The development of the OHS soft framework as an addition to economic development

Some Commissions, like the Santers Commission (1995–1999), focused on non- legislative measures and marked a break from the Delors era. The fourth Community programme concerning safety, hygiene, and health at work for 1996 to 2000 clearly stated that

128_{88/c28/02 Commission Communication on its programme concerning safety, hygiene. At work, 21 December}

1987. The aims were: to improve the safety and ergonomics at work; to lower the exposure of workers to physical factors, biological organisms and chemical substances; to provide information on all the substances for which directives are proposed in the field of health and safety; to develop the training resources; to adapt the legal provisions to small and medium-sized enterprises and to develop the dialogue between the two sides of industry in OHS based on Article 118B of the Single Act.

129 _{68% of the daughter’s directives excluding the Directives codifying or reviewing existing directives; 52%}

including all the directives

130 _{Under Delors Commission I: 7 Directives based on 89/391/EEC; Under Delors Commission II: 5 Directives}

49 the adoption of new OHS directives was the last option, only when there was no alternative possible. 131 _{One of the main points of the non-legislative OHS policy was the creation of the}

SAFE programme (Safety Actions for Europe). The SAFE programme was intended to

support measures to ensure proper implementation of Community directives on health and safety at work, to continue to promote high standards in health and safety at work in the Community and to ensure effective involvement of the two sides of industry in developing, formulating and implementing Community policy initiated by the Commission on protection of the health and safety of employees.132

However, the programme never became a reality. Therefore, the Commission decided to transfer its missions to the European Agency for Safety and Health at Work and the European Foundation for the Improvement of Living and Working Conditions.133

The development of alternatives was also illustrated by the extension of the actors in charge of OHS in the EU with the creation of the SLIC, which was the result of close

cooperation between its members and the Commission.134 _{The action programme focused on}

the evaluation of the previous legislation, in cooperation with the MS and social partners, to identify the enforcement problems, effectiveness, and socio-economic impact of the health and safety legislation. This action plan was complemented by the increasing attention given to social dialogue in the establishment of OHS policies. Indeed, the Santers Commission period corresponded to the overall increase in social dialogue.135

It was during this period that the first sectoral agreement on health and safety was adopted and was then implemented through Council Directive 1999/63/EC.136 _{Paradoxically,}

for Lapeyre — who has been in charge and the ETUC representative for the dialogue between the social partners at the EU level for more than ten years — OSH was not a suitable topic for social dialogue because it is not something that should be the subject of bargaining and

131 _{COM(95) 282 final} 132 _{COM(95) 282 final, p.13}

133 _{COM(1998) 511 final; Mid-term report on the community programme concerning safety, hygiene and health}

at work. pp.2-3

134 _{An in-depth analysis of the SLIC will be provided in the CH6 of this thesis, pp.186-190}

135 _{See figure 4 in Degryse C., 2015. The European sectorial social dialogue: An uneven record of achievement?}

Brussels, ETUI, Working Paper 2015.p.11

136 _{Directive 1999/63/EC concerning the Agreement on the organisation of working time of seafarers concluded}

by the European Community Ship-owners Association and the Federation of Transport Workers’ Unions in the European Union

50 compromise.137 _{This tendency of using non-legislative tools to frame OHS is confirmed from a}

more general perspective. Indeed, in March 2000, the Lisbon Treaty introduced the open method of coordination (OMC), presented as a suitable instrument for identifying and pursuing common European concerns while respecting legitimate national diversity by committing MS to working together towards common goals, without seeking to homogenize their national practices.138 _{Here, the Commission reinforced its role as coordinator — or even simple adviser}

— of MS.

When the Santers Commission adopted legislative measures, it was to ensure the implementation of the existing framework. It reserved the adoption of new legislation only in the fields of high risks activities. Additionally, the Commission underlined the importance of approaching Community OHS legislation from a global point of view. Considering that OHS requirements were at a crossroads and might overlap with different fields and strategies, it was necessary to ensure there were no duplications with another field before adopting a new directive. These considerations had the effect of limiting the scope of action considerably for the Commission and might have been an illustration of the limited ambitions of the Santers Commission in the adoption of new OHS directives. As a result, the Commission adopted only two Directives based on 89/391/EEC between 1995 and 2000, and they indeed covered high risks.139 _{The overall tendency was a distancing from Directive 89/391/EEC and the previous}

Delors Commissions. This approach of the legislative action must be placed in the bigger political context. Under the Prodi Commission in June 2002, in the context of the European Commission’s Better Regulation programme, the Commission started to implement an impact assessment process, which would examine the potential social, economic, and environmental impacts of European Commission proposals.140 _{This requirement not only encouraged the}

development of non-legally binding action at the EU level but also reduced the capacity of

137 _{Lapeyre, Jean. Interview June 14, 2017. Archives, University of Glasgow p.9; For him, only the organisation}

of work – that might have an impact on OHS (e.g., the working time, psychosocial risks, etc.) – can be subject to negotiation.

138 _{Zeitlin, J. and Trubek, D.M., 2007. A Decade of Innovation in EU Governance: The European Employment}

Strategy, the Open Method of Coordination, and the Lisbon Strategy. Perspectives on employment and social

policy coordination in the European Union, p133

139 _{The Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to}

chemical agents at work; The Council Directive 1999/92/EC on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres.

51 action of the European Commission in the OHS field by making the initiative and legitimisation process more complex.141