Which courts or tribunals must refer? (art 267(3)) – obligation!

      • Rationale for imposing this duty is to prevent body of national case law that is not in accordance with EU law from being established!
      • 2 interpretations:
        1. The abstract theory: only bodies whose decisions are never subject to review
        • ➔ MSs would want this – don’t want to be subject to too many mandatory prelim refs
        1. The concrete theory: depends on whether the body’s decision is subject to appeal in the type of case in question.
      • ECJ’s jurisprudence seems to support the concrete theory.
        • Costa v Manchester taxi , 1964: although magistrate’s decisions were capable of being appealed in some instances, there was no right of appeal in the particular case – allowed prelim ref!
        • Lyckeskog case, 2000: just cos appellate court decision was subject to prior declaration of admissibility before it could be appealed to the Sup Ct did NOT mean that the appellate court’s decisions came within art 267(3) – procedural impediment to appeal did NOT make it a final court. It is Sup Ct is the final court under obligation.
        • ➔ hence, question is whether there is any possible legal remedy, regardless of practicability/subjection to restrictions.
        • What if lower national court makes prelim ref, which is reversed on appeal by higher court?
          • Cartesio case, 2008: ECJ supported ability of lower courts to refer to ECJ, even in face of opposition from higher court. It is up to the referring court alone (and not the appeal court) to assess relevance and necessity of prelim ref. For clarity and legal certainty, ECJ will abide by decision to make prelim ref, which will have full effect as long as it hasn’t been revoked/amended by the referring court.
          • Facts: about registration of company under Hungarian law (before lowest courts) – ECJ held that review of what was essentially administrative act is still inter-party procedure, between company which wanted the registration, and lower court seeking to deny it.

Breach of HSWA

Vast majority of breaches are remedied by verbal advice and letters issued by enforcing authorities, which are quick, informal and usually effective. More formal methods include improvement and prohibition notices and prosecution.

The HSE can issue:

 Improvement notices are usually served relating to important issues but not where imminent danger exists, e.g. requiring a safety policy risk assessment of a machine or process. The notice must state the legal requirements being broken and require the person on whom it’s served to remedy the contravention within the stated time period, which may not be less than 21 days from the date of its service.

 Prohibition notices are served where activities involve a risk of serious personal injury. Service is effected on the person carrying on or in control of the activities. Notice gives info regarding the complaint but orders the activity to stop until notice complied with. Notice can take immediate effect, or must take effect at the end of the 21 day period allowed for appeal.  Criminal prosecution against companies or its officers for contravening Regs under

HSWA, obstructing or failing to comply with any requirements imposed by inspectors, failing to comply with an improvement or prohibition notice etc. Where person found guilty of failing to discharge a duty under ss 2-6 of HSWA, he is liable on summary conviction to a fine not exceeding £20,000, or on conviction on indictment to an unlimited fine. Terms of imprisonment are also available for failing to comply with court orders, improvement notices or prohibition notices.  HSE carry out a name and shame policy, where they attract adverse publicity to the accused, forcing them to improve their heath and safety policies.

 Breach of HSWA cannot lead to civil liability.

Framework Regulations

Purpose they tell e/ers what to do to comply with the HSWA

they’re basically guides to approaching Health and Safety on a practical level

it identifies the risks, etc

the Regs are criminal as well so you’re prosecuted rather than sued

Some of the more common ones:

The Management of Health and Safety at Work Regs (MHSWR) 1999

The Noise at Work Regs 1989

The Provision and Use of Work Equipment Regs 1998

The Manual Handling Operations Regs 1992

The Control of Substances Hazardous to Health Regs 1999

The Workplace Regs 1992

For the full list and details see Appendix E p305 RB.

Regs intended to supplement the general duties imposed by HSWA 74 with more specific requirements. For more information, follow the abogados Florida blog