1 E Terazono and A Schipani, “How slaughterhouses became breeding grounds for coronavirus” (Financial Times, 8 June 2020) <https://www.ft.com/content/de2ca3f6-cd63-486a-a727-069762ca4a2a> (last accessed 29 June 2020).

2 S Drew, “At Amazon, safety and wellbeing do not come first, Nanterre Tribunal rules” (UK Labour Law Blog, 21 April 2020) <https://uklabourlawblog.com/2020/04/21/at-amazon-safety-and-wellbeing-do-not-come-first-nanterre-tribunal-rules-by-sandhya-drew/> (last accessed 29 June 2020).

3 M Arnold, “Abattoir coronavirus outbreak triggers infections surge in Germany” (Financial Times, 21 June 2020) <https://www.ft.com/content/057e861b-ef35-418d-9d16-81d2a0219212> (last accessed 29 June 2020); P Nilsson and D Lee, “Amazon workers strike in Germany over virus safety” (Financial Times, 29 June 2020) <https://www.ft.com/content/3d1d14f3-ae0e-4ed4-ba26-9b357071c699> (last accessed 29 June 2020).

4 J Robottom, “The legal rights of healthcare workers to personal protective equipment during the COVID-19 pandemic” (UK Labour Law Blog, 13 April 2020) <https://uklabourlawblog.com/2020/04/13/the-legal-rights-of-healthcare-workers-to-personal-protective-equipment-during-the-covid-19-pandemic-by-james-robottom/> (last accessed 29 June 2020).

5 Art 118 EEC. Note that the term “Social Europe” refers to the area of EU competence titled “Social Policy” in the Treaties.

6 European Parliament Resolution of 10 July 2020 on the EU’s public health strategy post-COVID-19 (2020/2691(RSP)).

7 Funding dropped from €9.4 billion to €1.7 billion, prompting the reaction of the European Parliament. European Parliament Resolution of 23 July 2020 on the conclusions of the extraordinary European Council meeting of 17–21 July 2020 (2020/2732(RSP)).

8 Mutatis mutandis, one can look at Art 2 of the Constitution of the World Health Organization.

9 Principle 16 European Pillar of Social Rights.

10 With the introduction of what is now Art 168 TFEU.

11 Art 118 EEC (now 156 TFEU). It was also featured in the preceding Economic Coal and Steel Community.

12 Kahn-Freud, O, “Social Policy and the Common Market” (1961) 32(4) The Political Quarterly 341CrossRefGoogle Scholar.

13 L Hantrais, Social Policy in the European Union (1st edn, Basingstoke, MacMillan 1995) pp 1–2.

14 F Scharpf, “The Double Asymmetry of European Integration; Or: Why the EU Cannot Be a Social Market Economy” (2009) MPIfG Working Paper No. 09/12.

15 J Kenner, EU Employment Law: From Rome to Amsterdam and. Beyond (Oxford, Hart Publishing 2003) p 6.

16 C Barnard, EU Employment Law (Oxford, Oxford University Press 2012) p 4.

17 Cases C-281/85, C-283/85, C-285/85 and C-287/85, Germany and others v Commission [1987] ECLI:EU:C:1987:351.

18 G Majone, “The European Community between Social Policy and Social Regulation” (1993) 31(2) Journal of Common Market Studies 153, 154.

19 AC Neal and FB Wright, The European Communities’ Health and Safety Legislation (London, Chapman & Hall 1992).

20 ibid. See also Barnard, supra, note 16, pp 503–05.

21 Directive 77/576/EEC of 25 July 1977 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the provision of safety signs at places of work; Directive 78/610/EEC of 29 June 1978 on the approximation of the laws, regulations and administrative provisions of the Member States on the protection of the health of workers exposed to vinyl chloride monomer; Framework Directive 80/1107/EEC of 27 November 1980 on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work, Art 8 of which led to the enactment of more specialised Directives.

22 Majone, supra, note 18.

23 Regulation 543/69/EEC of 25 March 1969 on the harmonisation of certain social legislation relating to road transport and Council Regulation (EEC) No 1463/70 on the introduction of recording equipment (tachographs) in road haulage, adopted under Art 75 EEC of the Transport title.

24 Barnard, supra, note 16, p 50; Kenner, supra, note 15, p 95; Majone, supra, note 18.

25 Neal and Wright, supra, note 19, pp 13–14.

26 ibid, 17.

27 Operating similarly to Framework Directive 80/1107/EEC. Barnard, supra, note 16, p 551.

28 M Biagi, “From Conflict to Participation in Safety: Industrial Relations and the Working Environment in Europe 1992” (1990) 6(2) The International Journal of Comparative Labour Law and Industrial Relations 67.

29 Arts 5 and 6 Directive 89/391/EEC.

30 AC Neal, “The European Framework Directive on the Health and Safety of Workers: Challenges for the United Kingdom” (1990) 6(2) The International Journal of Comparative Labour Law and Industrial Relations 80, 83–85.

31 Barnard, supra, note 16, p 563.

32 For an indicative list, see: European Agency for Safety and Health at Work, “Legislation” <https://osha.europa.eu/en/legislation/directives/all> (last accessed 2 July 2020).

33 Kenner, supra, note 15, p 95.

34 ibid.

35 Barnard, supra, note 16, pp 507–10.

36 Council Regulation (EC) No. 2062194 of 18 July 1994 establishing a European Agency for Safety and Health at Work.

37 Art 31(1) Charter of Fundamental Rights of the EU (CFREU), alongside the more specific provision on working hours in Art 31(2) thereof.

38 Principle 10(1) European Pillar of Social Rights.

39 Neal and Wright, supra, note 19, pp 13–14; Barnard, supra, note 16, p 501.

40 ibid.

41 ibid.

42 P Syrpis, EU Intervention in Domestic Labour Law (Cambridge, Cambridge University Press 2007) pp 55–56.

43 ibid, pp. 61–63. Syrpis singles out the entry into force of the then Art 118a EC under the Single European Act as an example of the social rationale’s emergence.

44 P Davies, “Posted Workers: Single Market or Protection of National Labour Law Systems?” (1997) 34(3) Common Market Law Review 571, 597–98.

45 Arts 5–12 Directive 89/391/EEC. Neal, supra, note 30.

46 Art 6 Directive 89/391/EEC.

47 Confirmed by the CJEU in Case C-49/00, Commission v Italy [2001] ECLI:EU:C:2001:611, para 12.

48 Art 3 Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace.

49 Arts 4 and 5 Directive 89/656/EEC.

50 Eg Regulation (EU) 2016/425 of 9 March 2016 on personal protective equipment.

51 Art 2(2) Directive 89/656/EEC.

52 Art 6 Directive 89/656/EEC. This is accompanied by indicative annexes at the end of the Directive.

53 Directive 2000/54/EC of the European Parliament and of the Council of 18 September 2000 on the protection of workers from risks related to exposure to biological agents at work, which codified Directive 90/679/EEC.

54 Arts 6–13 Directive 2000/54/EC.

55 Arts 15 and 16 Directive 2000/54/EC.

56 Annex V Directive 2000/54/EC includes a list of containment measures for risk groups 2–4, varying per group.

57 Art 2 Directive 2000/54/EC.

58 Art 18 Directive 2000/54/EC. Although, according to Art 18(2), Member States could classify the biological agent themselves pending Community action.

59 Art 3 Commission Directive (EU) 2020/739 of 3 June 2020 amending Annex III to Directive 2000/54/EC of the European Parliament and of the Council as regards the inclusion of SARS-CoV-2 in the list of biological agents known to infect humans and amending Commission Directive (EU) 2019/1833.

60 ETUC, “ETUC note on Biological Agents Directive” <https://www.etuc.org/sites/default/files/press-release/file/2020-05/20200429%20ETUC%20note%20on%20Biological%20Agents%20Directive.pdf> (last accessed 8 July 2020).

61 Arts 15 and 16 Directive 2000/54/EC.

62 Eg the concept of industrial processes. However, in relation to COVID-19, the Factsheet issued by the Commission provides some clarifications by adopting a strict interpretation of industrial processes to mean “facilities that handle and manipulate samples of the virus, e.g. when producing a vaccine”. European Commission, “Novel Coronavirus classified in biological agents directive to better protect health and safety of workers” <https://ec.europa.eu/social/BlobServlet?docId=22729&langId=en> (last accessed 8 July 2020).

63 Arts 3 and 14 Directive 2000/54/EC.

64 COVID-19: guidance for the workplace <https://oshwiki.eu/wiki/COVID-19:_guidance_for_the_workplace> (last accessed 8 July 2020).

65 COVID-19: Back to the workplace – Adapting workplaces and protecting workers <https://oshwiki.eu/wiki/COVID-19:_Back_to_the_workplace_-_Adapting_workplaces_and_protecting_workers> (last accessed 8 July 2020).

66 Infection prevention and control and preparedness for COVID-19 in healthcare settings – fourth update <https://www.ecdc.europa.eu/en/publications-data/infection-prevention-and-control-and-preparedness-covid-19-healthcare-settings> (last accessed 8 July 2020).

67 International Labour Organization, In the Face of a Pandemic: Ensuring Safety and Health at Work (Geneva, ILO 2020).

68 Preamble 8 to Directive (EU) 2020/739.

69 K Lörcher, “Article 31 – Fair and Just Working Conditions”, in F Dorssemont, K Lörcher, S Clauwaert and M Schmitt (eds), The Charter of Fundamental Rights of the European Union and the Employment Relation (Oxford, Hart Publishing 2019) pp 552–54.

70 More specifically, the rights and principles debate. In relation to Art 31(1) CFREU and whether it could be conceived as a justiciable right despite its general wording, see: A Bogg “Article 31”, in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing 2014) pp 849–50.

71 E Frantziou, “(Most of) the Charter of Fundamental Rights is Horizontally Applicable: ECJ 6 November 2018, Joined Cases C-569/16 and C-570/16, Bauer et al” (2019) 15(2) European Constitutional Law Review 306.

72 For the various definitions, see: DG Employment, Social Affairs and Inclusion, Evaluation of the Practical Implementation of the EU Occupational Safety and Health (OSH) Directives in EU Member States (2015) VII–IX.

73 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on an EU Strategic Framework on Health and Safety at Work 2014-2020 COM(2014) 332 final 15.

74 European Commission, Proposal for a Regulation of the European Parliament and of the Council on the establishment of a Programme for the Union’s action in the field of health – for the period 2021–2027 and repealing Regulation (EU) No 282/2014 (“EU4Health Programme”) COM(2020) 405 final Annex I (g)(x).

75 TK Hervey and JV McHale, European Union Health Law: Themes and Implications (Cambridge, Cambridge University Press 2015) pp 31–32.

76 A de Ruijter, EU Health Law & Policy: The Expansion of EU Power in Public Health and Health Care (Oxford, Oxford University Press 2019) pp 55–57.

77 ibid, 62.

78 ibid, 64–69.

79 Art 129 EC.

80 Art 168(4) TFEU.

81 K Lörcher, “Social Competences”, in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing 2012) p 189.

82 Hervey and McHale, supra, note 75, p 39.

83 ibid, pp 42–53.

84 Also asserted by the CJEU in the famous Case C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union (Tobacco Advertising) [2000] EU:C:2000:544.

85 KP Purnhagen, A De Ruijter, ML Flear, TK Hervey and A Herwig, “More Competences than You Knew? The Web of Health Competence for European Union Action in Response to the COVID-19 Outbreak” (2020) 11 European Journal of Risk Regulation 297.

86 See the discussion in Section IV.

87 See articles by G Bazzan, T Venables and V Delhomme in this issue.

88 See the discussion in Section III.

89 Majone, supra, note 18.

90 See, for example, the unsuccessful challenge to the Working Time Directive by the UK: C-84/94 United Kingdom v Council [1996] ECLI:EU:C:1996:431.

91 CJ Bickerton, D Hodson and U Puetter, “The New Intergovernmentalism and the Study of European Integration”, in CJ Bickerton, D Hodson and U Puetter (eds), The New Intergovernmentalism: States and Supranational Actors in the Post-Maastricht Era (Oxford, Oxford University Press 2015) p 18.

92 As a recent example, in July 2020, the Independent Workers Union of Great Britain (IWGB) was granted permission to proceed with a judicial review of the applicable national laws on occupational health and safety by the High Court. IWGB argues that the national laws should be interpreted in line with the pertinent EU Directives, which they failed to implement properly, in order to extend the coverage of national legislation to gig workers in addition to employees. IWGB, “High Court grants IWGB permission to challenge Health and Safety legislation” (2020) <https://iwgb.org.uk/post/high-court-health-safety> (last accessed 12 July 2020).

93 Indeed, Social Europe has proved to be a melting pot of integration styles and approaches. For more, see: K Alexandris Polomarkakis, “Social Europe: A Midsummer Night’s Dream?”, in JP Cardwell and M-P Granger (eds), The Research Handbook on the Politics of EU Law (Cheltenham, Edward Elgar 2020) pp 223–44.

94 European Agency for Safety and Health at Work, Biological Agents and Prevention of Work-Related Diseases: A Review (Luxembourg, Publications Office of the European Union 2020).

95 DG Employment, Social Affairs and Inclusion, supra, note 73, p 152.

96 ibid, pp 54–55.

97 D Walters, “Labour inspection and health and safety in the EU” (2016) 14 ETUI HesaMag 12.

98 R Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford, Oxford University Press 2014) p 179.

99 Preamble 8 and Art 10(1) Regulation (EU) 2019/1149 of the European Parliament and of the Council of 20 June 2019 establishing a European Labour Authority.

100 R Creţan and D Light, “COVID-19 in Romania: transnational labour, geopolitics, and the Roma outsiders” (2020) 61(5) Eurasian Geography and Economics, Online First 5–6.

101 Building on Regulation (EC) No 1338/2008 of the European Parliament and of the Council of 16 December 2008 on Community statistics on public health and health and safety at work.

102 Commission Decision of 12 July 1995 setting up a Committee of Senior Labour Inspectors (95/319/EC).

103 A Garcia-Muñoz Alhambra, B Ter Haar and A Kun, “Harnessing Public Institutions for Labour Law Enforcement: Embedding a Transnational Labour Inspectorate within the ILO” (2020) 17(1) International Organizations Law Review 233.

104 Kenner, supra, note 15, pp 54–55.

105 Lörcher, supra, note 69, pp 537–38.

106 For the merits of a public health approach to discrimination law, see: I Solanke, Discrimination as Stigma: A Theory of Anti-Discrimination Law (Oxford, Hart Publishing 2017).

107 Hervey and McHale, supra, note 75, 41–42.

108 With reference to the table in A de Ruijter, “The impediment of health laws’ values in the constitutional setting of the EU”, in TK Hervey, CA Young and LE Bishop (eds), Research Handbook on EU Health Law and Policy (Cheltenham, Edward Elgar 2017) pp 188–89.

109 Commission communication for the implementation of Council Directive 89/656/EEC of 30 November 1989 (1989) 89/C 328/02.

110 P de Buck and M Cerutti, “Social Dialogue: Why It Matters – European Employers’ Perspective”, in F Vandenbroucke, C Barnard and G De Baere (eds), A European Social Union after the Crisis (Cambridge, Cambridge University Press 2017) p 228.

111 R Dukes and C Cannon, “The role of social partners”, in A Bogg, C Costello and ACL Davies (eds), Research Handbook on EU Labour Law (Cheltenham, Edward Elgar 2016) pp 105–110.

112 Dukes, supra, note 98, p 192.

113 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work–life balance for parents and carers and repealing Council Directive 2010/18/EU.

114 K Alexandris Polomarkakis, “The European Pillar of Social Rights and the Quest for EU Social Sustainability” (2020) 29(2) Social & Legal Studies 183.

115 Neal and Wright, supra, note 19, p 2.