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 the Council amending Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

2001/0257 (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 the Council amending Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances

1. Introduction

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is to deliver an opinion on the amendments proposed by the European Parliament at Second Reading. The Commission sets out its opinion below on the 11 amendments proposed by Parliament.

2. Background

- Date of transmission of the Proposal to the European Parliament and Council (COM (2001) 624 final - 2001/0257 (COD)): 10 December 2001

- Date on which the European Economic and Social Committee adopted its opinion: 24 April 2002

- Date on which the European Parliament gave its opinion at First Reading: 3 July 2002

- Date on which the Commission adopted its Amended Proposal (COM (2002) 540 final - 2001/0257 (COD)): 26 September 2002

- Date on which the Council adopted the Common Position: 20 February 2003

- Date on which the Commission communicated its view on the Common Position: 5 March 2003

- Date on which the Common Position was received by the European Parliament: 13 March 2003

On 19 June 2003, the European Parliament at its Second Reading adopted 11 amendments. Many of these amendments are identical with amendments already tabled at First Reading.

3. Purpose of the Directive

Council Directive 96/82/EC of 9 December 1996 [1] on the control of major-accident hazards involving dangerous substances (so-called Seveso II Directive) aims at the prevention of major accidents and the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection throughout the Community in a consistent and effective manner.

[1] OJ No L 10, 14.01.1997, p.13.

The Proposal follows the Communication on the "Safe operation of mining activities: a follow-up to recent mining accidents" (COM(2000) 664 final) in which the Commission sets out three key actions in order to increase the safety of mining operations (an amendment of the Seveso II Directive, an initiative on the management of mining waste and a Best Available Technologies reference document under the IPPC Directive (96/61/EC)) and aims at including certain activities of the extractive industries, including tailings disposal facilities.

The Proposal also addresses the fireworks explosion that occurred in Enschede in May 2000 by proposing a better definition of explosive and pyrotechnic substances along with a decrease of qualifying quantities for these substances. Furthermore, following the recommendations of two studies on carcinogens and substances dangerous for the environment, it proposes to include more carcinogenic substances and to lower the qualifying quantities for substances toxic to aquatic environment.

Consideration has also been given as to whether the explosion of the chemical site of AZF that occurred in Toulouse on 21 September 2001 necessitates immediate amendments of the Seveso II Directive. While the original Proposal did not contain additional legislative measures in this respect, the Amended Proposal introduces changes with regard to the definition of and qualifying quantities for ammonium nitrate, land-use planning and information to the public.

4. Opinion of the Commission on the amendments by the European Parliament

On 19 June 2003, the European Parliament adopted 11 amendments. The Commission can accept amendments 8-11. Amendments 1, 2, 4-7 and 12 are not acceptable.

4.1. Amendments accepted by the Commission

Amendment 8 seeks to reinforce the necessity for training for emergencies by introducing an explicit reference to training in the section on emergency planning within the description of the elements of a safety management system in Annex III of the Directive.

Amendment 9 proposes to add to the items to be communicated to the public a map showing areas that might be affected by the consequences of major accidents. The text proposed by Parliament is identical with the text adopted by the Commission in its Amended Proposal.

Amendments 10 and 11 propose the creation of 2 new entries for potassium nitrate including their definitions and qualifying quantities. The Commission has already integrated these amendments into its Amended Proposal.

The Commission considers that the acceptance of these four amendments will help facilitate a future compromise between the co-legislators.

4.2. Amendments rejected by the Commission

Amendments 1 and 2 propose to broaden the scope of the mining activities to be covered by the Seveso II Directive by deleting the words "chemical and thermal", thus including mechanical and physical processing of minerals. The Commission continues to be of the opinion that the Seveso II Directive should only apply where dangerous substances are brought onto site and stored there, or where chemical and thermal processing take place. Where the processing is mechanical or physical, the only dangerous substances on site will normally be those contained in the minerals extracted. In this context, the Commission would like to draw Parliament's attention to its proposal for a Directive on the management of waste from the extractive industries (COM(2003) 319 final) that was adopted on 2 June 2003. The measures in the proposal complement those outlined in the Seveso II Directive and include the establishment of a major-accident prevention policy and a safety management system. These measures will apply to those waste management facilities that present an accident risk but will not be covered by the revised Seveso II Directive. The Commission also rejects the proposal in amendment 2 to replace the term "active" by "operational".

Amendment 4 establishes a requirement for operators to inform the competent authority in the event of a modification of an installation, establishment or storage area. This would introduce further bureaucratic burdens without improving safety, since Article 6 already imposes an obligation on operators to notify any significant increase in the quantity of the dangerous substance, or any change in the processes employing it.

Amendment 5 proposes to impose an obligation on Member States to ensure that different methods used for drawing up safety reports are harmonised. However, "method" itself is not defined and it remains unclear what this exactly means. Safety reports will naturally differ as there is a wide variety of chemical installations, and it is hard to see how a single method could be appropriate under all circumstances. Nevertheless, the Commission encourages convergence, and has published a guidance document on how to establish safety reports (http://mahbsrv.jrc.it/ GuidanceDocs-SafetyReport.html).

Amendment 6 reintroduces amendment 30 adopted in first reading, obliging the Commission to draw up guidelines to be used for assessing the compatibility between existing establishments covered by the Directive and sensitive areas. The Commission has already accepted this amendment in principle, proposing a different wording. In particular, it cannot accept the restriction of the scope of the guidelines to "existing" establishments.

Amendment 7 would oblige the Commission to develop a "scheme of incentives and / or funding for the relocation of establishments". However, on the grounds of subsidiarity considerations, the Commission continues to believe that such a task falls to the Member States. The Commission will monitor compatibility of any such scheme with European competition law.

Amendment 12 proposes references to Directive 2000/60/EC (Water Framework Directive) and Directive 91/689/EEC on hazardous waste. Such references are not necessary in the view of the Commission. The Seveso II Directive already provides for the case of unclassified substances and preparations, and hazardous waste can therefore be covered on the basis of its properties as a preparation. The Commission also draws attention to the fact that the new proposal for a Directive on the management of waste from the extractive industries (COM(2003) 319 final) contains a reference to Directive 91/689/EEC on hazardous waste.

5. Conclusion

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out above.