# EUR-Lex - 52012PC0677 - EN

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# 52012PC0677

**Proposal for a COUNCIL DECISION authorising Member States to ratify, in the interests of the European Union, the Convention concerning Safety in the Use of Chemicals at Work, 1990, of the International Labour Organization (Convention No 170) /* COM/2012/0677 final - 2012/0320 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

This proposal will enable Member States to
legally ratify Convention No 170 concerning Safety in the Use of Chemicals at
Work, 1990 of the International Labour Organisation (ILO), hereinafter
"the Chemicals Convention No.170" or "the Convention".

The Chemicals Convention No.170 was adopted
at the 77th Session of the International Labour Conference on 25 June 1990 and
entered into force on 4 November 1993. The purpose of the Convention is the
prevention and reduction of chemically induced illnesses and injuries at work,
and the Convention shall also enhance the protection of the general public and
the environment.

As of June 2012, the Chemicals Convention
No.170 has been ratified by 17 State parties to the ILO. It is among the ILO
Conventions that have been classified by the ILO as up to date and are
therefore actively promoted.

The European Union (EU) is committed to
promote the decent work agenda, both internally and in its external relations.
Labour standards are a core element of the concept of decent work. The
ratification of ILO Conventions by Member States thus sends an important signal
as to the coherence of the Union's policy in improving labour standards
worldwide. It is therefore necessary that any legal impediments for
ratification by Member States be removed at the level of the EU for such
Conventions, the substance of which does not cause concern in the light of the
existing Union acquis.

The provisions of the Chemicals Convention
No 170 address the following: the establishment of evaluation of chemicals, the
obtaining of information by employers from their suppliers, the provision of
information to workers, the need for appropriate preventive measures, and the
establishment of protective programmes for workers. Part I of the Convention
contains provisions on scope and definitions, part II establishes general
principles, part III relates to classification systems and related measures,
parts IV and V refer to the obligations of employers and the duties of workers respectively,
while part VI stipulates workers' rights, including the right of the workers to
remove themselves from a dangerous situation while remaining protected against
undue consequences when exercising their rights. Part VII relates to the
communication duties involved in exporting towards importing ILO Member States.

In the EU, chemicals safety is an important
concern under social, environmental and internal market policies, and is
regulated by a body of Union legislation, including:

- Regulation (EC) No 1272/2008 on
classification, labelling and packaging of substances and mixtures, amending
and repealing Directives 67/548/EEC and 1999/45/4C, and amending Regulation
(EC) No 1907/2006[1];

- Regulation (EC) No 1907/2006 of the
European Parliament and of the Council of 18 December 2006 concerning the
Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH),
establishing a European Chemicals Agency, amending Directive 1999/45/EC and
repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No
1488/94 as well as Council Directive 76/769/EEC and Commission Directives
91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC[2];

- Directive 2004/37/EC
of the European Parliament and the Council of 29 April 2004 on the protection
of workers from the risks related to exposure to carcinogens or mutagens at
work (Sixth individual Directive within the meaning of Article 16(1) of Council
Directive 89/391/EEC)[3];

- Council Directive 98/24/EC on the
protection of the health and safety of workers from the risks related to
chemical agents at work (14th individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC)[4].

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Not applicable.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

In accordance with the rules on external
competences that have been elaborated by the Court of Justice of the European
Union[5],
and more specifically as regards the conclusion and ratification of the
Chemicals Convention No.170[6],
Member States are not in a position to autonomously decide on the ratification
of the Convention without prior authorization by the Council, because parts of
the Convention fall under Union competence.

At the same time, the European Union as
such cannot ratify any ILO Convention, because only States can be parties
thereto.

If the subject-matter of an agreement or
contract falls in part within the competence of the Union and in part within
that of the Member States, the Union institutions and the Member States must
therefore take all the necessary measures in order to best ensure cooperation
in the ratification of the Convention and in the implementation of commitments
resulting from that Convention[7].

As regards three ILO Conventions adopted
over the last decade, parts of which fell under the competence of the Union,
the Council has therefore authorized Member States to ratify, in the interests
of the Union, those parts falling under Union competence[8].

Specifically with reference to the
Chemicals Convention No 170, the Court had already stated in 1993, that the
degree of regulation on classification, packaging and labelling of dangerous
substances and preparations had reached an advanced stage, to the point where
Member States were no longer able to act sovereign in the external sphere in
this regard[9].
Since then, the related Union acquis has been further developed and
consolidated. The area is mainly governed by Regulation (EC) No 1272/2008 on
the classification, labelling and packaging of substances and mixtures,
hereinafter "the Regulation". The Regulation implements at Union level the Globally Harmonised System of Classification and Labelling of Chemicals
("the GHS") developed by the United Nations. The Union legislation,
which is based on Article 114 TFEU, is much more detailed than the general
principles established in the Chemicals Convention No 170. There is no
contradiction between the general principles established in the Convention and
the Regulation.

It follows from Article 19(8) of the ILO
Constitution that the Convention contains minimum standards, which means that
national implementation can provide for higher standards than those under the
Convention.

There is no inconsistency in the approach
taken under the rules on the safety and health of workers between the
Convention and the minimum requirements under the Union acquis in this area.
This means that Union measures can be more stringent than the ILO standards and
vice versa.[10]

The aim of this proposal is therefore to
authorise Member States to ratify, in the interests of the Union, those parts
the Chemicals Convention No 170 that fall under Union competence.

The proposal is based on Article 218 (6) of
the Treaty on the Functioning of the European Union (TFEU), applicable by
analogy, in conjunction with Article 114 TFEU, which provides the legal basis
for Union legislation on the approximation of laws in the area of
classification, labelling and packaging of substances and mixtures.

2012/0320 (NLE)

Proposal for a

COUNCIL DECISION

authorising Member States to ratify, in
the interests of the European Union, the Convention concerning Safety in the
Use of Chemicals at Work, 1990, of the International Labour Organization
(Convention No 170)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 114 in conjunction
with Article 218 (6) (a) (v) and Article 218(8), first subparagraph thereof,

Having regard to the proposal from the
European Commission,

Having regard to the consent of the
European Parliament[11],

Whereas:

(1)       The European Parliament,
the Council and the Commission are promoting the ratification of international
labour conventions that have been classified by the International Labour
Organisation as up-to-date, as a contribution to the European Union's effort to
promote decent work for all both inside and outside the Union, of which the protection
and improvement of workers' health and safety is an important aspect.

(2)       The rules under part III
of Convention No 170 concerning Safety in the Use of Chemicals at Work, 1990 of
the International Labour Organisation (ILO), hereinafter "the
Convention", are covered to a large extent by Union acquis on the
approximation of laws, regulations and administrative practices in the area of
classification, packaging and labelling that has been developed since 1967 and
further consolidated[12].

(3)       As a consequence, parts of
the Convention fall within the competence of the Union, and Member States may not enter into commitments outside the framework of the Union's institutions
in relation to these parts[13].

(4)       The European Union cannot
ratify the Convention, as only States can be parties thereto.

(5)       In this situation, Member States and the Union's institutions must cooperate in regard to the ratification of the
Convention.

(6)       The Council shall
therefore authorise the Member States that are bound by Union law on the
approximation of laws, regulations and administrative practices in the area of
classification, packaging and labelling to ratify the Convention in the
interests of the European Union.

HAS ADOPTED THIS DECISION:

Article 1

Member States are hereby authorised to
ratify, for the parts falling under the competence conferred upon the Union by the Treaties, the Convention concerning Safety in the Use of Chemicals at Work,
1990, of the International Labour Organization (Convention No 170).

Article 2

This Decision is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

[1]               OJ L351, 31.01.2008, p.1.

[2]               OJ L 396, 30.12.2006, p.1.

[3]               OJ L 158, 30.4.2004, p.50.

[4]               OJ L 131, 5.5.1998, p.11..

[5]               AETR judgment of the ECJ, case 22/70 of 31 March
1971, ECR, 1971, 263; see also Article 3(2) TFEU which codified these
principles.

[6]               Opinion 2/91 of the ECJ of 19 March 1993, ECR 1993-I,
page 1061.

[7]               Opinion 2/91 of the ECJ (ibid), para. 36, 37 and 38.

[8]               Over the last decade, three Council decisions have
been adopted authorising Member States to ratify ILO Conventions: Council
Decision of 7 June 2007 authorizing Member States to ratify, in the interests
of the European Community, the Maritime Labour Convention, 2006, of the
International Labour Organization (OJ L 161/63 of 22.6.2007); Council Decision
of 14 April 2005 authorizing Member States to ratify, in the interests of the
European Community, the Seafarers' Identity Documents Convention of the
International Labour Organization (Convention no 185), OJ L 136/1 of 30.5.2005,
and Council Decision of 7 June 2010 authorizing Member States to ratify, in the
interests of the European Union, the Work in Fishing Convention, 2007, of the
International Labour Organisation (Convention No 188), OJ 145/12 of 11.6.2010.

[9]               Opinion 2/91 of the ECJ, para 25 and 26.

[10]             Opinion 2/91 of the ECJ, para 18.

[11]             OJ C , , p. .

[12]             Regulation(EC) No 1272/2008 on classification,
labelling and packaging of substances and mixtures, amending and repealing
Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No
1907/2006, OJ L 353/1 of 31 January 2008.

[13]             Opinion 2/91 of the European Court of Justice of 19
March 1993, ECR 1993-I, page 1061, para.26.