DIRECTIVE 2009/104/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 16 September 2009
concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)
(codified version)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 137(2) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
Having consulted the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1)
Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.
(2)
This Directive is an individual directive within the meaning of Article 16(1) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (5). Therefore, the provisions of Directive 89/391/EEC are fully applicable to the scope of the use of work equipment by workers at work, without prejudice to more stringent or specific provisions contained in this Directive.
(3)
Article 137(2) of the Treaty provides that the Council may adopt, by means of directives, minimum requirements for encouraging improvements, in particular, of the working environment so as to protect workers’ health and safety.
(4)
Pursuant to the said Article, such directives must avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
(5)
The provisions adopted pursuant to Article 137(2) of the Treaty do not preclude any Member State from maintaining or introducing more stringent measures for the protection of working conditions provided they are compatible with the Treaty.
(6)
Compliance with the minimum requirements designed to guarantee a better standard of safety and health in the use of work equipment is essential in order to ensure the safety and health of workers.
(7)
The improvement of occupational safety, hygiene and health is an objective which should not be subordinated to purely economic considerations.
(8)
Work at a height may expose workers to particularly severe risks to their health and safety, notably to the risks of falls from a height and other serious occupational accidents, which account for a large proportion of all accidents, especially of fatal accidents.
(9)
This Directive constitutes a practical aspect of the realisation of the social dimension of the internal market.
(10)
Pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (6), Member States are required to notify the Commission of any draft technical regulations relating to machines, equipment and installations.
(11)
This Directive is the most appropriate means of achieving the desired objectives and does not go beyond what is necessary for that purpose.
(12)
This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex III, Part B,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
1. This Directive, which is the second individual directive within the meaning of Article 16(1) of Directive 89/391/EEC, lays down minimum safety and health requirements for the use of work equipment by workers at work, as defined in Article 2.
2. The provisions of Directive 89/391/EEC are fully applicable to the whole scope referred to in paragraph 1, without prejudice to more stringent or specific provisions contained in this Directive.
Article 2
Definitions
For the purposes of this Directive, the following terms shall have the following meanings:
(a) ‘work equipment’: any machine, apparatus, tool or installation used at work;
(b) ‘use of work equipment’: any activity involving work equipment such as starting or stopping the equipment, its use, transport, repair, modification, maintenance and servicing, including, in particular, cleaning;
(c) ‘danger zone’: any zone within or around work equipment in which an exposed worker is subject to a risk to his health or safety;
(d) ‘exposed worker’: any worker wholly or partially in a danger zone;
(e) ‘operator’: the worker or workers given the task of using work equipment.
CHAPTER II
EMPLOYERS’ OBLIGATIONS
Article 3
General obligations
1. The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health.
In selecting the work equipment which he proposes to use, the employer shall pay attention to the specific working conditions and characteristics and to the hazards which exist in the undertaking or establishment, in particular at the workplace, for the safety and health of the workers, and any additional hazards posed by the use of the work equipment in question.
2. Where it is not possible in this way fully to ensure that work equipment can be used by workers without risk to their safety or health, the employer shall take appropriate measures to minimise the risks.
Article 4
Rules concerning work equipment
1. Without prejudice to Article 3, the employer shall obtain and/or use:
(a)
work equipment which, if provided to workers in the undertaking or establishment for the first time after 31 December 1992, complies with:
(i)
the provisions of any relevant Community directive which is applicable;
(ii)
the minimum requirements laid down in Annex I, to the extent that no other Community directive is applicable or is so only partially;
(b)
work equipment which, if already provided to workers in the undertaking or establishment by 31 December 1992, complies with the minimum requirements laid down in Annex I no later than 4 years after that date;
(c)
without prejudice to point (a)(i), and by way of derogation from point (a)(ii) and point (b), specific work equipment subject to the requirements of point 3 of Annex I, which, if already provided to workers in the undertaking or establishment by 5 December 1998, complies with the minimum requirements laid down in Annex I, no later than 4 years after that date.
2. The employer shall take the measures necessary to ensure that, throughout its working life, work equipment is kept, by means of adequate maintenance, at a level such that it complies with point (a) or (b) of paragraph 1 as applicable.
3. Member States shall, after consultation with both sides of industry, and with due allowance for national legislation and/or practice, establish procedures whereby a level of safety may be attained corresponding to the objectives indicated by Annex II.
Article 5
Inspection of work equipment
1. The employer shall ensure that where the safety of work equipment depends on the installation conditions, it shall be subject to an initial inspection (after installation and before first being put into service) and an inspection after assembly at a new site or in a new location by competent persons within the meaning of national laws and/or practices, to ensure that the work equipment has been installed correctly and is operating properly.
2. In order to ensure that health and safety conditions are maintained and that deterioration liable to result in dangerous situations can be detected and remedied in good time, the employer shall ensure that work equipment exposed to conditions causing such deterioration is subject to:
(a)
periodic inspections and, where appropriate, testing by competent persons within the meaning of national laws and/or practices;
(b)
special inspections by competent persons within the meaning of national laws and/or practices each time that exceptional circumstances which are liable to jeopardise the safety of the work equipment have occurred, such as modification work, accidents, natural phenomena or prolonged periods of inactivity.
3. The results of inspections shall be recorded and kept at the disposal of the authorities concerned. They must be kept for a suitable period of time.
When work equipment is used outside the undertaking it shall be accompanied by physical evidence that the last inspection has been carried out.
4. Member States shall determine the conditions under which such inspections are made.
Article 6
Work equipment involving specific risks
When the use of work equipment is likely to involve a specific risk to the safety or health of workers, the employer shall take the measures necessary to ensure that:
(a)
the use of work equipment is restricted to those persons given the task of using it;
(b)
in the case of repairs, modifications, maintenance or servicing, the workers concerned are specifically designated to carry out such work.
Article 7
Ergonomics and occupational health
The workplace and position of workers while using work equipment and ergonomic principles shall be taken fully into account by the employer when applying minimum health and safety requirements.
Article 8
Informing workers
1. Without prejudice to Article 10 of Directive 89/391/EEC, the employer shall take the measures necessary to ensure that workers have at their disposal adequate information and, where appropriate, written instructions on the work equipment used at work.
2. The information and the written instructions shall contain at least adequate safety and health information concerning:
(a)
the conditions of use of work equipment;
(b)
foreseeable abnormal situations;
(c)
the conclusions to be drawn from experience, where appropriate, in using work equipment.
Workers shall be made aware of dangers relevant to them, work equipment present in the work area or site, and any changes affecting them, inasmuch as they affect work equipment situated in their immediate work area or site, even if they do not use such equipment directly.
3. The information and the written instructions shall be comprehensible to the workers concerned.
Article 9
Training of workers
Without prejudice to Article 12 of Directive 89/391/EEC, the employer shall take the measures necessary to ensure that:
(a)
workers given the task of using work equipment receive adequate training, including training on any risks which such use may entail;
(b)
workers referred to in Article 6(b) receive adequate specific training.
Article 10
Consultation of workers and workers’ participation
Consultation and participation of workers and/or of their representatives on the matters covered by this Directive, including the Annexes thereto, shall take place in accordance with Article 11 of Directive 89/391/EEC.
CHAPTER III
MISCELLANEOUS PROVISIONS
Article 11
Amendment of the Annexes
1. The addition to Annex I of supplementary minimum requirements applicable to specific work equipment, as referred to in point 3 thereof, shall be adopted by the Council in accordance with the procedure laid down in Article 137(2) of the Treaty.
2. Strictly technical adaptations of the Annexes shall be adopted, in accordance with the procedure laid down in Article 17(2) of Directive 89/391/EEC, as a result of:
(a)
the adoption of directives on technical harmonisation and standardisation of work equipment; and/or
(b)
technical progress, changes in international regulations or specifications or knowledge in the field of work equipment.
Article 12
Final provisions
Member States shall communicate to the Commission the text of the provisions of national law which they have already adopted or adopt in the field governed by this Directive.
Article 13
Directive 89/655/EEC, as amended by the Directives listed in Annex III, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex III, Part B.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.
Article 14
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 15
This Directive is addressed to the Member States.
Done at Strasbourg, 16 September 2009.