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09 August 2007 / Brent Mcdonald
Issue: 7285 / Categories: Features , Health & safety , EU , Personal injury , Employment
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Being reasonable

So far as is reasonably practicable: are employers about to face a tougher test? Brent McDonald reports

In Commission v UK: C-127/05 [2007] All ER (D) 126 (Jun) the European Court of Justice (ECJ) rejected an attempt by the Commission to declare the use of “so far as is reasonably practicable” (SFAIRP) clauses in health and safety regulations incompatible with Directive 89/391/EEC, commonly known as the Framework Directive.

The ECJ decided that the Commission had failed to put forward a sufficiently clear and evidence-based argument to justify this step. However, the matter may not end there thanks to Advocate General Mengozzi’s opinion to the court. Although the opinion supported the dismissal of the Commission’s case, it states that SFAIRP clauses which allow employers a defence based on more than technical infeasibility are contrary to the purpose of the Framework Directive, and hence incompatible.

If that is correct, unless SFAIRP clauses are applied differently by the courts in future, litigants may be forced to rely directly on regulations as against emanations of the

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MOVERS & SHAKERS

Shakespeare Martineau—Marie Bourke

Shakespeare Martineau—Marie Bourke

Shakespeare Martineau strengthens Sheffield regulatory practice with new hires

Sackers—Louise McRae & Annabella Hwang

Sackers—Louise McRae & Annabella Hwang

Sackers recruits new associates

McHale & Co—Shaun Little & Patrick Byrne

McHale & Co—Shaun Little & Patrick Byrne

Firm bolsters senior team with head of corporate and head of employment

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