Health and safety of workers, no fault liability & proof of infringements : Case C-127/05

The Court of Justice dismissed an action brought by the Commission against the United Kingdom in Case C-127/05 Commission v. United Kingdom for breach of Article 5 § 1 and § 4 of Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. The case has a certain importance in the United Kingdom but above all it shows how important it is for the Commission to really prove that a member State has breached a directive.

Article 5 § 1 of the Directive provides : "The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work." But then Article 5 § 4 provides

"This Directive shall not restrict the option of Member States to provide for the exclusion or the limitation of employers’ responsibility where occurrences are due to unusual and unforeseeable circumstances, beyond the employers’ control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care."

The United Kingdom implemented Article 5 with legislation providing that that an employer is not liable for the risks which arise or the consequences of events which occur in his undertaking if he is able to demonstrate that he took all reasonably practicable measures to ensure the safety and health of the workers.

The Commission claimed that Article 5 must be interpreted in such a way as to impose no-fault liability on employers for all accidents which occur in the workplace. Consequently, the United Kingdom's implementation was incorrect because it did not provide for such a no-fault liability.

The Court of Justice disagreed with the Commission and dismissed its action. The Court held that Article 5 did not, as the Commission asserted, set up a no-fault liability obligation on employers. The Court also held that the Commission had failed to demonstrate how the objective of Directive 89/391 could not be obtained by some means other than no-fault liability.

As a general matter, the Court recalls that in an action brought on the basis of Article 226 EC, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see Case C-287/03 Commission v Belgium, paragraph 27, and Case C-428/04 Commission v Austria, paragraph 98).