Opinion of the Economic and Social Committee on the "Proposal for a Council Recommendation concerning the application of legislation governing health and safety at work to self-employed workers" (COM(2002) 166 final — 2002/0079 (CNS))
Date: 2002-07-18
Institutions: European Economic and Social Committee
Subjects: accident prevention, occupational health, occupational safety, self-employed person, worker information

7.10.2002

EN

Official Journal of the European Communities

C 241/139

Reason

Firstly, it makes sense to deal with the consultation of workers in a single paragraph. Secondly, clearer reference
should be made to the current legal situation at European level.

Result of the vote

For: 18, against: 21, abstentions: 2.

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Recommendation
concerning the application of legislation governing health and safety at work to self-employed
workers’

(COM(2002) 166 final — 2002/0079 (CNS))

(2002/C 241/26)

On 28 May 2002 the Council decided to consult the Economic and Social Committee, under Article 262
of the EC Treaty, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on this subject, adopted its opinion on 20 June 2002. The rapporteur was
Mrs Schweng.

At its 392nd Plenary Session (meeting of 18 July 2002), the Economic and Social Committee adopted the
following opinion by 77 votes to 32, with 15 abstentions.

1.

Introduction

1.3.
As part of the social dialogue, the European social
partners were also consulted on the form and content of a
possible Community initiative.

1.1.
The Community programme for 1996-2002 concern-
ing safety, hygiene and health at work already made provision
for examining ‘the need for a proposal for a Council Rec-
ommendation on the safety and health at work of self-
employed workers’. As early as 1996 the Commission submit-
ted to the Advisory Committee on Safety, Hygiene and Health
Protection at Work, for its opinion, an initial draft of the
Recommendation under review. The Advisory Committee
issued two opinions on this subject. In its first opinion, issued
in 1997, the Advisory Committee called upon the European
Commission to draw up a report on the measures taken by the
Member States to ensure the safety and protect the health of
self-employed workers. The aim was to help pinpoint more
clearly possible lines of action.

2. Contents of the Recommendation

2.1.
The Proposal for a Recommendation provides for the
following measures: the Member States should recognise the
rights and duties of self-employed workers to ensure their
safety and protect their health, in the same way as employed
workers.
that self-employed
workers be brought within the scope of health and safety
provisions and, where necessary, that these provisions be
adapted to take account of the particular situation of self-
employed workers.

It is proposed,

in particular,

After the Bilbao Agency had drawn up the abovemen-
1.2.
tioned report for the European Commission, the Advisory
Committee issued a second opinion in 1999,
in which it
addressed the content of the Commission’s draft recommen-
dation. The Advisory Committee proposed that individual
provisions be more clearly formulated and that clearer distinc-
tions be drawn between them. The Commission largely acted
upon the recommendations made by the Advisory Committee.

2.2.
It is further proposed that self-employed workers be
given access to particular services and bodies where they can
obtain information and advice on health protection and the
prevention of occupational safety hazards. Self-employed
workers should also be given access to health and safety
training measures without having to incur excessive expense.

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2.3.
The Member States are recommended to ensure appro-
priate surveillance of the health of self-employed workers in
the light of the risks to which they are exposed. When
preparing legislative measures, Member States should take
account of experience in other Member States. Member States
should also ensure appropriate inspection and monitoring of
compliance with the legal provisions. Four years after the
adoption of the Recommendation, the Member States should
inform the Commission of the measures which they have
taken to implement it.

3. General comments

3.1.
So far only two Member States, Portugal and Ireland,
have brought self-employed workers within the scope of their
legislation on health and safety at work. In both these states,
self-employed workers are placed on an equal footing with
employed workers. This is also the case to a certain extent in
Denmark, the UK and Sweden.

The legislation on health and safety at work of the
3.2.
other Member States does not apply to self-employed workers,
except in areas where there is a need to coordinate their work
with that of employed workers (e.g. on construction sites in
respect of which a specific EU Directive has been intro-
duced (1)).

3.3.
The Commission has decided to base its Proposal for a
Recommendation on Article 308 of the EC Treaty. The reason
given for selecting this article is that Article 137 of the EC
Treaty, for its part, only provides for the use of a Directive as
a legal instrument. The ESC wishes to back up this argument
by pointing out that Article 137 of the EC Treaty provides
only for measures for the ‘improvement in particular of the
working environment to protect workers’ health and safety’;
this would exclude measures to assist self-employed workers.

3.4.
The Commission takes the view that self-employed
workers have the same right to protect their health as do
employed workers. Whilst welcoming this standpoint, the ESC
wishes to draw attention to one fundamental difference
between self-employed workers and employed workers:
employed workers are locked into the work processes of
enterprises and are not free to shape their own working
environment.

3.5.
The Commission does not intend this Recommen-
dation to cover spurious self-employed persons, i.e. persons
who, whilst being regarded as self-employed, have, however,
frequently entered into a relationship with a third party which

( 1) Council Directive 92/57/EEC of 24.6.1992 on the implementation
of minimum safety and health requirements at temporary and
mobile construction sites.

could be described as an employment relationship between an
employer and a dependent employee. In its 1999 opinion the
Advisory Committee called upon the Commission to make a
declaration to the effect that ‘spurious’ self-employed persons
were already covered by the framework Directive. The Com-
mission has made this point clear on several occasions, albeit
only orally. The ESC recommends that the Commission issue
this declaration in writing in the very near future. The
Commission should also take pains to improve the definition
of ‘spurious’ self-employed persons so that abuses can be
combated more effectively.

3.6.
According to the fourth recital to the proposal for a
Recommendation, a self-employed worker is a worker who
exercises his/her 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 (as is the case, for example, with members of the liberal
professions, sole traders and farmers). Self-employed workers
are free to make their own decisions as to the commissions or
jobs which they accept, the way in which they carry them out
and the precautionary measures which they take or the risks
which they are prepared to accept. Self-employed workers
therefore have much more room for manœuvre when taking
decisions than do employees.

3.7.
In order to enable self-employed workers to assess by
themselves whether particular activities involve a risk, it is
essential that these workers be given access to the relevant
information. The self-employed should be encouraged to make
risk assessments for themselves.

4. Specific comments

4.1.
The Committee can support that the Commission has
presented a non-binding instrument. It also supports the
Commission’s approach of not only granting rights to the self-
employed but also imposing certain duties on them as regards
their own health and safety. In the first place, the self-employed
should, if necessary, be protected against themselves: in the
second place self-employed must be discouraged from trying
to gain a competitive advantage over those who do respect
existing health and safety policies. The Committee notes that
for the time being self-employed are only included in health
and safety legislation in cases where they may place employed
workers at risk. This principle has already been taken on board
in the Directive on Construction sites and in the Directive on
scaffolding.

4.2.
The ESC also draws attention to the fact that Frame-
work Directive 89/391, which has been transposed into
national law by the Member States, sets out rights and duties
for employees and employers. Who is to carry out a workplace
risk assessment in the case of a self-employed worker? Who is
to be responsible for providing information and instruction?
This clear division of rights and duties embodied in the
Framework Directive would not be feasible if its scope were
extended to include self-employed workers.

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4.3.
It would be desirable for the Proposal for a Recommen-
dation to make provision not just for legislative measures but
also for measures to help increase the level of awareness of
self-employed workers concerning their own health and safety.
One example of such measures could be the introduction of
national health and safety information campaigns aimed at self-
employed workers, on a sector-by-sector basis. Consideration
could also be given to including the health and safety of self-
employed workers in the employment policy guidelines and
developing appropriate indicators (such as the accident rate
for self-employed workers).

4.4.
The ESC welcomes and supports the recommendations
on access for self-employed workers to services or bodies with
a view to ensuring that these workers have the relevant
information at their disposal. The ESC also welcomes the
recommendation on access to training and the recommen-
dation that access to information and training should not be
so expensive as to possibly prevent self-employed workers
from availing themselves of it (1). The Committee would go
even further, insisting that information and training should
entail as little expense as possible for the self-employed.

(1) Translator’s note: The above wording is based on the German
the Commission document. The English version
version of
(point 6, page 11) refers to ensuring ‘easy access to this
information and training without involving excessive expense to
employed workers’.

Brussels, 18 July 2002.

4.5.
As regards the recommendation concerning the ‘appro-
priate surveillance of the health of self-employed workers’, it is
lead
important,
to additional administrative burdens being placed on self-
employed workers. The self-employed should be actively
encouraged to undergo health monitoring.

in the ESC’s view,

this should not

that

4.6. With reference to the recommendation concerning
‘appropriate control and surveillance’ in respect of the enforce-
ment of the rules governing self-employed workers, the ESC
points out that, here too, legislative measures should not be
regarded as the only instrument which may govern the
working conditions of self-employed workers. This desire
could be taken into account by adding the proviso ‘where
applicable’ to legislative measures in this field.

4.7.
The Committee welcomes the Commission’s tenth
recommendation whereby the Member States must report
on the effectiveness of measures taken as a result of this
recommendation. When drawing up their progress reports,
the Member States should, in the ESC’s view, also address the
provisions of
their respective national worker protection
legislation in respect of which the inclusion of self-employed
workers creates particular problems. These reports should also
give details of any distortions of competition. The Commission
should consolidate these national reports into a general report
which should be discussed by the Advisory Committee on
Safety, Hygiene and Health Protection at Work.

The President

of the Economic and Social Committee

Göke FRERICHS

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APPENDIX

to the opinion of the Economic and Social Committee

At least one quarter of the votes cast were in favour of retaining the following passage from the section

1.
opinion, which was rejected following an amendment adopted by the plenary assembly:

Point 4.1

‘The ESC welcomes the fact that the Commission has presented a non-binding instrument. It does, however, regret
that the Commission has failed to take adequate account of the difference between self-employed workers and
employed workers by recommending to the Member States not only that they grant rights to self-employed workers
but also that they impose duties upon them as regards their own health and safety. The ESC takes the view that self-
employed workers should only be included in health and safety legislation in cases where such workers may place
employed workers at risk (1) This principle has already been taken on board in the Directive on construction sites (1)
and in the Directive on scaffolding (2)’.

Result of the vote to delete the text

For: 62, against: 47, abstentions: 9.

2. Rejected amendment

The following amendment, which received at least a quarter of the votes cast, was rejected during the discussion.

Point 4.5

Add the following to the point:

‘The Committee calls on the Commission to consider methods which could be developed for effective monitoring,
taking account of the content of point 4.1 above.’

Reason

See Amendment 1 to point 4.1.

Result of vote

For: 55, against: 56, abstentions: 7.

(1) According to Framework Directive 89/391, it is up to the employer of the workers concerned to establish whether there is any

risk involved for them.

(2) Directive 2001/45/EC of the European Parliament and of the Council of 27.6.2001 amending Council Directive 89/655/EEC

concerning the minimum safety and health requirements for the use of work equipment by workers at work.