The European Court of Justice plans on Thursday 14th June to deliver its long awaited judgment on the 10-year dispute between the EU Commission and the UK Government on the legality of the inclusion in UK health and safety law of the employer’s defence of reasonable practicability. The Judgment follows the delivery in January this year of the Opinion of the Court’s Advocate General.

The Commission first complained formally to the Government in September 1997 but it was not until March 2005 that it brought the present proceedings.

In summary, the Commission has argued that by restricting the duty on employers to ensure the health and safety of workers to the extent to which it is reasonably practicable the UK has failed to meet its obligations under Article 5 of EC Directive 89/391, the “Framework Directive”. Article 5 provides that “The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work” but goes on that Member States can “provide for the exclusion or limitation of employers’ responsibility where occurrences are due to unusual or 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 UK Government, on the other hand, has argued that the defence of reasonable practicability is entirely consistent with Article 5 and that the Commission’s strict liability approach should not be upheld.

After a hearing in September last year, in January, Advocate General Mengozzi delivered his Opinion on the case to the Court. The European Court of Justice is made up of 27 Judges and 8 Advocates General. The Advocates General assist the Court and present an independent “opinion” in the cases assigned to them. The Court is not obliged to accept opinions or follow their recommendations, but they are generally persuasive in this respect.

Mengozzi’s Opinion is at first glance favourable to the UK in that it recommends that the Commission’s application be dismissed. In it, however, Mengozzi points out that the Commission seems to attack reasonable practicability purely on the grounds that it restricts the employer’s Article 5 liability for the consequences of events detrimental to workers’ health. He goes on that if the Court were to form the view that the Commission’s complaint is also on the grounds that reasonable practicability restricts the extent of the employer’s Article 5 duty to ensure safety, then the Court should decide in the Commission’s favour.

We should have the Court’s judgment in June, from which it should be clear (a) what approach the Court has adopted, and (b) whether the attack on the defence of reasonable practicability is likely to continue in one form or another.