[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 4.5.2005

COM(2005) 189 final

1992/0449 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

common position of the Council on the adoption of 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) (19th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)

1992/0449 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

common position of the Council on the adoption of 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) (19th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)

1. BACKGROUND

Proposal (document COM(1992) 560 final – 1992/0449 (COD)) forwarded to the European Parliament* and Council on:

8.2.1993 (OJ C 77, 18.3.1993)* not subject to the codecision procedure at the time of the proposal.

Opinion delivered by the Economic and Social Committee on:

30.6.1993 (OJ C 249, 13.9.1993).

Opinion delivered by the Committee of the Regions on*:

* stated in a letter dated 13 January 2000 that it would not deliver an opinion.

Opinion of the Parliament (first reading) delivered on:

20.4.1994 (OJ C 128, 9.5.1994), confirmed on 16.9.1999 (OJ C 54, 25.2.2000).

Amended proposal forwarded to the Council on:

8.7.1994 (OJ C 230, 19.8.1994).

Date of unanimous formal adoption of the common position by the Council:

18.4.2005

2. AIM OF THE COMMISSION 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 were new, whereas those concerning noise already existed in Council Directive 86/188/EEC.

The Council opted to concentrate on a single physical agent at a time, starting with vibration.

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

The European Parliament and the Council have adopted three directives covering the first three physical agents, i.e. vibration (Directive 2002/44/EC), noise (Directive 2003/10/EC) and electromagnetic fields (Directive 2004/40/EC). The present proposal constitutes the fourth and last phase of the general approach adopted by the Council, namely to introduce a separate individual directive for each physical agent[1].

3. COMMENTS ON THE COMMON POSITION

3.1. General

Owing to the splitting of the proposal, the common position is concerned only with the specific minimum requirements for the protection of workers from risks to their health and safety arising or likely to arise from ex posure to optical radiation.

The common position adopts a different approach for exposure to artificial sources and for natural sources. In the case of exposure to artificial sources, the common position sets exposure limit values (ELVs) which are based directly on health effects and biological considerations. Compliance with these limits will ensure that workers exposed to optical radiation are protected from all known harmful effects on their health. These values are very conservative and largely based on the ICNIRP[2] guidelines and recommendations for limiting exposure to non-ionising radiation. These scientifically based guidelines are designed to prevent the acute and long-term effects to the eyes and the skin that can occur at high levels of exposure. The ELVs prescribed in the ICNIRP Guidelines correspond with those developed by other independent scientific advisory bodies. Because of the conservative nature of the recommended ELVs for exposure to optical radiation, the common position abstains from introducing lower action values as it was the case for exposure to electromagnetic fields (Directive 2004/40/EC).

Since the application of ELVs is not deemed appropriate in the case of exposure to natural sources of optical radiation, for instance the exposure to the sun radiation or natural fires, the common position emphasises the importance of the information and training of the workers, of the ex ante assessment of risks and of the subsequent preventive measures in order to eliminate or reduce the effects of the exposure to natural sources.

The common position describes the preventive measures needed to reduce the risks to which workers are exposed. These preventive measures are primarily based on the employer’s obligation to identify and assess the various risks resulting from exposure of workers to optical radiation during their work. One of the main elements in the common position is therefore the assessment of the levels of optical radiation to which workers are exposed, which may require measurements and/or calculations. In this connection, the common position includes instructions concerning the methodology to be applied in order to assess the levels of exposure: the standards and recommendations of IEC, CEI or CEN[3] should be used and, if these are not available, national or international science-based guidelines should be followed. Moreover, in order to avoid unnecessary burden to the enterprises, the assessment may take account of data provided by manufacturers of the equipment producing optical radiation where it is covered by a relevant Community Directive

On the basis of the risk assessment, and unless the assessment carried out demonstrates that the exposure limit values are not exceeded and safety risks can be excluded, the employer is required to devise and implement an action plan comprising technical and/or organisational measures intended to prevent exposure exceeding the limit values.

The common position includes detailed provisions on information and training for workers exposed to risks from optical radiation. It also imposes “appropriate health surveillance” for workers who might suffer adverse health or safety effects.

Overall, the Council’s common position follows the lines of the Commission’s proposal, even if its structure differs as a result of the splitting of the proposal and if some changes have been introduced due to the evolution of the technical progress and of the scientific knowledge in this field since the adoption in 1994 of the Commission proposal.

3.2. The European Parliament's amendments in first reading

The European Parliament’s amendments adopted on first reading which concern optical radiation are numbers 1, 4-21, 25, 27 and 34-36.

Amendments 1, 5, 9, 14 and 16 have been accepted in full, both in article 5 of the common position and in the amended proposal.

Amendment 13 has been accepted in full in the common position with a different formulation in Article 5.

Amendment 4 has been accepted in part in the common position, in Article 2(e), whereas it was accepted in full in the amended proposal. The Commission accepts the modification which is more relevant in view of the new structure of the text and the new preventive approach imposed by the evolution of technical knowledge since 1994.

Amendments 10 and 17 have been accepted in spirit in Article 4(4) of the common position.

Amendment 12 has been included in spirit in Article 5(1) of the common position and in full in the amended proposal. The common position now refers to the elimination of the risk or a reduction to the minimum. This is acceptable to the Commission since it ensures a higher level of protection in line with Directive 89/391/EEC.

Amendment 15 on health surveillance which was included in the amended proposal, has not been included in the common position, contrary to the Commission’s initial wishes. Despite the fact that the Commission would have preferred this amendment to be included in full in the common position, it accepted its exclusion in order to facilitate the reaching of a global compromise.

Amendment 25, which was not included in the amended proposal, has been incorporated into the common position in full under Article 12.

Amendments 6, 7, 8, 11, 18, 19, 20, 21, 27 and 34 - 36 have not been included in the common position whereas they were included in the amended proposal. The Commission accepts the non-inclusion of these amendments, which are not relevant in view of the new structure of the text and the new preventive approach imposed by the evolution of technical knowledge since 1994. Moreover:

- amendments 18, 19 and 20 are redundant as the common position does not include any special provision for derogations or exemptions;

- concerning amendment 21, the Commission accepted the Council's view to consider the standard provision in Article 11 on a Committee to assist the Commission as sufficient.

The major differences between the Common Position and the Commission's amended proposal concern:

- the new structure due to the fact that optical radiation is dealt with in a specific directive;

- the restructuring and redefinition of the exposure limit values, including the deletion of the action value and the threshold level. This was done in order to bring the provisions of the directive in line with the latest technical and scientific developments in the matter;

- the Tables and provisions in the Annexes which closely follow the ICNIRP recommendations. In the very limited number of cases where ICNIRP did not make a quantifiable recommendation, namely for special situations with coherent optical radiation (lasers), those from IEC were introduced. It must be noted that there are few areas in occupational health and safety where there is such widespread agreement among national and international health advisory authorities concerning safe levels of exposure;

- the reference to standards, recommendations and science-based guidelines for the assessment, measurement and calculation of the levels of exposure to artificial sources of optical radiation to be done in the context of the risk assessment;

- the deletion of the requirement to declare certain activities as presenting an increased risk to the responsible authority;

As regards health surveillance, the Commission has accepted Article 8 of the common position as a matter of compromise despite the fact that the preventive aspect of health surveillance is not made explicit and that the workers are not entitled to a specific medical examination in the event of overexposure.

4. CONCLUSIONS/GENERAL COMMENTS

The Commission considers that the Common Position is in line with the fundamental objectives of its original amended proposal. It also considers that the common position has taken account of the latest technical and scientific progress in the area of risks from exposure to optical radiation and of most of the requests from the European Parliament in its proposed amendments.

The Commission supports the common position in its entirety.

5. COMMISSION STATEMENT

During the final discussions before adoption, the Council made the following statement on the development of practical guidelines:

" The Council invites the Commission to develop, after consultation of the Advisory Committee on Health and Safety at Work, practical guidelines to facilitate the implementation of the provisions of this Directive, in particular Articles 4 and 5 and the Annexes."

Commission’s response to the Council’s statement in its minutes:

" The Commission takes note of the Council's request and will give it due attention. The Commission reserves however its right to respond in accordance with the rules of the Treaty, with due regard in particular to its right of initiative and taking into account the budgetary and human resources at its disposal."

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

[2] International Commission for Non-Ionising Radiation Protection.

[3] IEC: International Electrotechnical CommissionCEI: International Commission on IlluminationCEN: European Committee for Standardisation.