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) (19th individual Directive within the meaning of Article 16(1) of Directive 89/391/CEE) amending the Commission proposal pursuant to Article 250(2) of the EC Treaty
Date: 2005-10-21
Institutions: European Commission
Subjects: health control, non-ionising radiation, occupational health, occupational safety, working conditions, workplace

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) (19th individual Directive within 
the meaning of Article 16(1) of Directive 89/391/CEE) 

AMENDING THE COMMISSION PROPOSAL 
pursuant to Article 250(2) of the EC Treaty 

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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) (19th 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 

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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 agent1. 

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. 

1 

See statement in the Council minutes of 25 June 2001. 

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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. 

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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. 

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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. 

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