**Avis juridique important**

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# 52004PC0321

**Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council concerning the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (nth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty  /* COM/2004/0321 final - COD 1992/0449 */****

OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (nth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

1992/0449 (COD)

OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (nth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)

1. Background

The Commission sent the aforementioned proposal for a Directive, which is based on Article 118a of the Treaty (now Article 137), to Parliament and to the Council on 8 February 1993 (COM(1992) 560 final - 1992/0449 (COD)).

The European Economic and Social Committee delivered its opinion on 30 June 1993. The Committee of the Regions stated in a letter of 13 January 2000 that it would not deliver an opinion.

The European Parliament adopted an opinion at first reading on 20 April 1994.

The Commission accepted the 31 amendments proposed by Parliament. Four of them were accepted only in part. The Commission forwarded its amended proposal on 8 July 1994.

The Council adopted its common position unanimously on 18 December 2003. The Commission endorsed the common position while expressing reservations about Article 8 on health surveillance. The Commission felt that the common position had watered down the provisions on health surveillance in the Commission proposal by taking away the preventive aspect of health surveillance and not entitling workers to a medical examination in the event of overexposure.

On 30 March 2004, the European Parliament adopted, at second reading, five amendments to the common position of the Council.

This opinion sets out the Commission's position on the European Parliament's amendments, pursuant to the third subparagraph of Article 251(2)(c) of the EC Treaty.

2. Aim of the proposal

The original proposal is based on Article 118a of the Treaty (now Article 137) and takes the form of an individual directive within the meaning of Article 16(1) of the Framework Directive 89/391/EEC.

Its aim is the protection of workers against risks to their health and safety arising from exposure to physical agents. The proposal covers four physical agents: noise (risks to hearing), vibration (risks to the hand, arm and whole body), electromagnetic fields and optical radiation (risks to health from induced currents in the body, shocks, burns and absorption of thermal energy).

The provisions concerning vibration, electromagnetic fields and optical radiation are new, whereas those concerning noise already existed in Council Directive 86/188/EEC.

Generally speaking, the Council has opted to concentrate on a single physical agent at a time, starting with vibration.

All delegations and the Commission have accepted this approach, consisting in dealing with one aspect of the Commission's proposal at a time, although without abandoning the other aspects, which remain on the Council's agenda to be discussed at a later date.

The European Parliament and the Council have adopted two directives covering the first two physical agents, i.e. vibration (Directive 2002/44/EC) and noise (Directive 2003/10/EC). The present proposal constitutes the third phase of the general approach adopted by the Council, namely to introduce a separate individual directive for each physical agent [1].

[1]  See statement in the Council minutes of 25 June 2001.

3. Commission opinion on the European Parliament's amendments

3.1. Summary of the Commission's position

The Commission can accept the European Parliament's five amendments (1, 2, 3, 4 and 5) in their entirety. It feels that they will add to and improve the text of the common position and reinforce the provisions on health surveillance (Article 8), thus responding satisfactorily to the concerns expressed by the Commission.

3.2. The European Parliament's amendments at second reading

3.2.1. Amendments accepted

3.2.1.1. Amendment 1 ("reference to the consultation and participation of workers pursuant to Article 11 of Directive 89/391") (Article 4, paragraph 4)

This amendment clarifies and enhances the procedure for evaluating, measuring and/or calculating the levels of electromagnetic fields to which workers are exposed by adding that this procedure must be carried out while also taking account of the provisions of Article 11 of Directive 89/391 concerning the consultation and participation of workers. The Commission therefore accepts this amendment.

3.2.1.2. Amendment 2 ("content of the information and training which the worker and/or his representative must receive") (Article 6, point d))

This amendment stipulates that the worker and/or his representative must receive information and training on how to detect adverse health effects of exposure and how to report them. The Commission accepts the amendment, as it improves the wording of the common position by providing further details and clarification on the content of this information and training.

3.2.1.3. Amendment 3 ("reinforce the provisions on health surveillance") (Article 8)

This amendment restores the preventive character of the provisions on health surveillance, which is essential for making it possible to detect overexposure at an early stage and to take suitable steps to limit and eliminate it. It not only stipulates that the worker must undergo a medical examination when there is reason to believe that exposure has exceeded the limit values, but also sets out the procedure for reactivating the system of prevention after a case of overexposure has occurred. The Commission can therefore accept this amendment because it responds in an entirely satisfactory way to the reservations expressed by the Commission in its statement concerning Article 8 of the common position.

3.2.1.4. Amendment 4 ("Member States shall provide for adequate sanctions to be applicable in the event of infringement of national legislation adopted pursuant to this Directive") (Article 8a (new))

This amendment states that the Member States should provide for adequate sanctions which must be effective, proportionate and dissuasive in the event of infringement of national legislation which transposes the Directive.

The Commission can accept this amendment, as it is a "standard" provision which appears in several Directives relating to the social field.

3.2.1.5. Amendment 5 ("Every five years the Commission shall inform the European Parliament, the Council, the European Economic and Committee and the Advisory Committee Safety and Health Protection at Work of the content of these reports and of its assessment of developments in the field in question and of any initiative, in particular as regards exposure to static magnetic fields, that may be warranted") (Article 11, paragraph 2)

This amendment stipulates how regularly the Commission must supply information to the other institutions and bodies on the reports concerning practical implementation and specifies the content of this information, which must also relate to any initiative, particularly as regards exposure to static magnetic fields, which may be warranted in the light of new scientific knowledge.

The Commission accepts this amendment, as the stipulation concerning how regularly the information must be supplied is contained in other Directives on occupational health and safety and the reference to static magnetic fields is in line with the Commission's response to the Council's statement on electromagnetic fields, which was annexed to the common position.

3.3. Amended proposal

By virtue of Article 250(2) of the EC Treaty, the Commission amends its proposal in line with the points set out above.