The Europeanisation of occupational health services: A study of the impact of EU policies

This study concerns Framework Directive 89/391/EEC on health and safety at work, which encouraged improvements in occupational health services (OHS) for workers in EU member states. Framework Directive 89/391/EEC originally aimed at bringing the same level of occupational health and safety to employees in both the public and private sectors in EU member states. However, the implementation of the framework directive and OHS varies widely among EU member states. Occupational health services have generally been considered an important work-related welfare benefit in EU member states. The purpose of this study was to analyse OHS within the EU context and then analyse the impact of EU policies on OHS implementation as part of the welfare state benefit. The focus is on social, health, and industrial policies within welfare state regimes as well as EU policy-making processes affecting these policies in EU member states. The research tasks were divided into four groups related to the policy, functions, targets,and actors of OHS. The questions related to policy tried to discover the role of OHS in other policies, such as health, social, and labour market policies within the EU. The questions about functions sought to describe the changes, as well as the path dependence, of OHS in EU member states after the framework directive. The questions about targets were based on the general aims of WHO and the ILO in relation to equity, solidarity, universality, and access to OHS. The questions on actors were designed to understand the variety of stakeholders interested in OHS. The actors were supranational (EU, ILO, and WHO), national (ministries, institutes, and professional organisations), and social partners (trade unions and employers organisations). The study data were collected by interviewing 92 people in 15 EU member states, including representatives of ministries, institutions, research,trade unions, employers organisations, and occupational health organisations. Other documents were collected from the Internet,databases, libraries, and conference materials for a systematic review of the policies, strategies, organisation, financing, and monitoring of OHS in EU member states. Different analytical methods were used in the data analysis. The main findings of the study can be summarised as follows. First, occupational health services is a context-dependent phenomenon, which therefore varies according to the development of the welfare state in general, and depends on each country s culture, history, economy, and politics. The views of different stakeholders in EU member states concerning the impact and possibilities of OHS to improve health vary from evidence-based opinions to the sporadic impact of OHS on occupational health. OHS as a concept is vaguely defined by the EU, whereas the ILO defines OHS content. The tasks of OHS began as preventive and protective services for workers. However, they have moved towards multidisciplinary and organisational development as well as the workplace health promotion sphere.Since 1989 OHS has developed differently in different EU member states depending on the starting position of those states, but planning and implementation are crucial phases in the process toward better OHS coverage, equity, and access. Nevertheless, the data used for the planning and legitimisation of OHS activities are mainly based on occupational health data rather than on OHS data. This makes decisions on political or policy grounds inaccurate. OHS is still an evolving concept and benefit for workers, but the Europeanisation of OHS reflects contextual changes, such as the impact of the internal market, competition, and commercialisation on OHS. Stronger cooperation and integration with health, social, and employment services would be an asset for workers, because of new epidemics, an epidemiological shift towards new risks, an ageing labour market, and changes in the labour market. Different methods and approaches are needed in order to study the results of integrated services. In the future, more detailed information will be needed about the actual impact of EU policies on OHS and decision-making processes in order to get OHS into different policies in the EU and its member states. Further results and effects of OHS processes on occupational health need to be analysed more carefully. The adoption of a variety of research strategies and a multidisciplinary approach to understand the influence of different policies on OHS in the EU and its member states would highlight the options and opportunities to improve workers occupational health. Key subject headings: Occupational health services, EU policy, policymaking,framework directive 89/391/EEC

Posted Workers and Free Movement of Services in the European Union – the Impact on National Employment and Immigration Law

This thesis examines posting of workers within the free movement of services in the European Union. The emphasis is on the case law of the European Court of Justice and in the role it has played in the liberalisation of the service sector in respect of posting of workers. The case law is examined from two different viewpoints: firstly, that of employment law and secondly, immigration law. The aim is to find out how active a role the Court has taken with regard these two fields of law and what are the implications of the Court’s judgments for the regulation on a national level. The first part of the thesis provides a general review of the Community law principles governing the freedom to provide services in the EU. The second part presents the Posted Workers’ Directive and the case law of the European Court of Justice before and after the enactment of the Directive from the viewpoint of employment law. Special attention is paid to a recent judgment in which the Court has taken a restrictive position with regard to a trade union’s right to take collective action against a service provider established in another Member State. The third part of the thesis concentrates, firstly, on the legal status of non-EU nationals lawfully resident in the EU. Secondly, it looks into the question of how the Court’s case law has affected the possibilities to use non-EU nationals as posted workers within the freedom to provide services. The final chapter includes a critical analysis of the Court’s case law on posted workers. The judgments of the European Court of Justice are the principal source of law for this thesis. In the primary legislation the focus is on Articles 49 EC and 50 EC that lay down the rules concerning the free movement of services. Within the secondary legislation, the present work principally concentrates on the Posted Workers’ Directive. It also examines proposals of the European Commission and directives that have been adopted in the field of immigration. The conclusions of the case study are twofold: while in the field of employment law, the European Court of Justice has based its judgments on a very literal interpretation of the Posted Workers’ Directive, in the field of immigration its conclusions have been much more innovative. In both fields of regulation the Court’s judgments have far-reaching implications for the rules concerning posting of workers leaving very little discretion for the Member States’ authorities.

New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.