[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 21.10.2005

COM(2005) 526 final

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 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (optical radiation) (19 th individual Directive within the meaning of Article 16(1) of Directive 89/391/CEE)

AMENDING THE COMMISSION PROPOSALpursuant 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 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (optical radiation) (19 th individual Directive within the meaning of Article 16(1) of Directive 89/391/CEE)

1. BACKGROUND

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

The Economic and Social Committee delivered its opinion on 30 June 1993. The Committee of the Regions stated in a letter dated 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 23 amendments proposed by the Parliament of the 24 applicable to optical radiation. The Commission forwarded its amended proposal on 8 July 1994.

The Council adopted its common position unanimously on 18 April 2005.

On 7 September 2005, the European Parliament adopted at second reading 22 amendments to the Council’s common position.

This opinion sets out the Commission’s position on the European Parliament’s amendments in accordance with Article 251(2), third subparagraph, point c) of the EC Treaty.

2 . OBJECTIVE OF THE PROPOSAL

The initial proposal, which is based on Article 118A of the Treaty (now Article 137), takes the form of an individual directive within the meaning of Article 16(1) of framework directive 89/391/EEC.

Its aim was protect the health and safety of workers from the risks arising from exposure to physical agents. It concerned four physical agents: noise (risks to hearing), vibrations (risks to the arms, the hands, the entire body), electromagnetic fields and optical radiation (risks to health from induced currents in the body, shock and burn hazards and from absorption of thermal energy).

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

In general, the Council opted to concentrate on one agent at a time, starting with vibrations.

All delegations and the Commission accepted this approach, which involved dealing with one component of the Commission proposal at a time, without, however, abandoning the other components, which remained on the Council’s agenda to be discussed at a later date.

For the first three physical agents, vibrations, noise and electromagnetic fields, the European Parliament and the Council adopted three Directives: 2002/44/EC, 2003/10/EC and 2004/40/EC. This proposal constitutes the fourth phase of the general approach adopted by the Council, namely to introduce a separate individual Directive for each physical agent [1].

3 . COMMISSION’S OPINION ON THE EUROPEAN PARLIAMENT AMENDMENTS

3.1. Summary of the Commission’s position

The Commission is able to accept all the European Parliament’s amendments in their entirety with the exception of amendment 5. It considers that nine of these amendments (1, 2, 3, 6, 8, 9, 10, 11 and 12) will extend and improve the text of the common position and strengthen the provisions of the common position regarding health surveillance; it also considers that acceptance of the other two amendments (4 and 13) will make it easier to reach a compromise quickly. As regards the other ten amendments adopted which aim to exclude risks arising from the exposure of workers to natural radiation from the common position (20, 22, 23, 25, 26, 28, 29, 30, 31 and 32) the Commission considers that it should meet the wishes of Parliament but points that workers exposed to risks arising from natural optical radiation (chiefly the sun) will not be covered by the Directive.

3.2. Parliament’s amendments on second reading

3.2.1. Amendments accepted

3.2.1.1. Amendment 1 (“reference to the prevention and early diagnosis of adverse health effects”) (Recital 4a, new)

This amendment specifies the objectives of the Directive relating to the health of workers and indicates the need to place the emphasis on the aspects of prevention and early diagnosis. This text is closer to the Commission’s original proposal than the text of the common position. The Commission therefore accepts this amendment.

3.2.1.2. Amendment 2 (“details concerning the establishment of minimum requirements”) (Recital 5)

The Commission accepts this amendment which requires the use of the indicative rather than the conditional in a sentence which points out that the Directive must not (instead of “ should not ”) serve to justify any regression in relation to the situation which already prevails in each Member State.

3.2.1.3. Amendment 3 (“complementarity with the “products” directives”) (Recital 11)

This amendment adds to the recital by stipulating that it is not necessary for employers, when carrying out risk assessments, to repeat measurements already undertaken by manufacturers of optical radiation sources, provided that the equipment has been properly and regularly maintained. This is useful and is accepted by the Commission.

3.2.1.4. Amendment 4 (“drawing up by the Commission of a practical guide”) (Recital 13a (new))

This amendment indicates the need for a guide to good practice to help employers better to understand the technical provisions of the Directive and invites the Commission to draw up such a guide. The Commission can accept this amendment, although it does not seem to be in line with the interinstitutional agreement on the quality of drafting of Community legislation (see also amendment 13), with a view to reaching a compromise quickly.

3.2.1.5. Amendment 6 (“measures to be taken if there is any possibility that the exposure limit values may be exceeded”) (Article 5, paragraph 2, introductory part)

This amendment stresses the importance of the mechanism to be put in place where the assessment of the risks to which workers are liable to be exposed shows any possibility that the exposure limit values may be exceeded. The Commission accepts the amendment.

3.2.1.6 Amendment 8 (“reference to prevention and early diagnosis of adverse health effects and medical surveillance procedures”) (Article 8, paragraph 1)

This amendment specifies the objectives of the Directive relating to the health of workers and indicates the need to place the emphasis on prevention and early diagnosis. It also simplifies the part of the paragraph concerning the provisions aimed at guaranteeing adequate health surveillance. The Commission therefore accepts this amendment.

3.2.1.7 Amendment 9 (“provisions regarding medical surveillance”) (Article 8, paragraph 1 a (new))

This amendment specifies that surveillance of the health of workers exposed to the risks covered by the Directive should be carried out by qualified personnel in accordance with national law and practice. This amendment is in accordance with the spirit of the framework Directive and is accepted by the Commission.

3.2.1.8 Amendment 10 (“strengthening of the provisions to allow the competent medical authority to have access to the results of the risk assessment”) (Article 8, paragraph 2)

This amendment specifies that an employer must also facilitate the access of the authorities responsible for medical surveillance to the results of the risk assessment carried out pursuant to framework Directive 89/391 and Article 4 of the proposal for a Directive, where such results may be useful for the medical surveillance. This strengthens the coherence of the mechanism put in place for the health surveillance of workers exposed to the risks covered by the proposal for a Directive. The Commission therefore accepts this amendment.

3.2.1.9 Amendment 11 (“a worker must undergo a medical examination in certain circumstances, particularly in the case of exposure above the exposure limit values”) (Article 8(3))

This amendment introduces the requirement that a worker exposed to the risks covered by the proposal for a Directive must undergo a medical examination in certain cases, particularly where exposure exceeds the exposure limit values. The Commission welcomes an effective and efficient surveillance of the health of workers and has always argued that a medical examination should be made available to workers in the circumstances referred to in Article 8. It accepts the amendment.

3.2.1.10 Amendment 12 (“details regarding the Commission’s assessment of the reports on implementation of the Directive which the Member States must submit to the Commission every five years”) (Article 8, paragraph 3, introductory part)

The amendment specifies what information the Commission will forward to the Parliament, the Council, the Economic and Social Committee and the Advisory Committee on Safety and Health at Work every five years. The information will comprise the content of the reports received from the Member States, its assessment of them and an assessment of the developments in the field in question. The Commission considers that the amendment supplements the text and therefore accepts this amendment.

3.2.1.11 Amendment 13 (“drawing up by the Commission of a practical guide”) (Article 12a (new))

This amendment requires the Commission to draw up a practical guide to help employers better understand the technical provisions of the Directive. The Commission can accept this amendment, in the interests of reaching a compromise quickly, even though it does not seem to be in line with the interinstitutional agreement concerning the quality of drafting of Community legislation (see also amendment 4).

3.2.1.12 Amendments 20 and 28 (Article 4, paragraph 3), 23 and 31 (Article 5, paragraph 3) (“deletion of the reference to assessment of the risks in case of exposure to natural sources”)

The Commission has noted that the Parliament does not wish the risks arising from exposure of workers to natural radiation to be included in the scope of the proposal. This amendment adapts the text of the article concerned to take account of this decision. The Commission can understand the arguments put forward by the Parliament and can accept these amendments. Nevertheless, it wishes to point out that this acceptance does not mean that it considers that exposure to natural optical radiation is not a risk to workers working outside.

3.2.1.13 Amendments 22 and 30 (Article 4, paragraph 1), amendment 29 (Article 4, paragraph 4), amendments 25 and 32 (Article 6, introductory part and point c)) (“deletion of the reference to natural optical radiation and inclusion of a reference to artificial radiation”)

The Commission can accept these amendments for the same reason as under 3.2.1.12.

3.2.1.14 Amendment 26 (“addition of a reference to artificial radiation and deletion of the reference to the possibility of assigning an exposed worker to alternative work”) (Article 8, paragraph 3)

As regards the point concerning exposure to artificial radiation, the Commission can accept this amendment for the same reasons as under 3.2.1.12. As regards the deletion of the part of the sentence specifically mentioning the possibility of assigning a worker who has suffered adverse health effects following exposure to optical radiation to alternative work, the Commission considers that its acceptance will make it easier to reach a compromise quickly.

3.2.2. Amendments accepted in principle

None

3.2.3. Amendments rejected

3.2.3.1 Amendment 5 (“transfer of competence to the Member States regarding the obligation to assess risks in the case of occupational exposure to natural radiation”) (Article 4, paragraph 2)

The Commission cannot accept this amendment as it stands. In contradiction with the amendments discussed in paragraphs 3.2.1.12 to 3.2.1.14, it maintains natural radiation within the scope of the common position, but allows the Member States competences which jeopardise the Community legal framework established by framework Directive 89/391.

3.3. Amended proposal

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal in accordance with the above and, in the interests of consistency, also amends the title of the proposal which should read “Proposal for a Directive of the European Parliament and of the Council concerning the minimum safety requirements regarding the exposure of workers to risks arising from physical agents ( artificial optical radiation ) (19th individual directive within the meaning of Article 16(1) of Directive 89/391/EEC)”. It also deletes the second sentence of recital 13 and adds “artificial” in Article 1, paragraphs 1 and 2.

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