Opinion of the Economic and Social Committee on the 'Proposal for a Council Directive on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres' ()

(96/C 153/07)

On 15 November 1995, the Council decided to consult the Economic and Social Committee, under Article 118a of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 15 February 1996. The Rapporteur was Mr Liverani.

At its 333rd Plenary Session (meeting of 29 February 1996), the Economic and Social Committee, adopted the following Opinion by a large majority, with two abstentions.

1. General comments

1.1. The Committee, while approving the Commission's proposal, would make the following comments.

1.2. The proposal supplements Directive 94/9/EC on the approximation of the laws of the Member States concerning equipment and protective systems intended for use in explosive atmospheres. The Committee adopted an Opinion on this Directive, based on Treaty Article 100a which aims to establish an internal market by removing technical barriers to trade, in 1992 (CES 356/92).

1.2.1. The present proposal therefore represents a further step, dealing with the conditions governing the use of equipment and systems. In practice, as argued by the Committee in its 1992 Opinion (paragraphs 2.2.1 and 2.2.2), it would have been preferable for the two Directives, on design and use, to have been drafted at the same time.

1.3. The draft Directive was drawn up after extensive consultation with the social partners, other relevant bodies, and the Advisory Committee for Safety, Hygiene and Health Protection at Work.

1.4. The proposal does not run counter to the subsidiarity principle, since only Community action can guarantee a minimum common level of worker protection in all the Member States, avoiding differences in the application of protection standards in the various countries.

1.5. The Committee welcomes the concise and clear nature of the draft Directive which, under the third paragraph of Treaty Article 189, is binding upon the Member States in terms of the results to be achieved, while leaving the form and means of transposition to national bodies and the social partners.

1.6. The preamble to the proposed Directive indicates the reasons of particular relevance on which the measure is based. In this regard, the Committee would point out to the Commission the need to ensure that the text of the preamble is the same in all language versions (some 'whereas' clauses, for example, are missing from the Italian text).

1.7. The Committee also emphasizes the considerations arising from the annexed Impact Assessment Form on the impact of the proposal on businesses, particularly concerning the need to take account of the specific circumstances of SMEs and craft businesses.

2. Specific comments

2.1. Reference is made to Article 1 of Directive 94/9/EC in relation to the definition of explosive atmospheres (mixture with air of flammable substances: Article 2) and it is noted that 'chemically unstable substances' (containing oxygen and fuel) are excluded from the scope of the Directive. They are instead covered by the draft Directive on chemical agents (COM(93) 155 final) on which the Committee has already issued an Opinion (CES 1169/93).

2.1.1. Since a clear separation must be made between the two types of explosion risk, the Committee urges the Commission and the Council to confirm that explosion risks due to chemical substances containing oxygen and fuel will be covered by the chemical agents Directive, and to ensure that there is no uncertainty or overlap between the two proposals.

2.2. Article 4 stipulates a series of general and specific obligations for employers in order to ensure the safety and health of workers. These obligations refer to Articles 6, 9 and 10 of the Framework Directive 89/391/EEC. The Committee would draw the Commission's attention to the importance and relevance, in the interests of protection, of inserting a reference to Articles 8 (employers' obligations) and 13 (workers' obligations) of the Framework Directive in the present proposal.

2.2.1. The Committee also recommends that the Commission use the term 'appropriate supervision' rather than 'responsible supervision' in working environments where explosive atmospheres may arise (Article 4(1), second indent). 'Appropriate' would seem more broadly inclusive of measures to be adopted, which should provide for use of instruments and modern technical means in addition to a human presence, within the context of the employer's responsibility under Article 6 of the Framework Directive.

2.3. The Committee notes that the division into zones of areas in which explosive atmospheres may occur, together with the parameters relating to them (referred to in Article 5 and Annexes I, II.B and IV) is of an international nature and is based on ISO (International Standards Organization) and IEC (International Electric Committee) standards. These parameters must be reasonably precise in order to facilitate effective harmonization.

2.4. The Committee notes that the date of 30 June 2003 laid down in Article 9(1) and (2) (new work equipment for use in places where explosive atmospheres may occur) was decided in response to the demands of marketing and CEN (European Committee for Standardization) and Cenelec (European Committee for Electrotechnical Standardization) harmonization under Treaty Article 100a and the above-mentioned Directive 94/9/EC.

2.4.1. The Committee notes that as soon as this Directive enters into force, its minimum requirements are to apply without any transitional period to workplaces used for the first time and to workplaces where operational modification, extension or restructuring is undertaken [Article 9(3) and (5)]. Article 9(4) gives workplaces and work equipment already in use when the Directive enters into force a transitional period of three years to comply with the minimum requirements.

2.4.2. To help SMEs, particularly those in the craft sector, to meet the requirements of the Directive, the Committee underlines the need for the Member States to provide SMEs with the necessary information and technical and administrative back-up to enable them to implement the provisions in question in full and without delay. In this context, it is important that the social partners in the SMEs take part in negotiations with a view to achieving full implementation of the Directive. The social partners in the SMEs should actively support the bringing into effect of the SAFE programme which may make a concrete contribution towards the implementation of the provisions of the present Directive.

2.5. In connection with the technical adjustments to the Annexes (Article 10), the Committee takes note of the procedure under Article 17 of Framework Directive 89/391/EC. Since these adjustments could have political implications, the Committee underlines the important role of the social partners. In this connection, the Advisory Committee for Safety, Hygiene and Health Protection at Work should be given a more prominent role at the application stage of the Directive. The Economic and Social Committee calls upon the Commission to refer to the Advisory Committee for a prior opinion.

2.6. The Committee believes that the vademecum of requirements, as described in Article 11, could come to represent a useful means of accident prevention, and hopes that it will be widely distributed. The ESC strongly urges that the Advisory Committee be involved in preparing the vademecum prior to submission to the Council and commencement of the procedure under Article 17 of Framework Directive 89/391/EC and its updating. The vademecum should be published as soon as possible after the Directive is adopted.

Done at Brussels, 29 February 1996.

The President

of the Economic and Social Committee

Carlos FERRER

() OJ No C 332, 9. 12. 1995, p. 10.