COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the evaluation of the European Agency for Safety and Health at Work

CONTEXT

Following the Commission's presentation of its programme in the field of health and safety at work, the Council in its resolution of 21 December 1987 [1] requested the Commission "to examine how the exchange of information and experience in the field covered by this resolution can be improved, particularly as regards the gathering and dissemination of data and the advisability of setting up Community machinery to study the repercussions at national level of Community measures in this field ".

[1] OJ C 28 of 3.2.1988, page 1.

Via its Regulation (EC) No 2062/94 of 18 July 1994 [2] the Council established a European Agency for Safety and Health at Work (hereinafter "the Agency"). This Agency, which was amended by Council Regulation (EC) No 1643/95 [3] of 29 June 1995, contains a review clause in Article 23. This clause stipulates that "[n]o later than five years after the entry into force of this Regulation, on the basis of a Commission report, accompanied as appropriate by a proposal, the Council, having consulted the European Parliament, shall review this Regulation and any new assignment for the Agency that proves necessary."

[2] OJ L 216 of 20.8.1994, page 1.

[3] OJ L 156 of 7.7.1995, page 1.

Given that the Agency did not become fully operational until after September 1996, the date on which the director took up office, the Commission transmitted to the Council a progress report [4] on the operation of the Agency on 23 March 2001. This first report provided a general overview of the progress, achieved in the operational set-up of the European Agency for Safety and Health at Work, rather than a detailed performance evaluation towards its objectives. It was said that the precise evaluation of its performance, and the impact of the Agency's information activities, would be submitted to Council once the results of the extended evaluation launched were available and had been analysed by the Commission. Besides, the Commission indicated that, at its request, an external evaluation had been decided upon by the Agency's Administrative Board. Complementary to this evaluation, a survey of more forward-looking elements would be organised as well allowing for a review of its communication strategy.

[4] "Communication from the Commission to the Council regarding the Commission's report on the European Agency for Safety and Health at Work", COM(2001)163 of 23.03.2001.

On 11 March 2002, the Commission presented a communication addressed to the interested parties on the guidelines of its new strategy regarding well-being at work [5]. In this document, the Commission described the elements to be put in place in order to consolidate a genuine global approach, based on a culture of risk prevention, on combining a variety of political instruments and on building partnerships between all the players. In this context it emphasised the key role which the Agency will have to play in promoting prevention and the collection and dissemination of information, notably by creating a "risk observatory". This "new strategy" was very well received by the Council [6] and the Parliament [7], which reiterated their support. The Economic and Social Committee also delivered a positive opinion.

[5] "Adapting to change in work and society: a new Community strategy on health and safety at work 2002-2006", COM(2002) 118 final of 11.03.2002.

[6] Council Resolution of 3.06.2002 (OJ 161 of 5.07.2002, page 1).

[7] Parliament Resolution of 23.10.2002, doc PE 323.680, page 9.

EXTERNAL EVALUATION

Anticipating the conclusions of the Commission's Report of 23 March 2001, the Bilbao Agency had commissioned an external consultant to prepare an evaluation report on its activities.

This report was presented to the Commission and the Administrative Board during a seminar organised in Bilbao in March 2001. The chief conclusions of this report can be summarised as follows:

The Agency has succeeded in putting in place an infrastructure to provide information in the field of health and safety at work, both at the level of data dissemination techniques and at that of a network structure;

The Agency has partly succeeded in achieving its goal, i.e. in addressing clients' needs ;

The Agency has only made a small contribution to giving added value to the information received from the national networks ;

Generally speaking, the Agency has reasonably achieved the aims set out in Council Regulation (EC) No 2062/94, notably in the light of the time at its disposal and the complexity of the tasks.

The external consultant's report also contained the following recommendations:

Considerably improve communications with the different clients, notably the small and medium-sized enterprises (SMEs);

Develop innovative concepts in the field of health and safety at work, taking into account the changes in the world of work;

Further develop its network, paying closer attention to the different national networks and the clients' needs;

Develop the Agency's management structure as well as its strategy, notably by making better use of the tripartism of its Administrative Board ; more specifically, ensure the permanence of the resources available to the Agency.

Augment the Agency's internal capacities by improving internal communication via flexible procedures, guaranteeing a high level of personnel skills, and better management of human resources.

THE AGENCY'S RESPONSE

Reacting to all these comments, the Agency replied (May 2001) that in view of the limited time available and the complexity of the task, the contractor had accomplished his evaluation task in a satisfactory manner. The Agency noted that the evaluation had identified five key areas for improvement. It also concluded that the primary task was to eliminate the communications and networking deficiencies, before laying down operational priorities as a function of the available resources.

THE OPINION OF THE INTEREST GROUPS

Besides this external evaluation made in 2001, the interest groups (employers, workers and government representatives) have in the meantime expressed their views and have made their own observations and recommendations. A large number of these comments are akin to the contractor's, although the perception of certain problems seems to differ greatly from one group to another.

The government representatives responsible for health and safety at work have generally called for a thorough review of the Regulation, notably as regards its scope. They seek clarification of the Agency's assignments and responsibilities and more specific provisions governing the composition and election of the members of its Administrative Board, the Bureau, and the role of the Commission in laying down priorities; a restructuring of the Agency's management, its staff and its network and the inclusion of added value by amalgamating the information received and giving it a European dimension; at the level of national focal points, they want a tripartite structure similar to that of the Agency's Administrative Board to be established on a sound legal basis and they want sufficient resources to produce, assemble and disseminate the information at national level.

The employers' representatives generally consider that the Agency has not fully completed the tasks vested in it by Council Regulation No 2062/94. More specific comments include the proposal to improve communications with clients. Notably, this group suggests the introduction of added value by presenting the information in such a way as to immediately contribute to resolving the problems which have arisen, particularly for SMEs.

This group also supports the external contractor's second recommendation, viz. the development of innovative concepts in the field of health and safety at work, bearing in mind the changes in the world of work.

As regards the Agency's role compared with that of the focal points in the Member States, the employers' group considers that it is not within the Agency's remit to impose tasks upon them - rather, the Agency's assignment is to process the information which it has received from them, so as to present it in such a way as to provide immediate benefits to all clients.

Finally, as regards improving the structure and management of the Agency, and in order to lower the level of client dissatisfaction -- which this group considers to be relatively high -- their representatives propose enhancing the role of the Administrative Board and giving the Bureau more executive powers.

The workers' representatives point out that the evaluation report does not give sufficiently detailed answers to ensure full compliance with all the provisions of the Regulation establishing the Agency: the report does not show to what extent the procedures, the structure of the network used, etc. are efficient. The report does not give a global answer as to how the different products really satisfy the users' different needs. Besides, this group also calls for the tripartite system of the Administrative Board to be introduced at the level of the national focal points, as do the government representatives.

The proposals made include the suggestion that the Agency's strategy be extended to include follow-up activities (monitoring) in high risk areas and one-off activities, such as safety campaigns.

The group is particularly interested in access to sources of information and the added value associated with the establishment of a research methodology and the processing and storing of information on a thematic basis. Naturally, this group insists that the Agency be granted sufficient resources to fulfil its mission.

THE OPINION OF THE ADVISORY COMMITTEE ON SAFETY, HYGIENE AND HEALTH PROTECTION AT WORK (CCSHS) [8]

[8] Tripartite Committee created by Council Decision of 27/6/1974 (74/325/CEE, JO L185 of 9.7.1974).

The Advisory Committee on Safety, Hygiene and Health Protection at Work, in which the three abovementioned groups are formally represented, has also addressed the question. At its plenary meeting of 15 May 2003, the Committee delivered an opinion in which it:

|| "reiterates the need to amend the Council Regulation (Articles 3 and 4) and not to stop at informal recommendations which have proved to have their limitations. The purpose of such amendment should be to clarify the objective and tasks of the Agency, the way information should be processed, the role of the actors, and the way in which the Agency operates and functions.

With this in mind, the Committee would like to draw the following matters to the Commission's attention and ask it to take account of them:

the need to situate the Agency's activities in the context of the "Community strategy on health and safety at work 2002-2006" and to ensure that the Agency not only collects, but also ensures the processing of certain information;

the benefits of redefining the Agency's tasks so there is no doubt that major operations such as the "SME programme" or the "European Health and Safety Week" fall within the its legal and financial framework and so that "database" or "observatory" projects also have a place;

the need to specify the nature and role of the Focal Points: whether there is unanimous agreement that the Focal Points must function in a manner which respects the principle of tripartism, that the way they function is not in line with the agreement, and that the question remains open as to whether the Focal Points are Agency bodies (which have to operate using Agency resources) or national structures (in which case the Agency cannot give them unlimited orders);

the Committee's desire not to extend the Agency's responsibilities to include legislation issues, which come under the jurisdiction of the Community institutions (Commission, Council, Parliament), the European social partners and the Luxembourg Committee.

|| Governance

The Committee feels it is essential and urgent to amend the Council Regulation with regard to all the points concerning governance made in the joint resolution of 20 December 2002 (joint opinion of the Bilbao, Dublin and Thessaloniki agencies [9]). The priority should be for this resolution to be applied in its entirety, and it should replace the recommendations on these points in the Advisory Committee's opinion of 29 November 2001.

[9] European Agency for Safety and Health at Work, European Foundation for the Improvement of Living and Working Conditions and European Centre for the Development of Vocational Training.

|| Operating practices

The Committee reiterates the need for the information provided by the Agency to be accessible to as many final users as possible, in several countries at the same time. This is a key point in the evaluation.

In this connection it feels that the language issue must be resolved soon. The evaluation shows that users are able to exploit information only if it is available in their mother tongue. The Committee is aware that it is not possible for all information to be available in all languages and would like the Focal Points and national social partners to play an active role in selecting the information to be translated.

SUMMARY AND ANALYSIS IN THE LIGHT OF COUNCIL REGULATION 2062/94

A comparison of the remarks and comments with the text of the Regulation establishing the Agency leads to the following conclusions.

The Agency's objective as set out in Article 2 is not contested by the evaluators even if they differ as to the extent to which it has been achieved. Consequently, the Agency's objective remains a key issue, viz.:

"In order to encourage improvements, especially in the working environment, as regards the protection of the safety and health of workers as provided for in the Treaty and successive action programmes concerning health and safety at the workplace, the aim of the Agency shall be to provide the Community bodies, the Member States and those involved in the field with the technical, scientific and economic information of use in the field of safety and health at work."

Nevertheless the Commission considers that the Agency's objective could be fleshed out by introducing an explicit reference to the Community strategies.

As regards the Agency's role (Article 3) and the achievement of its assignments, all the evaluators emphasise two elements which are not quite satisfactory: firstly, the question of the adding value in order to ensure that the "products" supplied are useful and directly benefit the interested parties, in particular the SMEs; secondly, improvement of the Agency's communications with its clients.

The Commission considers that these two grievances do not reflect deficiencies in the text of Article 3 of the Regulation but concern the implementation of the Agency's current assignments. The existing text makes it possible to accommodate the demands made by the Advisory Committee. Consequently, the Commission considers that Article 3 clearly defines the scope of activity which the Council envisaged for the Agency and permits the developments suggested by the evaluators - notably the activities of the Agency described in the context of the Community strategy for health and safety at work 2002-2006, including its role as "risk observatory"; however, the text could be more clearly formulated as regards the relationships between the Agency and its partners and the need to furnish products which clients can utilise straight away. Hence the Commission proposes that the amendments be confined to relatively minor modifications.

Article 4 of the Regulation prescribes the manner in which the Agency must set up its network.

Clearly, opinions differ as regards the scope of this Article and its implementation, notably as regards the role, positioning and structure of the national focal points. For example, the employers' representatives are opposed to being subordinated to the Agency. In the Commission's view, the text of Article 4 clearly stipulates that the national focal points are part of the national information networks; hence they can neither be subordinated to the Agency nor financed by the Agency outside the arrangements provided in Article 5. By establishing the Agency under Regulation No 2062/94, the Member States had clearly assumed responsibility for creating focal points which had the necessary resources to work together with the Agency and the topic centres. Hence the Commission considers that the problems of structure, functioning and funding of the national focal points is a matter for the Member States and that the text of the Regulation relating to these aspects will have to remain as it stands.

Another contention as regards Article 4 concerns the fact that the experts representing the workers and the government authorities consider that the national focal points should have a tripartite structure similar to that of the Agency's Administrative Board. The Commission considers that it would be a good thing to add a reference indicating the need to take account of these viewpoints in the framework of national legislation and practices.

Article 6 ("Access to documents") and 7 ("Legal personality") do not give rise to any comments and, besides, the evaluators made no observations concerning these articles.

To take into account the experience gained during the first years of the Agency's existence and the abovementioned comments made by the different parties involved, a major overhaul of Article 8 ("Administrative Board ") is necessary: the impact of enlargement, the tripartite situation in the Member States, interaction with the Advisory Committee, the existence of the Bureau will have to be enshrined in the text; likewise, the role of the Administrative Board and that of the Commission deserve clarification.

While Article 9 ("observers") can remain as it stands, this does not apply to Article 10 ("Annual work programme - Annual general report ") and Article 11 ("Director") which will have to reflect the amendments made at the level of Article 8.

The entry into force of the new Financial Regulation [10] and the Framework Financial Regulation [11] for the bodies referred to in Article 185 of the Financial Regulation require the modification of Articles 12 to 15, which concern budgetary aspects and financial management. The review of these articles was part of the general procedure for amending the financial and budgetary rules of all Community agencies and was adopted by the Council on 18 June 2003 [12].

[10] Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the financial regulation applicable to the general budget of the European Communities, OJ L 248 of 16.09.2002.

[11] Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework financial regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the financial regulation applicable to the general budget of the European Communities.

[12] As regards the European Agency for Safety and Health at Work, see Council Regulation (EC) No 1654/2003, OJ L 245 of 29.9.2003, p. 38.

CONCLUSIONS

In conclusion, the Commission,

* having analysed the external consultant's reports and the opinions of the government experts, the social partners and the Advisory Committee,

* having noted that the Agency's activity reports have been published very regularly between 1996 and 2002, the period covered by this evaluation, and have not been the subject of basic comments or criticisms on the part of the supervisory authorities;

* whereas a running-in period necessary involves shortcomings and deficiencies, in this case the quality of the information furnished to the clients, above all the SMEs, and the quality of communications with these clients,

* having re-examined the text establishing the Agency in the light of the criticisms made and the tasks incumbent on the Agency in the context of the "new community strategy on health and safety at work 2002-2006",

* having regard to the existence of a new Financial Regulation and new specific rules for the "European offices ",

considers that

* the Agency can and must press ahead with the current approach while making sure to rectify the abovementioned shortcomings, notably to improve the accessibility, the value added and the utilisation of the information supplied;

* all the Agency's current activities, including those provided for by the new Community strategy on health and safety at work 2002-2006, except for the task of analysing the information provided, come within the framework of Regulation No 2062/94,

* Regulation No 2062/94 clearly indicates that the status and the operation of the national focal points is the exclusive responsibility of the Member States and that there is no overriding reason to change this situation;

* specifications and modifications are nevertheless necessary in order to clarify certain aspects of the Regulation, notably Article 8, in order to take into account inter alia the impact of enlargement, the tripartite composition of the Administrative Board, the existence of the Bureau, and the proposals which have been made in this connection.