Law of the european union

Rights and remedies for Jim and Bill are similar, however, their application is different dependently on their workplace. Jim works in the state school, thusly the state of Great Britain is directly responsible for working conditions and fulfillment of Directive 2005/45/EC. Bill is employed in a private school, so there is no direct responsibility of the state for working conditions in the school. However, UK, as a member of the European Union, is obliged to amend it’s legislation considering the requirements of the Directive, and monitor the fulfillment of the Directive by it’s subjects.

It is possible to speak about two groups of rights for Jim and Bill in the case. The first group of rights concerns material law and includes rights on healthy working conditions and health protection. The second group concerns procedural law and includes rights to apply to court for protection of violated rights. This consultation shall further consider both groups of rights.

Material rights

European Social Charter, a party to which the UK is, guarantees “safe and healthy working conditions” for all workers[1]. The rights under the Charter may be exercised by both Jim and Bill as citizens of the European Union and citizens of a state-party to the Charter. Great Britain, in turn, bears obligations to provide all it’s employees, including Jim and Bill, with such conditions. This obligation of Great Britain includes an obligation to issue corresponding health regulations and to enforce such regulations[2].

Directives of the European Union are binding for states upon which they are addressed, but only in respect of result. States are free to chose an option for fulfillment of a directive[3]. Directives are to be introduced to national legislation in the form of respective regulations. Great Britain had an obligation to ensure the fulfillment of the Directive[4]. The fact, that it has not made any amendments to the national legislation is not yet a violation, however, the fact, that despite of Directive 2005/45/EC, the health of teachers has been injured, may be considered as a breach of UK obligations in the EU.

Except for European law Jim and Bill may turn to general international law, including universal Declaration of Human Rights. Under article 25 of the Declaration “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”[5]. This right includes right for safe conditions of work, which are not harmful for health.

Article 7(b) of the International Covenant on Economic Social and Cultural Rights guarantees to all workers “safe and healthy working conditions”[6]. Article 12 of the same Covenant provides everyone’s right “to the enjoyment of the highest attainable standard of physical and mental health”. The States under the same article undertake to take all necessary steps for “the improvement of all aspects of environmental and industrial hygiene”[7].

Under article 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court on Human Rights may consider violations of internal law of contracting parties as additional foundation to issue a decision. In this respect one should consider national legislation of Great Britain. The Health & Safety At Work Act of 1974 provides an obligation for employers “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” [8].

This obligation includes an obligation to make “arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances”[9], as well as “so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks”[10].

Considering UK home legislation it should be noted, that remedies for Bill and Jim would be different. Bill may directly claim violations by the agency of the state of Great Britain, and Jim has to file a lawsuit against his private school, and in case they both fail to get a resort in the UK, they may bring the claim to the European plain.

Procedural Rights

Both Jim and Bill have a right to apply to the institutions of the European Union in order to receive adequate compensation for worsening of their health[11]. Under the European Convention on Human Rights the European Court on Human Rights is entitled to consider applications by citizens or subjects of the contracting parties claiming violations of EU law by their home country[12]. Such application is to meet the admissibility requirement established by article 35 of the Convention.

The main condition for such fulfillment is the exhaustion of local remedies as it is generally recognized by international law. This means, that Jim and Bill are to submit their claims to British Courts first and use all available resorts. At that, Jim is to claim direct violation of his right to healthy working environment by a state body, and Bill is to claim failure to protect his rights by a state.

In case all judicial instances reject applications by Jim and Bill and do not restore their violated rights, they have a right to submit an application to the European Court on Human Rights. At that they will act as applicants, and the state of Great Britain will act as respondent. Time for such application is limited by six month according to article 35 of the European Human Rights Convention.

References

1. European Social Charter. Turin, October 10, 1961.

2. European Parliament Fact Sheets: 1.2.1.  Sources and scope of Community law. Available at: http://www.europarl.europa.eu/factsheets/1_2_1_en.htm

3. Treaty Establishing the European Community as Amended by Subsequent Treaties Rome, March 25, 1957

4. Universal Declaration of Human Rights adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948

5. International Covenant on Economic, Social and Cultural Rights, UN General Assembly resolution 2200A (XXI) of 16 December 1966

6. Health and Safety at Work etc Act 1974

7. Mossialos E, Belcher P. The influence of European law on national health policy. Journal of European Social Policy. 1996; 6

8. European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13

[1] European Social Charter. Turin, 18.X.1961. Part I (3)

[2] Ibidem, art. 3

[3] European Parliament Fact Sheets: 1.2.1.  Sources and scope of Community law. Available at: http://www.europarl.europa.eu/factsheets/1_2_1_en.htm

[4] See: Treaty Establishing the European Community, as Amended by Subsequent Treaties, Rome, March 25, 1957 art. 10

[5] Universal Declaration of Human Rights adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948, art. 25

[6] International Covenant on Economic, Social and Cultural Rights, UN General Assembly resolution 2200A (XXI) of 16 December 1966

[7] Ibidem, art. 12 (c)

[8] Health and Safety at Work etc Act 1974, art. 2.2 (b)

[9] Supra note, art. 2.2(d)

[10] Supra note, art. 2.3.

[11] See: Mossialos E, Belcher P. The influence of European law on national health policy. Journal of European Social Policy. 1996; 6 p.- 268–269.

[12] European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 with Protocol Nos. 1, 4, 6, 7, 12 and 13, art. 34