enterprises) and OSH outcomes.

Most of the Directives are covered by the general requirement to report to the Commission about their implementation every five years. The resulting NIRs for the period 2007-2012 constitute one of the three main building blocks for this evaluation. Having a report every five years from the Member States on the implementation of all these Directives hence also marks a unique opportunity for collecting data and filling gaps where sources such as those mentioned above, do not give sufficient insight.

Analysis of data from the NIRs for the present evaluation also shows that while they do provide valuable information, the scope of information provided varies between Member States and between Directives. This is partly because the respondents in the Member States have taken different interests in answering the questions posed in the questionnaire devised by the Commission. However, this is also due to the fact that the questions are often phrased in an open manner. For this reason, the responses from the Member States are often not comparable and reflect different interpretations of the question posed.

Furthermore, fifteen Directives contain reporting obligations. These obligations could be seen as a basis for EU wide data collection of data pertaining to the implementation of the Directives, but no initiatives have been taken to streamline reporting in these areas.

The lack of data, and the resulting limitations, have not only posed a methodological problem for the evaluation, but also reflect a fundamental problem for policy and regulatory development in relation to OSH. A clear understanding of the relationship between specific risks and their adverse consequences provides an important basis for addressing those risks. Follow-up actions are therefore needed to address this issue in the future.

6.3.    Efficiency – Assessment of costs, benefits and broader effects 

One key concern in the Better Regulation Agenda is to assess the efficiency of interventions, i.e. whether objectives are met at proportionate cost (the protection of workers health and safety under the 24 EU Directives) without imposing unnecessary burdens on enterprises, in particular SMEs. As EU level data on costs was not available to answer this question, the approach taken consisted in bringing together a number of sources of evidence: a literature review; national data; and the results of stakeholders' interviews conducted in the framework of the external study.

The result is a preliminary qualitative assessment of both the benefits for the main stakeholders groups (the workers, employers, governments) and main costs (incurred in particular by the enterprises) in relation to the health and safety legislation. Enterprise level case studies were also examined to provide further perspective. The assessment was carried out at the level of the OSH acquis in general, as the provisions of different Directives are interlinked and do not allow for an analysis by Directive.

Difficulties in relation to building a model to compare the costs and benefits of the EU health and safety legislation

A major challenge in applying cost-benefit type methods to assess the efficiency of the EU OSH framework is the difficulty in establishing a robust baseline scenario, and the lack of sufficient input data on both benefits and costs.

As far as the baseline is concerned, the mapping exercise showed that the Directives were often put in place in parallel to pre-existing national legislation of varying detail. In other cases, the Directives have influenced the way the national legislation has evolved. It is, however, difficult to judge ex-post what would have happened if the EU OSH legislative framework would not exist. An experimental or quasi-experimental counter-factual design model was impossible to implement because no robust 'comparison' group could be envisaged as compared with the 'treatment' group due to the general character of the policy intervention. At the same time no prospective data design for the evaluation was envisaged when the Directives were adopted and the data available ex-post was not fully fit for purpose. While considering an analysis based on a non-experimental design the difficulties in differentiating between the impact of the EU legislation and the national legislation as well as other confounding factors (non-OSH legislation, technological progress, structural changes in the labour markets, socio-economic developments etc.) rendered the analysis impossible.

Secondly, as explained in Chapter 6.2, an additional difficulty lies in the timeframe appropriate for the analysis. Each form of ill-health (independently of accidents at work), which the Directives are meant to prevent has its own minimum duration of exposure, maximum latent and minimum induction period. For each form of ill-health a different time frame for the analysis would need to be considered. As diseases such as cancers have a very long latent period, a 2007-2012 evaluation time frame cannot address efficiency in relation to ill health.

Finally, several pieces of input data are missing to make a full cost-benefit type assessment. On the costs side of the equation, no information is currently available to date on this topic at EU level. The study gathered information primarily from national studies, but findings from one Member State cannot be easily extrapolated to another due to differences in the transposition of the Directives and different methodologies applied to measure costs. In addition, the costs of the EU legislation cannot easily be dissociated from more detailed national requirements.

On the benefit side, information was not systematically gathered in all Member States in a comparable way during the evaluation period and in prior years. In particular, data on the levels of exposure in the exposed populations as compared to exposure limit values in the Directives and the actual number of workers exposed is often not available. This renders difficult to properly forecast the benefits, in particular in the case of Directives aiming at the prevention from forms of ill-health with long latent periods. An additional difficulty is to identify the correct appraisal value for the health outcomes.

Overall compliance costs and administrative burdens

This section presents findings in relation to the costs of complying with EU OSH legislation that arise for society, workers, and employers ('compliance costs'). The evaluation of this point was carried out on the basis of the external study, and of the NIRs, but also on the basis of the results of the measurement undertaken in the framework of the EU Action Programme for Reducing Administrative Burdens in the EU 108 as well as a distinct specific study on the consequences of the existing obligation to document risk assessment and of a possible exemption 109 outsourced by the Commission (hereinafter, 'the external study on risk assessment documentation').

The external study analysed the compliance costs arising from EU OSH legislation using the Standard Cost Model (SCM) 110  framework which divides compliance costs into substantive compliance costs (such as investments in safety equipment or physical changes in the workplace) and administrative costs 111 (costs generated by the legal obligation to provide information, such as reporting obligations 112 , including documentation). The result is a mapping of all provisions which could potentially give rise to those in costs in all the Directives.

Several methodological challenges for estimating compliance costs and administrative burdens were encountered. Following the detailed mapping of the way the Member States transposed the provisions of the Directives, it became clear that Member States frequently go beyond EU requirements. Consequently, it was felt that that the approach whereby isolated results available from chosen Member States will be extrapolated to other Member States is not appropriate. Furthermore, reservations about the SCM assumption of full compliance did not seem to be consistent with evaluation evidence of different levels of compliance by Member State, individual provisions, and other factors such as the size of the enterprise.

The Commission has been working to reduce the regulatory burdens created by EU legislation – making administrative processes easier and more efficient for citizens and businesses since 2006, Prior to the external study, the EU Action Programme for Reducing Administrative Burdens in the EU examined OSH legislation with a focus on the provisions of the Framework Directive (Council Directive 89/391/EEC) and the Construction Sites Directive (Council Directive 92/57/EEC). The measurement concluded that the information obligations, which had the most significant impact on all administrative costs related to OSH legislation, generated a cost of around 4.2 bln EUR. Out of this number, 3.8 bln EUR (88.6 %) were assessed to be administrative burdens. The most significant administrative costs were related to the obligation to possess an assessment of risks to safety and health at work (2.9 bln EU, i.e. more than half of the overall administrative costs) 113 . The SCM methodology applied in the framework of the Action Programme suggest that most goal-oriented provisions of both Directives were classified as an EU administrative burden.

In this context, ETUI (2010) 114 has questioned whether the goal-oriented legal requirements present in some directives (in particular the Framework Directive) can be translated into substantive compliance costs and information obligations (administrative costs and burdens). According to ETUI, the Framework Directive (and most other OSH Directives) contains few detailed substantive rules (such as exposure limits, medical checks etc.). Rather, they lay down general objectives and establish procedures to create a management system, which links between health and safety at work to business management systems. This makes the distinction between information obligations and other substantive compliance costs meaningless, because the production, processing and passing on of information are the building blocks of that process.

Nevertheless, in the framework of the evaluation study, in line with the SCM methodology a detailed mapping of the provisions which might lead to administrative and compliance costs was made. Most of the principles and rules common to all Directives as information obligations (generating administrative costs) and found that the main cost category related to these obligations is labour cost. It was also found that the substantive obligations will generate costs through the following obligations: requirements to change/alter the way the work is organised (work organisation); requirements to invest in safety equipment (safety equipment); and requirements to change physical working aspects, like equipment or workstations (physical aspects of work).

The study concluded that it was not possible to estimate the actual monetary costs or estimate the time used in relation to the obligations set by the Directives. The principles and rules common to all Directives laid down in the Framework Directive generally do not indicate exactly how enterprises should carry out the relevant activities nor the exact frequency of recurrent obligation. Therefore, the actual costs of compliance is dependent not only on the specific national rules but also on the enterprises interpretation and operations and they are likely to differ markedly from one enterprise to another depending on the specific risk factors, workplace operations and the level of compliance. It is noted that other studies have attempted to quantify costs under certain circumstances / in particular sectors 115 .

Other sources of information were used to attempt such an assessment including interviews with EU and national stakeholders. However, they did not provide the foundation for a robust quantitative assessment, as most of the stakeholders did not distinguish between administrative or substantive compliance costs. The external study also conducted a literature review, which showed that current knowledge is limited and fragmented. It was not possible to directly compare the results from the studies, because they differ in methodology and cover different pieces of legislation, information obligations and Member States. However, based on the available data several provisional conclusions could be reached as regards substantive compliance costs, administrative burdens and compliance costs in SMEs.

All Directives contain obligations which can potentially generate either administrative costs or substantive compliance costs. Those are, however, dependent on the situation in place in a given Member State before the entry into force of the Directives. The external study found that 15 of the 24 Directives contain reporting obligations (i.e. obligations to supply information to the competent authority or to keep and record certain documents).

Compliance costs stemming from the Directives appear to primarily fall on the enterprises (employers) and on the governments to a lower degree (compared to enterprises). However, it has proven difficult to estimate whether some requirements are more costly than others, as the different data sources are not directly comparable and present conflicting results.

OSH Directives that target all enterprises (especially the Framework Directive), and provisions that are common to all EU OSH Directives generate the highest costs from a societal perspective. However, this might not be the case from the enterprise perspective. Indeed, some obligations might be rather costly for the individual enterprise, but because the obligation only applies to a small sector or industry, the total cost from the societal perspective can be quite small. The evaluation study also pointed to the fact that there is a strong business as usual factor in costs incurred for OSH 116 , as reasons to address health and safety go beyond the legal obligations (see also figure 3).

Available literature, which uses the SCM to assess administrative costs, does not separate between costs stemming from national and/or EU legislation. Also no firm conclusions could be drawn in the external study concerning administrative costs arising from 'gold plating'. However, some of the EU stakeholders expressed the opinion that administrative costs, in general, stem from complying with national legislation rather than the EU OSH acquis. This view seems to be supported by results of a large scale 2014 survey 117 of 49,320 enterprises across the Member States, which showed that the regulatory burden (percentage of establishments reporting that the complexity of legal obligation is a major difficulty) varies from around 67% in Italy to around 14% in Slovenia and Lithuania (Figure 13). This suggests that a significant proportion of the administrative burden could be attributed to the national differences rather than the common EU minimum rules. National differences may be due to several factors, such as differences in the transposition of the EU Framework Directive, the availability of guidance, support and external services that combined with other issues lead to this very diverse perception of how complex legal obligations on OSH are.

Figure 13. Difficulties in addressing health and safety, by country: the complexity of legal obligations (% establishments).

Source: European Agency for Safety and Health at Work (EU-OSHA), ESENER-2 (2014),. Base: all establishments.

As regards compliance costs in SMEs, the study concluded that costs per employee are likely to be higher in SMEs. This conclusion is based on a UK study 118 , which showed that while SMEs spent less (measured in absolute numbers) compared to large enterprises, the costs per employee is considerably higher 119 . However, another study from the UK shows that external consultancy might have a strong effect on costs in SMEs. In this context, the evaluation found evidence that smaller enterprises are more likely to use external consultants. This may be because larger enterprises more often have the competency in-house, while microenterprises and SMEs find it easier to acquire the service from external providers, even if they have less financial resources at their disposal.

According to another 2008 survey based study 120 , third parties (like business consultants, health and safety experts, lawyers, financial service companies, and occupational health professionals) play a significant role in shaping how employers experience and feel about health and safety. However, this also means that the third sector (e.g. insurers and OSH consultancy) also likely to play a role in relation to cost of compliance among SMEs 121 .

•    The obligation to document the risk assessment

As the documentation of the risk assessment was identified since 2009 as the provision generating most administrative costs in relation to the EU health and safety legislation, the evaluation of the 24 EU occupational health and safety directives put a special emphasis on this requirement, in particular in relation to SMEs, to explore possibilities for administrative burden and costs reduction.

The evaluation of this point was carried out on the basis of sources previously mentioned, as well as of a specific mapping of the situation in the Member States carried out by the Commission services from 2010 to 2011. The two EU relevant advisory bodies, i.e. the Advisory Committee on Safety and Health at Work (ACSH) and the Senior Labour Inspectors Committee (SLIC) also adopted opinions on this point 122 .

Risk assessment is as an essential part of OSH management and the documentation obligation. However, this is also an area where the Commission has received requests 123 , 124 to exempt microenterprises from the risk assessment obligation of the Framework Directive.

The Framework Directive requires an employer to possess documents containing an assessment of the risks to safety and health at work. Those documents must be accessible to workers and/or their representatives with specific responsibility for the safety and health of workers must have access under its Article 10(3)(a). Risk assessment should be regularly adjusted when circumstances change and improvements allow 125 and they can be recorded on paper or another stable support.

A degree of flexibility for the needs of SMEs 126 is foreseen firstly in that the structure and authorship of the documents containing the results of the risk assessment is not fixed 127 and Member States can allow equivalent methods of recording the risk assessment 128 . Secondly, Member States are to define the obligations to be met by the undertakings in respect of the drawing-up of the risk assessment documents depending on the nature of the activities and/or the size of the undertakings 129 . Member States thus benefit from flexibility in this area which may consist for example in requiring the use of a simplified format or a lighter regime for certain categories of companies.

Nevertheless, the Court of Justice of the European Union (CJEU) established that Member States cannot exempt small business from being in possession of the risk assessment in a documentary form 130 .

The evaluation finds that a very limited number of Member States exempt certain categories of undertakings from the requirement to document risk assessment (Article 9 (1) (a))  131 , 132 , e.g. on grounds of their size, or the nature of their activities.

Member States use the flexibility under Article 9 (2) of the Framework Directive by allowing simplified documentation obligations for smaller companies, depending also on the level of risk of sector of activity in which they operate 133 . Most Member States do not have any particular requirement for the structure of the document, but many of them specify the kind of information that must be included in the document.

Most Member States do not define "low risk activities" or "high risk activities" 134 . Moreover, several Member States expressed their opposition and/or concerns towards a classification of activities in low and high risk 135 , indicating in particular the lack of a necessary connection between an undertaking size and the risks its activities involve. However, several Member States classify activities depending on their level of risk 136 and list 'high risk' activities 137 .

Some Member States 138 have carried out an assessment in order to determine whether the obligation to document risk assessment constitutes a necessary or unnecessary administrative burden for companies, but have generally not considered the size of the companies. No Member State has carried out an assessment of the impact of the requirement to document risk assessment for micro-companies undertaking low risk activities and very few Member States have specific information in this context about the situation of SMEs.

In line with a recommendation made by the High Level Group on Administrative Burdens, a study 139 investigated the possible consequences of an exemption of SMEs from a risk assessment documentation obligation. The results suggest that under certain scenarios an exemption from the documentation obligation for micro-enterprises in low risk sectors might lead to a modest net benefit, but that the possibility that an exemption might lead to a negative net impact cannot be ruled out. The very limited available evidence would seem not to point to overall higher work-related accidents rate because of the exemption from carrying out a risk assessment. However, the causal link between an exemption and a fall in costs of work-related ill health seems difficult to prove. The study investigated the consequences of the exemption under three different definitions of 'low risk'. Given the high degree of uncertainty in relation to certain input variables to the model, the sensitivity analysis undertaken showed that there is a risk that the policy would lead to a negative outcome in all three Low Risk definition scenarios, ranging from a net cost of 15 million EUR to 424 million EUR in the low sensitivity scenario.

An exemption from the documentation obligation can also impact the ability of enforcement bodies to monitor companies’ compliance with health and safety practices 140 . Labour inspectorates in some Member States rely heavily on the documentation as a signal of SMEs and micro-enterprises’ compliance with the health and safety legislation, and in the absence of any documentation such monitoring would need to be done through inspections, at a greater cost.

Also, there is a possibility that an exemption from documenting risk assessments could have negative consequences for small companies through rising insurance premiums that would affect all companies, even those that do not have any claims against them. Available evidence regarding an exemption from risk assessment documentation would seem not to point to overall higher work-related accidents rate because of the exemption. However, the causal link between an exemption and a fall in costs of work-related ill health seems difficult to prove.

Several challenges as to the availability of harmonised data at EU level for the purposes of a possible "low risk" sector definition remain. This, in particular, concerns the data on occupational exposures and work-related ill-health (in particular occupational diseases). In view of the data challenges in determining what sectors/occupations/hazards should be covered by the definition of low risk at European level, the exercise of categorizing low risk sectors appears to be somewhat subjective and to have corresponding limitations, including the possibility of inclusion/exclusion errors of sectors from the low risk definition.

Research undertaken so far on the relationship between the size of establishments and the injury rates for accidents at work provide another counter argument to exempting smaller establishments from the obligation to document the risk assessment (the obligation to document the risk assessment being an integral part of the general health and safety management). While no up-to-date data is available, based on available evidence the major injury rates (triggering also the highest costs for workers, social security systems and employers 141 ) seem to be higher for SMEs than for larger establishments 142 . Further efforts are therefore needed to bring the incidence for most serious accidents down in SMEs, through focussing on solutions which could improve and facilitate and improve the management of OSH risks in those establishments.

As regards the solutions identified in the course of the evaluation which could contribute to making the risk assessment procedure easier for the SMEs, those include the development of tools and templates to help guide the companies and digital solutions for assessment of risks to safety and health. Since the adoption of the EU occupational safety and health Directives, substantial efforts were deployed to develop this type of tools.

At the EU level, an example of this approach is the OiRA project. Similar tools are being developed at national level and their use can also lead to reduction in costs due to the way the legislation has been implemented at national level or at least to create incentives to renew the risk assessment based on existing provisions. In the Netherlands, the acknowledgement of a relevant risk-assessment tool for small companies with less than 25 employees replaces the need for an OSH expert to approve their risk assessment, making it easy and convenient to use for these small businesses. There is a requirement to review and update all risk assessments performed with the tools every three years and if this does not happen, the mark of acknowledgement will be removed and the advantage of not having to employ an OSH expert will be lost (which can easily cost €1,500). This acts as an incentive for both sectorial organisations and individual companies to renew their risk assessments 143 .

Benefits

Accidents at work and work-related ill-health are a major cost to EU Member States. Estimates from different Member States indicate these costs range from 2.6% to 3.8% of Gross Domestic Product (GDP) 144 . Action against poor Health and Safety can consequently provide benefits through avoiding costs that would otherwise result from cases of accidents at work and work-related ill-health.

A recent EU-OSHA literature review study 145 categorizes the costs of work-related ill-health and accidents at work into five types: productivity costs, healthcare costs, quality of life losses, administration costs and insurance costs. Those costs are not equally distributed between the different stakeholders, i.e. the workers and their families, the employers, the governments and consequently by the society in general 146 .

In the absence of EU-level estimates, an overview of the distribution of costs of work related ill-health among the different stakeholders' categories can be drawn from studies made at national level (though based on different cost models).

According to recent estimates from the United Kingdom 147 , 57% of the total costs fell on the workers, whilst 23% fell on government and 20% on the enterprises. The same source shows that non-financial human costs (which we refer to as quality of life losses) account for 57% of total costs of workplace injury and ill health. Productivity losses (which we refer to as indirect costs) accounts for 31% of total costs followed by health and rehabilitation costs (6%), administrative costs (1%) and compensation (referred to as insurance costs) (4%) 148 .

Figure 5 in Annex 4 shows the trend in the cost of workplace injuries and ill health in the UK from 2006/07 to 2012/2013. Those costs in the UK have fallen by 14% since 2006/07 reflecting downward movements in the number of cases. The estimate does not include though the costs of long latency illness. It is not possible to exactly identify what part of this reduction can be attributed to the legislation, and it should be borne in mind that UK results cannot be extrapolated to other EU Member States.

Profitability

Though a cost-benefit analysis of the effects of the EU occupational health and safety legislation was not undertaken at macroeconomic level for reasons stated above, several studies have been reviewed as a basis for assessing the profitability for enterprises of different OSH activities. The International Social Security Association assessed the return on prevention index for investments in occupational health and safety to be 2.2 149 . In line with the findings of the study on Socioeconomic costs of accidents at work and work-related ill-health the profitability index for all types of interventions analysed was ranging between 1.29 and 2.89. The benefit to costs ratio was assessed to be 1.21-2.18 150 , 151 . Benefit to cost ratios over 1 were also observed in most of the case studies analysed in a study undertaken recently by EU-OSHA, targeting SMEs 152 .

Case study literature suggests that wide-ranging interventions are more profitable than interventions targeting a particular issue related to a specific sector or type of enterprise. Moreover, interventions that mainly concern training and organizational change appear to be more profitable compared to interventions based on technical changes, such as personal protective equipment. Finally, the case studies show that participatory interventions that include workers appear to be most profitable 153 .

As regards new and emerging risks, such as psychosocial risks, a recent study has estimated that the net return on investment generated by workplace mental health promotion programmes over a 1 year period varied from €0.81 to €13.62 for every €1 of expenditure in the programme 154 .

As regards benefits in SMEs, the external study found that SMEs might in particularly benefit from health and safety effects of the EU OSH acquis, because a serious incident can lead to closure of a business due to the direct costs of dealing with the incident or the loss of contract/costumers. Thus, it is usually more difficult for SMEs to recover from a serious accident, because key workers cannot easily be replaced and because short-term interruptions to business can lead to dissatisfied clients/breach of contract.

Broader effects

The evaluation also suggests that the EU OSH acquis has had positive effects by influencing agenda setting and national priorities in Members State and by creating more awareness at enterprise level. The evidence for innovation, quality of products, competitiveness is much weaker, but the literature also points to a link between competitiveness and a safer working environment. No conclusions, however, could be drawn in this regard.

Finally, the evaluation also points to negative side effects. Most notably, stakeholders expressed concern that unbalanced emphasis on risk assessments vis-à-vis risk management and preventive measures could be ineffective, in particular in situations where the preventive and risk management measures do not follow after the risk assessment phase.

6.4    Coherence 

This section describes the main findings on how the Directives operate together, with other EU interventions and with measures at international level to achieve their objectives.

6.4.1    Coherence between the OSH Directives (internal coherence)

The evaluation suggests that there are no major contradictory provisions and the legal articulation between the OSH Directives through in-built mechanisms (e.g. specific scope, without prejudice clause, exemptions, lex specialis principle) has in most cases contributed to avoiding inconsistencies. The analysis of the interlinkages of the common processes and mechanisms (CPMs) across Directives also showed that the overall approach is relevant.

The external study has identified a number of specific requirements within individual directives that could apply to all risks, workers and workplaces. These are provisions with a scope and rationale corresponding to that of the Framework Directive and a level of prescription that would not restrict the Member States and employers’ flexibility in implementing these general principles. Specific examples of provisions which are currently included in some of the individual directives but could possibly be applied across the OSH framework are given below.

The study could not establish to what extent this would be beneficial and what additional costs for employers it would generate. Stakeholders pointed out the risk that conducting even these seemingly straightforward modifications to the framework directive could in practice result in creating additional burdens for employers while having no effect on actual protection of workers, or even de facto lowering current protection standards. Another approach, to be further explored, could be to provide clearer explanation of what is considered as effective implementation of the framework directive.

a)Risk assessment

The requirement to conduct a risk assessment is set as a general, ‘a minima’, principle in the Framework Directive. Most Directives regulating specific risks define in detail the elements/risks that must be covered by this assessment. Out of those Directives which include an obligation to carry out a risk assessment, the majority (15) establishes detailed risk assessment procedures. Eight directives provide for an obligation to be in possession of an assessment. Out of the 24 directives all except one refer to risk management measures, undefined or detailed.

However, in some cases, these detailed provisions are not directly linked to the specific scope of the Directive and could apply to all workers regardless of the risks or the sector. The evaluation suggests that the following risk assessment and derived risk management measures could be applied across the whole OSH framework:

To update or periodically repeat the risk assessment.

To record the risk assessment on a suitable medium and to preserve it in a suitable form to permit consultation at a later stage.

To take particular attention, when carrying out the risk assessment, to appropriate information obtained from health surveillance, including published information, as far as possible.

To preserve in a suitable traceable form the protection and prevention measures derived from the risk assessment.

b)Preventive and protective services

The evaluation has not revealed any coherence issues, nor have stakeholders raised concerns, in relation to the provisions relating to preventive and protective services. Only one instance of possible streamlining has been identified in relation to the Framework Directive and Directive 91/383/EEC (temporary workers).

Under Directive 91/383/EEC (temporary workers), Member States must ensure that workers, services or persons designated to carry out preventive and protective activities are informed of the assignment of temporary workers to the extent necessary to carry out adequately their protection and prevention activities for all the workers. This requirement is potentially applicable to all newly employed workers and workers who need specific attention (e.g. young workers and pregnant/breastfeeding workers) due to the risks they encounter.

c)Information to workers

The Framework Directive (Article 10) sets out the requirement of providing information to workers in a general manner. All individual Directives apart from Directive 1999/92/EEC (explosive atmospheres/ATEX Workplace) contain specific provisions on information for workers that apply to the specific risks or workplaces they cover. In some cases, these additional details and examples of information to be communicated to the workers are more general and could bring an added value to the general principles set in the Framework Directive. Consequently, the evaluation suggests that the following provisions on information to workers under individual Directives could be applied across the whole OSH framework:

The requirement to inform all workers concerned in a comprehensible manner.

The requirement to inform all workers on the outcome/results of the risk assessment including an explanation of their significance and potential risks, on the circumstances in which workers are entitled to health surveillance, on safe working practices to minimise exposure or risks, on how to detect health effects of exposure and how to report them.

Specific information requirements in particular cases, namely in cases of abnormal situations, in cases of accidents and incidents.

The requirement to provide information to workers before they take up activity.

The requirement to inform workers about any significant findings from the health surveillance, taking into account any medical confidentiality.

d)Training of workers

The Framework Directive sets the general principle of ensuring adequate training to all workers (Article 12) and most individual Directives also contain specific provisions on training of workers that apply to the specific risks or workplaces they cover. However, in some cases, the additional details and examples of training that should be provided to the workers are more general and could bring an added value if applied to all workers.

Consequently, the evaluation suggests that the following provision on training of workers under the individual Directives could be applied across the whole OSH framework:

The requirement to organise demonstrations, e.g. how to wear personal protective equipment.

The requirement concerning training instructions understandable/ comprehensible to the workers concerned.

The inclusion of safe working practices among the training topics.

The provision of specific training to workers at particular risk.

The inclusion of special circumstances and what to do in that case in the training topics as well as inclusion of information on how to perform and execute the tasks safely in the training topics.

e)Health surveillance

Article 14 of the Framework Directive set general principles on health surveillance of workers. While some specific Directives have established more detailed and specific health surveillance requirements, some individual directives set general health surveillance provisions that could potentially bring an added value to the general principle of health surveillance under the Framework Directive, as follows:

To ensure that medical examinations or surveillance must be made available during hours chosen by the worker (Directive 2004/40/EC (electromagnetic fields/EMF).

To ensure that the doctor, the occupational health professional or the medical authority responsible for the health surveillance has access to the results of the risk assessment where such results may be relevant to the health surveillance (Directive 2006/25/EC (artificial optical radiation/AOR)).

To ensure that the doctor or the authority responsible for the health surveillance must be familiar with the exposure conditions or circumstances of each worker (Directive 2004/37/EC (carcinogens and mutagens); Directive 2009/148/EC (asbestos) and Directive 2000/54/EC (biological agents).

Obligation to inform the employer of any significant findings from the health surveillance, taking into account medical confidentiality set in Directive 2002/44/EC (vibration) and Directive 2006/52/EC (artificial optical radiation).

To take into account advice from the person/authority responsible for health surveillance in implementing risk management risks including assigning alternative work (Directive 2002/44/EC (vibration); Directive 2003/10/EC (noise); Directive 2004/40/EC (electromagnetic fields/EMF); Directive 2004/37/EC (carcinogens and mutagens); Directive 2009/148/EC (asbestos)).

To ensure that result of health surveillance are kept under health records (requirement in relation to health records are set in eight directives).

f)    Limit values

Limit values are set after scientific assessment and, for binding limit values, subsequent analysis of socio-economic factors. Rapid technological change and scientific developments put high demands on timeliness and quality of these assessments. The Commission should strive to consistently improve robustness and coherence of methodologies across relevant directives 155 .

g)    Workers with particular sensitive risks

Directive 89/654/EEC (workplace), Directive 92/57/EEC (construction sites), the two Directives on mineral extracting industries and Directive 2013/35/EU (EMF) contain some measures on pregnant workers and nursing mothers. In order to ensure better clarity and avoid that provisions on pregnant/nursing workers are spread across different directives, the streamlining of these provisions could be considered.

h)    Sanctions, judicial protection, inspection and other enforcement measures

The Framework Directive does not contain express provisions on sanctions or defence of rights (by judicial process or by recourse to other competent authorities). By contrast, several individual Directives do contain specific provisions on sanctions (Directive 2013/35/EU (electromagnetic fields), Directive 2006/25/EC (artificial optical radiation), Directive 2009/148/EC (asbestos) and to a certain extent Directive 94/33/EC (young people) and means of redress (Directive 92/85/EEC (pregnant/breastfeeding workers)). These provisions could be applied across the whole OSH framework.

6.4.2.    Coherence between the OSH Directives and other EU measures and/or policies and international instruments (external coherence)

With regard to external coherence of the OSH acquis with other EU legislation/policies the evaluation found that, in several cases, there are some concerns on coherence between one or more OSH directives and one or several inter-related non-OSH EU. The coherence issues identified can be classified under the following categories:

Inconsistencies

Despite close links with Directive 2000/54/EC (biological agents), the scope of Directive 2010/32/EU (sharp injuries) does not cover all the categories of workers that might be exposed to infection through sharp injuries (e.g. workers dealing with special/ contaminated waste management treatments or researchers in laboratories).

Regulation (EC) No 1272/2008 ('CLP Regulation') and OSH Directive 98/24/EC (chemical agents) could, according to some stakeholders, give reason for concern about the consistency of the definition of "hazardous chemical agent" in the two Directives.

There are close links between Regulation (EC) No 1907/2006 (REACH), Directive 98/24/EC (chemical agents) and Directive 2004/37/EC (carcinogens and mutagens).

REACH and OSH legislation are complementary and both protect workers from the risks from chemicals. In general, REACH applies without prejudice to worker protection legislation and OSH legislation applies without prejudice to existing or future Union provisions that are more favourable to the protection of the safety and health of workers at work. There are, nevertheless in this interaction, points of friction that need to be addressed.

Under OSH, assessing and managing risks to workers is principally the responsibility of employers. REACH, via registration and obligations to communicate hazards and risks along the supply chain, places risk management duties on all the actors in the supply chain. Often, these actors are employers in terms of producers or downstream users of a chemical substance. REACH requires suppliers to compile and supply a 'safety data sheet' (SDS) when certain conditions are met. The SDS provides important information to employers helping them to perform their risk assessment at the workplace and to adopt adequate risk management measures. It must specify national OELs and biological limit values established to implement corresponding EU limit values and, where a 'chemical safety report' is required under the REACH Regulation, also relevant 'derived no-effect levels' (DNELs). This can confuse employers/downstream users who may receive different values reported in the same SDS section for the same substance.

Both Directive 98/24/EC (chemical agents) and Directive 2004/37/EC (carcinogens or mutagens) make provision for employers to eliminate or minimise risks from hazardous chemical agents to the safety and health of workers at work via ‘substitution' for non- or less-hazardous alternatives where feasible – or, in the case of carcinogens or mutagens, where technically possible. Under REACH the substitution principle also applies in particular in relation to authorisation. In the case of restriction, substitution is required by the restriction terms, while authorisation obliges users to move to alternatives where alternatives are technically and economically feasible. Authorisations for continued use of a substance are periodically reviewed to determine whether such alternatives exist.

The evaluation has identified that data generated by REACH can support employers’ efforts to find alternatives – and stakeholders have identified cases where the preparation of an application for authorisation under REACH has resulted in improved consideration of substitutes and reduced exposures in the workplace.

Key points of the interface therefore include the conclusions made by REACH registrants and employers regarding appropriate risk control, and concerning the lack of clarity in the relationship between the OSH OEL and the REACH DNEL concepts, and proposals for REACH 'authorisation' or 'restriction' measures intended to address worker protection concerns. These points can pose challenges for authorities and employers – but can also result in improved standards of worker protection under the provisions of both OSH and REACH.

In particular, the coexistence of national OELs and DNELs, which are communicated in the SDS, needs further clarification for employers with regard to the limit values they must take into account in the risk assessment and for the definition of appropriate risk management measures. The evaluation noted that provisions could, for example, be included in REACH and/or the Chemical Agents Directive to coordinate how OELs and DNELs are derived in order to define the most accurate way of using them in the risk assessment, and that there is cooperation between SCOEL and ECHA's Risk Assessment Committee (RAC) when establishing limit values as required under REACH and COM Decision 2014/113/EU to reduce the potential scientific divergences.

Concerning the interface between the REACH Regulation and Directive 2009/148/EC (asbestos), the benchmark value used by ECHA in the risk assessment supporting the amendment of the restriction on chrysotile in entry 6 of Annex XVII to REACH Regulation 156 is lower than the value for maximum airborne asbestos fibre concentration in the Directive 2009/148/EC (asbestos). The difference indicates that the limit value for airborne asbestos (or at least for chrysotile) may need to be reconsidered.

In conclusion, there is potential for further developing synergies between OSH, REACH, CLP and other EU chemicals legislation.

Lack of legal clarity in the interface

- Directive 2013/30/EU on safety of offshore oil and gas operations refers to the complementarity of the reporting requirements under this Directive and the ones under Directive 92/91/EEC (extractive industries - drilling). However, it does not provide further details on the articulation between the two reporting requirements.

-Directive 92/85/EEC (pregnant/breastfeeding workers) and Directive 94/33/EC (young people) set specific employment rights that are not always linked to occupational health and safety issues (e.g. working time provisions allowing young people to combine work with school attendance or time off for ante-natal examinations and prohibition of dismissal of pregnant/breastfeeding workers). Those other provisions which aim at protecting and ensuring the rights of pregnant/breastfeeding workers represent another important function of the maternity leave directive.

- Directive 2009/13/EC (Social partners Agreement on the Maritime Labour Convention) contains equivalent medical treatment requirements to Directive 92/29/EC (medical treatment on board vessels). Directive 2008/106/EC (implementing the IMO Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) and Directive 92/29/EC set equivalent training requirements for commercial seagoing ships. This does not lead to double regulation in practice but may be confusing as similar requirements are set by different texts.

Possibility to enhance synergies

The relevant provision concerning the award criteria under the Public Procurement Directive mentions ‘social characteristics’ as a possible criterion to be used by contracting authorities, without further details or specific reference to OSH obligations on behalf of the tenderers. The synergies between the two sets of EU legislation might be enhanced by reintroducing the link between the award criteria or contract performance conditions and the fulfilment of OSH requirements by the (potential) contractor in the provisions of the Public procurement Directives.

The main interaction between Directive 94/9/EC (ATEX Equipment) - recast by Directive 2014/34/EU - and Directive 1999/92/EC (ATEX Workplace Directive) concerns the selection of equipment and protective systems as defined under Directive 94/9/EC to be used in the different zones as defined under Directive 1999/92/EC. Although it was generally perceived that both Directives work well with no major coherence problems, some Member States expressed some concerns about this interaction leading to potential barrier to the free movement of equipment across the EU, as more MSs can impose more stringent national provisions when transposing Directive 1999/92/EC.

Positive synergies can also be found between Directive 2006/42/EC (Machinery Directive) and the following OSH directives or groups of directives: the Work Equipment Directive, physical agent Directives, Directive 89/656/EEC (use of personal protective equipment/PPE), and the ATEX Directive as they complement each other (e.g. work equipment, ATEX) in a way that raises the level of protection of the workers concerned and leads to a better application of the Directives (e.g. PPE).

Another positive synergy can be identified between the OSH Directive 2009/148/EC (protection of workers from asbestos exposure) and Directive 87/217/EEC on the protection of the environment from asbestos whereby the former contributes to the meeting of the objectives of the latter, in particular in respect of activities involving the demolition of buildings, structures and installations containing asbestos and the removal therefrom of asbestos and of products containing asbestos involving the releases of asbestos fibres or dust. 157

b) Coherence between OSH Directives and other international instruments

With regard to external coherence of the EU OSH acquis with international instruments, in several instances international conventions (i.e. 15 International Labour Organization ('ILO') Conventions and the International Maritime Organization Conventions (‘IMO’) International Convention on Standards of Training, Certification and Watch keeping for Fishing Vessel Personnel (the STCW-F Convention)) ratified by at least some Member States set additional or more stringent requirements than the EU acquis. The incorporation of the more stringent provisions in the EU OSH acquis would ensure a level-playing field across the different Member States. However, further analysis is needed to determine whether further ILO Conventions should be implemented through the EU OSH acquis.

The evaluation also found that there is uncertainty as regards the legal hierarchy between Directive 92/58/EEC (safety and health signs) and the Graphical Symbols standard EN ISO 7010 (that includes safety signs) which complicates national implementation and causes confusion amongst manufacturers and employers. There is also a lack of clarity regarding the interrelationship between the Directive and the EN ISO standard, the REFIT Programme can potentially ensure a greater clarity on the relationship between them.

6.5    EU added value 

The evaluation shows that despite the progress achieved, in the light of continued workers' exposure to occupational risks and observed levels of work-related ill-health, intervention is necessary to ensure minimum safety and health conditions for the workforce throughout the EU.

In line with the European Court of Justice jurisprudence 158 , minimum requirements in the area of health and safety at work are adopted at EU level contribute to achieving the objective set in the Treaty of raising the level of protection as regards the health and safety of workers and to harmonize the conditions in this area while maintaining the improvements made.

Results from several studies (including qualitative or qualitative structured stakeholders' interviews) as well as a detailed analysis of the NIRs show that the OSH Directives ensured a minimum protection level for workers in Member States with regard to OSH.,

The OSH legislation plays a role in preventing unfair competition between Member States based on low standards for working conditions. Different standards in terms of workers' health and safety protection across the Member States provide potential incentive for companies to locate their production facilities in Member States with the lower standards, thus impacting the cost of production. In all cases, differences in labour standards have an impact on competitiveness, because they impose different costs on operators. EU OSH acquis contributes to reduce potential differences of competition at the cost of the health and well-being of workers.

As risks to workers' health and safety are broadly similar across the EU, setting minimum requirements prevents duplication of efforts in Member States in assessing risk levels. There is thus an efficiency gain for the EU to agree on common values when developing EU-OSH legislation. Indeed, this requires often a high level of scientific expertise and can therefore bring costs savings to national administrations incurred in relation to scientific advice. This is for example the case for the legislation aiming at the protection of workers from the chemical agents as well as carcinogens and mutagens at work, where the scientific expert evaluation plays an important advisory role in establishing evidence-based occupational exposure limits as minimum requirements at the EU level.

Furthermore, as the EU legislator considered it necessary to improve the existing level of protection as regards the health and safety of workers and to gradually implement the conditions in this area, the achievement of that objective through the imposition of minimum requirements necessarily presupposes EU-wide action to ensure that Member States implement provisions in a similar way 159 The evaluation found evidence that the legislation of Member States have aligned to common minimum requirements. Indeed, the contributions received from the NIRs for the 24 OSH Directives as well as the detailed mapping exercise performed during the evaluation shows that the adoption of the Framework Directive and the related individual Directives have triggered changes both in the structure and the content of the national OSH legislations in the Member States aiming at aligning it to common minimum requirements, even though those came often in the context of an already existing national legislation. The main 'new elements' or positive aspects brought by the Framework Directive and the Individual Directives, as highlighted in the NIRs were: the contribution to the dissemination of main occupational risk prevention concepts (such as the upstream assessment of risks at the workplace and definition of corresponding preventive and protective measures, the reinforcement of the basic prevention principles of substitution and planning), reaffirmation of the general principles of risk prevention, the involvement of preventive services, in the sense of Article 7 of Directive 89/391/EEC in the risk-prevention measures; a stronger focus on preventive rather than remediation measures. In some Member States, the transposition of the OSH Directives has proven to be the occasion for the further development of the national legislation or the regrouping of a number of pre-existing elements 160 . The Framework Directive introduced in many countries a modern goal-setting process-based regulatory approach, replacing detailed prescriptive legislation. 161

Although in this area of shared competence, Member States are allowed to set high levels of protection, through EU OSH legislation workers across the EU can be assured of a minimum level of health and safety protection, also when executing their rights as regards free movement when working abroad in another Member State. As an example of how the EU OSH legislation contributes to ensuring a more even protection of workers, data gathered in the preparatory work for a revision of the CMD Directive, indicated wide differences in the Member States regarding the setting of limit values for the carcinogens under the proposal. Some Member States have already established binding limit values that are at the same value or lower than the value recommended by the ACSH. This demonstrates that unilateral national action is possible as regards setting a limit value for these chemical agents. However, there are also many cases where Member States have no limit values or ones that are less protective of worker health than the value put forward in the Commission's proposal. In addition, where national limit values exist, they vary considerably, leading to different levels of protection. Some of these limits are considerably higher than recommended by scientific evidence. Establishing a European limit value leads to ensuring a more even, minimum level of protection of workers across the EU.

As regards the contribution to broader EU policy goals, the findings of this evaluation point at a certain level of impact in terms of the goals of promotion of better job quality and working conditions of the EU 2020 Strategy.

7.    CONCLUSIONS AT EU AND NATIONAL LEVEL

Implementation and Compliance

While the Member States have chosen various models for their legal transposition of the Directives' requirements, the requirements of the EU OSH Directives contain the core elements of the national systems. EU OSH legislation – through the Framework Directive - has contributed to a focus on the risk management cycle.

The evaluation found that overall compliance with the EU OSH acquis across the EU and across establishment sizes is good. Compliance with EU OSH Directives requirements is higher in large establishments compared to SMEs and micro-establishments. Overall compliance increases with the size of the establishment. The available data shows that the lower level of compliance in smaller establishments to a large extent is coupled with the lack of a safety and health representative. The most reported challenge for compliance for SMEs is the lack of financial, technical and human resources.

Relevance

Based on the existing data, the evaluation suggests that most of the provisions of the EU OSH Directives remain relevant in view of prevalence of work related risk. Although some changes in the relative importance of different work sectors (or activities) can be anticipated, the current levels of exposure to the different hazardous agents and the continued existence of previously identified risks justify the need for the Directives.

Nevertheless, the evaluation identified some provisions where the updating of the outdated provisions or some guidance to employers and enforcers on interpretation in the light of the changing working methods in the workplaces, technological changes as well as new scientific knowledge could be considered.

Effectiveness

Concerning the effectiveness of the OSH framework, the available statistical data shows that both the incidence and the number of accidents at work have considerably decreased over the evaluation period. Several research studies and available statistical evidence show that SMEs, reporting lower levels of compliance with the OSH legislation, experience also higher (standardised) incidence rates for serious and fatal accidents at work. Data for smallest entities (microenterprises) presents a mixed picture with again higher standardised incidence rates for fatal accidents as compared with large enterprises, but lower non-fatal accident rates as compared with larger enterprises 162 . At the same time, it should further be studied to what extent under-reporting affects these results.

Due to the complexity of interaction between the different factors influencing the evolution of accidents at work, the causal links between the decreasing trend and OSH acquis given the existence of many external factors could not be properly quantified. However, qualitative evidence from stakeholders confirms that in their view the Directives were at least reasonably successful in achieving their intended aims and contribute to benefitting the health and safety of workers, including the reduction in accidents at work.

One of the main exceptions to the declining rates of work-related ill-health is work-related cancer which still seems to be very high in the EU. The latent period for cancer is often particularly long and currently recognised cases are to a large extent the effect of past exposures. Nevertheless, the absence of minimum OELs for certain substances of high concern and process generated substances or mixtures, as well as lack of common EU-level definitions for the latter, might lead to continued inefficiencies in the protection of workers from carcinogens at work. EU level protection of workers concerning carcinogens and mutagens has been broadly identified by stakeholders and Member States as in need of updating, also in the light of international developments.

Other major risk areas of ill-health are musculoskeletal disorders and mental ill-health. However, considerable uncertainty remains over measures that may be appropriate to apply at the workplace or more broadly in society.

Efficiency

The evaluation shows that administrative and substantive costs are likely to vary considerably from Member State to Member State and from enterprise to enterprise.

This is related firstly to the fact that much of the EU legislation is goal-oriented - the EU-level legislation does not exactly specify how different measures should be put in place and the actual costs will depend on the specific situation of an enterprise and its interpretation of the obligations.

Secondly, the costs of the EU legislation cannot easily be dissociated from more detailed national requirements. No firm conclusions could be drawn in the evaluation concerning administrative costs stemming from more detailed national requirements and/or EU legislation. Many factors might also influence compliance costs – especially the availability of support and accompanying measures from the EU, such as OiRA, and in Member States. However, it should be noted that developing more accompanying measures also comes at a cost.

Although some compliance costs may be business as usual costs, as enterprises would likely make some OSH-related investments irrespective of OSH legislation, complying with legal obligations is given as the major reason for addressing health and safety. Therefore, compliance cost cannot be fully regarded as being business as usual costs. A UK 2003 study points out that compliance costs per employee are likely to be higher in SMEs than in large enterprises. The reason might be that larger enterprises more often have the competency in-house and benefit from the economies of scale, which may be cheaper than relying on external services (e.g. OSH consultancy), which plays a role in cost of compliance among SMEs.

The evaluation concluded that it is not possible to quantify the exact impact of the EU OSH legislation on the health and safety of workers, due to numerous confounding factors and the lack of appropriate data. There is some data that might serve as an indication of the magnitude of the benefits that derive from occupational accidents and ill-health related prevention measures thereby avoiding related costs. Estimates from different Member States indicate these costs range from 2.6% to 3.8% of Gross Domestic Product (GDP). Estimates from the HSE in the UK have shown that the societal costs of work related accidents and ill health have fallen by 14% from 2006/07 to 2012/13. The International Social Security Association assessed the return on prevention index for investments in occupational health and safety to be 2.2. Thus, it is likely that the reductions in work related accidents also have translated into economic benefits for workers, enterprises and society even if the contribution that EU legislation made to these economic benefits could not be quantified. Several exercises, including an OSH cost-benefit methodology study by EU-OSHA, have or will shortly be launched in order to improve our understanding and data in this area.

EU added value

The evidence gathered through the (structured) qualitative stakeholders interviews made in the context of different studies, as well as throughout the analysis of the NIRs shows that the EU OSH Directives have contributed to a more even protection of workers ensuring a level playing field in occupational health and safety and minimum requirements for the protection of workers in the EU. The results of the evaluation have shown, in particular, that the EU OSH acquis, with its stronger emphasis on the preventive approach, has influenced in many cases not only the content of the provisions in place but also the structure of the national OSH legislations.

Challenges

The evaluation also points out a number of issues and challenges related to the OSH framework (with a view to improving its performance while respecting the policy objectives set). It remains to be examined further how to best address these issues.

Challenge 1:    Structure and coherence of the EU OSH acquis

The structure of EU OSH acquis

The evaluation looked at the inter-relation between the over-arching framework directive and the individual directives. Whilst some overlaps were identified, there was no tangible evidence that this has led to higher costs or lack of implementation. However, the fact that the Framework Directive covers in general all sectors and risks would point to a potential approach of addressing specific details not dealt with by detailed regulation by a combination of general rules and complementary paths such as guidance and other supporting tools.

Another question to be further explored is how to reduce the use by Member States of any national legislative techniques that add additional requirements that may result in costs for companies while not bringing added value for workers' protection.

The external coherence of the Directives

The evaluation identified interfaces between the OSH Directives and other EU measures and/or policies, where there could be scope for removing overlaps leading to application of contradictory requirements, improve legal clarity (which may otherwise cause confusion) and possibly enhance synergies. Examples of such interfaces can be found in the Annex 7. Most notably, it is important to analyse and clarify the interface between OSH and the REACH Regulation.

The framework for vulnerable groups

The evaluation concluded that vulnerable groups are not addressed in a consistent manner in the current acquis. Some groups (young workers, pregnant/breastfeeding workers, temporary workers) are addressed by an individual Directive whereas others are not (e.g. older workers, migrant workers, newly employed workers). New groups of vulnerable workers may be identified in the future and it might require clarification how such groups could be taken into account in the existing legal framework. Furthermore, there are cross-references to vulnerable groups of workers between worker-specific Directives and risk-specific Directives. While these references are not incoherent from a legal perspective, they do add to the complexity of the legal framework.

Challenge 2:    Addressing on-going and emerging risks

Addressing emerging risks

The evaluation suggests that the evolution of the workplace, technological developments, and demographic change bring about new occupational risks, which might not be fully addressed in the workplace. Depending on the nature of these risks, the most appropriate level and manner of addressing them will have to be further explored, notably with regard to adaptation to changing circumstances.

Furthermore, risks such as the MSDs or psychosocial risks are related to a complex interaction between occupational and non-occupational factors. These are covered by the framework directive but clarification is needed on what this means and the corresponding obligations for Member States and employers. Further analysis and discussion would be required to establish whether and if further action would be necessary, and at what level. It would be important to analyse the situation at national level and to examine the effectiveness of existing national, sectorial and/or enterprise level initiatives to address these risks. At EU level, awareness raising activities and practical guidance e.g. by the EU-OSHA have shown promising results to date.

Future-proofing the acquis

While the world of work is constantly changing, the Framework Directive is designed to cover all risks and workplaces and as such covers such changes, although - as stated above in relation to musculoskeletal disorders - further work may be required as new issues arise to ensure any clear outcome from the application of the framework provisions alone. Employers and enforcers could be better supported in interpreting existing provisions in light of the various changes and clear guidance could contribute to making the acquis more future-proof.

There are cases where some provisions of the individual Directives do not fully reflect technological change. One example would be Directive 90/270/EEC (display screen equipment Directive). Updating outdated provisions and removing obsolete ones will be done in close consultation with relevant stakeholders such as social partners, inspectorates and relevant authorities.

Challenge 3:    Compliance, enforcement and SMEs

Compliance of SMEs

The evaluation provides evidence to suggest that compliance with the requirements of the OSH directives is more challenging for SMEs than large establishments. At the same time the major and fatal injury rates (triggering also the highest costs for workers, social security systems and employers) are higher for SMEs, representing 99% of EU businesses, than for large establishments 163 . Almost all Member States already have established specific measures to support SMEs, including micro-companies, in implementation. A peer review process could be set up with Member States to build on best practices with a view to encourage and facilitate the compliance of SMEs. This may lead to additional benefits in terms of avoiding work-related accidents and diseases.

The key challenge in this respect is both to confirm the link between compliance and health and safety outcomes for different sizes of company and then further to investigate how to reach those SMEs where improved results can be expected to be achieved and to encourage them to improve compliance and see how compliance cost might be reduced so facilitating better compliance. The data suggests that SMEs are often not consciously non-compliant; that they typically do not react well to written guidance (often finding it too complicated); and that they rely on external services to a greater extent than large establishments thereby increasing compliance cost. Consideration could be given to how different categories of SMEs might be best targeted through a more personalised approach combining enforcement and guidance. The challenge is to confirm the impact of compliance on results and then to identify the extent to which it would be useful to apply new and innovative ways of reaching the SMEs and increasing compliance in an efficient and effective way.

Establishing exemptions for SMEs and micro-enterprises may lead to a lowering of the levels of protection for workers considering the feedback on effectiveness from key stakeholders, although micro-companies have relatively high compliance costs.  Alternative measures, such as regimes better adapted to what different categories of SME can be expected to be able to manage, could be considered. These could include, for example:

- Continuing the further development linked to digitalisation and dissemination of already existing effective tools, in particular the OiRA tool. The role of EU-OSHA is important in this respect.

- Support the use and development of new digital tools and ICT solutions (including in the field of robotics), in order to allow for simpler and more efficient solutions in terms of day to day OSH risk management and the daily OSH risks monitoring;

-.Better assist SMEs through developing improved and better targeted guidance.

- Encourage use of on-line tools like OiRA that are set up to facilitate SME compliance.

-In cooperation with Member States, best practices on compliance cost reduction for SMEs could be identified and further developed. Free advice and guidance could be examined.

These measures would be considered together with the Member States and with the representatives of employers and workers to make sure the most relevant way forward is chosen.

Enforcement

The OSH Directives require Member States to enforce the legislation transposing the Directives; however this is not always clearly articulated in the current provisions in the Directives. There is literature that enforcement is an important element in prompting major hazard firms to manage health and safety, including major accident prevention. The evaluation suggests that there is a large degree of variance in the number and frequency of OSH inspections across the Member States. To some extent this undoubtedly reflects national differences in the approach to inspections. The degree to which the inspection strategies developed at Member State level together with other policy tools contributes to better enforcement and compliance needs to be further studied.

At the same time, the evaluation found that legal requirements and enforcement 164 are major reasons for companies to develop OSH policies and take OSH action, so consideration could be given to the value of a strong effort to ensure the implementation of the Directives and to aim for a greater consistency in the way the legislation is enforced. Certain recommendations from the NIRs regarding inspection for specific Directives, as is the case for inspection standards for work equipment and competences of persons charged with inspection referred to in Article 5 of Directive 2009/104/EC could be given further attention in order to identify any possibilities to enhance the effectiveness of the current provisions.

On this basis, a process of identifying best practices regarding enforcement and inspection by Member States could be initiated with the aim to understand better the role and impacts of inspections, potentially coupled with a greater emphasis on competence building and guidance to inspectorates. The SLIC would be a key actor in this respect.

Focus on risk management

The evaluation suggests that there is a good level of compliance with the requirement to perform a risk assessment, whereas compliance is relatively lower in relation to the other CPMs. The evaluation also calls attention to evidence from some Member States at least that the issue that a sole focus on the requirement of compliance with the risk assessment obligation is not always followed by the introduction of effective risk management measures. However, it should also be noted that in several cases, evaluations of individual Directives resulted in conclusions regarding inadequate or insufficient risk assessment procedures for a given Directive, which did not adequately address Directive-specific hazards, risks, challenges and/or circumstances. There is thus a need for a dual focus on further enhancing the quality of risk assessments while at the same time ensuring that the measures identified in the risk assessment are, in fact, implemented and the risks properly managed.

More specifically, issues which may require further attention include the need to clarify the question on how the use of external services to carry out risk assessments affects the Framework Directive’s objectives of prevention and protection and a possible need to revisit the provisions related to the CPM of health surveillance. Finally, the evaluation shows that there is a continued need for training on health and safety risks, and on emerging risks in particular. 

Challenge 4:    Data and monitoring of effects

Evidence based policies need high quality, comparable and timely data. The evaluation provides evidence that despite the substantial efforts made so far in order to develop comparable datasets on health and safety at the EU level, those datasets are not always "fit for purpose" when it comes to assessing to what extent the EU OSH Directives have achieved their objectives. International cooperation to expand data-sets and detect trends as early as possible should also be explored.

There is a need for better monitoring systems to be able to follow up on whether the legislation is working as intended in terms of reducing exposure to hazards and consequently reducing the incidence of accidents and work-related disease. This includes a need to better define and execute the monitoring plan for the Directives.

In view of informing future policy development, work will continue, within the Commission and in collaboration with other actors such as EU-OSHA and Eurofound on the development of the EU-level data collections. This will include, for example, the continuation of the methodological work on the issues of under-coverage and under-reporting as regards the ESAW data collection and the ongoing work on the pilot data collection on European Occupational Diseases Statistics. It will include as well exploring the possibility of ensuring up-to-date data at the EU-level about the incidence rate of accidents at work broken down by enterprise size. New editions of existing multiannual EU surveys I will also be conducted by the horizon of 2020. Important efforts will also be devoted to develop better exposure data. The use of new ICT solutions to improve the information base will be explored.

Finally, cost-benefit analysis provides important information for policy makers, but there is a need for better national data on both costs and benefits. Moreover, to conduct cost benefit analysis at the EU level, more in-depth examination of existing country specific literature and databases, analyses of structural difference between Member States and a standardisation of national methodologies, is needed. Monitoring arrangements should be set-up in collaboration with Member States, bearing in mind that creating additional administrative burden in relation to data collection should be avoided

Annex 1 - Procedural information

DG EMPL is the lead DG for the ex-post evaluation of 24 EU OSH Directives.

The ex-post evaluation is part of the on-going EU Regulatory Fitness and Performance Programme (REFIT).

Pursuant to Article 17a of the Framework Directive 89/391/EEC 165 , the Commission is required, every five years, to produce a single report based on a comprehensive evaluation of the practical implementation of that Directive and of 23 related Directives, in terms of their relevance, of research and of new scientific knowledge in the various fields in question, and inform the other EU institutions and bodies of the results and any suggestions on how to improve the operation of the regulatory framework.

The evaluation is mainly based on:

National reports on the practical implementation of the Directives established by the Member States - including the views of the social partners;

A study by an independent external contractor;

Experience the Commission gained from monitoring the transposition and application of the Directives in the Member States.

Timing

The first report covers the period from 2007 to 2012.

December 2011: adoption of the Commission decision on the structure and questionnaire for the national implementation reports and notification to Member States.

March 2012: setting up of an Inter-Service Group comprising 12 DGs and 2 agencies: DG for Economic and Financial Affairs (ECFIN), DG for Energy (ENER), DG for Internal Market, Industry, Entrepreneurship and SMEs (GROW), DG for the Environment (ENV), Eurostat (ESTAT), DG for Communications Networks, Content and Technology (CNECT), DG for Justice and Consumers (JUST), DG for Maritime Affaires and Fisheries (MARE), DG for Research and Innovation (RTD), DG for Health and Food Safety (SANTE), Secretariat-General (SG), Legal Service (SJ), EU-OSHA agency (Bilbao), Eurofound agency (Dublin). The ISG held 9 meetings;

June 2012: conclusion of contract with a consortium of COWI (lead), Milieu Ltd. and IOM Consulting Ltd for an external study;

End 2013: deadline for the Member States to produce their national implementation reports – all 27 Member States concerned 166 transmitted a report to the Commission;

December 2014: validation seminar organised by the contractor with wide group of stakeholders (workers, employers, governments);

December 2015: finalisation of the final report by the contractor;

September 2015: adoption of ACSH opinion on the ex-post evaluation study;

Consultation of RSB

See RSB opinion in Ares (2016) 649284

Use of evidence

The following sources have been used in the SWD: national implementation reports of the 27 Member States concerned, the above-mentioned external study, other external studies (e.g. on MSDs, chemical agents, OSH in SMEs), national legislation, official statistics at EU and national level (e.g. Eurostat's EODS, ESAW, ESENER and ESENER-2), literature, interviews by the external contractor, Commission reports on practical implementation of some of the Directives, the ACSH opinion, SLIC contribution.

A chapter on the robustness of data is included in the main text of the SWD. Quality assurance was applied by the external contractor.

External expertise

The following expert groups were involved in the process:

The Advisory Committee on Safety and Health at Work (ACSH), a tripartite committee (government, workers’ and employers’ representatives) from all 28 Member States (84 members);

ACSH Working Party Evaluation of OSH Directives, involved since the beginning of the exercise (first meeting on 7 February 2012);

ACSH Standing Working Party;

ACSH Working Party on Chemical Agents;

Senior Labour Inspectors’ Committee (SLIC), comprising senior labour inspectors from all 28 Member States;

SLIC Working Group Enforcement, with a special sub-Working Group "Contribute to the review of EU OSH legislation";

SLIC Working Group “MACHEX” (machinery, work equipment);

EU Offshore Authorities Group (DG ENER) regarding Directive 92/91/EEC (drilling);

Social Dialogue Committee and Sectorial Social Dialogue Committees;

A study was carried by an external contractor, a consortium of COWI (lead), Milieu Ltd. and IOM Consulting Ltd, following a call for tender procedure on the "Evaluation of the EU Occupational Safety and Health Directives" (VT/2012/056 and VC/2013/0049). The contract was closely followed by the ISG (9 meetings) and the ACSH Working Party Evaluation of OSH Directives (6 meetings). The contractor mainly produced three interim reports and a final report, Directive reports for each of the 24 Directives and Country summary reports for each of the 27 Member States concerned. The contractor also organised a validation seminar in December 2014 to test preliminary conclusions of the study.

Annex 2 - Stakeholder consultation

1.    Summary of the consultation process

The Commission services made major efforts to ensure the larger involvement possible of all relevant stakeholders (employers and workers organisations, Member States) throughout the ex-post evaluation process, and the external consultant that prepared the evaluation has consulted various additional stakeholders. In addition, ad hoc contributions were received by the Commission services from different stakeholder groups.

The following stakeholders and expert groups were consulted through the following channels:

-Advisory Committee on Safety and Health at Work (ACSH)

The ACSH is a tripartite committee established by Council Decision 2003/C 218/01 167 , comprising representatives of governments, trade unions and employers' organisations, from all 28 Member States (84 members), appointed by Member States and nominated by the Council. Co-ordination for the social partners’ Interest Groups is ensured by the two most important EU cross-industry worker and employer organisations, that is respectively ETUC and BusinessEurope. The remit of the Committee is to assist the Commission in the preparation, implementation and evaluation of all major activities in the field of safety and health at work 168 . It delivers opinions or adopts any other political statements either at the Commission's request or on its own initiative.

For the purpose of the evaluation process, and from the beginning, the ACSH established the Working Party Evaluation of OSH Directives, to assist the Commission in monitoring and providing input to the ex-post evaluation external study (6 meetings) 169 . It was composed of twelve permanent members of the ACSH, four from each interest group (government 170 , workers 171 and employers 172 . In addition, the Commission services made available to all members of the ACSH the third interim report and the draft final report prepared by the external consultant. One member from each interest group of the Working Party functioned as a coordinator, collecting comments and input from all members of the ACSH from their interest group, with the view to ensure the largest possible involvement in the exercise. The extraordinary plenary ACSH issued an opinion on the external study on 24 September 2015 173 .

In addition a Commission services questionnaire was sent to a number of working groups in the ACSH, as well as to the EU Offshore Oil and Gas Authorities Group (EUOAG) 174 . The questionnaire covered all the mandatory evaluation criteria 175 . The ACSH Working Party on Chemicals, the ACSH Standing Working Party for the mining and extractive industries and the EUOAG provided replies. The ACSH Standing Working Party for the mining and extractive industries adopted a paper in relation to the evaluation of Directive 92/104/EEC (extractive industries - mines and quarries). Similarly, the ACSH Working Party on Chemical Agents adopted a key message document in relation to Directive 98/24/EC (chemical agents), and Directive 2004/37/EC (carcinogens and mutagens).

-Senior Labour Inspectors’ Committee (SLIC)

SLIC was set up by Commission Decision 95/319/EC of 12 July 1995 176 (as amended by Commission Decision 2008/823/EC 177 ) and comprises senior officials from the labour inspection services of all 28 Member States. It gives opinions, either at the Commission's request or on its own initiative, on all problems relating to the enforcement of OSH legislation by Member States. The 68th SLIC plenary adopted a contribution to the ex-post evaluation on challenges faced by labour inspectorates relating to enforcement and recommendations for further action 178 , prepared by the SLIC Working Group Enforcement 179 .

In addition, the 68th SLIC plenary also adopted a paper on the evaluation of the evaluation of Directive 2009/104/EC (use of work equipment) and its interplay with Directive 2006/42/EC 180 , prepared by SLIC Working Group MACHEX (machinery, work equipment) 181 .

-Member States and social partners in the context of the National Implementation Reports (NIRs)

In accordance with Article 17a of the Framework Directive 89/391/EEC, the 27 concerned Member States have submitted NIRs to the Commission on the basis of a questionnaire laid down in a Commission Decision. The questionnaire was prepared in close cooperation with the ACSH. Pursuant to the Framework Directive, Member States were required to indicate the points of view of the social partners in the NIRs. In all 27 Member States concerned, the social partner organisations have therefore been consulted on the NIRs. The Commission services have analysed the NIR and drawn up one document containing all suggestions and recommendations put forward by the Member States in the NIRs and one document containing the suggestions and recommendations put forward by the Member States in the NIR supported by more than one Member State. The main recommendations and suggestions from the NIRs are reflected and referred to in the SWD.

-Consultations carried out in the context of the external contract -

The external consultant made provisions for the carrying out of interviews with EU-level OSH stakeholders and national stakeholders with a view to collect information and nuance the analysis.

In total, 540 interviews with national stakeholders (national authorities, labour inspectorates workers’ representatives, employers’ representatives, other national stakeholders) were carried out by the national experts in the 27 Member States 182 . Compared to the planned balance between stakeholder groups, it proved that national authorities, labour inspectorates and other national stakeholders were more readily available to be interviewed, compared to worker and employer organisations. Interviews with EU-level stakeholders were also carried out in accordance on the basis of an interview guide 183 . 59 interview persons were contacted for interviews and 44 of these participated in an interview. The selection of stakeholder organisations interviewed was based on a list of proposed organisations collated by the evaluation team combined with feedback/comments by the Commission (DG EMPL and the ISSG) and the ACSH. As a result, a final list of selected stakeholder organisations was agreed upon with DG EMPL. 31 EU organisations 184 were interviewed which include 17 employer organisations, five worker organisations, three DGs, three EU agencies and bodies, and three other OSH knowledge institutions.

In addition, a validation seminar was organised in December 2014 by the contractor with wide group of stakeholders (workers, employers, governments) with the aim to consult stakeholders on preliminary findings, results and conclusions of the external study (57 stakeholders participated). The stakeholders attending the seminar did not represent any official views and opinions of the social partners, but provided very helpful reactions and viewpoints. The inputs from the seminar have been used by the evaluation team as additional background knowledge from stakeholders with long OSH experience to complete conclusions and recommendations in the individual directive reports and as input for the Main Report.

-Consultation of EU Offshore Oil and Gas Authorities Group (EUOAG) 185 (DG ENER) regarding Directive 92/91/EEC (drilling)

In February 2015, the Commission services (DG EMPL) requested the contribution from the EUOAG on the application and possible improvements of the Directive 92/91/EC (extractive industries-drilling), and in particular in addressing the interactions between this Directive and the Directive 2013/30/EU on safety of offshore oil and gas operations 186 . A questionnaire was sent to EUOGA to that effect. While it was not possible to reach a common EUOGA position 187 , the replies of several Member State (UK, NL, FR, IT and PT), as expressed by the members of EUOAG, were transmitted to the Commission 188 .

Furthermore, the EU North Sea Offshore Authorities Forum (NSOAF) Working Group 189 submitted to the Commission services a Position Paper on how to improve Directive 92/91/EEC, in May 2012 190 . The Position paper was the outcome of a two year project chaired by the United Kingdom and aimed to help NSOAF members to prepare their contributions to the Commission’s evaluation of Directive 92/91/EEC.

-Ad-hoc contributions

An important number of ad-hoc contributions was received from several Member States (UK 191 , NL 192 , FI, AT, DE 193 ), from employers' organizations (CEEMET) 194 , as well as from National Institutes (on Directive 2000/54/EC-biological agents 195 ; on Directive 94/33/EC (young people)) 196 .

1.2.    Compliance with the Commission minimum requirements on stakeholder consultation

An open public consultation was not organised. The reason is that the 24 OSH Directives are very technical texts concerning safety of the work place, where the input that may be collected through consultation will solely originate with employers and employees. It was thus important to ensure the consultation of the social partners in the evaluation process. The Commission services consulted social partners and Member States throughout the evaluation process, and the external consultant who has prepared the evaluation has consulted various additional stakeholders.

Targeted and specialised consultations of particular stakeholder groups and experts were privileged, with a view to collect expertise effectively, in an area, OSH, which is characterised by highly technical subjects. Stakeholder consultation was used both to collect evidence in relation to the evaluation criteria (e.g. stakeholders interviews carried out by the external consultant in charge of the evaluation) and to test/validate already existing analysis or evidence coming from different sources (e.g. validation seminar, ACSH opinion; the views of national social partners on NIRs). All relevant and interested stakeholder groups which have to implement and/or are affected by EU OSH legislation have been provided with the opportunity to express their views, both at national and EU level, an all evaluation criteria. Furthermore, groups with expertise ort technical knowledge were consulted or presented ad-hoc contributions (e.g. ACSH Working Party on Chemicals).

In addition, future consultations will take place, which are mandatory. Firstly, in accordance with Article 17a (4) of the Framework Directive 89/391/EEC, the Commission is to inform the European Parliament, the Council, the European Economic and Social Committee and the Advisory Committee on Safety and Health at Work of the results of the evaluation and, if necessary, of any initiatives to improve the operation of the regulatory framework. Secondly, in accordance with Article 154 TFEU, a two stage consultation of the social partners is mandatory on any legislative proposals to improve the EU OSH regulatory framework further to the evaluation. Finally, public consultations are also to be launched in the context of the preparation of the impact assessment for such new legislative proposals. These consultations are more important for stakeholders as they will concern the essential elements of the new proposals.

2.    Detailed summary of all consultations and their results

-Advisory Committee on Safety and Health at Work (ACSH)

The ACSH in the opinion adopted on 24 September 2015 mentions that there is no need for a full recast of the EU OSH Directives system and that the current structure with a Framework Directive and individual Directives should be maintained. However, it also mentions that "there is a need for an update of some outdated Directives, or certain requirements in the Directives, as they do not take account of the present technical situation" and it underlines that "there are some opportunities to streamline certain Directives and to better ensure the effectiveness of provisions and to manage complexities". As regards compliance, the ACSH acknowledges the conclusions of the external study that legal requirements are an important factor (but certainly not the only one) influencing the compliance behaviour of establishments, which suggests that, by requiring the introduction of such requirements in all MSs, the Directives had an impact on compliance behaviour. As regards the relevance of the acquis, the ACSH mentions that "consideration should be given to work-related MSDs, psychosocial risks and the aging worker population, with a view to clarifying any need for action".

The ACSH underlined the recommendation to focus on better enforcement and compliance, whereby it is recommended that the Commission considers how efforts to ensure compliance can be further enhanced with particular focus on SMEs and micro-enterprises and also considering the need for risk based approaches, as well as the need  to find new and innovative ways of reaching SMEs and micro- enterprises – for example tools such as OIRA, and exploring the approaches adopted in some Member States  to make the essential requirements of the Directives more accessible – rather than establishing exemptions for them, as this would lead to a lowering of the levels of protection of workers. The ACSH  agreed that the focus of OSH management should be on the full management cycle and the consistent application of the general principles of prevention and not just on certain processes or procedures. Finally, the ACSH considered that any specific proposals  in regard to the OSH acquis should take account of the opinion of the ACSH and the contributions of social partners according to the provisions of the EU Treaties on social dialogue.

-SLIC contribution

In its contribution, SLIC described five perceived major enforcement challenges, starting with those inherent to the Labour Inspectorates themselves 197 (e.g. the exclusion of certain category of workers from the responsibilities pertaining to Labour Inspectorates; regional enforcement differences); the nature of the employment relationship 198 (e.g. the problems faced in enforcing OSH legislation in regard to self-employed persons and domestic workers, either because these categories are excluded from the scope of the legislation or in the case where these are not excluded; precarious work; work carried out by migrant workers and posted workers, in particular in relation to health surveillance in this latter case; teleworking). Third, according to certain respondents 199 , the EU OSH Directives themselves give rise to a number of challenges, as they are deemed too technical, creating difficulties for Labour Inspectorates or leading to compliance difficulties for duty-holders, especially SMEs (Directive 2002/44/EC (vibration) and other physical agents directives (in particular due to system of multiple limit values) were specifically mentioned in this regard). Repetition within the different existing directives and duplication of requirements was also mentioned 200 , as well as the lack of legal instruments addressing new and emerging risks, including new forms of employment and new technologies (in particular, Directive 90/270/EEC (display screen equipment)) 201 . The fourth major challenge identified concerns the size of the enterprises 202 , the ageing workforce, specific risks or high risks work activities which pose significant challenges (psychosocial risks, ergonomic risks, construction work, handling of asbestos containing material, chemical agents), old equipment and machinery still in use 203 and occupational diseases 204 .

SLIC recommended that opportunities need to be provided for the voluntary continuous professional development of Labour Inspectors. Such training should go beyond the initial training which inspectors receive within the national framework at the time of recruitment, and should tackle those areas providing particular technical difficulties especially with regards to new and emerging risks. The provision of information and guidance for duty-holders in areas where this is not yet available will also aid compliance. In the case of Labour Inspectorates, exchanges of information should be facilitated and encouraged. Such information exchanges need to include areas such as the health and safety risks associated with atypical work relationships, and how these are tackled within different Member States. The setting up of close regional cooperation between Labour Inspectorates also needs to be considered as it facilitates the exchange of good practice by Member States facing common problems, have common approaches or similarities in processes, procedures or even legislation. Even though a number of Member States are currently against the establishment of ‘minimum’ or ‘recommended’ inspector-worker ratios, a number of Member States favour such a development, as it would assist the Labour Inspectorates’ claims for the allocation of adequate resources; In view of such a divergence of opinion, it is being suggested that a wide discussion is organised on whether such a ration needs to be determined at a European level. Finally, SLIC proposes that structures at national or at a European level are established so as to provide assistance to inspectorates wishing to apply for and manage projects using EU funds, and that procedures are simplified.

-Directive 98/24/EC (chemical agents), Directive 2004/37/EC (carcinogens and mutagens) – ACSH Working Party on Chemicals –Relevance and Effectiveness

The ACSH Working Party on Chemicals presented its view in relation to the EU OSH chemicals legislation architecture. First in relation to EU OSH occupational exposure limit values (OELs) it highlighted that OELs are an important tool for chemical risk management at the workplace. However, there is a need to update and simplify the legal procedure for adopting OELs. This should result in a simpler and quicker legal procedure for the adoption and revision of OELs. According to the WP issues to consider include: the need to adopt values for more substances of high concern, in particular carcinogenic, mutagenic and reprotoxic substances based on duly justified reasoning including guidance on methodology; There is a need to further develop the approach taken for identifying priority substances for evaluation by SCOEL and thereafter as candidates for future EU OELs. The WP also considered that other lists established at national or EU level may be also used as starting material; the need to address threshold and non-threshold issues for carcinogens and other substances where relevant; a more detailed explanation of how feasibility factors are taken into account; the need for a terminology used to describe different types of OELs (and corresponding procedures) based on clearly described concepts; the basis on which an OEL is set should be indicated; in the longer term it may be advisable to move to a single list of limits; guidance on the practical use of OELs should be developed; take account of similar concepts in other legal fields and their corresponding adoption procedures; the speedy adoption of more OSH OELs would facilitate REACH implementation if the registrant could use OELs as relevant DNELs; the fundamental role of SCOEL in the limit setting process for workers' health protection; the need to improve the management of the interface and further enhance synergies between EU OSH legislation and other EU chemical legislation such as the REACH and the CLP Regulations; the need to consider the most appropriate approach to managing risks that may arise from exposure to reprotoxic substances; the need to consider if and how biomonitoring could be used more effectively for workplace risk management; the need to consider the potential adverse health affects arising from exposure to dusts with low specific toxicity, clarification that; there is no need for a specific directive on nanomaterials as the existing directives already cover the known risks; any identified emerging risk not adequately covered by the existing legal framework should be promptly addressed as a matter of concern; develop more EU guidance on a range of topics 205 ; the guidance should be developed using modern communication methods and tools with a clear indication of the target audience; other substances such as sensitisers should be considered as a high priority that may merit further consideration to ensure that the risk management requirements are appropriate.

As regards the overall structure and interface between Directive 98/24/EC and Directive 2004/37/EC, a systematic examination of a number of issues, including the aforementioned issues is necessary to determine whether the merging of the two Directives would lead to a simplified and more effective approach resulting in practical benefits in controlling chemical risks at the workplace.

-Directive 92/104/EEC (extractive industries - mines and quarries)

ACSH Standing Working Party for the mining and extractive industries indicated made several recommendations for changes, including that an important number of the provisions of the Directive are generic and could be included in EU OSH Directives that apply to all work places). In addition, where a Directive applicable to all workplaces contains provisions similar to those in Directive 92/104/EC, the relevant provisions of the latter Directive should be repealed.

-Directive 2009/104/EC and Directive 2006/42/EC (machinery) –SLIC – External coherence

SLIC 206 recommends to enhance synergies between the two Directives in particular through the clarification of the interplay between these two Directives in relation to modification or adaptation of a machine provided to workers in for the first time before or on 31 December 1992; the alignment of certain requirement in the Annex I to Directive 2009/104/EC to Directive 2006/42/EC; the adaption of existing guidance to take into account the current state of the art in terms of standardization.

Annex 3 - Methods and analytical models used in preparing the evaluation

The evaluation relied on a number of different data sources, including the information provided in the NIRs, the results of external studies commissioned by the Commission services for the evaluation of the 24 EU Directives and some specific topics in relation to the evaluation (for example the consequences of exempting very small enterprises in low-risk sectors from the obligation to document the risk assessment)  207 , statistical sources both at EU and national level and a number of targeted studies covering specific topics discussed in this evaluation.

As regards the chapter on administrative costs and burdens, the study based, inter alia on the Standard Cost Model. The main aim of the model is to assess the net cost of information obligations imposed by EU legislation (net costs = costs introduced by a proposal if adopted, minus the costs it would eliminate at EU and/or national level).

Administrative costs are defined as the costs incurred by enterprises, the voluntary sector, public authorities and citizens in meeting legal obligations to provide information on their action or production, either to public authorities or to private parties. Recurring administrative costs and, where significant, one-off administrative costs have to be taken into account.

The administrative costs consist of two different cost components: the business-as-usual costs and administrative burdens. While the business-as-usual costs correspond to the costs resulting from collecting and processing information which would be done by an entity even in the absence of the legislation, the administrative burdens stem from the part of the process which is done solely because of a legal obligation.

Components of administrative costs

Core equation of the cost model

According to the Standard Cost Model, administrative costs are assessed on the basis of the average cost of the required administrative activity (Price) multiplied by the total number of activities performed per year (Quantity). The average cost per action is estimated by multiplying a tariff (based on average labour cost per hour including prorated overheads) and the time required per action. Where appropriate, other types of costs such as outsourcing, equipment or supplies’ costs should be taken into account. The quantity will be calculated as the frequency of required actions multiplied by the number of entities concerned. In case of multiple relevant administrative activities per information obligation these need to be summed up to calculate the administrative cost per information obligation. The core equation of the SCM is as follows:

As regards the estimates on the consequences of a possible exemption of microenterprises from the obligation to document the risk assessment in low risk sectors, the model referred to investigated over a ten year period: the costs of the risk assessment documentation obligation to all micro-enterprises under the current situation ('the counterfactual'); the cost savings to micro-enterprises in low risk sectors if they were exempt from the obligation. The exemption scenario was calculated in relation to the current situation and represented only additional costs or cost savings.

Three different definitions of 'low risk' were formulated within the study, using a sectoral approach.

The limitations of the model developed, were mainly related to the availability of certain data necessary to better define the notion of 'low risk', such as better EU level data on occupational diseases and occupational exposures. Other limitation related to the lack of robust information about the link between the documentation of the risk assessment and the OSH impacts.

As a consequence, due to the uncertain values of some of the inputs to the cost model developed in the study ('analysis of uncertainty'), the latter made use of a range of values for the uncertain inputs to present low, medium and high sensitivity scenarios of the net benefit of the proposed exemption. This uncertainty was due to either difference in data that were collected from different sources; or to the need to adjust data, using assumptions, to construct the input. In case of the exemption, the low sensitivity scenario represents the lowest likely net benefit of the proposed exemption, and uses values for the input that result in the lowest net benefit. The high sensitivity scenario represents the highest likely net benefit of the exemption.

For reasons discussed in Chapter 7.3, a cost-benefit analysis of the 24 EU Directives could not be undertaken. The same chapter refers, however, to cost-benefit analyses undertaken to assess the profitability of health and safety interventions at an enterprise level 208 .

Annex 4 - Analytical Annex (effectiveness and efficiency)

Figure 1

Source: Eurostat, ESAW, online datasets hsw_aw_nnasx, hsw_aw_inasx and hsw_mi01.

(*) Data on non-fatal accidents collected in the framework of the ESAW data collection includes accidents at work resulting in more than 3 days' absence from work

(**) Data for NACE Rev.1.1 Section A and D to K until 2007 and NACE Rev. 2 Sections A and C to N from 2008 onwards.

Figure 2

Source: Eurostat, ESAW, online datasets hsw_aw_nnasx, hsw_aw_inasx and hsw_mi01.

(**) Data for NACE Rev.1.1 Section A and D to K until 2007 and NACE Rev. 2 Sections A and C to N from 2008 onwards.

Table 1 Incidence rate for non-fatal accidents at work (absence of more than 3 calendar days), EU27, 2008-2012.

Source:Eurostat, ESAW, hsw_n2_01.

Table 2 Incidence rate for fatal accidents at work, EU27, 2008-2012.

Source:Eurostat, ESAW, hsw_n2_02.

Table 3 Economic costs of work-related accidents and ill-health, by perspective and type

Source: Estimating the cost of accidents and ill-health at work: a review of methodologies, EU-OSHA, 2014, p. 15.

Figure 3 Distribution of types of costs of workplace injuries and ill-health in Britain (2012/2013)

Source:    Adapted from HSE: Costs to Britain of workplace fatalities and self-reported injuries and ill-health 2012/2013

Figure 4 Costs of workplace injuries and ill health in Britain (2012/13) by type and stakeholder

Source:    Adapted from HSE: Costs to Britain of workplace fatalities and self-reported injuries and ill-health 2012/2013

Figure 5 Costs to Britain of workplace injuries and new cases of work-related illness, 2006/07 to 2012/13 (2012 prices)

Source:    Costs to Britain of workplace fatalities and self-reported injuries and ill-health 2012/2013

Note:    Costs for 2006/07, 2007/08, 2008/09 and 2012/13 are shown in dark grey and include an error bar to show the 95% confidence interval around the estimate. Cost estimates for 2012/13 are independent of cost estimates for 2006/07-2008/09 and can be reliably compared to these.

Table 4 Total Administrative Costs and National Obligations going beyond EU requirements

Source: Final Report Measurement data and analysis as specified in the specific contracts 5&6 on Modules 3&4 under the Framework Contract n° ENTR/06/61 Report on Working Environment/Employment Relations Priority Area. EU project on baseline measurement and reduction of administrative costs. June 2009.

Annex 5 - LIST OF EU OSH DIRECTIVES UNDER EX-POST EVALUATION

-    Directive 89/391/EEC 209 of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, as amended by:

-    Council Directive 89/654/EEC 210 of 30 November 1989 concerning the minimum safety and health requirements for the workplace (first individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-Directive 2009/104/EC 211 of the European Parliament and of the Council of 16 September 2009 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC – Codification of Directive 89/655/EEC, as amended by Directives 95/63/EC and 2001/45/EC);

-Council Directive 89/656/EEC 212 of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (third individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 90/269/EEC 213 of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers (fourth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 90/270/EEC 214 of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Directive 2004/37/EC 215 of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (sixth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC - Codification of Directive 90/394/EEC);

-    Directive 2000/54/EC 216 of the European Parliament and of the Council of 18 September 2000 on the protection of workers from risks related to exposure to biological agents at work (seventh individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) - Codification of Directive 90/679/EEC);

-    Council Directive 92/57/EEC 217 of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eight individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 92/58/EEC 218 of 24 June 1992 on the minimum requirements for the provision of safety and/or health signs at work (ninth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 92/85/EEC 219 of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) ;

-    Council Directive 92/91/EEC 220 of 3 November 1992 concerning the minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling (eleventh individual directive within the meaning of Article 16(1) of Directive 89/391/EEC );

-    Council Directive 92/104/EEC 221 of 3 December 1992 on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (twelfth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 93/103/EC 222 of 23 November 1993 concerning the minimum safety and health requirements for work on board fishing vessels (thirteenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 98/24/EC 223 of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Directive 1999/92/EC 224 of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (fifteenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Directive 2002/44/EC 225  of the European Parliament and of the Council of 25 June 2002 on the minimum health and safety requirements regarding the exposure of workers to the risk arising from physical agents (vibration) (sixteenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Directive 2003/10/EC 226  of the European Parliament and of the Council of 6 February 2003 on the minimum health and safety requirements regarding the exposure of workers to the risk arising from physical agents (noise) (seventeenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Directive 2004/40/EC 227 of the European Parliament and of the Council of 29 April 2004 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (18th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), ); as amended by Directive 2008/46/EC 228 ;

-    Directive 2006/25/EC 229 of the European Parliament and of the Council of 5 April 2006 on the minimum health and safety requirements regarding the exposure of workers to risks arising from physical agents (artificial optical radiation) (19th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC);

-    Council Directive 91/383/EEC 230 of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship;

-    Council Directive 92/29/EEC 231  of 31 March 1992 on the minimum safety and health requirements for improved medical treatment on board vessels;

-    Council Directive 94/33/EC 232  of 22 June 1994 on the protection of young people at work;

-    Directive 2009/148/EC 233 of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work.

Annex 6 - Relevant non-OSH EU legislation

Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC;

Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006;

Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental pollution by asbestos;

Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (recast)

Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (recast)

Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC

Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts

Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC

Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC

Directive 2014/34/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres (recast)Commission Decision 2014/113/EU on setting up a Scientific Committee on Occupational Exposure Limits for Chemical Agents and repealing Decision 95/320/EC

Annex 7 - Coherence with EU non-OSH legislation:

Directive 2000/54/EC (biological agents) and Directive 2010/32/EU (sharp injuries) - review of the scope of Directive 2010/32/EU (sharp injuries) to cover all workers exposed to sharp injuries leading to infections by biological agents should be considered since it would have a positive impact on limiting worker exposure to biological agents.

There is a need to develop synergies between OSH, REACH, CLP and other EU chemicals legislation. There is a need to improve the interface and further enhance synergies between OSH and other EU legislation on chemicals such as REACH and CLP.

Application of OSH OELs and REACH DNELs: The inclusion of in-built provisions under REACH and/or Directive 98/24/EC (chemical agents) and Directive 2004/37/EC (carcinogens and mutagens) to coordinate how OELs and DNELs are derived in order to define the most appropriate way of using them in the risk assessment. Other options would be to:

-To enhance the cooperation between SCOEL and ECHA (RAC);

-To evaluate the methodologies used to define OELs and derive relevant DNELs in order to align the approaches and promote convergence;

-To ensure that REACH registrants take into account OELs recommended by SCOEL when deriving DNELs without being challenged in other regulatory processes;

-To ensure that for a given substance SCOEL considers DNELs derived under REACH when establishing new or reviewing existing, outdated OELs;

-To reconsider the nature and extent of Member States’ capacity to set different OELs in the case of the currently so-called 'indicative' OEL values established under the terms of Directive 98/24/EC (chemical agents);

-Simplification of the procedures to set occupational limit values at EU level – and in particular currently so-called 'binding' limit values – is needed. This would also have a positive impact under OSH and also on other EU policy areas such as REACH.

Similarly, one of the main suggestions of the NIRs is to better align Directives 98/24/EC (chemicals agents) and 2004/37/EC (carcinogens and mutagens) and Regulations (EC) No 1272/2008 (CLP) and 1907/2006 (REACH).

Concerning Directive 2009/148/EC on the protection of workers against asbestos exposure, a deeper analysis is required to determine whether the combined implementation of the provisions of Directive 2009/148/EC in particular on the demolition of buildings containing asbestos and asbestos-added products and on the removal therefrom of these raw material and products (Article 12(c)), and of the provisions set out in other Union instruments (e.g. Regulation (EC) No 1907/2006 (REACH)) ensure the full achievement of the objective of Article 7(2) of Directive 87/217/EEC (protection of human health and the environment against asbestos).

Reporting requirements under Directive 2013/30/EU on safety of offshore oil and gas operations and under Directive 92/91/EEC (drilling): The articulation of the reporting requirements should be clarified through the adoption of guidelines on the interface between the two directives. The main recommendation from the NIRs are to better align Directive 92/91/EEC and Directive 2013/30/EU on safety of offshore oil and gas operations.

Medical treatment and training requirements for commercial seagoing ships: The existence of equivalent medical treatment requirements in Directive 2009/13/EC and Directive 92/29/EC, as well as of equivalent training requirements in Directive 2008/106/EC and Directive 92/29/EC, while not leading to double regulation in practice, may create confusion. One of the main recommendations from the NIRs is to better align the Directive 92/29/EEC (medical treatment on board vessels), with certain international standards (e.g. International Maritime Organisation (IMO) - Life Saving Appliances (LSA) Code 4.15.1.8.; ISO 3864-1:2011 "Graphical symbols — Safety colours and safety signs; International Labour Organization’s 2006 Maritime Labour Convention and 2007 Convention on Work in Fishing).

Public Procurement Directives and OSH award criteria: The reintroduction of a link between the award criteria or contract performance conditions and the fulfilment of OSH requirements by the (potential) contractor in the provisions of the Public Procurement Directives should be considered to enhance health and safety at work through public procurement incentives.

Directive 1999/92/EC (ATEX) and Directive 94/9/EC (ATEX equipment): In view of the concerns raised by some Member States, the review of the definition of zones to ensure similar technical interpretations in Member States to avoid barriers to the free movement of ATEX equipment should be considered. However, this would imply to set up prescriptive conditions without allowing Member States to set more stringent definitions of zones, which is contrary to the a minima approach of the EU OSH acquis. The development of guidelines for the application of Directive 1999/92/EC (ATEX) to equipment and protective systems placed on the market before the entry into force of Directive 94/9/EC (ATEX equipment) and equipment not falling under the scope of this Directive could also be considered to enhance the synergy between the two Directives.

Directive 92/58/EEC (OSH signs)- the main recommendation from the NIRs is to update the Directive and further align it with international standards (e.g. EN ISO 7010).

International instruments: The incorporation of additional requirements under international instruments in the relevant EU OSH legislation would ensure a level-playing field across the different Member States. As an alternative (or a first step), when it is not yet the case, the adoption of a Council Decision authorising the ratification of the relevant convention by Member States and to further promote ratification should be envisaged.

Annex 8 - OSH GLOSSARY

Annex 9 - The EU Occupational Health and Safety Legislation intervention logic

Annex 10 - Summary of the findings based on the Country Summary Reports

The purpose of this Annex is to present for each Member State, based on an analysis of the elements detailed in the Country Summary Reports, the main findings regarding: 1) the general legal framework and competences in the area of OSH, 2) examples of more stringent and more detailed national measures; 3) the level of compliance by different stakeholders; 4) enforcement and 5) SMEs and micro-enterprises.

The section concerning the general legal framework and competences covers the structure of the national legal framework in the area of OSH, its scope, and the main national authorities responsible for implementation and enforcement in this area.

The section concerning more stringent, broader or more detailed requirements set out in national transposing measures is limited to an analysis in relation to the common processes and mechanisms in the EU OSH Directives, key requirements, provisions on scope, definitions and limit values. However, the purpose of this Annex is not to provide an exhaustive presentation of such requirements, but rather to highlight for each Member States certain examples. In this regard, a distinction needs to be made between : on the one hand, more "stringent" requirements, which refer to those measures more protective for workers which in line with Article 153 (4) TFEU go beyond the requirements set out in the EU OSH Directives e.g. more severe limit values; and on the other hand, more "specific" or "detailed" requirements, which relate to the extent to which national measures set out more detailed mechanisms for the implementation of EU minimum requirements. In such cases, Member States have set up more detailed rules on e.g. procedures, responsibilities, etc.

The section on enforcement presents findings in relation to the national competent authorities, strategies for inspection, the nature of the role carried out by the labour inspectors and the framework concerning sanctions.

The section on SMEs and micro-enterprises concerns measures at national level to support compliance with EU OSH legislation.

1. AUSTRIA

1.1 Legal Framework and Competences

In Austria, the main act transposing the Framework is the Federal Law on Health and Safety at Work (ArbeitnehmerInnenschutzgesetz – 'AschG') of 1994. That law applies to employees and temporary staff, but not to persons employed by the federal or provincial governments and local or municipal councils, the workers in the agriculture or forestry, in private households, and those who work from home. The excluded categories are covered by measures adopted at Federal or provincial level. Although the AschG does not apply to "employees of the government, local government and community organizations, who are not employed in factories", and "workers in the federal departments to which the Federal Officials Protection Act is to apply”, 72 out of the 114 regulations applying specifically to the public sector refer to the general occupational health and safety legislation (AschG) as directly applicable. The related EU OSH directives have been transposed mostly through secondary legislation, i.e. Regulations. Directive 94/33/EC has been transposed through a specific law (Federal Law on Work of Children and Young People), together with an implementing Regulation. Directive 91/383/EEC has been transposed through the Federal Law on Hiring Out, and Directive 92/85/EEC has been transposed through the Federal Law on Protection of Mothers.

Competences over OSH mainly fall under the direction of the Federal Ministry of Labour, Social Affairs and Consumer Protection, also responsible for employment-related issues including working conditions and labour inspections. Another important ministry is the Federal Ministry of Health. The Labour Inspectorate is part of the Federal Ministry of Labour, Social Affairs and Consumer Protection. In total, 19 regional labour inspectorates and one special inspectorate for construction work (only responsible for Vienna and Lower Austria) are directly responsible to the Central Labour Inspectorate.

1.2 More stringent and more detailed measures

With regard to the legislation transposing Directive 89/391/EEC, there are more specific requirements on risk assessment, preventive and protective services and information for workers. More particularly, the AschG describes in a specific manner the risks to be taken into account, as well as the content and methodology of the risk assessment. These more specific requirements from the AschG are also applicable as regards the measures transposing a large number of individual EU OSH directives. More specific requirements on risk assessment in specific national legislation are also to be found in relation to Directive 2009/104/EC (work equipment), Directive 92/58/EEC (OSH signs), Directive 2004/37/EC (carcinogens or mutagens), Directive 98/24/EC (chemical agents at work), Directive 2000/54/EC (biological agents), Directive 92/104/EEC (surface and underground mineral-extracting industries), Directive 92/91/EEC (mineral-extracting industries through drilling), and Directive 92/85/EEC (pregnant/breastfeeding workers).

The scope of the individual directive is different from the transposing national legislation with regard to Directive 92/58/EEC (OSH signs), Directive 92/57/EEC (temporary or mobile construction sites), and Directive 92/91/EEC (mineral-extracting industries through drilling).

More broader or detailed measures on information for workers are laid down in national measures transposing Directive 89/654/EEC (workplace), Directive 2009/104/EC (work equipment), Directive 98/24/EC (chemical agents at work), Directive 2000/54/EC (biological agents), Directive 92/104/EEC (surface and underground mineral-extracting industries), Directive 91/383/EEC (temporary workers), and Directive 94/33/EC (young people at work).

Finally, more detailed provisions with regard to health surveillance are set forth in national measures transposing Directives 2003/10/EC (noise), 2000/54/EC (biological agents), and 91/383/EEC (temporary workers).

1.3 Level of compliance by different stakeholders

The information on compliance for Austria is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Austria shows a moderate level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 56% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (54.1%). ESENER-2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance only 29% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (84.6%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The external study based its conclusions on compliance only on the data provided by the labour inspectorates in the context of the 2011 labour inspection report. However, information only concerned risk assessment as no information could be gathered for the other CPMs. The level of compliance assessed across the Directives in relation to risk assessment's performance is higher in comparison to the level reported by the ESENER-2 survey. Also the study highlighted that the degree of compliance increased with the size of the companies. Finally, the study highlighted that the results of a focused inspection campaign conducted by the Austrian Labour Inspection in 2008/2009 reported that two-third of companies with less than 10 employees and nearly 90 % of companies with 10 to 50 employees performed a risk assessment 234 .

1.4 Enforcement

The Austrian OSH infrastructure is characterised by a dual system of state inspection bodies and social insurance. Enforcement of OSH-measures happens via the labour inspectorates and special units in regional governments and municipalities that have been installed to monitor safety and health of their employees. The general Labour Inspectorate (Arbeitsinspektion) is by far the larger of these bodies. It covers industries, services, the public sector, and transport. It is centralised and acts nationwide through 19 regional departments and one central office. Like in other countries, the Austrian Labour Inspectorate has progressively changed its approach, increasingly focusing on advisory work – although punishment keeps being one if its main tasks. Only a small proportion of companies can be reached via inspections, so the Labour Inspectorate has enabling strategies to support compliance. Austria has labour inspectors dedicated to specific tasks or groups of workers, such as protection of young workers, construction sites, pregnant and breastfeeding workers and workers in the hospitality industry 235 .

1.5 SMEs and micro-enterprises

Austria has not set up any exemptions, lighter regimes or incentives to assist SMEs and micro-entreprises in the implementation of OSH requirements. The few other types of actions which have been identified are guidelines (for Directive 1999/92/EC on ATEX, Directive 2002/44/EC on vibration, and Directive 89/656/EEC on PPE). The statistical yearbook of the Chamber of Commerce indicates that most of the Austrian industry consists of SMEs. It is therefore considered that SMEs are naturally addressed within the measures taken and therefore, without the practise of special documents addressing them 236 .

2. BELGIUM

2.1 Legal Framework and competences

Occupational safety and health at work is covered by the Law of 4 August 1996 on Well-Being of Workers in the Performance of their Work and its Royal Decrees. That Law, which transposes into Belgian law the Framework Directive 89/391/EEC, forms with its implementing Royal Decrees the Code on Well-being at Work (Code sur le bien-être au travail). The Code will gradually replace the previous Regulation for Labour protection (Règlement général pour la protection du travail – "RGPT"), which was in force since 1947.

Institutional aspects, such as the establishment and functioning of the internal and external protection and prevention services or of the consultation committees have been transposed in specific Royal Decrees. Most individual OSH Directives are transposed in one specific piece of legislation, typically a Royal Decree, adopted under the framework of the 1996 Law. Several Royal Decrees were necessary to transpose Directive 89/654/EEC (workplace) and Directive 2009/104/EC (work equipment). The main requirements of the Directive 2009/104/EC are transposed in the Royal Decree of 12 August 1993 on the use of work equipment, while individual royal decrees regulate the use of various specific equipment, respectively mobile work equipment, work equipment for lifting loads and work equipment provided for temporary work at height.

The Belgian legislation in the area of health and safety at work covers all types of undertakings and sectors, without distinction, including undertakings in the public sector and all enterprises, irrespective of size. The enforcement body competent for occupational health and safety issues and the procedures in case of infringement in the public sector are the same as in the private sector.

Employment legislation and legislation on health and safety at work are a competence of the Federal Ministry of Employment, Labour and Social Dialogue. Labour and employment policy is still an exclusive competence of the federal authorities. The main OSH Law and its implementing decisions are therefore adopted by the Federal government.

2.2 More stringent and more detailed measures

With regard to the Framework Directive 89/391/EEC, national provisions relating to risk assessment are more detailed. In particular, the employers, together with the prevention adviser and with the OSH dedicated committee, are required to prepare a global prevention plan, which is then declined in yearly action plans. Also, the national legislation lists twelve major risks to be considered, as a minimum, including psychosocial risks, such as the risk of harassment and violence.

Similarly, Belgium has set more detailed requirements in relation to the preventive and protective services referred to in Article 7 of the Directive. In particular, every employer is required to establish an internal service for prevention and protection at work (ISSP), consisting of at least one employee. The composition of the ISSP (depending of the size of the company) and competences required are regulated, as well as the external services. The Belgian legislation also details the content of the information to be provided to workers. Specific arrangements on health surveillance records are specified. The law requires an OSH dedicated committee to be established in any undertaking employing more than 50 employees, as well as for smaller undertakings in specific sectors.

With regard to Directive 89/654/EC (workplace), the Belgian legislation lays down more detailed requirements concerning the minimum health and safety requirements set in the Annexes to that Directive.

With regard to Directive 2002/44/EC (vibration), the national legislation establishes more detailed requirements concerning risk assessment, health surveillance and consultation of workers.

With regard to Directive 98/24/EC (chemical agents), a formula for determining the cumulative effect of exposure to various chemical agents is provided. Also, the national legislation sets more stringent occupational exposure limit values and additional limit values. Other additional requirements are also set concerning the measurements of chemical agents presenting a risk for workers’ health.

As regards Directive 92/29/EEC (medical treatment on board vessels), the scope of the Belgian legislation is broader, as it includes warships. Moreover, the national legislation requires with regard to vessels with 300 or more people on board that the doctor responsible for the medical care of the workers on board be accompanied by a nurse.

In relation to Directive 93/103/EC (work on board fishing vessels), the Belgian legislation sets more detailed or additional requirements on information to workers, training of workers and regular checks and implementation of a dynamic risk monitoring system.

2.3 Level of compliance by different stakeholders

The information on compliance for Belgium is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study. Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Belgium shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 66% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (42.3%). ESENER-2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally.

As regards health surveillance 87% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey also indicates that a very high number of establishments (82.7%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study as regards compliance are based on the annual reports from labour inspectors over the period 2007-2012 and on stakeholders' interviews. The study reported lower levels of compliance with CPMs in comparison with the data reported by the ESENER-2 survey, considering the OSH acquis as a whole (between 20-40%) and a lower, but still high, level of compliance in relation to available health surveillance (60-79%). Also the study highlighted that the level of compliance appears significantly lower in SMEs 237 . According to the study this is due to the fact that SMEs face particular challenges as they often rely on external prevention and protection services which are relatively heterogeneous in terms of quality.

2.4 Enforcement

The main authority in charge of OSH legislation enforcement is the Directorate General for the Control of Well Being at Work under the Federal Public Service for Employment, Labour and Social Dialogue, and its eight regional directorates. Within the Directorate General for the Control of Well Being at Work, the Department for control on chemical risks is specifically responsible for chemical risks, hence for the four chemical-related OSH Directives. With regard to the two mineral-extracting directives, the competent authority for enforcement is the Federal Public Service Economy. For the two Directives on vessels, it is the Federal Public Service Mobility who is responsible.

The legislation sets both criminal and administrative sanctions for non-compliance with OSH requirements. Criminal sanctions are mostly fines, with imprisonment sanctions being the exception (for some infringements in relation to legislation on young people at work and the framework legislation in case of obstruction to inspection or non-compliance with the measures imposed by the social inspectors). In some cases, the judge may impose other type of sanctions such as operating prohibition, professional exclusion or closure of the establishment.

2.5 SMEs and micro-enterprises

The SME measures laid down in the national legislation transposing the Framework Directive are equally applicable to all of the transpositions of the other OSH individual Directives.

Different types of internal services of protection and prevention are prescribed depending on the size of the enterprise. For smaller companies, there is no obligation to set up a consultation committee. Finally, a recent legislation differentiates the price of the services provided by external services depending on the main activity and the size of the enterprise, with a smaller rate for very small companies (between 1 and 5 workers) 238 .

3. BULGARIA

3.1 Legal Framework and Competences

The Safety and Health at Work Act, (December 1997) – as amended and supplemented in 2007 and 2010 –transposes the Framework Directive 89/391/EC and enshrines the rights and obligations of the public authorities, the employers and workers for ensuring healthy and safe working conditions at work. The related EU OSH directives have been transposed mostly through secondary legislation, i.e. Ordinances and Regulations. Directives 98/24/EC (chemical agents at work) and 2009/148/EC (asbestos) have also partially been transposed by the 2004 Law on Health – as amended and supplemented in 2006 239 . 

The Law on Health and Safety at Work applies to all groups of employees and all enterprises and places where work or training is carried out, regardless of the form of organisation, the type of ownership or the grounds on which the work or training is performed. The Bulgarian legislation in the area of health and safety at work covers all types and sectors, without distinction, including the public sector and all enterprises, irrespective of size.

Competences over OSH are divided between the Ministry of Labour and Social Policy and the Ministry of Health. The Ministry of Labour and Social Policy carries out an integrated control of all branches and sectors through the General Labour Inspectorate Executive Agency. The latter is responsible for the overall monitoring of the implementation of labour legislation, offers assistance to employers to fulfil their legal duties, and provides the Ministry with annual data on the number of inspections carried out, decisions taken, etc.

3.2 More stringent and more detailed measures

With regard to the legislation transposing the Framework Directive 89/391/EEC, the Bulgarian legislation sets forth additional conditions for employees working from home.

As regards Directive 2004/37/EC (carcinogens and mutagens), the national transposing legislation covers also category 1A and 1B reprotoxic substances according to the classification set out in the Regulation (EC) No 1272/2008 ('CLP Regulation'). That legislation, as well as the national legislation transposing Directive 98/24/EC (chemical agents at work) include more specific information on the scope of workers' training.

With regard to Directive 93/103/EC (work on board fishing vessels), the content or form of information provided to workers is further specified in national legislation.

Finally, with regard to Directive 92/85/EEC (pregnant/breastfeeding workers), national legislation is broader in scope to the extent that it covers also those workers which are under advanced in vitro treatment procedures.

3.3 Level of compliance by different stakeholders

The information on compliance for Bulgaria is based, on the one hand, on the findings of the ESENER -2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Bulgaria shows a very good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 90% of establishments doing so). According to the survey, workplace risk assessments are mainly contracted to external providers (71.3%). ESENER-2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 83% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (95%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study on compliance are based on the ESENER-1 survey and the reports of the General Labour Inspectorate Executive Agency (GLIEA). The study reported a general trend of improvement with regard to compliance with carrying out a risk assessment but it highlighted that stakeholders have declared during the interviews that the percentage of establishments that carry out risk assessments and risk management activities resulting from the risk assessment is lower than what is officially reported. The study also assessed the percentage of enterprises providing training to workers to be high 240 .

3.4 Enforcement

The main authorities in charge of OSH legislation enforcement are the Ministry of Labour and Social Policy, the Ministry of Health, and the General Labour Inspectorate Executive Agency (GLIEA). They cover all directives, both in the private and the public sector 241 . GLIEA is the main enforcement body, which controls the application of labour relations legislation, applies a specialised control on the upholding of the Law on OSH and other laws related to work conditions and labour relations, gives prescriptions to eliminate the identified infringements,

gives information and advice to employers and employees on methods and measures to be applied and informs the competent bodies on the gaps in labour legislation.

3.5 SMEs and micro-enterprises

It should be taken into account that the SME measures laid down in the national legislation transposing the Framework Directive are equally applicable to all of the transpositions of the other OSH individual Directives. Bulgaria has only set up a lighter regime for those enterprises having less than five employees, as they are now exempted from the obligation to have a OSH Committee. In addition, the Working Conditions Fund co-finances OSH activities especially in SMEs, through their Programs and Guidelines for Risk Assessment of SMEs. The help from the Working Conditions Fund is very much welcomed, but OSH stakeholders emphasise that OSH legislation for micro-companies and SMEs is problematic and not effective 242 .

4. CYPRUS

4.1 Legal Framework and Competences

The Framework Directive 89/391/EEC is transposed into Cypriot law by the 2002 Regulations on the Management of Occupational Health and Safety Issues and a cluster of laws brought together under the Health and Safety at Work Laws of 1996 to 2011. The Framework Directive thus is transposed by one main law which has been amended several times. The EU OSH Directives are – as a rule – each transposed in one single act, in the form of Regulations. The only exception concerns Directive 94/33/EC (young people at work), transposed through one Law on the Protection of Young Persons at Work and two regulation. Institutional aspects are also covered by separate Regulations.

The national legislation in the area of OSH covers all sectors, both public and private, and all categories of undertakings, independently of size.

The Department of Labor Inspection is the competent authority for monitoring the implementation of this legislation.

4.2 More stringent and more detailed measures

With regard to the scope of the legislation transposing the Framework Directive 89/391/EEC,

the provisions of the Health and Safety at Work Laws of 1996 to 2011 cover in addition to workers, self-employed persons and, so far as is reasonably practicable, third persons not directly employed by the employer who may be affected by the business’s activities. Most acts transposing the    EU OSH individual directives include special provisions for the self-employed. A "self-employed person" is defined to mean a person working for gain or remuneration who is not employed by another employer. The definition of the term "employer" is also broader as it includes any person who employs workers, as well as any person who conducts an economic activity or who manages a business. In addition, with the amendment to these laws in 2011 [Law 33{Ι)/2011], their scope has been extended so that their provisions, and those of regulations adopted to implement them, may fully apply to private households employing domestic staff. Further, more specific requirements are set forth in the Health and Safety at Work Laws of 1996 to 2011 on risk assessment, preventive and protective services and information of workers.

With regard to Directive 89/654/EEC (workplace), more detailed requirements are set as regards for example the overcrowding and minimum available space at the workplace.

With regard to Directive 92/58/EEC (OSH signs), more detailed requirements are laid down on training of workers.

4.3 Level of compliance by different stakeholders

The information on compliance for Cyprus is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Cyprus show a moderate level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 52% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (51%). ESENER-2 shows high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance only 27% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a high number of establishments (64.3%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study on compliance are based on a survey targeting micro-enterprises conducted by the European University of Cyprus and on the data from ESENER-1. For all CPMs, the degree of compliance was assessed as medium to low and it was concluded that the national legislation transposing the Directives was generally very effective in establishments with over 10 workers and reasonably effective in establishments with less than 10 workers 243 .

4.4 Enforcement

In Cyprus, the main authority in charge of OSH legislation enforcement is the Department of Labour Inspection, which is part of the Ministry of Labour and Social Insurance, which covers all industrial sectors and all directives, with the exception of Directives 92/29/EEC and 93/103/EC. For the latter, the Department of Merchant Shipping enforces shipping legislation including OSH issues on board vessels. In addition, the Department of Labour has joint enforcement responsibilities with regard to the OSH directives aiming at vulnerable workers.

In Cyprus, as a rule, there are no administrative sanctions applicable to non-compliance with OSH legislation. However, the inspectors can issue ‘Improvement Notices’ imposing compliance requirements within a specific period of time or ‘Prohibition Notices’ prohibiting the use of the premises, plant or place of work or the carrying on of activities which may expose serious risks to the safety and health of the workers or/and the public, until the risk is eliminated or reduced to an acceptable level for the inspector. They also have the right to request a court’s order in relation to hazardous conditions and practices in order to prohibit the use of machines, plants or workplaces, until the risk is eliminated or/and impose compliance requirements 244 .

4.5 SMEs and micro-enterprises

Cyprus does not have any directive-specific guidance for SMEs or micro-enterprises. This is not surprising as SME-related guidance is not deemed to be especially helpful for the Micro — Enterprises and SMEs which make up the great majority of enterprises in Cyprus. Such enterprises require a holistic approach to OSH, not piecemeal information.

Nevertheless two EU non-binding guides (related to the ATEX Directive and related to Work at Height) have been approved as code of practice in national legislation to help SMEs. A third specific guide on Music and Entertainment has also been introduced to protect workers in SMEs. Furthermore, Cyprus has introduced a number of accompanying actions, such as awareness raising campaigns, seminars and workshops, as well as education and training activities for SMEs representatives. Cyprus has only introduced one grant scheme for SMEs, namely the grant scheme for building contractors. The objective of the scheme was to improve the metal scaffoldings industry in Cyprus, as well as to better place the metal scaffoldings industry on the market and in line with European standards. In addition, Cyprus makes use of the European OiRa tool and the national eGnosis online information system.

5. CZECH REPUBLIC

5.1 Legal Framework and Competences

The Framework Directive was mainly transposed into the Labour Code (Act No. 262/2006 Coll.), Part Five, on occupational health and safety. The Labour Code also transposes the Directive 94/33/EC (young people at work). There are significant OSH-related provisions also in other parts of Czech legislation, such as Act No. 309/2006 Coll. on further requirements on occupational health and safety ("OSH Act"), which completes the Labour Code with more specific provisions. The implementation of the remaining EU OSH individual directives is mainly regulated by the OSH Act and/or the Labour Code, while further requirements on specific aspects have been transposed through Decrees issued by the Government, the Ministry of Labour and Social Affairs or the Ministry of Health. All of the OSH Directives concerned have been fully transposed in the Czech Republic, with the exception of Council Directive 92/29/EEC (medical treatment on board vessels) and Council Directive 93/103/EC (work on board fishing vessels), given the territorial situation of the Czech Republic. Due to the traditional distinction in the Czech Republic between safety at work and occupational health, the latter is regulated by the separate Act No. 258/2000 Coll. on public health protection, Section 7 dealing with protection of health at work.

The legislation in the area of OSH covers all sectors, without distinction, including the public sectors.

While the Ministry of Labour and Social Affairs is responsible for occupational safety and labour inspection, the Ministry of Health is competent for public health, which includes occupational health and is in charge of occupational health inspection. Although the distinction between occupational safety and occupational health is also followed by the executive agencies of the two ministries, they cooperate closely on international, national and regional levels in the field of OSH.

5.2 More stringent and more detailed measures

With regard to the scope of the Framework Directive, the specific areas referred to in Article 2 (2) of the Framework Directive are regulated in the Czech Republic by specific legislation. With regard to the health surveillance provisions, according to the national transposing legislation, all workers are obliged to undergo a preventive mandatory medical examination, regardless of the level of risks to which they are exposed during their work. This obligation is established by the Labour Code, which also requires the employer to organize at least once per year an OSH audit in all workplaces and of all equipment of the employer in agreement with trade unions or OSH workers´ representatives.

The scope of application of the national legislation transposing Directive 89/654/EEC (workplace) and Directive 90/269/EEC (manual handling of loads) is broader.

More stringent limit values are noted in the national legislation transposing Directives 2002/44/EC (vibration), 2004/37/EC (carcinogens or mutagens), and 98/24/EC (chemical agents at work).

5.3 Level of compliance by different stakeholders

The information on compliance for Czech Republic is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Czech Republic shows a very good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 77% of establishments doing so). According to the survey, workplace risk assessments are mainly contracted to external providers (53.2%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 85% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (96.3%) make available to the workers a document explaining responsibilities and procedures on health and safety. A very high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The conclusions of the external study on compliance are based on the experience from the control activities of the labour inspectors and on data from ESENER-1 Survey. The study reported that compliance with all of the CPMs is considered to be very high to high. It highlighted as well that the degree of compliance is decreasing with the size of establishment. 245 .

5.4 Enforcement

In the Czech Republic, the State Labour Inspection Office and its eight subordinated regional Labour Inspectorates are concerned with the inspection of compliance with occupational safety and health protection, as well as the control of protection of labour relations and working conditions. In addition, the state public health supervision is exercised in practice by the Regional Health Offices. There are fourteen Regional Health Offices with 79 district offices. Amongst its various public health tasks, the Offices classify works into categories, issue decisions, permits, or certificates concerning issues related to health at work and chemical safety. They perform inspections in the area of protection of health at work and surveillance of workplaces.

The enforcement bodies for public sector (professional soldiers, firemen, police, etc.) are subordinated to the Ministry of the Interior of the Czech Republic and the Ministry of Defence and Armed Forces of the Czech Republic 246 .

According to NIR 2013, applicable legislation stemming from the Directives in terms of compliance with legal obligations in the field of occupational safety and dedicated technical equipment is enforced by sanctions pursuant to Act No 251/2005 Coll. on labour inspectorates, as amended, and Act No 174/1968 Coll. on the state expert supervision of occupational safety, as amended. Occupational health legislation is also enforced by means of sanctions pursuant to Act No 258/2000 Coll. on the protection of public health and amending certain related laws, as amended 247 .

5.5 SMEs and micro-enterprises

It must be noted that, from the perspective of small and medium-sized enterprises, Czech legislation does not distinguish between employers by size or number of employees when it comes to the adoption of measures intended to increase the standard of occupational safety and health. However, in the practical application of the Framework Directive – for example, in occupational safety, and specifically in risk prevention pursuant to Section 9(3) of Act No 309/2006 Coll. on further occupational safety and health requirements, as amended – the size of an undertaking is taken into account. The Czech Republic also promotes the involvement of small and medium-sized enterprises in the organisation of various occupational safety and health events (exhibitions, competitions, seminars, workshops, etc.) 248 .

6. DENMARK

6.1 Legal Framework and Competences

Regulation of occupational safety and health has been shared among four ministries and separate legal acts are in place for work carried out on ground/land (Working Environment Act), offshore work in relation to mineral extracting industries (Offshore Safety Act), shipping/fishing (Act on Safety at Sea) and civil aviation (Act on Aviation).

The Working Environment Act ('OSH-Act') also covers ground work in relation to aviation, loading and unloading of ships including fishing vessels, shipyard work carried out on board vessels and offshore work in relation to wind turbines. With regard to work carried out on land, the OSH-act is a framework act and the main piece of legislation setting out the general principles and requirements of occupational health and safety. Additional general and specific requirements are included in the OSH Executive Orders. Also the EU OSH individual directives have been implemented in national legislation through Executive Orders. Directives 93/103/EC (work on board fishing vessels) and 92/29/EEC (medical treatment on board vessels) have been transposed in the Danish legal order through the Technical regulation on occupational health and safety in ships (or OSH-ships).

The Danish OSH legislation applies in general to both public and private enterprises, as well as to all enterprises, irrespective of size.

The Ministry of Employment is responsible for regulating the working environment when the work is carried out on land, as well as for work carried out on the loading and unloading of ships and aircraft, as well as shipyard work that takes place on board ships. The Ministry has exclusive competence for legislation and programmes in relation to labour law, safety and health at work and compensation in connection with industrial injuries. The Danish Working Environment Authority (Arbejdstilsynet) operates under the auspices of the Danish Ministry of Employment. The responsibilities of DWEA are based on the Working Environment Act (OSH-act) and related Executive Orders. DWEA is the authority which contributes to the creation of safe and sound working conditions at Danish workplaces through carrying out inspections of companies, drawing up rules on health and safety at work and providing information on health and safety at work. Rules are issued in the form of Executive Orders and guidelines describe how the provisions in the working environment legislation are to be interpreted.

6.2 More stringent and more detailed measures

Certain provisions in the OSH-act apply to the exceptions listed in the Framework Directive as well as to self-employed workers. Examples of such provisions include rules about performing work, technical equipment, and use of substances and materials.

Work environment councils are assigned the task of developing information and guidance material for workplace risk assessment as well as developing and carrying out information and training activities. Additional requirements are also set in relation to training of workers and health surveillance. More detailed provisions on the scope have been noted in relation to the Danish legislation transposing Directive 2009/104/EC on work equipment (which includes a detailed definition of “technical equipment”), Directive 90/269/EEC on manual handling of loads (which does not only address back injury but also focuses on the prevention of musculoskeletal disorders), Directive 2003/10/EC on noise (which is based in limiting daily noise strain, as opposed to weekly noise strain), and Directive 2004/37/EC on carcinogens or mutagens (which also includes substances classified as Carc3 and materials containing such substances in a concentration of 1% or more). In addition, the national legislation transposing Directive 89/656/EEC (PPE) does not exclude – contrary to the Directive – equipment used by emergency and rescue services, personal protective equipment for means of road transport, and PPE worn or used by other public order agencies. Further, Directive 94/33/EC (young people at work) includes work carried out in the employer’s private household and work carried out exclusively by members of the employer's family, as long as it belongs to the household.

In relation to Directives 2009/104/EC (work equipment), 1999/92/EC (ATEX), and 2004/37/EC (carcinogens or mutagens), the national transposing legislation details the content of the risk assessment. With regard to limit values, more stringent limit values are included in the national legislation transposing Directive 2003/10/EC (noise) and Directive 98/24/EC (chemical agents at work). Finally, temporary workers (Directive 91/383/EC) are covered by the same rules as all other workers in Denmark through the Executive Order on the Performance of Work.

6.3 Level of compliance by different stakeholders

The information on compliance for Denmark is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study. Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Denmark shows a very good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 91% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (83.2%). ESENER-2 shows high levels of uptake for health and safety services used, be it in house or contracted externally.

As regards health surveillance only 10% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees.

The survey indicates that a very high number of establishments (88%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study on compliance are based on the systematic surveys monitoring the status for the OSH work at enterprise level carried out since 1999 by the Danish Working Environment Authority (DWEA). As the ESENER -2 survey, the study assessed that the degree of compliance for all CPMs in Danish enterprises is high to very high, with the exception of making available health surveillance. According to the study only a very low percentage of Danish workers have access to health checks due to the fact that health care in Denmark is funded through the taxes and is accessible to all and free of charge. As regards sectors of activity, the study reported that the sectors showing the highest degree of compliance were residential care and home care, chemistry and medicine, and home and day care. On the other side, it was assessed that restaurants and bars, hairdressers and other personal care, and hotels and campings, film, press and books, and repair of machinery and equipment did not perform satisfactorily on the CPMs 249 .

6.4 Enforcement

In Denmark, the main authority in charge of OSH legislation enforcement on land is the Danish Working Environment Authority. The DWEA is an agency that works under the auspices of the Ministry of Employment at national and regional level, contributing to the creation of safe working conditions. It is empowered with supervision and enforcement rights, which are commonly designated to labour inspectorates in other countries. The DWEA has the authority to penalise companies which do not comply with the working environment rules. They can also issue administrative fines for clear violations of the Working Environment Act, and in cases of extreme danger, they may also order work to be suspended. Further, the DWEA is responsible for the review of OSH conditions in companies. This includes verifying that a written evaluation has been carried out, specific to that particular workplace 250 .

The different forms of sanctions of the Danish Working Environment Authority, i.e. improvement notices, legal charges, administrative fines and guidelines, will depend on both the enterprise’s actual working environment standards and on its own efforts. As an executive authority, the DWEA focuses in particular on enterprises with poor safety and health conditions and no serious policy in relation to working environment issues. If a company does not fulfil its obligations under the OSH-act, the DWEA can administer a time-bound injunction, a consultancy notice, a prohibition, an administrative fine or file a police report 251 .

6.5 SMEs and micro-enterprises

The DWEA does not generally distinguish between small and large undertakings in its inspections although some flexibility is allowed for micro-enterprises. It is however aware that it may be difficult for small undertakings to have the necessary knowledge and abilities themselves, and has therefore launched some initiatives aimed at micro-enterprises and small undertakings. DWEA offers special guidance during inspection for the small enterprises and has developed start-up packs for new and small enterprises introducing the requirements of the OSH act. It has also established a call-center which can provide immediate response to enquiries about the working environment which may be necessary for small enterprises. It should be taken into account that the SME measures laid down in the national legislation transposing the Framework Directive are equally applicable to all of the transpositions of the other OSH individual Directives 252 .

7. ESTONIA

7.1 Legal Framework and Competences

Estonia has transposed the Framework Directive 89/391/EEC in one main framework law, the Occupational Health and Safety Act ('OHSA') and a series of "horizontal" implementing acts (secondary legislation) relating to preventive and protective services, external services, training of workers and medical examination. Examples include Regulations of the Minister of Social Affairs on the procedure of medical examination of workers 253 or on OSH-related training 254 .

The individual EU OSH directives are as a rule transposed by one implementing regulation, typically adopted at the governmental or ministry level, while some aspects are regulated by the OHSA or the "horizontal" implementing acts. There are exceptions to this with regard to the mineral extracting-industries directives 92/91/EEC and 92/104/EEC – transposed thorough several regulations and the Mining Act, which provides for key definitions - ; the vessels related EU OSH directives, where general maritime safety legislation also applies; and Directives 92/85/EEC (pregnant/breastfeeding workers) and 94/33/EC (young people at work) transposed through several acts.

The Estonian legislation in the area of occupational health and safety covers all sectors, without distinction, including the public sector and all types of enterprises, irrespective of size.

In Estonia, the Ministry of Social Affairs takes the lead on governing occupational safety and health matters. Both the national labour inspection and occupational health affairs are under the jurisdiction of this Ministry, which also has responsibility for strategic level planning and follow-up of implementation.

7.2 More stringent and more detailed measures

With regard to the Framework Directive 89/391/EEC, national transposing legislation is broader in scope, as it covers domestic workers as well as, to a certain extent, self-employed persons (as from 1 July 2007, OSH requirements extended to the work of self-employed workers if they work at a shared workplace together with the employer’s workers. A self-employed worker must also ensure the soundness and proper use of the work equipment, personal protective equipment and other equipment belonging to him or her in every work situation).

More detailed or specific requirements are set forth in relation to risk assessment (e.g. the requirement to take into account the gender and age of the workers, including special risks to pregnant and nursing women, to minors and disabled workers; as regards the content of risk assessment, the requirement to measure parameters of working environment hazards if necessary) and preventive and protective services (the national legislation defines in line with Article 7 (8) of the Framework Directive, the necessary capabilities and aptitudes for designated workers and the external services or persons). More detailed requirements are also set in relation to the training of workers and to health surveillance in regulations adopted by the Ministry of Social Affairs. Rules on the provisions of first aid in companies are set in a separate regulation.

With regard to Directive 90/269/EC (manual handling of loads), more detailed provisions are also laid down concerning risk assessment and preventive and protective measures for women , pregnant/breastfeeding workers and young people at work.

With regard to Directive 90/270/EEC (display screen equipment), national legislation covers "computer systems mainly intended for public use" which are among the elements expressly excluded from the scope of application of the directive. In addition, several of the minimum requirements are further developed, in particular on risk assessment (in addition to the factors endangering the worker’s eyesight and potential physical or mental overload at work, the employer is obliged to take into account risk factors of work environment, including lighting, noise, electromagnetic radiation and internal atmosphere of work room, as well ergonomics and suitability of design of workplace for the worker)), the duration of breaks, the conditions and periodicity of medical examinations.

7.3 Level of compliance by different stakeholders

The information on compliance for Estonia is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Estonia shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 68% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (64.7%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 75% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees.

The survey indicates that a very high number of establishments (95.4%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The external study based its conclusions on compliance on the 2013 labour inspectorate annual report for risk assessment, the Estonian Work Life Survey 2009 and on consultation with the labour inspectorate. The study assessed that the level of compliance with CPMs considering the OSH acquis as a whole varied from high (60-79%) for risk assessment, ensuring protective and preventive services, making available health surveillance, and even very high (89%) for training of workers, to a medium degree of compliance in relation to information for workers and consultation of workers. It highlighted as well that the level of compliance appeared lower in SMEs, and even lower in micro-enterprises 255 .

7.4 Enforcement

In Estonia, the main authority in charge of OSH legislation enforcement is the Labour Inspectorate under the Ministry of Social Affairs. The Health Board is also competent for occupational health and chemical safety related aspects. With regard to the two mineral-extracting directives, enforcement is exercised jointly by the Labour Inspectorate and the Technical Surveillance Authority under the Ministry of Economic Affairs and Communications. For the two directives on vessels, responsibility for enforcement is shared with the Maritime Administration also under the Ministry of Economic Affairs and Communications. The Labour Inspectorate is responsible for both the private and the public sectors 256 .

The legislation sets both criminal and administrative sanctions for non-compliance with OSH requirements. Criminal sanctions are pecuniary sanctions and imprisonment (up to 5 years if the infringement has caused a person’s death and it was committed by negligence. The Estonian legislation also provides for administrative fines 257 .

7.5 SMEs and micro-enterprises

There are no specific exemptions or lighter regime provided for SMEs. However, Estonia has put in place financial incentives with the support of the European Social Funds, whereby SMEs with less than 45 workers can apply for financial support to carry out the risk assessment envisaged and to provide health surveillance to the workers on the basis of the outcomes of the risk assessment.

8. FINLAND

8.1 Legal Framework and Competences

In Finland, the Framework Directive 89/391/EEC is transposed through the Occupational Safety and Health Act (No 738/2002) 258 and the Occupational Health Care Act (No 1383/2001). The Occupational Safety and Health Act lays down the minimum level of safety and health at work, the responsibilities of employers and workers, and the cooperation of employers and workers required to promote occupational health and safety. The Occupational Health Care Act requires employers to organize at his own expenses preventive services for all workers. Each employer is required to describe the organization and content of the services in a company-wide plan.

Most individual EU OSH directives are transposed by one Government Statute or Government Decree, apart from Council Directive 92/85/EEC (pregnant/breastfeeding workers), which is transposed by a single law : Law 55/2001 of 26 January 2001 on work contracts.

The Finnish legislation in the area of occupational health and safety covers all sectors, without distinction, including the public sector and all enterprises, irrespective of size. .

Competences in the area of OSH in the public and private sector are mainly with the Ministry of Social Affairs and Health, which – through its Department on OSH – is the highest government body for OSH administration in Finland.

8.2 More stringent and more detailed measures

With regard to the Framework Directive, more broader provisions concern its scope, as the transposing Finnish legislation applies to work carried out under the terms of an employment contract (including to work carried out in an employment relationship in the public sector or in comparable service relation subject to public law), including domestic workers. Organization of OSH is voluntary for self-employed persons.

Finland also established more detailed provisions in the Occupational Safety and Health Act (738/2002) than those of Directive 89/931/EEC and/or related directives on the following issues, for example: Section 10 – Analysis and assessment of the risks at work; Section 11 – Work that causes particular risks; Section 12 – Design of the working environment; Section 13 – Work design; Section 24 – Ergonomics of the workstation, work postures and work motions; Section 25 – Avoiding and reducing workloads; Section 27 – Threat of violence; Section 28 – Harassment; Section 29 – Lone working; Section 49 – The duty of those operating at a shared workplace to exercise care; Section 50 – Information and cooperation at a shared workplace; Section 51 – Obligations of the employer exercising the main authority at a shared workplace; Section 52 – Obligations on a shared construction site; Section 52a – Identification of persons working on a shared construction site; Section 52b – List of persons working on a shared construction site; Section 53 – Obligations of self-employed workers at a shared workplace; Section54 – Elimination of mutual hazards in workplaces.

In relation to Directive 2006/25/EC (artificial optical radiation), national legislation sets more stringent provisions in respect of health surveillance for vulnerable workers , to the extent that it requires those checks to be carried out prior to exposure.

Regarding Directive 2004/37/EC (carcinogens and/or mutagens at work), more stringent requirements are set out in relation to benzene, to the extent that the use of benzene as a soaking agent in a confined space is prohibited.

With regard to Directive 98/24/EC (chemical agents at work), more detailed and stringent requirements are laid down in relation to measurement of hazardous chemical agents, to the extent that the competent national authorities can decide the following : how and when the measurement of chemical agents should be carried out; what measures should be used; who should be informed of the results of the measurement; the medium and the period for the keeping of the results of exposure; under what circumstances an independent measurement institute should be used.

8.3 Level of compliance by different stakeholders

The information on compliance for Finland is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Finland shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 73% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (63.8%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance 90% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (82%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees.. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study on compliance are based on a survey among safety representatives and safety managers within companies and on the work environment surveys of the years 2008 and 2009. The study assessed a very high degree of compliance for all the CPMs (80-89%). It established as well that differences could be observed between different sized companies. The study also underlined that, according to the survey among safety representatives and safety managers, many small enterprises have never performed a risk assessment 259 .

8.4 Enforcement

In Finland, the main authority in charge of OSH legislation enforcement is the Ministry of Social Affairs and Health, covering all directives. Its inspecting bodies, covering five regions in Finland, are the Occupational Safety and Health Inspectorates (Regional State Administrative Agencies). The Inspectorates provide instructions and advice on applying the regulations on occupational safety and health matters, working conditions, employment and equality, and ensure that there is adherence to these regulations and guidelines in the workplaces. The Department for Occupational Safety and Health of the Ministry of Social Affairs and Health directs the activities of the Regional State Administrative Agencies’ Divisions of Occupational Safety and Health (regional OSH administration) by means of four-year framework agreements and annual performance agreement.

The Finnish legislation provides either criminal or administrative sanctions for violation of occupational health and safety (OSH) legislation. These sanctions apply to all OSH Directives. The health and safety inspectors have the right to deny hazardous work (usually certain work tasks). A case where the full workplace was shut down could not be identified 260 .

8.5 SMEs and micro-enterprises

Finland has only set up an exemption regime concerning the presence of a representative of workers in companies with less than 10 workers and the presence of a safety committee in companies with less than 20 workers. There are no specific measures targeting SMEs, because the Finnish legislation includes all enterprises. There are no special financial incentives available for SMEs to help them to implement existing legislation.

9. FRANCE

9.1 Legal Framework and competences

The French system was developed prior to the adoption of the Framework Directive. The Framework Directive    and other six individual EU OSH directives were transposed by Law no 91-1414 of 31 December 1991 amending the Labour Code and Public Health Code to promote prevention of occupational risks and this enabled to go beyond the basis provided in former legislative acts. Most Directives have been transposed by several Orders and Decrees amending or supplementing the Labour Code. The exceptions are Directive 90/270/EEC (display screen equipment) and Directive 2006/25/EC (artificial optical radiation), transposed through a single Decree, and Directive 2004/40/EC (electromagnetic fields), which was not transposed.

While the public sector is regulated by specific legal texts regulating health and safety at work, those texts refer explicitly to the provisions of the books I to V of the part IV of the Labour Code and to their enforcing Decrees 261 .

The national system for health and safety operates along three major horizontal axes: (i) the control body: Labour Inspectorate, (ii) the insurance system: the Work Accidents-Occupational Illness Branch (“AT-MP Branch”) (of the CNAMTS (National Health Insurance Fund – Workers) and (iii) a screening and prevention system organized as an "occupational medicine service", responsible for the regular medical follow-up of individuals and populations, as well as for improving working conditions.

9.2 More stringent and more detailed measures

With regard to the legislation transposing the Framework Directive 89/391/EEC, additional requirements are laid down mainly in relation to organisational arrangements (e.g. operation of the joint hygiene and safety committees for specific sector), as well as health surveillance. In this area, France provides protection of workers in the public sector in relation to prevention medicine. Health surveillance is also set out by a national collective agreement for part time workers employed by an employer that is a natural person. French legislation also includes additional measures regarding sexual and moral harassment and work hardness (pénibilité au travail).

With regard to Directive 89/654/EC (workplace), the national legislation establishes additional requirements on the information to be provided to workers. Other additional requirements concern rules for the use of temporary and permanent electrical installations, preparation of a file for the maintenance of the workplace by the building owner, the existence of two levels of responsibility, of the building's owner and of the user.

In relation to Directive 89/656/EC (personal protective equipment/PPE), the French legislation covers PPE used by emergency and rescue services. In relation to the requirements on workers’ training set forth in Article 4 (8) of that Directive, and in line with Article 12 of the Framework Directive 89/391/EEC, the French legislation requires the employer to elaborate an instruction for use of the PPE and organise periodic training in accordance with the instruction. It also sets further requirements regarding the use of and information on PPE to protect against specific risks, e.g. chemical risks, asbestos, etc…

In relation to Directive 92/58/EEC (OSH signs), additional requirements are reported with regard to traffic signs, signs used to indicate emergency roads for persons with disability and forestry vehicle drivers.

With regard to Directive 2002/44/EC (vibration), the French legislation sets more detailed or additional requirements in relation to the definition of the physical parameters characterising the exposure to mechanical vibrations, the provision of the risk assessment to national authorities on request, the minimum duration for keeping risk assessment records, the periodicity of health surveillance, the prohibition of certain hand-arm vibration work for pregnant and breastfeeding women. Finally, national legislation provides that the labour inspectors may request measurement of exposure to mechanical vibration at the workplace.

Concerning Directive 2004/37/EC (carcinogens and mutagens/CMRs), the scope of the French legislation is broader as it applies to reprotoxic substances (category 1 A and 1 B in accordance with Annex I to Regulation 1272/2008). More stringent occupational exposure limit values are set for vinyl chloride monomer and hardwood dusts. More stringent occupational exposure limit values are also set in relation to Directive 98/24/EC (chemical agents) and its implementing Directives and Directive 2009/148/EC (asbestos).

9.3 Level of compliance by different stakeholders

The information on compliance for France is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for France shows a moderate level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 56% of establishments doing so). According to the survey, a high proportion of workplace risk assessments is conducted by internal staff (74.3%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 93% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey also indicates that 82% of establishments make available to the workers a document explaining responsibilities and procedures on health and safety. A moderate proportion of establishments declared that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The external study based primarily its conclusions as regards compliance on various surveys of the Research, Studies and Statistics Directorate of the Ministry of Labour, with particular reference to the use of health and safety service and to training and information for workers. The surveys showed a moderate degree of compliance in relation to risk assessment, ensuring protective and preventive services, a low degree for training and information for workers and a very high level for making available health surveillance and consultation of workers. As a rule, the degree of compliance increased with the size of the companies

The external study also pointed out that, on the basis of the 2012 annual report from labour inspectors and of the information obtained during interviews and of expert opinions, a mixed level of compliance was assessed in relation to each Directive, with some Directives featuring a high degree of compliance (such as the Framework or Workplace Directives), others a medium level of compliance and one a very low degree of compliance (Directive 2006/25/EC (artificial optical radiation) 262 .

9.4 Enforcement

With the exception of Directive 92/29/EEC (medical treatment on board vessels) for which the Regional Directorate of Sea and Health Services of Seafarers, under the Ministry of Ecology, Sustainable Development and Energy, is competent, the Labour Inspectorate is competent for enforcing all OSH directives. For certain sectors/activities, the Labour Inspectorate does so in coordination with other inspection services 263 .

Criminal sanctions for infringement to OSH legislation include fines and imprisonment. The company can also be condemned to the payment of compensation to the worker in case of accident. The number of reported infringements increased by about 30% between 2007 and 2012, although the percentage of reported infringements without further legal action augmented by about 160%. This seems to suggest that more cases are settled before sanctions are initiated 264 .

9.5 SMEs and micro-enterprises

The main instrument of public policy to support SMEs and micro-enterprises is the Occupational Health Plan, in which priority area 3 is devoted to encouraging risk-prevention initiatives in enterprises, particularly in SMEs and micro-enterprises. More specifically, objective 7 of that priority area is to raise awareness of occupational risks among occupational groups, enterprises and employees, thereby enhancing the ability of micro-enterprises and SMEs to engage in activities designed to improve working conditions.

In terms of financial assistance to companies, mechanisms exist for this purpose, such as the Fund for the Improvement of Working Conditions (FACT), which is a type of aid that can be awarded in the form of a public grant to enterprises and establishments with fewer than 250 employees that devise and implement measures which serve to improve working conditions and contribute to better prevention of occupational risks 265 .

National target agreements can be concluded between the CNAMTS and business organisations or the Central Office of the Agricultural Social Insurance Fund and the farmers’ and farmworkers’ unions. When a national agreement on prevention targets is concluded, any company affiliated to the signatory organisation which has fewer than 200 employees may conclude a prevention contract with the regional social insurance fund. This contract enables the company to benefit from financial assistance for the implementation of projects designed to improve health and safety at work. One of the declared objectives of most national agreements relates to improvements in the safe use of machinery and work equipment and in the conditions governing their operation.

10. GERMANY

10.1 Legal Framework and competences

The German OSH legal system is characterised by a feature which is commonly described as "dualism". The dual system is characterised, on the one hand, by strong autonomous sector-oriented accident insurance institutions, which are constituted as bodies under public law. On the other hand, there is the public or governmental side, where the competences on occupational health and safety are split between the Federal Parliament (Bundestag, Bundesrat), the Federal Ministry (Bundesminsterium für Arbeits und Soziales, 'BMAS') and its institutions (e.g. the Federal Institute for Occupational Safety and Health), and the authorities of the 16 Federal States (“Länder”) and their ministries and labour inspectorates. The Federal (national) layer has the legislative competence while the Federal States (regional) control their implementation in their territory under surveillance.

The Framework Directive 89/391/EEC is mainly transposed by the Occupational Safety and Health Act (Arbeitsschutzgesetz, ArbSchG). This act defines the basic OSH principles and OSH measures for the employer and employees. Book VII of the German Social Code - Accident Insurance (Siebtes Buch Sozialgesetzbuch - Gesetzliche Unfallversicherung, SGB VII) is the legal basis for accident insurance and statutory accident insurance at work. The Working Conditions Act (Gesetz über Betriebsärzte, Sicherheitsingenieure und andere Fachkräfte für Arbeitssicherheit, Arbeitssicherheitsgesetz, 'ASiG') is the legal basis for occupational physicians (Betriebsärzte, Werksärzte) and OSH specialists (Fachkräfte für Arbeitssicherheit).

Other key laws and regulations governing safety and health at work are the: Chemicals Acts (Gesetz zum Schutz vor gefährlichen Stoffen, Chemikaliengesetz, ChemG); Federal Mining Act (Bundesberggesetz, BbergG); Hazardous Substances Ordinance (Gefahrstoffverordnung, GefStoffV); Law on the Protection of Expectant and Nursing Mothers (Gesetz zum Schutz der erwerbstätigen Mutter, Mutterschutzgesetz, MuSchG); Ordinance on Occupational Diseases (Berufkskrankheitenverordnung, BKV); Ordinance on Safety and Health Protection at Work involving Biological Agents (Biostoffverordnung, BioStoffV); Product Safety Act (Gesetz über die Bereitstellung von Produkten auf dem Markt, Produktsicherheitsgesetz, ProdSG); Working Time Act (Arbeitszeitgesetz, ArbZG); Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) and Young Workers OSH Law (Gesetz zum Schutze der arbeitenden Jugend, Jugendarbeitsschutzgesetz, JArbSchG).

10.2 More stringent and more detailed measures

In general, Germany has transposed the EU OSH Directives in a more detailed manner, both through the specific Ordinances and the numerous Technical Rules and other rules of the statutory accident insurance.

With regard to the scope of the legislation transposing the Framework Directive 89/391/EEC, the national legislation includes expressly workers with disabilities working in sheltered workshops. More detailed requirements are set mainly in relation to the performance of risk assessment and the preventive and protective services in the sense of Article 7 of Directive 89/391/EEC. German law generally does not contain elements on the frequency of the risk assessment, but it does require the risk assessment to be updated whenever conditions or persons at the workplace change or when the current situation requires a re-check. A safety committee is obligatory in those companies with more than 20 full-time workers.

In relation to Directive 89/654/EEC (workplace), the definition of the term "workplace" is broader as it includes for example, accommodations. Also the scope of the national legislation transposing Directive 2000/54/EC (biological agents), Directive 92/104/EEC (surface and underground mineral-extracting industries), and Directive 92/91/EEC (mineral-extracting industries through drilling) appears to be broader. In addition, the national legislation transposing Directive 91/103/EC (work on board fishing vessels) includes special requirements for young workers. Finally, the Maternity Protection Act transposing Directive 92/85/EEC (pregnant/breastfeeding workers) applies to all women, includes those women employed in home-working or similar employment, and includes special requirements for all female workers of childbearing age.

10.3 Level of compliance by different stakeholders

The information on compliance for Germany is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Germany show a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 65% of establishments doing so). According to the survey, 56.7% of workplace risk assessments is conducted by internal staff. At the same time, the survey also indicates that 84% of establishments make available to the workers a document explaining responsibilities and procedures on health and safety. ESENER -2 shows medium levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance 54% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study are based on the evaluation of the German Joint OSH Strategy (GDA), stakeholders' interviews and a CATI survey by TNS infratest conducted in 2011. The study reported that the highest compliance rate in German establishments could be observed in relation to training and information of workers (more than 85%). Lower compliance rates have been assessed in relation to micro-enterprises (1-9 workers), with only the 41% conducting a risk assessment. In contrast, the compliance rate in establishments with 50+ workers was assessed as higher than 90% in almost all categories 266 .

In addition, according to the study, public establishments performed above average in all CPMs categories, while sector groups representing private services were always below average (often among the lowest). Also compliance in health and social work establishments, which are often in public ownership, was assessed as above average. This was considered by the external study as a reliable indicator that general OSH compliance in public establishments is quite positive in comparison to private sector establishments in Germany.

10.4 Enforcement

Enforcement of OSH legislation is delegated to the Federal States. There are 16 OSH authorities of the “Länder” which are in charge of supervision. The 16 Länder inspectorates have different areas of activity (some covering also the implementation of labour, environment legislation, or, respectively, product safety). In addition, there are special authorities for the mining and seafaring industries. The public authorities of the Federal Government are supervised by the UK Bund, the Statutory Accident Insurance Body of the Federal Authorities. Further inspections are done by the technical inspection services (TAD) of the Accident Insurance Bodies which supervise and advise each accident body’s member companies 267 .

Paragraph 25 and 26 of the Occupational Safety and Health Act (ArbSchG) are the central provisions that establish administrative and criminal sanctions for not complying with the law and for not fulfilling administrative orders of the labour inspectorate. Further fines for administrative actions in cases of not complying are regulated regionally by Federal States for the 16 labour inspectorates. They must respect the limit set out by the Federal laws and ordinances. Apart from the criminal or administrative sanctions, labour inspectorates can intervene in processes and shut down sites, plants or parts of the production if there is an elevated risk for the health, life or environment 268 .

10.5 SMEs and micro-enterprises

Micro-enterprises (10 or less workers) are no longer treated differently with regard to the obligation to provide documentation of the risk assessment. Since 2013, risk assessments must be documented by all enterprises, regardless of their size. However, any establishment can be exempted on request e.g. when only working with biological agents of risk group one. Nevertheless, there are some other regulatory provisions which are differentiated for micro- and small enterprises (less than 50 workers). The so-called “Unternehmermodell” (literally “entrepreneur model”, sometimes referred to as “employer model”) offers employers, through the statutory accident insurance bodies, the chance to qualify as a safety expert (“Sicherheitsfachkraft”) in their own company. This doesn’t take away the need to contract the OSH services, but it certainly reduces their involvement. Finally, there are no special financial measures or tax reductions adopted to support SMEs, but they can of course make use of the general financial incentives. Also some accident insurance bodies will offer special OSH services to their members, which are often SMEs 269 .

11. GREECE

11.1 Legal Framework and Competences

In Greece, the legislative framework in the area of OSH was simplified through the adoption of Law 3850/2010 (Government Gazette, Series I, No 84) ratifying the "Code of Laws/Statutes for the Health and Safety of Workers" which codified several pre-existing OSH acts. This codification covers the national provisions transposing the Framework Directive 89/391/EEC and Directive 91/383/EEC (workers with a fixed-duration employment or a temporary employment relationship).That code covers a wide range of issues, including protective and preventive services, health monitoring, training of workers, employers’ obligations. There are special legal provisions for the protection of pregnant workers and workers who are breastfeeding (Presidential Decree 176/97, Presidential Decree 41/2003). Furthermore, there are additional provisions established by Article 125 of Law 4052/2012, for the safety and health of workers employed through temporary agencies. Each OSH individual directive has been mainly transposed through a single Presidential Decree.

The Greek legislation in the area of OSH covers all sectors, without distinction, including the public sector, and all types of enterprises, irrespective of size. However, the definition of the term "worker" does not include domestic workers.

Competences over OSH are attributed to the General Directorate of Working Conditions and Health, which falls under the responsibility of the Ministry of Labour, Social Security and Welfare. Its activities include preparing draft legislation on OSH, as well as circulars and technical guides to assist other OSH competent administrative authorities. The Ministry of Environment, Energy and Climate Change has competence over the OSH directives on mineral-extracting industries,, while the Ministry of Mercantile Marine and the Aegean is responsible for the OSH issues relating to the shipping and fisheries sectors in the scope of Directives 92/29/EEC and 93/103/EC.

11.2 More stringent and more detailed measures

The Code of Laws/Statutes for the Health and Safety of Workers generally sets forth more detailed requirements than the Framework Directive. With regard to the content of risk assessment, it sets out specific risks and further requirements on the data and other information to be considered when the assessment is carried out. With regard to the preventive and protective services referred to in Article 7 of the Framework Directive, companies are obliged to use the consultative services of health and safety experts, i.e. safety technicians and occupational physicians, for a minimum period of work period per year calculated on the basis of the number of workers of the company and the type of business activity. In general, every company with one or more workers must use the services of a safety technician while companies with more than 50 workers must use the services of an .occupational physician. The health and safety experts' services may be provided either by workers of the company or by external persons that have the necessary qualifications set by legislation or by licensed external preventive and protective services. Greece also made use of the possibility set out in Article 7 (7) of the Framework Directive to provide that the employer himself may exercise the duties of safety officer (following an accredited training program) for companies carrying "low risk" activities with less than 50 workers.

The national legislation sets more detailed requirements on health surveillance in relation to Directives 90/269/EEC (manual handling of loads), 90/270/EEC (display screen equipment), 2002/44/EC (vibration), 2003/10/EC (noise), 2006/25/EC (artificial optical radiation), 98/24/EC (chemical agents at work), 2009/148/EC (asbestos), 2000/54/EC (biological agents), 92/104/EEC (surface and underground mineral-extracting industries), 92/91/EEC (mineral-extracting industries through drilling), 91/383/EEC (temporary workers), and 94/33/EC (young people at work).

11.3 Level of compliance by different stakeholders

The information on compliance for Greece is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Greece shows a moderate level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 50% of establishments doing so). According to the survey, workplace risk assessments are mainly contracted to external providers (46.8%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance only 27% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a high number of establishments (69%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium to high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study on compliance for the CPMs are based on data extracted from the LI Annual Reports for the period 2007-2012 and from the interviews conducted with stakeholders. As the ESENER-2 survey, the study reported a medium level of compliance as regards risk assessment performance and information to workers. Very low levels of compliance were assessed in relation to health surveillance and consultation of workers. In relation to training of workers, the study underlined that stakeholders indicated that numerous OSH training activities are carried out – although exact data on numbers are lacking – both intra and inter-enterprise. Intra-enterprise training is subsidised by the Special Fund for the Employment & Vocational Training (LAEK) of the Manpower Employment Organisation. It also highlighted that particularly in Public Administration (e.g. ministries) there is no OSH training for workers.

11.4 Enforcement

The main authority in charge of OSH legislation enforcement – both in the public and private sector – is the Labour Inspectorate (LI) (and the Mines Inspectorate with regard to Directives 92/104/EEC (surface and underground mineral-extracting industries) and 92/91/EEC (mineral-extracting industries through drilling)), which operates under the Ministry of Labour and Social Security. OSH legislation preparation falls under the auspices of the General Directorate for Working Conditions and Hygiene at Work, also operating under the Ministry of Labour and Social Security. OSH legislation enforcement in Greece is, however, weak and non-homogenous, due to staffing, expertise, training, equipment and administrative problems.

The LI has a wide set of competences laid down in L 3996/2011. In this context, when carrying out inspections and if violations of labour law (including OSH legislation) are observed, the LI can proceed to several further actions: it can impose administrative sanctions (fines and/or cessation of activity/works) or file a report to introduce the violation into penal procedures where in some cases there are grounds for further prosecution and, furthermore, referral to penal courts. The LI includes distinctive units, one for the wider area of labour legislation (Services of Social Labour Inspectorate - ‘Υπηρεσίες Κοινωνικής Επιθεώρησης Εργασίας’) and one for the specific area of OSH (Services of Technical and Health Inspectorate - ‘Υπηρεσίες Τεχνικής και Υγειονομικής Επιθεώρησης Εργασίας’).

11.5 SMEs and micro-enterprises

Greece has set up different actions to support SMEs in implementing the OSH directives. These range from various information days to the publication of information leaflets. It is also one of the key roles of the inspectors to support the SMEs, through provision of advice on legislation and improvement of working conditions during the inspections. However, there are very few financial incentives (and no lighter regulatory regime, nor regulatory exemptions) directed to SMEs. The LAEK fund for training of workers aims at reaching SMEs and there is some financial aid available to SMEs in the manufacturing, tourism, trade and services sectors in accordance with Commission Recommendation 2003/361/EC.

12. HUNGARY

12.1 Legal Framework and Competences

In Hungary, the structure of the national legislation on OSH is very similar to the structure of the EU OSH acquis. The main and basic legal act on OSH, which transposes the requirements of the Framework Directive 89/391/EEC is the Act XCIII of 1993 on Occupational Safety ("OSH Law"). The OSH Law is further implemented by Regulation 5/1993 270 and Decree 33/1998 of 24 June 1998 on the medical examination and assessment of aptitude for a specific job or profession and aptitude from the point of view of personal hygiene, which focuses on improving the health and safety of vulnerable workers. The individual EU OSH directives are transposed through specific ministerial decrees or joint decrees. The only exceptions relate to Directive 98/24/EC (chemical agents at work) – transposed through the Act XXV of 2000 on chemical safety and the Joint Decree No 25 of 30 September 2000 on chemical safety at work- and to Directive 92/85/EEC (pregnant/breastfeeding workers) - transposed through the Labour Code, a specific Act CCXI on the Protection of Families and the ministerial Decree 33/1998. Directive 2004/40/EC (electromagnetic fields) has not been transposed.

The Hungarian OSH legislation covers all sectors, without distinction, including the public sector and all types of enterprises, irrespective of size. It does not cover self-employed persons.

The Hungarian system of health and safety institutions is based on the WHO Constitution, the Conventions and Recommendations of the ILO and the EU OSH Directives, taking national traditions into consideration. During the modernisation of public administration in 2011, Budapest/county government offices were set up including specific administrative departments. Labour inspectorates were incorporated into the health and safety administrative departments of the Budapest and county government offices as autonomous organisational units with specific competence and responsibilities. (A total of 20 inspectorates were established to replace the 7 former regional inspectorates). With effect from 1 December 2011, the National Institute of Occupational Hygiene and Occupational Health (‘OMFI’) was merged with the National Health and Safety and Labour Chief Inspectorate (‘OMMF’) as the Occupational Hygiene and Occupational Health Department. With effect from 1 January 2012, the OMMF became an autonomous organisational unit, with specific competence and responsibilities and the designated occupational hygiene and occupational health body of the Health and Safety and Labour Directorate of the National Labour Inspectorate (‘NMH MMI’) established on the basis of the Occupational Inspectorate. The NMH MMI carries out occupational safety and occupational health-related administrative duties in cooperation with the Budapest/county labour inspectorates and the labour inspectors; with regard to the exercise of specific competences, it operates under the supervision of the Ministry of National Economy as the professional (functional) managing body of the labour inspectorates. With regard to the government offices, organisational management is carried out by the Ministry responsible for public administration and justice.

12.2 More stringent and more detailed measures

With regard to the scope of the Framework Directive, the Hungarian legislation appears to include a broader definition of the term ‘employer’ which covers the entity who hires employees for organized employment. Further, an employer providing employment to a hired-out employee through a placement agency, a person providing hands-on vocational training, as well as any private entrepreneur who does not employ others but performs his work solely by himself, must also be construed as an employer with regard to the provisions on the protection of persons inside the proximity of the area where the work is performed. In addition, the ‘necessary capabilities and aptitudes" of the persons in charge of the implementation of protective and preventive measures referred to in Article 7 (8) of the Framework Directive have been defined. Act XCIII of 1993 also provides for a strict reporting, investigation and registration system concerning occupational diseases and increased exposures.

With regard to Directive 89/654/EEC (workplace), the Hungarian transposing legislation includes more detailed requirements consultation of workers, given that the employer appears to be obliged to provide the possibility of a consultation between the employer and the workers and their representatives for occupational safety, in preparation of any decisions that need to be taken concerning the workers’ health and safety.

In relation to Directive 89/656/EEC (personal protective equipment/PPE), PPE used by emergency and rescue services is covered by Hungarian transposing legislation.

With regard to Directive 92/58/EEC (OSH signs), the national transposing decree lays down more specific provisions (concerning minimum admissible dimensions of safety signs and the punctuation marks on the supplementary signboard). Also, more "prohibition signs" were added.

With regard to Directive 90/270/EEC (display screen equipment), the Hungarian legislation sets more detailed requirements on health surveillance and other key requirements. In particular, eye and eye sight test must be to be repeated every two years. While the directive provides that workers covered by it (i.e. any worker as defined in Article 3 (a) of the Framework Directive who habitually uses display screen equipment as a significant part of his normal work) the national legislation is more specific by establishing that those tests are required for workers using at least four hours a day a device with a monitor.

With regard to Directive 2006/25/EC (artificial optical radiation), a more specific methodology for risk assessment is provided in the national legislation. Further, the periodicity of health surveillance must depend on several circumstances, including the age of the worker.

12.3 Level of compliance by different stakeholders

The information on compliance for Hungary is based exclusively on the findings of the ESENER-2 survey. Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Hungary shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 77% of establishments doing so). According to the survey, a very high proportion of establishments externalises this type of service. ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally.

As regards health surveillance 89% of respondents to the survey declared that their establishments arranges regular medical examinations to monitor the health of the employees. The survey also indicates that a very high number of establishments (94%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

12.4 Enforcement

While previously enforcement responsibilities were shared between various bodies, namely the National Work Safety and Labour Chief Inspectorate (OMMF), the Hungarian Mining Authority and the National Public Health and Medical Office Service (ÁNTSZ) under the direction of several ministries, there is now only one authority in charge of OSH legislation enforcement, namely the National Labour Office (NMH) under the Ministry of National Economy, with an autonomous branch specifically dedicated to OSH the ‘Occupational Safety and Health and Labour Inspections Directorate’. From 2007 to 2012, the number of labour inspectors, number of inspections and their frequency has decreased overall, while the number of workers per labour inspector increased from 32448 to 38019.

The National Labour Office issues annual inspection directives which set the main targets, areas and expectations for the year. Priorities are set in terms of sectors and groups of vulnerable workers. It is based on the European and national strategy on OSH and the annual reports of the labour inspections.

The Hungarian legislation sets both criminal and administrative sanctions for non-compliance with OSH requirements. Criminal sanctions are pecuniary sanctions and imprisonment (up to 8 years if the infringement has caused a person’s death or a fatal mass catastrophe). The Hungarian legislation also provides for administrative fines, along with other coercive measures that the inspectors can apply such as prohibiting employees from suspending hazardous activities. These sanctions apply for infringement of all OSH-related legislation. It should, however, be noted that, with the entry into force of Act II of 2012 on offences, the offence procedure and the offence registration system, the competence of the health and safety authority concerning offences was abolished. The only fine it is now authorised to impose is a health and safety fine. Labour inspectorates now lack an appropriate administrative means in the case of the infraction of health and safety rules by workers 271 .

12.5 SMEs and micro-enterprises

There is no specific lighter regime for SMEs in Hungary with the notable exception of the new rules on fining whereby, pursuant to the SME Act, unless human life, safety or health is directly endangered, damage is done to the environment or the protection of minors is infringed, the health and safety authority warns the enterprise instead of imposing a fine for the first time an infringement by a SME is detected 272 .

13. IRELAND

13.1 Legal Framework and competences

The Framework Directive was transposed through the Safety Health and Welfare at Work ('SHWW') Act 1989, which was updated in 2005 to the Safety Health and Welfare at work ('SHWW') Act. This programme of regulatory reform culminated in the introduction of the Safety, Health and Welfare at Work (General Applications) Regulations 2007 (S.I. No. 299 of 2007) (SHWW General App (2007)). These Regulations replace, simplify and update 25 existing sets of regulations and orders and apply to all places of work. In addition, during the 2007-2012 period, regulations were introduced to further clarify or complete transposition of EU legislation.

Overall responsibility for occupational safety and health policy at national level lies with the Minister for Jobs, Enterprise and Innovation. The Department of Jobs, Enterprise and Innovation is responsible for formulating and developing national OSH policy. It works closely with the Health and Safety Authority (HSA) which has a statutory mandate to implement safety and health policy at all places of work, through the delegated powers from the Minister for Jobs, Enterprise and Innovation under the Safety, Health and Welfare at Work Act 2005.

13.2 More stringent and more detailed measures

With regard to the scope of the legislation transposing Directive 89/391/EEC, the national legislation also applies to domestic workers. Additional requirements are set in relation to risk assessment, where Ireland has introduced the idea of a ‘safety statement’ to reflect a safe system of work.

As regards the Directive 89/656/EEC (PPE), the definition of PPE is broader, as not excluding all the categories excluded from the definition of PPE in that directive.

As regards Directive 92/85/EEC (pregnant/breastfeeding workers), on the basis of Article 2 of that directive, the national legislation defines a "post natal worker" as a worker who gave birth not more than 14 weeks preceding a material date.

With regard to Directive 2009/148/EC (asbestos), the content of the risk assessment is more detailed in the national legislation,

13.3 Level of compliance by different stakeholders

The information on compliance for Ireland is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study. Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Ireland shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 72% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (63.3%). ESENER -2 shows high levels of uptake for health and safety services used, be it in-house or contracted externally.

As regards health surveillance only 15% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey also indicates that a very high number of establishments (93.7%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study as regards compliance are based on the ESENER-1 survey, supplemented by the Report on Economic Impact of the Safety, Health and Welfare at Work Legislation (2006) with regard to estimating compliance with the risk assessment. The study reported that, in general terms, compliance in the fisheries and agriculture sector is low and that compliance increases with the size of the company. According to the study, SMEs and micro-industries have difficulties due to their lack of resources and they seek practical (paper based and online) tools for compliance such as simplified guidance, risk assessment templates etc.

The study also pointed out that the data sources which have been identified relating to quantified estimates of compliance relating to the CPMs are limited to the percentage of employers inspected who had safety statements in the mines & quarries (78.3%); agriculture (28.9%) and construction (71.2%) sectors, with some additional data available for the construction sector on consultation and representation 273 .

13.4 Enforcement

The Health and Safety Authority (HSA) is the national statutory body with responsibility for enforcing occupational safety and health law (in the private and public sector), promoting and encouraging accident prevention, and providing information and advice to all companies, organisations and individuals. In addition, the Irish Maritime Administration (IMA) has the responsibility to enforce the Irish legislation with regard to maritime safety. Inspectors of the HSA carry out reactive and pro-active inspections of workplaces. Reactive inspections may arise following an accident, incident or complaint. Pro-active inspections may be routine or targeted. Most inspections are targeted at the high risk sectors such as construction, agriculture, forestry, manufacturing, mines, quarries, transport of dangerous goods by road, or the chemical sectors. These sectors are set out in our Annual Work Programme and each inspector picks the premises to be inspected based on their local knowledge. Inspectors will collect information from inspections and record the results electronically on the Authority’s GeoSmart Information Storage System. There is hence abundant statistical information available on the inspections performed, although the frequency of inspections is not known.

Sanctions are provided for under the main Safety Health and Welfare at Work Act 2005. Other legislation is prepared as Regulations under that Act and breaches are therefore regarded as breaches of the Act and sanctions do not distinguish between different Directives. The HSA allows its inspectors to take actions where statutory contraventions are observed, e.g. where there is a risk of serious potential injury or poor management of dangerous chemicals 274 .

13.5 SMEs and micro-enterprises

Ireland has not introduced any exemptions, financial incentives, or a lighter regime for SMEs and micro-enterprises. The HSA nevertheless provides a series of practical information and guidance notes in relation to small businesses. Also the BeSMART tool has been developed especially for SMEs and micro-enterprises. In construction, a Safety Management Pack for Contractors Employing 20 or less workers (SMP 20) was also developed and launched. The aim of the pack is to assist small contractors in establishing and maintaining an effective safety management system.

14. ITALY

14.1 Legal Framework and competences

In Italy, Legislative Decree no. 81 of 9 April 2008 reorganised and consolidated in a single regulation the legislation on workplace health and safety. It completes the transposition of Directive 89/391/EEC and of the other individual Directives. In addition, Directives 92/29/EEC (medical treatment on board vessels), 93/103/EC (work on board fishing vessels), 92/85/EEC (pregnant/breastfeeding workers), and 91/383/EEC (temporary workers) have been transposed into national legislation through several pieces of legislative decrees and specific laws.

The provisions of the Legislative Decree no. 81 of 9 April 2008 apply to all activities, sectors and risks, as well as to all workers and self-employed persons.

At national/central level, the competences in relation to OSH are divided between the Ministry of Labour and Social Policy, and the Ministry of Health. At central level, a National Steering Committee for pro-active policies and coordination of surveillance activities, set out on the basis of the Legislative Decree no. 81 of 9 April 2008, is the body where central and regional authorities define the general principles of their respective prevention and surveillance policies. At local level, coordination of surveillance and prevention activities are entrusted primarily to the Regions and to the Autonomous Provinces of Trento and Bolzano which must plan and conduct in a standardised manner activities in their respective territories through cooperation with and the coordination of all competent agencies, local authorities and social partners.

14.2 More stringent and more detailed measures

As a general rule, the national legislation transposing EU OSH Directives presents in a more specific manner than in the relevant Directive the risks to be taken into account by the employer in the risk assessment, including those risks arising from exposure to physical and biological agents, hazardous substances/mixtures or explosive atmospheres. Standardised and simplified procedures for the performance of risk assessment apply to businesses employing up to 10 workers, but can also be used by companies employing up to 50 workers.

In addition, Legislative Decree 81/2008 sets forth more detailed provisions concerning skills, education and training required for workers, employers, the preventive and protective services and the competent medical officer.

With regard to the preventive and protective services referred to in Article 7 of the Framework Directive 89/391/EEC, Italy used the possibility given to Member States in Article 7 (7) of that Directive and defined in Legislative Decree 81/2008 the categories of undertakings in which the employer may himself take responsibility of the activities of preventive and protective services.

As regards health surveillance, the results of such surveillance must be inserted in the worker’s individual health and risk record in all cases, whereas this requirement is not set forth in all EU OSH Directives. In many cases, the periodicity of health surveillance is set at once a year, but this frequency can be modified by the competent medical officer on the basis of the risk assessment. In the field of application of Directive 2002/44/EC (vibration), and in line with Article 8 (1) last indent of that directive, a preventive medical examination is mandatory for workers whose exposure exceeds the upper exposure action values, as part of general health surveillance procedures.

Furthermore, in line with Article 15 of the Framework Directive 89/391/EEC, Legislative Decree 81/2008 provides that the employer shall adapt the protective and preventive measures to take care of specific needs of exposed workers who are particularly sensitive to risk (i.e. pregnant women and minors).

Finally, Legislative Decree 81/2008 provides for a national information system for prevention in the workplace.

In relation to Directive 92/58/EEC (OSH signs), the employer is required, in line with Article 12 of the Framework Directive 89/391/EEC on training, to take the proper measures to provide information or instructions on dangerous situations that are not covered by means of signs, according to good practices, specific characteristics of the activity and experience.

In relation to scope of Directive 92/85/EEC (pregnant/breastfeeding workers), which defines a “worker who has recently given birth” and “worker who is breastfeeding” to mean respectively a worker who has recently given birth and a worker who is breastfeeding “within the meaning of national legislation and/or national practice (…)”, pursuant to the national transposition measures the provisions for the protection of the health and safety of pregnant and breastfeeding workers also apply to women who have taken in adopted or foster children until they turn seven months; the breastfeeding period lasts up to seven months after giving birth.

In the field of application of Directive 90/270/EEC (display screen equipment), in relation to health surveillance, and in line with Article 14 of the Framework Directive 89/391/EEC, workers are entitled to a more comprehensive medical examination which includes musculoskeletal disorders. More specific provisions are laid down as regards “daily work routine” in the sense of Article 7 of that directive, as workers who use display screen equipment are entitled at least to a break of fifteen-minutes every two hours.

With regard to occupational exposure limit values for hazardous chemicals set forth in EU OSH relevant directives, the national legislation generally establishes more stringent limit values.

14.3 Level of compliance by different stakeholders

The information on compliance for Italy is based, on the one hand, on the findings of the ESENER-2 survey and on the other hand on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Italy show a very good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 94% of establishments doing so). According to the survey, a high proportion of establishments externalises this type of service. ESENER-2 shows high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance, 88% of respondents of the survey declared that their establishment arranges regular medical examinations to monitor the health of employees. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SMEs and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

Lower, though still good, levels of compliance with the CPMs, were reported through the external study, which based its conclusions on surveys and information obtained during stakeholders interviews (between 60-79%). The study assessed the level of compliance in the public sector to be lower, as compared with the private sector, because of less stringent surveillance. A lower level of compliance was also expected for micro-enterprises and SMEs, although the study assessed that micro and small enterprises affiliated with the employers’ organizations scored better in their level of compliance. The external study pointed also to some factors which, despite high levels of formal compliance, might affect the effectiveness of the legislation: avoiding fines as the main driver for compliance with the OSH requirements, as a consequence the management framework being very bureaucratic, lower likelihood for the less threatening risks to be tackled by effective actions, externalisation of services to allow a cost reduction  275 .

14.4 Enforcement

The inspection activities related to the hygiene, health and safety at the workplace are carried out by Local Health Agencies (ASL) acting under the responsibility of Regional Directorates for Prevention 276 . The inspections related to compliance with health and safety legislation are also carried out by the Inspectors under the Ministry of Labour in undertakings in the field of construction or civil engineering, diving work and underwater caisson work and undertakings involving particularly high risks 277 .

The strategies for inspections are developed by the DG for Inspection Activities of the Ministry of Labour and Social Policies and their implementation is reviewed on a yearly basis. The Standing Advisory Committee on Health and Safety at Work delivers this annual programme for the inspection activities.

Labour inspectors can also act as advisors of the enterprises, providing guidelines on the application of general labour standards, circulars, directives, and all others instructions received by the Ministry of Labour and Social Policies.

As regards sanctions, the Italian legislation sets primarily criminal sanctions for non-compliance with OSH requirements. Criminal sanctions vary from the imposition of fines to imprisonment and every kind of infringement has a different sanction attached to it. Administrative sanctions are hardly ever applicable.

14.5 SMEs and micro-enterprises

Different risk assessments and different requirements apply to enterprises employing up to 10 workers, which until now have carried out the risk assessment with self-certification, as well as to other businesses employing up to 50 workers. INAIL (Italian Workers compensation authority) also foresees several types of funding, especially directed to SMEs, and has established the Fund to Support the Small and Medium Enterprise. In order to favour the implementation of OSH management systems, especially by SMEs, INAIL makes available application models for specific industries. These models are based on the OSH management system guidelines published in 2001 by the International Labour Organization – ILO 278 .

15. LATVIA

15.1 Legal Framework and Competences

The legal framework in the area of health and safety at work in Latvia comprises laws and regulations issued by the government based on these laws. The majority of those laws and regulations were adopted before its accession to the European Union and, where necessary, were brought into line with the relevant EU OSH directives.

The provisions of the Framework Directive are incorporated in the Labour Protection Law (Darba aizsardzības likums) adopted on 20 June 2001, which is the main legal act in this area.

In addition to the Labour Protection Law, the Labour Law adopted on 20 June 2001 covers, together with relevant regulations, the transposition of Directive 92/85/EEC (pregnant/breastfeeding workers), Directive 91/383/EEC (temporary workers) and Directive 94/33/EC (young people at work). Under the Labour Protection Law there are more than twenty different Regulations that set out in more detail its particular requirements. All EU OSH individual directives are transposed through one regulation, with the exception of the following directives, which are transposed by multiple regulations: Directive 2009/104/EC (work equipment), Directive 2004/37/EC (carcinogens or mutagens), Directive 92/29/EEC (medical treatment on board vessels) and Directive 93/103/EC (work on board fishing vessels).

The Latvian laws and regulations in the area of OSH apply to any employer that is employing at least one employee, to all sectors, including the public sector and to all categories of undertakings, independently of their size.

Competences regarding OSH in the public and private sector are mainly with the Ministry of Welfare, which is responsible for policy and legislation on employment and OSH. The Ministry also supervises the work of the State Labour Inspectorate which ensures the compliance with labour and OSH legislation in practice.

15.2 More stringent and more detailed measures

With regard to the Framework Directive 89/391/EEC, the national transposing legislation applies to all groups of persons in employment; Latvian laws and regulations in the area of OSH do not exclude domestic servants from their scope.

As regards risk assessment, the Labour Protection Law specifically lists the risks to be taken into account and specifies in more detail the content of risk assessment. A specific form to be considered when carrying out a risk assessment is laid down in the Internal Supervision Regulation. That regulation also sets out the general rules regarding the persons that should be in charge of the risk assessment and the conditions for resorting to external preventive and protective services.

With regard to Directive 89/654/EEC (workplace), the Latvian Workplaces Regulation is in various aspects more detailed than the requirements of the directive, in particular as regards the minimum requirements on temperature and natural and artificial lighting. For instance, the regulation lists minimum level of lighting for 23 workplaces, further differentiating between specific tasks. It also sets forth requirements specifying the range of air humidity and air movement rate, as well as the period of time for which work is permissible in cold temperatures.

Regarding Directive 92/58/EEC (OSH signs), it was reported that the national transposing legislation provides the use of additional signs.

With regard to Directive 2002/44/EC (vibration), the national legislation sets more specific requirements regarding the methodology and persons responsible for the conduct of the risk assessment. The Labour Inspectorate has the prerogative to request any relevant information from employers, including on risk assessment.

In relation to Directive 92/57/EEC (temporary or mobile construction sites), Latvian legislation provides an exhaustive list of works to which OSH requirements apply, which appears to be broader than the non-exhaustive list of provided in Annex I of the directive. It also lays down more detailed or broader requirements for health and safety coordinators (e.g. the coordinator must have obtained a certificate in relation to architecture or construction, have basic knowledge of OSH matters or have a higher professional education in the field).

15.3 Level of compliance by different stakeholders

The information on compliance for Latvia is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Latvia shows a very good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 81% of establishments doing so). According to the survey, workplace risk assessments are conducted mainly by internal staff (56.1%). ESENER -2 shows high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 77% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (96.7%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The conclusions of the external study on compliance are mainly based on data from the national survey “Working conditions and risks in Latvia 2012-2013”. The study reported very low to medium levels of compliance in relation to risk assessment and consultation of workers, while the other CPMs were assessed as having a high or very high degree of compliance. Large differences were found between different types of sectors and size of establishments; the study also assessed that compliance among micro and small companies was significantly lower compared to large companies 279 .

15.4 Enforcement

In Latvia, the main authority in charge of OSH legislation enforcement is the State Labour Inspectorate, which is subordinated to the Ministry of Welfare and which covers all directives (both public and private sector). Latvian legislation also provides certain powers, e.g. to carry out inspections, to specialised institutions in case of certain conditions or requirements. These institutions either work together with the State Labour Inspectorate, or the State Labour Inspectorate requests support from The Health Inspectorate, The State Fire and Rescue Service and the Consumer Rights Protection Centre.

The local building authorities are in charge of enforcement of OSH legislation related to construction works and control of work on construction sites, which covers Directive 92/57/EEC (temporary or mobile construction sites). The Maritime Administration of Latvia is responsible for enforcement of OSH legislation on ships; Directive 92/29/EEC (medical treatment on board vessels) and Directive 93/103/EC (work on board fishing vessels). Finally, the State Inspectorate for Protection of Children’s Rights is the administrative body subordinated to the Ministry of Welfare, which supervises and controls legal requirements concerning children’s rights, including working permits, working hours and working conditions (Directive 94/33/EC (young people at work)) 280 .

Depending on the seriousness of offences, the Latvian legislation provides either criminal or administrative sanctions for violation of occupational health and safety (OSH) legislation. These sanctions apply to all OSH Directives and, for example, the administrative law provides as a general principle that a violation of any of the OSH requirements could lead to administrative punishment. The few exceptions where potential damage is more significant include OSH signs, PPE, risk assessment, training of workers, not sending workers for health surveillance, hiding of the occupational accidents and use of faulty work equipment.

15.5 SMEs and micro-enterprises

Latvia has only set up a lighter regime concerning OSH services that may be carried out by an employer himself in undertakings of less 10 employees and provided that the employer has had special training (article 9, part 3, of the Labour Protection Law). Similarly, a lighter regime applies to companies with less than 10 workers concerning the involvement of external OSH experts (article 9, part 5, Labour Protection Law). Moreover, the Work Safety Law amended in 2010 in order to remove the obligation for enterprises of 50 and more workers to appoint several work specialists or to set up a work safety unit. This amendment was particularly targeted to SMEs, which were then able to appoint only one work safety specialist only when not exposing workers to hazardous substances 281 .

16. LITHUANIA

16.1 Legal Framework and Competences

In Lithuania, the hierarchy of legal acts in relation to occupational health and safety consists of three distinct levels: the Laws and the Labour Code which are issued by the Parliament (Seimas); further implementation is developed through Resolutions of the Government (second level) and then through Orders of Ministers (lowest level).

The main legal acts in the area of OSH are the Labour Code and the Law on Safety and Health at Work. These acts transpose into Lithuanian law the Framework Directive 89/391/EEC. They are supplemented by related regulations covering different OSH sub-areas. The EU OSH individual directives are transposed through individual legal acts (Resolutions of the Government with regard to Directive 92/85/EEC (pregnant/breastfeeding workers) and Directive 94/33/EC (young people at work)) and, for the rest, mainly through Orders of Ministers).

National OSH legislation applies to all employers who employ at least one worker and to all undertakings established in the national territory. That legislation applies to all sectors, without distinction, including the public sector, and to all enterprises, irrespective of size.

Within the Ministry of Social Security and Labour, the Working Environment Division of the Labour Department is responsible for OSH policy. The Minister of Social Security and Labour also represents the interests of the Republic of Lithuania related to safety and health at work in other countries and in international organisations.

The performance of occupational safety and health requirements at enterprises is controlled by the State Labour Inspectorate ( http://www.vdi.lt/ ), which is a state control body functioning under the Ministry of Social Security and Labour. The body consists of the administration and 10 regional inspection units managed by the Chief State Labour Inspector. The functions, rights and responsibilities of the Labour Inspectorate are laid down in the Law on the State Labour Inspectorate ( http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=350626 ).

16.2 More stringent and more detailed measures

More detailed requirements on risk assessment are generally laid down in all national acts transposing the OSH individual Directives. This is the case in relation to Directives 89/654/EEC (workplace), 2009/104/EC (work equipment), 89/656/EEC (PPE), 1999/92/EC (ATEX), 90/269/EEC (manual handling of loads) 90/270/EEC (display screen equipment) and 94/33/EC (young people at work). In respect of Directives 2002/44/EC (vibration), 2003/10/EC (noise), 2004/40/EC (electromagnetic fields) and 2006/25/EC (artificial optical radiation), the national legislation requires employers to submit risk assessment to national authorities on request.

With regard to Directive 98/24/EC (chemical agents at work) and its implementing directives, the national transposing legislation sets forth for some chemical agents more stringent occupational exposure limit values that the EU limit values.

16.3 Level of compliance by different stakeholders

The information on compliance for Lithuania is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Lithuania shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 76% of establishments doing so). According to the survey, workplace risk assessments are contracted mainly to external providers (61.5%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 87% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (96.9%) make available to the workers a document explaining responsibilities and procedures on health and safety. A very high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The external study based its conclusions on compliance on a study on occupational health care activities in Lithuanian enterprises, on stakeholders’ experienced views, and the annual reports from the State Labour Inspectorate over the period 2007-2012. The study assessed that very important differences existed between micro- and small establishments and large establishments. In particular, it reported that the vast majority of medium-sized enterprises had OSH departments - which were not present in micro- and small enterprises - where the employees regularly raised their skills in various assessment considerations of occupational risks 282 .

16.4 Enforcement

In Lithuania, the main (and only) authority in charge of OSH legislation enforcement is the State Labour Inspectorate of the Republic of Lithuania SLI, which covers all directives in the private and public sector. Remit of the State Labour Inspectorate under the Ministry of Social Security and Labour includes the prevention of accidents at work, occupational diseases and violations of occupational safety and health requirements of standard acts on labour law. It also covers the control of compliance of the Labour Code of the Republic of Lithuania, laws and other standard acts regulating occupational safety and health as well as labour relations in enterprises, institutions, organisations or other organisational structures, irrespective of their forms of ownership, type, nature of activity, also in these cases when an employer is a natural person.In 2013, thirteen Tripartite Labour Dispute Commissions were established under the State Labour Inspectorate territorial divisions. The main task of these Commissions is to resolve individual conflicts between an employer and an employee. Decisions of the Labour Dispute Commissions are obligatory for both sides of the conflict. If any side disagrees with the Commission decision they can appeal to the Administrative Court 283 .

16.5 SMEs and micro-enterprises

Lithuania has only set up a lighter regime as to the requirement to organise an internal service of occupational health and safety. OSH committees should be established and their work should be organized in those undertakings which employ more than 50 workers. If less than 50 workers are employed in an undertaking, the committee may be established on an initiative of the employer or the workers’ representative, or on a proposal of more than half of workers of the undertaking. There are further no particular exemptions or incentives directed to SMEs and micro-enterprises in Lithuania 284 .

17. LUXEMBOURG

17.1 Legal Framework and Competences

The Framework Directive 89/391/EEC was transposed by the Laws of 17 June 1994 on respectively the safety and health of workers at work and on occupational health services. The related EU OSH Directives have been transposed mostly through secondary legislation, i.e. Grand-Ducal Regulations. Solely Directive 92/29/EEC (medical treatment on board vessels) has been transposed through a specific law, together with an implementing Grand-Ducal Regulation. Finally, provisions transposing the three Directives on specific groups of vulnerable workers (Directive 92/85/EEC on pregnant and workers who have recently given birth or are breastfeeding; Directive 91/383/EEC on temporary workers and Directive 94/33/EC (young workers)) are incorporated directly in the Labour Code.

The public sector is regulated by distinct laws and regulations, specific to public servants and employees of public establishments. Safety in the public sector was first regulated in Luxembourg by a 1979 Grand-Ducal Regulation and more largely implemented in a 1988 Law that created the public sector’s entity on prevention of occupational risks. Pursuant to the transposition of the Framework Directive, these texts were revised by the OSH Public Sector Law of 1994 and complementing Grand-Ducal Regulations of 1995.

Competences on OSH in the private sector are divided between the Ministry of Health, in charge of coordinating occupational medicine services, and the Ministry of Labour and Employment, under which the Labour and Mines Inspectorate (ITM) is in charge of enforcing OSH legislation. For the public sector, the Ministry of Civil Service is the main authority, with two distinct departments in charge of, respectively, occupational medicine and safety at work. OSH services are organised in a dual system. All private companies are providing occupational health services internally, through inter-company medical services managed by trade unions or the Multi-Sector Occupational Health Service (STM), a public body, under the Ministry of Health.

17.2 More stringent and more detailed measures

With regard to Directive 89/391/EEC, the national implementing legislation covers domestic workers. More detailed requirements are set mainly in relation to organisational arrangements (e.g. on the competencies of ‘designated workers’ or ‘safety representatives’), as well as health surveillance (internal service of occupational health is compulsory for companies employing more than 5000 employees as well as those with than 3000 employees with at least 100 occupying a position with risks; smaller companies may use one of the four inter-enterprises services or join the Multi-sector Occupational Health Service (STM) or create their own internal service; provisions on the frequency of medical examinations).

For both Directives, 2004/37/EC (carcinogens and mutagens) and 98/24/EC (chemical agents), similar more detailed requirements are laid down in relation to health surveillance. The legislation transposing Directive 2004/37/EC also establishes a more stringent occupational exposure limit value for hardwood dusts. In relation to Directive 98/24/EC, the national legislation establishes a limit value also for nicotine. The legislation transposing Directive 2009/148/EC (asbestos) sets more detailed requirements on training of workers, in terms of frequency in particular. With regard to Directive 92/57/EEC (temporary or mobile construction sites), national legislation sets more detailed requirements on health and safety coordinators for sites where at least two companies are operating. Other more stringent requirements were established in the transposition of Directive 92/85/EEC (pregnant/breastfeeding workers).

17.3 Level of compliance by different stakeholders

The information on compliance for Luxembourg is based exclusively on the findings of the ESENER-2 survey.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Luxembourg shows a low level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 37% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (66.6%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance 70% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a high number of establishments (67.7%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

17.4 Enforcement

In Luxembourg, the main authority in charge of OSH legislation enforcement is the Labour and Mine Inspectorate (ITM), which covers all directives but only in the private sector. The ITM is under the responsibility of the Ministry of Labour and Employment. There is no inspection as such for the public sector, as the Departments in charge of OSH are tasked with ensuring compliance with OSH requirements in the public sector. However, the National Service of Occupational Safety of the Public Sector is vested with generic competence on monitoring the security of normal operation and the maintenance and control of installations and equipment of the public sector. Moreover, it carries out expertise in order to homologate public establishments facilities during their lifetime. This service is therefore competent to inspect equipment but not personnel 285 .

Criminal sanctions for infringement to OSH legislation include fines and imprisonment. The inspectors may also impose administrative sanctions, in particular emergency measures to stop non-compliance 286 . Inspectors can ask companies to comply within deadlines. When this compliance is not effective, companies can be ordered (mise en demeure / injunction) to comply and eventually be brought to court.

17.5 SMEs and micro-enterprises

Luxembourg has only set up a lighter regime as to the requirement to organise an internal service of occupational health is compulsory only for larger companies. In addition the AAA has set up a labelling programme on occupational safety for SMEs with less than 50 employees. Apart from these, the rules are general and applied to all enterprises regardless of their size. As mentioned by the National Implementation Report for Luxembourg, ‘The measures taken by the competent authorities are the same for all enterprises in Luxembourg and do not depend on size’ 287 . However, given the high proportion of SMEs in Luxembourg, they are indeed the primary recipient of all documents and measures on OSH 288 .

18. MALTA

18.1 Legal Framework and Competences

The Framework Directive is transposed by the Occupational Health and Safety Authority Act, No XXVII, Cap 424, published on 17 November 2000 and entered into force on 29 January 2002 (OHSA Act), which is the foundational piece of national legislation in the area of occupational health and safety in Malta. That Act enshrines the principles of protection of health and safety at the work into national law and establishes the national Occupational Health and Safety Authority. It applies to all workplaces, sectors of activity, both private and public, and work activities. However, certain activities carried out by members of the armed forces, the police force or of the civil protection services appear to be excluded. The OSHA Act empowers the responsible Minister to lay down regulations regarding any matter that may affect health and safety, after seeking the Authority’s advice.

The legal principles established in that that act are applicable to all downstream legislation. Most EU OSH individual Directives are transposed in one specific piece of legislation adopted on the basis of the OHSA Act, with the exception of Directive 92/29/EEC (medical treatment on board vessels) and Directive 93/103/EC (work on board fishing vessels).

The main competent authority is the Occupational Health and Safety Authority (OHSA), established within the institutional framework of the Ministry for Social Dialogue, Consumer Affairs and Civil Liberties. OHSA, which is composed of a tripartite Board including representatives of the government, trade unions and employers, plays a central role in developing and driving national level occupational health and safety strategies, programmes, initiatives and policies. In matters related to fishing vessels, the main regulatory authority is Transport Malta.

18.2 More stringent and more detailed measures

With regard to the scope of the Framework Directive 89/391/EEC, the national legislation applies to domestic workers and to self-employed persons (the term “worker” is defined as "any person employed by an employer to perform work, or who provides a service to another person under a contract of service or for service, and includes a trainee, an apprentice and a self-employed person"). In addition, the scope of risk assessment is wider, as employers must also consider the risks to visitors at the workplace. In respect of preventive and protective services, Malta made use of the option laid down in Article 7(8) of the directive by providing that the Occupational Health and Safety Authority may determine the capabilities, aptitudes and level and type of training required. Finally, the workers’ representative in the area of OSH must not carry out, or be involved with, any work which can give rise to a conflict of interest in the discharge of his functions.

As regards Directive 2006/25/EC (artificial optical radiation), national transposing legislation sets out a more specific methodology for risk assessment by establishing requirements for a "suitable medium" for the record of risk assessment in accordance with Article 4 (4) of the directive.

Employers are also encouraged, in the risk evaluation, to consider workers’ exposure to natural optical radiation, for instance from the sun. This is particularly relevant for those workers who work outdoors and are exposed to the sun’s radiation, especially in summer.

18.3 Level of compliance by different stakeholders

The information on compliance for Malta is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Malta show a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 65% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (44.4%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance only 25% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a medium number of establishments (50.9%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium to high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The conclusions of the external study on compliance are mainly based on the study entitled “Occupational Health and safety in Malta: A Snapshot of prevailing standards published by the OHSA in 2011”. The study reported that only half of the surveyed workers declared that a risk assessment was carried out (whether regularly or not), and that 24% of the workers did not remember. The study assessed that 80% of workers had been offered occupational health and safety information, and only less than 60% of them could rely on health surveillance during their employment 289 .

18.4 Enforcement

In Malta, the main authority in charge of OHS legislation enforcement is the Occupational Health and Safety Authority OHSA. The enforcement body competent for occupational health and safety issues and the procedures in case of infringement in the public sector is the same as in the private sector. The OHSA Act does not distinguish between the public sector and the private sector with respect to enforcement of occupational health and safety legislation in Malta. Transport Malta ensures the application of the required occupational health and safety measures on board fishing vessels. Transport Malta is the regulator and not OHSA in this case.

The Maltese legislation sets both criminal and administrative sanctions for non-compliance with OHS requirements. Criminal sanctions include fines and imprisonment up to two years. Due to recent legislation, the Maltese view on administrative sanctions has changed. It has been decided that, in the event of admission of guilt, payment of a fine, and the taking of remedial action, the Authority shall not take judicial action in the courts of law 290 .

18.5 SMEs and micro-enterprises

OHSA does not distinguish on the basis of size of the enterprise. The only exception is in the case of construction sites, where Prior Notice and the Health and Safety Plan are only required in the case of construction sites on which work is scheduled to last longer than thirty working days and on which more than twenty workers are occupied simultaneously, or on which the volume of work is scheduled to exceed five hundred person-days.

The Financial Incentives, which are tax credits given to SMEs for investing in OHS capacity building, are hence given to all Maltese enterprises, even though they are in fact directed to SMEs. The scheme, called MicroInvest and launched by Malta Enterprise (the national development agency responsible for development and growth of Maltese enterprises), introduced a scheme with which microenterprises and the self-employed are encouraged to invest in their businesses, to innovate, expand and implement directives and develop their operations. In this scheme, microenterprises and self-employed are helped by means of tax credits that represent a percentage of eligible expenditure and the wages of employees and newly engaged apprentices. Following discussions between OHSA and ME, the scheme has been restructured to include occupational health and safety on the list of eligible activities for tax credits.

With regard to other specific actions for SMEs, it can also be noted that all initiatives taken by OHSA, both those concerning enforcement actions and those involving dissemination of information or raising awareness, have already been largely addressed to SMEs 291 .

19. NETHERLANDS

19.1 Legal Framework and competences

The main Dutch legal texts regarding health and safety at work consist of the Working Conditions Act (Arbeidsomstandighedenwet / Arbowet), the Working Conditions Decree (Arbeidsomstandighedenbesluit / Arbobesluit) and the Working Conditions Regulation (Arbeidsomstandighedenregeling / Arboregeling).

The Working Conditions Act sets out the general provisions for employers and workers concerning OSH and provides certain powers to the Labour Inspectorate. The Act is the main legal instrument that, together with the Medical Examinations Act, transposes the Framework Directive (together with the Working Conditions Decree and Regulation). It also transposes partially Directive 92/85/EEC (pregnant/breastfeeding workers), Directive 94/33/EC (young people at work) and Directive 91/383/EEC (temporary workers). The Working Conditions Decree covers a more specific range of OSH topics and directly transposes the following directives: Directive 1999/92/EC (ATEX), Directive 90/269/EEC (manual handling of loads), Directive 2002/44/EC (vibration), Directive 2003/10/EC (noise), Directive 2006/25/EC (artificial optical radiation), Directive 92/57/EEC (temporary or mobile construction sites) and Directive 92/104/EEC (surface and underground mineral-extracting industries).

The Working Conditions Regulation contains very specific provisions, and transposes, together with the Decree, the following directives: Directive 2009/104/EC (work equipment), Directive 92/58/EEC (OSH signs), Directive 90/270/EEC (display screen equipment), Directive 2004/37/EC (carcinogens or mutagens), Directive 98/24/EC (chemical agents at work), Directive 2009/148/EC (asbestos) and Directive 2000/54/EC (biological agents). The remaining EU OSH individual directives are transposed by the Working Conditions Act, Decree and/or Regulation, in combination with other national legislation specific to the OSH topic addressed.

The Dutch legislation in the area of health and safety at work covers all types of undertakings and sectors, without distinction, including the public sector and all enterprises, irrespective of size. In particular, the Working Conditions Act does not distinguish between private and public sectors. Some exceptions are mentioned by the Act concerning matters of state security.

Employment legislation and legislation on occupational health and safety are the competence of the Ministry of Social Affairs and Employment (‘Ministerie van Sociale Zaken en Werkgelegenheid’, 'SZW'). Also all OSH policies are the responsibility of the Ministry of SZW.

19.2 More stringent and more detailed measures

The personal scope of the national legislation is broader as it covers in certain cases self-employed persons 292 .

The evaluation found that in recent years, several more detailed or broader requirements have been withdrawn. At some point, a deliberate choice was made to have more stringent requirements, concerning professional services, certification and expertise, sexual intimidation, aggression and violence and psychosocial disorders, limit values for several carcinogenic substances and the substitution of volatile organic solvents. According to the employers, there are a number of more stringent requirements in the Working Conditions Act. Examples are the Additional Risk Assessment obligation (ARIE) for high risk companies, certification schemes for fork lift trucks, cranes, elevators, certification schemes for professional skills, requirements concerning health surveillance in relation to privacy and professional confidentiality, specific requirements for maintenance of tank ships. More stringent requirements are also set for pregnant workers.

19.3 Level of compliance by different stakeholders

The information on compliance for Netherlands is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study. Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Netherlands shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 73% of establishments doing so). According to the survey, workplace risk assessments are mainly conducted by internal staff (57.3%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance only 24% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (78.5%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study on compliance with the CPMs are based on annual data monitor reports of the Labour Inspectorate (‘Arbo in bedrijf’) and the Employers Survey on Labour (‘Werkgeversenquête Arbeid’). For all CPMs, as well as in relation to each individual Directive, the study assessed a degree of compliance varying between very low to high, and it concluded that overall, the national legislation transposing the Directives is generally effective in medium or large companies compared to small or micro enterprises. The study reported that compliance is higher in the public sector. It also underlined that in sectors such as agriculture, wholesale, retail and construction, significantly less risk assessments are conducted compared to sectors such as industry, energy supply, water management and waste disposal. Finally, as regards the information for workers, the study assessed that more information is provided in sectors with high risk levels, such as construction, agriculture, fishery, industry, financial, and utility sectors and in the public services 293 .

19.4 Enforcement

The Ministry of Economic Affairs has two inspecting bodies: the ‘State Supervision of Mines’, in charge of the inspection and enforcement of OHS law in the mineral extracting industries, and the ‘Netherlands Food and Consumer Product Safety Authority’, in charge of the inspection and enforcement of OHS law in the catering and recreational sectors. Finally, the ‘Human Environment and Transport Inspectorate’ of the Ministry of Infrastructure and Environment is in charge of the inspection and enforcement of OHS law in transport by rail, on the road and on rivers and seas 294 .

Co-ordination between the different inspectorates at the general level takes place within the structure of the Inspectorate Council. This coordination concerns the overall strategic orientation of inspectorates and the development of common general methods, tools (e.g. for data exchange), trainings, etc... It does not concern specific inspection and enforcement issues at content level. The enforcement bodies competent for occupational health and safety issues and the procedures in case of infringement are the same for the public and private sector. The Dutch sanctions system for infringement of the Arbowet is based primarily on administrative sanctions. Criminal sanctions are only invoked in cases the employer knowingly risks the life of workers, or ignores or refuses orders of the Inspectorate to shut down operations 295 .

19.5 SMEs and micro-enterprises

There are no specific measures adopted by the Dutch national authorities in order to assist SMEs and micro-enterprises in the implementation of OSH requirements, other than the lighter regime concerning the obligation to have the risk assessment checked by an external service, which does not apply to employers with 25 or less workers if it is based on a model risk assessment. Additionally, the NIR mentions four other measures in support of SMEs. These include Digitising HIRA tools for the SME, a project to reinforce the safety culture in SMEs; the ‘Gezond bedrijf’ (Healthy Undertaking) project; and the Arboportal – which is the major website on OSH designed for (also) SME’s.

20. POLAND

20.1 Legal Framework and Competences

The Labour Code of 1974 (with subsequent amendments) and its implementing acts (Ordinances) regulate the rights and duties for both parties of the employment relationship, the consequences for violating the health and safety regulations, supervision over the working conditions, procedures in case of accidents at work and occupational diseases as well as their respective benefits and payments. The majority of the employers’ duties are described in Section X of the Labour Code entitled “Work safety and hygiene”, Section VIII “Employees’ rights connected with parenthood” and Section IX “Employment of young adults”. The Labour Code establishes delegation of power to adopt Ordinances concerning detailed provisions in respect of health and safety at work. Each individual EU OSH Directive has been transposed through the Labour Code and a specific Ordinance.

The Polish legislation in the area of occupational health and safety covers all sectors, without distinction, including the public sector and all enterprises, irrespective of size.

The main competent authority is the Ministry of Labour and Social Policy, as it is the main body responsible for the development and implementation of OSH national strategy and policies. The Ministry of Health has also a very important role to play, as it is responsible for issues related to occupational health (medicine) and the monitoring of the occupational medicine service. The bodies which serve to supervise and control the compliance with legal requirements are the National Labour Inspectorate, the State Sanitary Inspectorate, and other sector-specific authorities.

20.2 More stringent and more detailed measures

With regard to the scope of the Framework Directive scope, the Polish legislation includes domestic servants, since the term "employee" is defined as "an individual employed on the basis of a contract, appointment (nomination), choice or a co-operative contract of employment". Hence, as long as the work of a natural person is based on any of the aforementioned forms of employment, the activity falls within the scope of the national legislation transposing the Framework Directive. Poland has also set more specific requirements in relation to preventive and protective services. In particular, in instances where the employer employs more than 100 employees, it is compulsory for him to establish a work safety and hygiene service. If the number of workers varies between 100 and 600, the employer is further obliged to establish a separate work safety and hygiene unit (operated by one or more individuals) or employ a person to perform the duties of the service. In instances where the employer employs more than 600 workers, one representative of the service must be employed on a full-time basis per every 600 workers. In instances where there are less than 100 employees, the respective tasks are normally performed by a member of the staff.

Finally, with regard to consultation of workers, national transposing legislation specifies that, in instances where the employer employs over 250 employees, it is obliged to establish an internal ‘OSH Commission’ (advisory body). The Commission consists of employers’ representatives (including the representatives of the work safety and hygiene service, and an occupational physician) and the representatives of employees (including the social labour inspector). Meetings of the Commission should not take place less frequently than once per every quarter of the year.

In relation to Directive 90/270/EEC (display screen equipment), the definition of the term "worker" provided in the main national implementing ordinance refers to a habitual use of display screen equipment by a worker for at least half the time of his daily working routine (as opposed to the referral to a "significant part" in the directive).

More stringent limit values are set with regard to Directive 2003/10/EC (noise), and also with regard to Directive 2004/37/EC (carcinogens or mutagens) in the national implementing legislation. In relation to Directive 2004/37/EC, the transposing legislation obliges employers to keep a register of works the execution of which requires the employee to handle chemical agents, their preparations or technological processes with carcinogenic or mutagenic effects. The employer is obliged to inform the territorially-due sanitary and labour inspector, immediately after the commencement of business activity and, ever since every year. The employer is obliged to keep such register for 40 years. Similar requirements are set in the legislation transposing Directive 2000/54/EC (biological agents).

20.3 Level of compliance by different stakeholders

The information on compliance for Poland is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Poland shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 67% of establishments doing so). According to the survey, workplace risk assessments are mainly contracted to external providers (60.8%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in house or contracted externally. As regards health surveillance 94% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (98.2%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The conclusions of the external study on compliance are based primarily on the findings of ESENER1 survey, supplemented by the estimates taken up in the reports of the National Labour Inspectorate (for certain individual OSH Directives) and by the findings of stakeholder interviews.

The study assessed that in general, Polish enterprises formally display a high level of compliance with due regulations, although certain reservations should be made with regard to the quality of the practical implementation of the CPMs. The study underlined that the least satisfactory is the situation in establishments employing less than 10 workers. It reported that the National Labour Inspectorate, in reports prepared by the Chief Labour Inspector, stated every year that employers often have a very formalistic approach and do not sufficiently appreciate the importance of the CPMs in the creation of safe work conditions. One area that was ranked worst across all directives was the consultation of workers, which, according to the study, largely depends on the size of establishments and the existence of trade unions (very rarely present in micro and small enterprises). 

20.4 Enforcement

In Poland, both the National Labour Inspectorate and the State Sanitary Inspectorate supervise whether OSH provisions (laid down mainly in the Labour Code Act) are fulfilled by the employers. The former is subordinate to the lower House of Parliament and supervision of the inspectorate is exercised by the Labour Protection Council, whereas the latter is headed by the Chief Sanitary Inspector, who, contrary to the Chief Labour Inspector, is a body of governmental administration. NLI is the main inspection body responsible for the supervision of compliance with labour law and regulations concerning work safety and hygiene, while the SSI is the main inspection body responsible for the supervision of compliance with public health and environmental regulations as well as with sanitary conditions of the establishments.

According to Article 283 of the Labour Code, failure to observe the provisions and rules which govern work safety and hygiene may result in an administrative sanction, that is an imposition of a fine from PLN 1,000 (ca. € 250) to PLN 30 000 (ca. € 7,500) on the entity responsible for the offence. In practice, this responsibility can concern any of the following entities: the employer, person in charge of other employees or an employee responsible for work safety and hygiene at the workplace. In order for an OSH offence to arise on administrative grounds, it is enough for an entity not to observe the provisions and rules, which govern work safety and hygiene. In other words, it does not matter if the offence endangers the health or life of an individual or whether it causes any material losses 296 .

20.5 SMEs and micro-enterprises

Generally, in Poland, there are no specific legal measures adopted in order to assist SMEs and micro- enterprises in the implementation of OSH requirements. The existing measures and accompanying actions are available for all enterprises, irrespective of their size. Nevertheless, measures that can be especially relevant to SMEs can be found in the Polish legislation transposing Directives 2002/44/EC (vibration), 2003/10/EC (noise), 2004/37/EC (carcinogens or mutagens), 98/24/EC (chemical agents), and 2009/148/EC (asbestos). In addition, the Central Institute of Labour Protection- National Research Institute (CIOP- PIB) is the coordinator and main executor of the long-term ‘Programme for the improvement of work safety and work conditions’, under which several pieces of research were conducted and soft measures have been elaborated. The latter include, in particular, guidelines, control procedures, checklists, textbooks and IT applications 297 .

21. PORTUGAL

21.1 Legal Framework and competences

Law 102/2009 of 10 September 2009 on the legal framework of the promotion of safety and health at work - as amended by Law 3/2014 of 28 January 2014 – is the main piece of legislation setting out the general OSH principles and requirements. Occupational health and safety for the public sector is covered by separate laws, which are Law 59/2008 of 11 September 2008 approving the Scheme of Employment Contract in Public Functions and Law 35/2014 of 20 June 2014 approving the General Law on Employment in Public Functions.

The requirements of the remaining directives have mainly been transposed through specific legislation, which are further implemented or regulated by other pieces of legislation. Directive 2003/10/EC (noise) has been transposed in the Decree Law 182/2006 of 6 September 2006, and also in the regional legal order of Azores by Regional Decree Law 23/2010/A of 30 June 2010. Directive 2004/37/EC (carcinogens and mutagens) has been transposed by the Decree-Law n. 301/2000 of 18 November 2000. In the field of Directive 2004/20/EC (electromagnetic fields), Portugal considered that transposition was not necessary and Law 30/2010 of 2 September 2010 regulates the mechanisms and defines the limits of human exposure to magnetic, electrical and electromagnetic fields deriving from electrical lines, installations and equipment.

Law 102/2009 applies to all branches of activities in the private and social or cooperative sectors, to workers and employers, including non-profit organisations, and to self-employed workers.

In Portugal, employment legislation and legislation on health and safety at work are a competence of the Ministry of Solidarity, Employment and Social Security. The Ministry approves and implements policies related to employment, vocational and qualification training, labour market and industrial relations through the Directorate-General for Employment and Labour Relations and the Working Conditions Authority. The Directorate-General for Employment and Labour is responsible for supporting the development of policies, legislation and regulations on employment and vocational training and on industrial relations, including working conditions and health, safety and welfare at work. It is also responsible for the legal framework for transposition of European and international legal instruments namely the OSH Directives. The main authority with competences in the framework of the enforcement and implementation of the directives is the Working Conditions Authority.

21.2 More stringent and more detailed measures

With regard to the scope of the legislation transposing the Framework Directive, national legislation covers domestic workers and self-employed persons. The national legislation also sets more detailed and/or stringent requirements with regard to risk assessment, preventive and protective services, worker information training and consultation and health surveillance. Additionally, Law 102/2009 refers to psychosocial risks, providing that the employer must ensure that exposure to psychosocial risks is limited and that the safety and health of workers is not at risk. Furthermore, the national legislation specifies the reporting requirements, the authorities in charge of controls at the workplace and sets out detailed provisions regarding the appointment of OSH committees and representatives within companies.

21.3 Level of compliance by different stakeholders

The information on compliance for Portugal is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study. Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Portugal shows a good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 77% of establishments doing so). According to the survey, a high proportion of establishments externalises this type of service (68.5%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally.

As regards health surveillance 93% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey also indicates that a very high number of establishments (84%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees.. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The results of the external study as regards compliance are based on the ESENER -1 survey and on “Relatório Único” (Single Report), which is an administrative information source that every employer - working on the mainland of Portugal and in the private sector (the public administration is not bound to complete the report and it also does not cover services and agencies that fall within the scope public functions) is obliged to complete.

On the basis of the Single Report, the study assessed a very low degree of compliance in relation to admission to medical examination, a medium degree of compliance in relation to periodical examination and a very low degree of compliance concerning training of workers. The above mentioned results differ substantially from the ones assessed in ESENER-2 and ESENER-1 survey. However the study also mentioned that, on the basis of consultation with workers organisation, OSH experts and other stakeholders, data on compliance based on the Single Report were deemed to be not accurate and representative of the reality by different stakeholders. While for the private sector the study reported higher levels of compliance with the CPMs, in relation to the public sector it pointed out that the level of compliance with OSH legislation is generally considered to be low 298 . According to the study, this is due to a number of factors, in particular the lack of action on OSH in this sector, and of organized and fully implemented OSH services in most Public Administration entities.

Furthermore the study underlined coordination problems between different public organisations in order to ensure the implementation of occupational health and safety legal orientations 299 .

 21.4 Enforcement

The main authority in charge of OSH legislation enforcement and implementation is the Working Conditions Authority (ACT), which is under the responsibility of the Ministry of Solidarity, Employment and Social Security and which covers all directives, with the exception of Directive 92/29/EEC on medical treatment on board vessels. For this Directive, the Directorate-General of Port, Shipping and Maritime Transport enforces relevant legislation. This Directorate-General is, together with the ACT, also responsible for the enforcement of Directive 93/103/EC (work on board fishing vessels). The Directorate-General of Health is in charge of the enforcement of OSH legislation, together with the ACT, of Directive 89/391/EEC (Framework Directive), Directive 2004/37/EC (carcinogens or mutagens) and Directive 2000/54/EC (biological agents). Finally, Regional Delegations of Industry and Energy enforce, together with the ACT legislation related to Directive 92/104/EEC (surface and underground mineral-extracting industries) and Directive 92/91/EEC (mineral-extracting industries through drilling) 300 .

In the case of very serious administrative offences or repeated serious administrative offences, which are committed intentionally or with gross negligence, the sanctions applied to the offender are published in website of the Ministry of Labour; in case the administrative offences above are committed repeatedly, the offender can be prohibited of exercising activities in the establishment, plant or site for a period of up to two years and/or prohibited of participating in public tenders for a period of up to two years 301 .

21.5 SMEs and micro-enterprises

There are no specific measures adopted by the Portuguese national authorities in order to assist SMEs and micro-enterprises in the implementation of OSH requirements, other than the lighter regime concerning OSH activities that may be carried out by the employer or designated worker(s) in undertakings of less than 10 workers and with no high risk activity. Apart from these, the rules are general and applied to all enterprises regardless of their size.

However, in 2010, the ACT established a protocol, together with the Portuguese Confederation of Micro, Small and Medium Enterprises (CPPME), which aimed to stimulate micro-enterprises and SMEs to comply with labour law and OSH requirements in particular. Under this protocol, the ACT is able to support and fund studies, awareness raising actions and other proposals made by the CPPME. Additionally, the ACT has provided financial support to employers and trade union structures to promote projects aimed at promoting safety and health at work. These entities have developed publications to disseminate the general principles of prevention of occupational risks, the duties and rights of employers and workers, as well as the methodologies for assessing occupational risks, which are placed at the disposal of enterprises and their workers, with special focus on micro- and small enterprises 302 .

22. ROMANIA

22.1 Legal Framework and Competences

In Romania, the main act in the field of occupational health and safety is Law 319/2006 of 14 July 2006 on Safety and Health at Work, which transposes Framework Directive 89/391/EEC ('Law 319/2006'). Law 319/2006 is implemented through the Government Decision 1425/2006, Approving Methodological Norms for the Implementation of Law 319/2006 ('Government Decision 1425/2006'). Particular aspects related to health surveillance, fire-fighting at work and emergency situations are regulated by separate laws, government decisions and methodological norms. The individual EU OSH Directives are transposed through specific Government Decisions. Directive 92/85/EEC (pregnant/breastfeeding workers) is transposed through a Governmental Ordinance and a Government Decree, while Directive 91/383/EEC (temporary workers) is transposed through two Government Decrees and the Labour Code.

Law 319/2006 applies to every employer, worker and workers’ representative and to all sectors, both private and public.

The Ministry of Labour, Family, Social Protection and the Elderly together with the Ministry of Health are the central authorities having specific attributions in the field of health and safety at work. Generally, the Ministry of Labour, Family, Social Protection and the Elderly is mainly focused on ensuring the necessary legal and institutional framework for the protection of safety at work, while the Ministry of Health is primarily responsible for ensuring the necessary protection of health at work. The Labour Inspection is the competent authority regarding the enforcement of legislation on health and safety at work;

22.2 More stringent and more detailed measures

With regard to the scope of the Framework Directive, Law 319/2006 contains a broader definition of the term "worker" which has been extended to "other participants to the work process" (that is to say people at the company and/or establishment with the permission of the employer during the preliminary verification of the professional skills for employment; persons visiting; people providing community services or activities on a voluntary basis; unemployed persons during their professional retraining or refresher engaged in the activity for which they are prepared; people who do not have a work contract concluded in written form, and for whom the contractual provisions and the services performed can be proven by any other means of evidence). The Government Decision 1425/2006 regulates in more detail the content of the risk assessment process and defines, in implementation of Article 7 (8) of the Framework Directive, the capabilities and aptitudes that must be fulfilled by the designated workers or the external services or persons in the area of safety at work and their training. With regard to workers' information, a health and safety committees must be organized and must function at the employer’s level. This is, however, not compulsory for undertakings employing less than 50 workers. As regards training, Government Decision 1425/2006 provides that the interval between two training sessions may not be longer than 6 months. Training shall be repeated in addition to that periodically programmed in case of occurrence of amendments of health and safety norms.

With regard to Directive 2003/10/EC (noise), national legislation establishes a list of the maximum values of noise for specific jobs involving neuro-psychical fatigue and increased or special psycho-sensorial fatigue.

In relation to Directive 2004/37/EC (carcinogens or mutagens), more stringent requirements are set in relation to health surveillance, which must be performed prior to exposure, as well as at regular intervals thereafter, independently of whether or not this is "appropriate" (while the Directive sets out in Article 14 (2) that each worker shall be able to undergo such health surveillance "if appropriate").

With regard to Directive 92/85/EEC (pregnant/breastfeeding workers), transposing legislation obliges employers to submit the risk assessment to the occupational physician from the territorial public health authority as well as to the territorial labour inspectorate within 5 working days as of the date when the risk assessment was drafted. The risks to be taken into account in the assessment are set forth more specifically in the Methodological Norms for the enforcement of the provisions on maternity protection 303 .

22.3 Level of compliance by different stakeholders

The information on compliance for Romania is based exclusively on the findings of the ESENER-2 survey.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for Romania shows a very good level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 89% of establishments doing so). According to the survey, workplace risk assessments are mainly contracted to external providers (55.9%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance 91% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (98%) make available to the workers a document explaining responsibilities and procedures on health and safety. A medium/ high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

22.4 Enforcement

In Romania, the enforcement of OSH legislation is attributed to two authorities. While the Territorial Labour Inspectorates are the main interface for the enforcement of the OSH obligations and are primarily oriented towards the control and sanctioning of the undertakings, Public Health Directorates are primarily focused on offering to all stakeholders holding an interest in this field the necessary counselling, guidance and technical expertise in order to determine the proper means for ensuring an effective protection of the workers’ health at the workplace. With regard to the two Fishing Vessels Directives, the Romanian Naval Authority has the main responsibility with regard to inspection, control and supervision 304 .

When an infringement of OSH legislation is established, the labour/public health inspectors draft a formal report on the infringement. On this basis, the inspectors can order specific remediation measures, administrative sanctions (warning or administrative fine) and/or complementary administrative measures (such as cessation of using specific equipment, temporary suspension of activity etc.). Also, the inspectors can file a complaint to the criminal authorities in case the infringement has a criminal nature. The Romanian legislation therefore sets both criminal and administrative sanctions for non-compliance with OSH requirements. Administrative fines generally range from approx. EUR 1,100 to approx. EUR 2,200, while the maximum time of imprisonment seems to be 3 years.

22.5 SMEs and micro-enterprises

Romanian legislation is not particularly focused on SMEs and micro-enterprises from an OSH perspective. The main OSH obligations (such as drafting a risk evaluation, elaborating health and safety instructions) are the same for all undertakings, irrespective of its size, the sector of activity and the risks which can be associated therewith. The only legal differentiation, which could be construed as a lighter regime for SMEs and micro-enterprises, is related to the manner in which undertakings can organize the services of protection and prevention, in which case specific differences in regime are made depending on the size of the enterprise 305 . Stakeholders have indicated that they are not aware of specific financial supporting programs dedicated to SMEs.

23. SLOVAK REPUBLIC

23.1 Legal Framework and Competences

In Slovakia, the Framework Directive 89/391/EEC is transposed through the Act No. 124/2006 on Occupational Safety and Health ("OSH Law"). Due to the traditional distinction between workplace safety and health at work, protection of health is regulated in chapter three of the separate Act No. 355/2007 on the protection, promotion and development of public health ("Public Health Act").

The large majority of the EU OSH individual directives has been transposed by individual Government Regulations. The only exception is Council Directive 91/383/EEC (temporary workers), which is transposed by way of specific provisions in the Labour Code. The Labour Code also transposes partially Council Directive 94/33/EC (young people at work) and Directive 92/85/EEC (pregnant/breastfeeding workers). The Public Health Act also contains general requirements on the protection of workers against physical and chemical risks, which partially transposes the relevant directives, although these general requirements are complemented by specific Government Regulations.

The legislation in the area of OSH covers all sectors, without distinction, including the public sectors.

In Slovakia, occupational safety and health issues fall within the competence of the Ministry of Labour, Social Affairs and Family of the Slovak Republic (‘Ministry of Labour’), while occupational health issues are covered by the Ministry of Health. Employment legislation and legislation on occupational safety and health are a competence of the Ministry of Labour. Decisions about the implementation of OSH laws are thus taken and adopted by the Slovak Government. Moreover, this Ministry is responsible for the preparation and implementation of state policy documents, such as the national Occupational Health and Safety Strategy. The National Labour Inspectorate is a state administration body with nation-wide competence that oversees tasks concerning labour inspection, manages and supervises the Regional Labour Inspectorates (8), and unites and rationalizes their working methods, acting under the Ministry of Labour.

23.2 More stringent and more detailed measures

With regard to the scope of the Framework Directive, the national transposing legislation sets forth a broader definition of the term "employer", as it does not include the condition related to having the responsibility for the undertaking laid down in that directive. Also, according to the Occupational Safety and Health Act, occupational safety and health requirements also apply to self-employed persons to the extent necessary to ensure occupational safety and health in relation to the nature of the activities they perform.

In general, the Occupational Safety and Health Act sets forth more detailed requirements than the Framework Directive, aiming at a concrete implementation in practice of that directive's general principles and requirements. For example, with regard to the protective and preventive referred to in Article 7 thereof, an employer who employs more than 100 employees must establish a Commission for safety and health protection at work as his advisory body. Also, that law further specifies the content and form of information to workers.

Regarding Directive 89/656/EEC (PPE), more detailed requirements are laid down in the national transposing legislation. All documents related to the purchase of PPE must be made available to the Safety Technical Service and OSH Committee. Moreover, an instruction note must be provided with instructions on the functioning, use, maintenance, storage, end date and inspections of the PPE.

With regard to Directive 90/269/EEC (manual handling of loads), the Slovak legislation specifies that the "load" includes humans and animals. Additional measures on work with loads are also included reflecting occupational safety and health regulations adopted before the transposition of the Directive.

With regard to Directive 90/270/EEC (display screen equipment), Article 9 of that directive is transformed into the employer’s obligation to arrange for assessments of the medical fitness of workers to work with display screen equipment and the content of these preventive medical examinations for workers working with display screen equipment is laid down in Annex 6 to the Instruction published in the Journal of the Ministry of Health, Volume 58, on 1 March 2010. More detailed requirements in relation to the eye tests referred to in Article 9, which must be repeated every two years (whereas the directive refers to "regular intervals").

With regard to Directive 2002/44/EC (vibration), the Slovak legislation sets additional requirements in relation to risk assessment, health surveillance, consultation of workers and other key requirements. Very similar requirements have been noted with regard to the legislation transposing Directive 2003/10/EC (noise).

With regard to Directive 2004/37/EC (carcinogens or mutagens), the Slovak legislation prohibits the use of carcinogens and mutagens in teaching at primary and secondary schools, while the use of carcinogens and mutagens at higher-education institutions and research institutions is subject to an assessment by a public health body. With regard to Directive 98/24/EC (chemical agents at work), the Slovak legislation sets additional requirements in relation to risk assessment, information for workers and consultation of workers. It also includes more stringent limit values. National legislation implementing Directive 2009/148/EC (asbestos) is more detailed in respect of risk assessment, health surveillance, and other key requirements.

Finally, Slovakia has transposed the provisions of the Directive 94/33/EC (young people at work) into national law and supplemented them to include the obligation to draw up a list of work and workplaces that are prohibited to young workers.

23.3 Level of compliance by different stakeholders

The information on compliance for the Slovak Republic is based, on the one hand, on the findings of the ESENER-2 survey and, on the other hand, on the results of the external study.

Concerning the provisions referred to as the common processes and mechanisms (CPMs), the ESENER-2 results for the Slovak Republic shows a moderate level of compliance as regards the obligation to carry out workplace risk assessments regularly (with 59% of establishments doing so). According to the survey, workplace risk assessments are mainly contracted to external providers (54.8%). ESENER -2 shows very high levels of uptake for health and safety services used, be it in-house or contracted externally. As regards health surveillance 60% of the respondents to the survey declared that their establishment arranges regular medical examinations to monitor the health of the employees. The survey indicates that a very high number of establishments (97.4%) make available to the workers a document explaining responsibilities and procedures on health and safety. A high proportion of establishments declared as well that training on how to manage health and safety was performed (training available to management, to persons who know most about health and safety in the establishment). Differences could be observed when considering the thematic coverage of the training provided to employees. SME and microenterprises were less likely to have the necessary OSH management structure in place as compared with larger establishments.

The conclusions of the external study on compliance are based on the annual reports of labour inspection and on interviews with relevant OSH stakeholders. For all CPMs, the degree of compliance is estimated between medium to high. In terms of effective risk assessment performance and carrying out of risk management activities resulting from the risk assessment, the study pointed out that many employers do not perform risk assessment because they are not persuaded that it can help them to decrease the amount of work accidents or improve working conditions. It further reported that in micro-companies risk assessment is rarely performed, and where it is performed, only formally. A higher degree of compliance in the OSH field was assessed in large undertakings as opposed to SMEs.