Proposal for a Council Recommendation concerning the application of legislation governing health and safety at work to self-employed workers
Date: 2002-04-03
Institutions: European Commission
Subjects: accident prevention, occupational health, occupational safety, self-employed person, worker information

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 3.4.2002
COM(2002) 166 final

2002/0079 (CNS)

Proposal for a

COUNCIL RECOMMENDATION

concerning the application of legislation governing health and safety at work to self-
employed workers

(presented by the Commission)

EXPLANATORY MEMORANDUM

I.

INTRODUCTION

The Commission's interest in this initiative arises from  the fact  that workers whose
work  is  not  subject  to  any  employment  relationship  with  an  employer  or,  more
generally, who are not bound by any link or contract of employment to a third party
are not, as a general rule, covered by the Community directives dealing with health
and safety at work.

Nevertheless,  self-employed  workers  are  generally  subject  to  the  same  health  and
safety risks as are  employees and it turns out that there is  a need  for  a Community
initiative in this regard.

One of the measures foreseen in Action 8 of the Community programme concerning
safety,  hygiene  and  health  at  work1  is  to  "examine  the  need  for  a  proposal  for  a
Council  recommendation  on  the  safety  and  health  at  work  of  self-employed
workers". The Commission considered that given the ever-increasing number of self-
employed  workers  who  are  not  covered  by  the  Community  legislation  based  on
Article 137 of the EC Treaty (ex Article 118a), there was a need to examine in depth
the situation in the European Union and the means at the EU’s disposal in this field.

Thus, already in 1996 the Commission began to discuss the issue and to examine the
health and safety at work situation of self-employed workers in the European Union.
The results of this analysis show that the sectors in which self-employed workers are
concentrated  are  often  high-risk  ones  (transport,  agriculture,  construction,  fishing).
Coverage by Community law is extremely limited and the national legislations vary
greatly.

In this context, the Advisory Committee on Safety, Hygiene and Health Protection at
Work had in 1997 created an Ad Hoc Group on self-employed workers whose remit
was  "to  prepare  an  opinion  of  the  Advisory  Committee  on  the  range  of  possible
actions that may  be  available  to  the  Community  to  deal  with  the  need  that  may  be
established and the problems that may arise from the extension of Community health
and safety measures to self-employed workers.

In the context of this group’s work and with a view to getting a snapshot of the actual
situation  of  self-employed  workers  in  all  the  Member  States,  the  Commission
requested the Bilbao Agency to collect information from the Member States so as to
determine  whether  the  secondary  legislation  contained  in  the  health  and  safety
directives had been  extended  to  self-employed  workers  and,  if  so,  in  what  manner.
Secondly, and with a view to a better appreciation of the situation, the Commission
requested  the  Bilbao  Agency  to  communicate  to  it  a  further  set  of  information
concerning the situation of self-employed workers, both in practical and legal terms,
with a breakdown by Member State.

In  a  general  context,  it  should  be  underlined  that  the  European  Social  Agenda2
adopted by the Nice European Council3 asks the Commission to draw up, in 2002, a

1

2

COM(95) 282 final, OJ C 262, 7.10.1995, p. 18.
COM(2000) 379 final, 28.6.2000.

2

                                                
Community  strategy  for  health  and  safety  at  work  with  a  view  to  attaining  the
objective of anticipating and managing a changing work environment by developing
a  new  balance  between  flexibility  and  security,  and  that  the  Economic  and  Social
Committee in its Opinion on health and safety at the workplace4 proposes, as regards
the conditions of self-employed workers, that information and awareness campaigns,
benchmarking and research be developed systematically

II.

PROTECTION  OF  THE  HEALTH  AND  SAFETY  OF  SELF-EMPLOYED
WORKERS AT NATIONAL LEVEL

The  following  conclusions  can  be  drawn  from  the  information  collected  by  the
Bilbao  Agency concerning the  protection of  the health and  safety  of  self-employed
workers in the Member States5:

– 

– 

Certain  Member  States  have  extended  the  scope  of  their  health  and  safety  at
work  legislation  to  self-employed  workers.  This  applies  to  Portugal  and
Ireland,  where  health  and  safety  at  work  legislation  covers  all  workers,  self-
employed  or  otherwise,  and,  to  a  lesser  extent,  to  Denmark,  the  United
Kingdom and Sweden.

The health and safety at work legislation of the other Member States does not
apply  to  self-employed  workers.  However,  in  certain  domains  (such  as
occupational  health)  or  in  certain  circumstances  (for  example,  when  self-
employed  workers  work  on  a  site  or  in  the  case  of  subcontractors)  self-
employed workers are covered and must comply with the relevant legislation.

III.

PROTECTION  OF  THE  HEALTH  AND  SAFETY  OF  SELF-EMPLOYED
WORKERS AT COMMUNITY LEVEL

Article  3  of  framework  Directive  89/391/EEC  on  the  introduction  of  measures  to
encourage  improvements  in  the  safety  and  health  of  workers  at  work6  defines  a
worker as any person employed by an employer, a definition which applies to all the
individual directives under the framework Directive.

However,  two  directives  based  on  Article  137  (ex  Article  118a)  deserve  particular
mention:

– 

Directive  92/57/EEC  on  the  implementation  of  minimum  safety  and  health
requirements at temporary or mobile construction sites7, which applies to self-
employed workers where they are personally engaged in work activity and who
may, through their activities on site, jeopardise the safety and health of workers
who  are  also  on  the  site  (hence,  the  goal  is  not  to  protect  self-employed
workers but to subject them to certain rules so as to limit or restrict the risks to
which they might expose the other workers);

3

4

5

6

7

Nice European Council of 7–9.12.2000, Presidency conclusions, Annex 1.
OJ C 51, 23.2.2000, p. 33.
See attached summary describing the situation regarding health and safety protection of self-employed
workers in the Member States.
OJ L 183, 29.06.1989, p. 1.
OJ L 245, 26.08.1992, p. 6.

3

                                                                                                                                                        
and

– 

Directive  92/29/EEC  on  the  minimum  safety  and  health  requirements  for
improved  medical  treatment  on  board  vessels8,  which  is  not  an  individual
Directive  under  Directive  89/391/EEC  and  which  includes  a  very  broad
definition  of  workers,  including  self-employed  workers;  however,  here  again,
this  is  not  an  instrument  which  exclusively  concerns  self-employed  workers,
and  the  aforementioned  rationale  of  Directive  92/57/EEC,  pursuant  to  which
the protection of self-employed workers is merely incidental to the protection
of employees, applies mutatis mutandis to Directive 92/29/EEC.

Moreover,  it  should  also  be  mentioned  that  one  of  the  recitals  of  Directive
2001/45/EC9 concerning the use of work equipment provided for temporary work at
a  height  refers  to  self-employed  persons,  pointing  out  that  their  use  of  work
equipment may jeopardise the health and safety of employees.

IV.

THE NEED FOR COMMUNITY ACTION

Although  the  bulk  of  the  Community  legislation  governing  the  protection  of  the
health and safety of workers at work does not apply to self-employed workers, they
are very often subject to the same health and safety risks as employees.

Besides,  it  is  precisely  in  the  high  risk  sectors  agriculture,  fishing,  construction,
transport  and  services  that  self-employed  workers  are  concentrated.  The  latest
available statistical data show that while the rate of accidents at work among the self-
employed is lower than average, the rate of fatal accidents is far above average10.

In  May  1999  the  Advisory  Committee  delivered  a  favourable  opinion  on  the  draft
Council Recommendation proposed by the  Commission, recognising the  need for a
Community initiative concerning protection of the health and safety of self-employed
workers.

As the Advisory Committee points out in its opinion, the growth of self-employment
in many European countries is part of a wider change in the structure of employment,
with companies reducing in size by outsourcing many tasks to very small firms and
self-employed  workers.  This  creates  new  problems  of  cooperation  between  small
firms and maintaining a strong safety culture in very small firms.

Following the entry into force of the Amsterdam Treaty, and in accordance with the
procedure provided for in Article 138(2) and (3) of the EC Treaty, the social partners
at European level were consulted on the need for an initiative in this area, initially in
March  2000  and  again  in  July  2001;  they  were  almost  unanimously  in  favour  of  a
non-binding  Community  instrument  which  would  notably  cover  the  dimensions  of
information/awareness-raising, 
and
prevention.

special  medical 

surveillance, 

training, 

8

9

10

OJ L 113, 30.04.1992, p. 19.
OJ L 195, 19.7.2001, p. 46.
Eurostat – “Statistics in Focus” Population and social conditions: No 16/2001 "Accidents at work in the
EU 1998-1999" and No 17/2001: “Work-related health problems in the EU 1998-1999”.

4

                                                
Given  that,  under  Article  137  of  the  EC  Treaty  a  directive  is  the  only  legal
instrument  whereby  action  may  be  taken  in  the  field  concerned,  it  is  proposed  that
this draft recommendation be based on Article 308 of the EC Treaty.

Community  action  in  this  area  is  possible  via  recourse  to  Article  308  of  the  EC
Treaty,  which  provides  for  the  necessary  measures  to  be  adopted  to  attain,  in  the
course of the operation of the common market, one of the Community's objectives. It
is  clear  that  in  the  case  in  question  protection  of  the  health  and  safety  of  self-
employed workers contributes to realising one of the objectives of  the Community,
viz. to ensure a high level of protection in this area.

The fact that the large  majority of Member States  do not regulate  the  protection of
health  and  safety  of  self-employed  workers  has  resulted  in  a  great  variety  of
protection levels within the European Union.

In  the  light  of  the  subsidiarity  principle,  the  gaps  in  Community  law  and  national
legislation in this area show that Community level action is necessary with a view to
ensuring  a  minimum  level  of  protection  for  self-employed  workers  against
occupational hazards. The Commission would first request the Member States to take
the necessary measures on a voluntary basis, in line with this proposal for a Council
Recommendation  and,  if  necessary,  following  evaluation  of  an  initial  application
period, via a binding instrument.

To the extent that certain Member States have already taken measures to protect self-
employed workers, the proposed initiative can in no way be considered excessive and
hence  respects  the  principle  of  proportionality.  Member  States  which  have  not  yet
taken measures in this field could therefore benefit from the very positive results of
the implementation of provisions in this area.

5

Annex

Application of national law on health and safety at work

1.

APPLICATION EXTENDED TO COVER SELF-EMPLOYED WORKERS

PORTUGAL:  Self-employed  workers  are  covered  by  regulations  which  apply
without distinction to employees and self-employed workers.

IRELAND: Legislation on health and safety at work applies to the self-employed.

UNITED  KINGDOM:  In  the  basic  provisions  of  the  Health  and  Safety  Act  1974
and of the Workplace (Health, Safety and Welfare) Regulations 1992, the concept of
“work” is defined as applying to an employee or a self-employed worker. The Health
and Safety Act 1974 also lays down certain obligations for self-employed workers, as
do  the  Management  of  Health  and  Safety  Regulations,  which  impose  on  them  the
obligation to carry out a risk assessment.

Similarly,  the  Work  Equipment  Regulations  1992  apply  explicitly  to  the  self-
employed.

As for the Health and Safety  (Working on Display  Screen  Equipment) Regulations,
they apply certain requirements of Directive 90/270/EEC to self-employed workers,
although  the  protection  they  afford  is  less  comprehensive  than  that  afforded  to
employees.

On  the  other  hand,  the  Regulations  on  Manual  Handling  of  Loads  and  Personal
Protective Equipment do not apply to the self-employed.

DENMARK:  Legislation  on  health  and  safety  at  work  (§ 2  arbejdsmiljøloven)
applies to all work carried out for an employer.

Such a criterion, which does not  introduce  the  concept  of  “worker”,  therefore  does
not exclude self-employed workers from the scope of the law.

Nevertheless,  many  of  the  rules  under  the  health  and  safety  at  work  legislation  are
only relevant within the context of a stable relationship between an employer and a
worker, for example with regard to information, instruction and training.

Consequently, the rules likely to be applied to self-employed workers are by nature
fewer in number than those applicable to employees. They are general principles of
health  and  safety  at  work  legislation,  and  the  rules  governing  the  use  of  work
equipment and the organisation and execution of work.

SWEDEN: The legislation on the work environment applies in part to the employer
himself.  This  is  also  the  case  with  purely  family  undertakings  with  regard,  for
example, to the use of work equipment or dangerous substances.

Consequently,  Swedish  legislation  on  health  and  safety  at  work  applies  in  part  to
self-employed workers.

6

2.

APPLICATION  IN  PRINCIPLE  RESTRICTED  TO  WORKERS  WITHIN  THE  MEANING  OF
ARTICLE 118A

FINLAND: Finnish law on the protection of workers applies to work carried out by
employees on the basis of a contract and in exchange for remuneration, for and under
the supervision of an employer. It does not apply to the self-employed.

However,  the  provisions  relating  to  health  at  work  apply  equally  to  the  self-
employed.

GERMANY/AUSTRIA:  Legislation  on  health  and  safety  at  work  applies  only  to
workers. The self-employed are not covered.

BELGIUM:  As  a  general  rule,  the  self-employed  are  not  covered  except  when
working on a site or where there is subcontracting.

LUXEMBOURG:  The provisions do not  apply to  the  self-employed  except  where
they carry out an activity on a site.

However,  self-employed  workers  are  subject  to  the  social  insurance  code  and,  in
particular,  are  covered  by  the  Association  d’assurance  contre  les  accidents
(industrial  section).  As  a  result,  they  are  obliged  to  comply  strictly  with  that
company’s accident prevention requirements.

NETHERLANDS: The arbowet legislation does not apply to the self-employed.

Under  certain  circumstances,  however,  for  example  with  regard  to  sites,  a  self-
employed  worker  operating  within  an  undertaking  in  which  workers  are  employed
must  comply  with  the  relevant  provisions  of  the  legislation  for  the  purposes  of
protecting those workers.

GREECE: The regulations governing health and safety at work do not apply to self-
employed workers.

The obvious exceptions derive directly from Community law (sites, coordination).

ITALY:  The  health  and  safety  at  work  regulations  do  not  apply  to  the  self-
employed.

Under  certain  circumstances,  however,  in  particular  where  providing  a  service  in
undertakings employing workers, they may be called upon to observe the health and
safety at work regulations, but only for the purposes of protecting those workers.

SPAIN: Self-employed workers are outside the scope of the regulations.

However, the rules relating to cooperation and coordination apply to them whenever
they are present in a workplace where workers are carrying out their activity.

Similarly, site regulations contain rules applicable to the self-employed.

7

FRANCE: As a general rule, the provisions do not apply to self-employed workers
or  to  the  employers  themselves  (except  where  they  are  directly  carrying  out  an
activity on a site). 

N.B.:  A  study  has  been  launched  with  a  view  to  extending  application  to  self-
employed workers in the nuclear sector.

8

2002/0079 (CNS)

Proposal for a

COUNCIL RECOMMENDATION

concerning the application of legislation governing health and safety at work to self-
employed workers

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Article 308 thereof,

Having regard to the proposal for a Recommendation from the Commission,

Having regard to the opinion of the European Parliament11,

Having regard to the opinion of the Economic and Social Committee12,

Whereas

(1)

(2)

(3)

11

12

13

14

15

The  Communication  from  the  Commission  on  a  Community  programme  concerning
safety, hygiene and health at work (1996–2000)13 provided for examining the need for
a  proposal  for  a  Council  recommendation  concerning  the  health  and  safety  of  self-
employed workers, given the ever-increasing number of such workers.

The European Parliament in its Resolution14 on the General framework for action by the
Commission of the European Communities in  the field  of safety,  hygiene  and  health
protection  at  work  (1994–2000)  proposes  that  it  include  measures  to  extend  the
framework Directive to self-employed workers; whereas the European Parliament in its
Resolution15  on  the  mid-term  report  on  the  implementation  of  this  programme  again
draws attention to the category of self-employed workers, who are largely outside the
scope  of  the  legislation,  and  stresses  that  the  growth  in  subcontracting  has  led  to  an
increase in the number of accidents at work.

The  social  partners  attach  particular  importance  to  the  protection  of  the  health  and
safety of self-employed workers and almost all are in favour of a Community action in
the form of  a Council recommendation  focusing on high  risk sectors  and  notably  on
information  and  awareness-raising  measures  on  risk  prevention,  appropriate  training
and medical surveillance.

OJ C, , p. .
OJ C, , p. . 
COM(1995) 282 final, OJ C 262, 7.10.1995.
OJ C 205, 25.7.1994, p. 478.
Resolution of the EP of 25.2.1999 (A4-0050/1999).

9

                                                
(4)

(5)

(6)

(7)

As a general rule, workers who exercise their occupational activity in a manner which
does  not  involve  an  employment  relationship  with  an  employer  or,  more  generally,
does not make them subordinate to a third person are not covered by the Community
directives  on  health  and  safety  at  work,  in  particular  framework  Council  Directive
89/391/EEC  of  12  June  1989  on  the  introduction  of  measures  to  encourage
improvements  in  the  safety  and  health  of  workers  at  work16;  whereas,  in  addition,
these workers are not covered in certain Member States by the legislation applicable in
the field of health and safety at work.

Self-employed  workers  are  subject  to  exactly  the  same  health  and  safety  risks  as
employed workers.

There also certain "high-risk" sectors in the Community in which the number of self-
employed workers is very high (agriculture, fishing, construction, transport).

The  recent  Recommendation  by  the  ILO  accompanying  the  Convention  concerning
health  and  safety  in  agriculture17  stipulates  that  Member  States  must  progressively
extend to self-employed farmers the protection applicable to workers, taking account
of the views of representative organisations of self-employed farmers if necessary.

(8) Work  accidents  and  occupational  diseases  to  which  self-employed  workers  are

particularly exposed result in high costs in both social and human terms.

(9)

For  these  reasons,  it  is  appropriate  to  take  account  of  the  category  of  self-employed
workers.

(10) Given  that  certain  Member  States  already  include  self-employed  workers  within  the
scope  of  their  legislation  on  health  and  safety  at  work,  and  although  distortions  of
competition arise mainly within individual Member States, the adoption of equivalent
measures in the other Member States would help to reduce distortions of competition
by  limiting  the  extent  to  which  different  health  and  safety  regulations  apply  in  the
various Member States.

(11)

(12)

(13)

(14)

It  is  also  necessary  to  improve  access  of  self-employed  workers  to  training  and
information with a view both to improving their own health and safety and that of the
other workers who share the same workplaces.

The health and safety objectives laid down in this Recommendation do not prejudice
the right of each Member State to establish specific procedures for the application of
its legislation to self-employed workers.

This Recommendation does not affect existing or future national provisions providing
for a higher degree of protection.

In the current situation, the Member States are in the best position to take appropriate
measures,  whereby  the  Community  should  also  contribute  towards  achieving  the
objectives of this Recommendation.

16

17

OJ L 183, 29.6.89, p. 1.
ILO, Convention 184/2001 of 21.6.2001.

10

                                                
(15)

The  proposal  was  drawn  up  following  consultation  with  the  social  partners,  in
accordance  with  Article  138(2)  and  (3)  of  the  EC  Treaty,  and  with  the  Advisory
Committee on Safety, Hygiene and Health Protection at Work,

HEREBY RECOMMENDS

THAT THE MEMBER STATES:

1.

2.

3.

4.

5.

6.

7.

8.

9.

recognise, in the context of their policy on preventing occupational hazards and
accidents, the right of self-employed workers to health and safety protection on
an  equal  footing  with  employed  workers  and  the  duties  to  which  they  are
subject in this area;

organise the recognition of this right and these duties within their domestic legal
order,  in  particular  by  making  provision  for  the  inclusion  of  self-employed
workers in the scope of their legislation on health and safety at work and/or the
adoption of specific measures relating to self-employed workers;

adapt,  if  necessary,  this  legislation  to  the  specific  needs  of  self-employed
workers;

take the necessary  measures so that self-employed  workers  can  obtain from the
services and/or bodies appointed for this purpose useful information  and advice
on the prevention of health and safety risks in the context of their occupational
activity; these measures must be adapted to the needs of self-employed workers
and allow them to control the risks to which they are liable to be exposed;

take the measures necessary so that self-employed  workers  can  have  access  to
sufficient training to acquire appropriate safety and health skills;

ensure  easy  access  to  this  information  and  training  without  involving  excessive
expense to self-employed workers;

take the necessary measures, in line with their national legislation and/or practice,
to  ensure  appropriate  surveillance  of  the  health  of  self-employed  workers,
depending on the health and safety hazards in question;

take  account,  in  preparing  relevant  legislation,  of  experience  in  other  Member
States;

ensure  that  these  rules  on  the  health  and  safety  protection  of  self-employed
workers are effectively enforced, notably by providing for appropriate control and
surveillance;

10.

examine,  at  the  end  of  a  four-year  period  starting  with  the  adoption  of  this
Recommendation,  the  effectiveness  of  the  measures  taken  with  a  view  to
implementing its provisions, and inform the Commission of its findings.

Done at Brussels,

For the Council
The President

11