Proposal for a COUNCIL DECISION authorising Member States to ratify, in the interests of the European Union, the Convention concerning Safety in the Use of Chemicals at Work, 1990, of the International Labour Organization (Convention No 170)
Date: 2012-11-20
Institutions: European Commission
Subjects: International Labour Organisation, chemical product, international convention, occupational safety, ratification of an agreement

EUROPEAN 
COMMISSION 

Brussels, 20.11.2012  
COM(2012) 677 final 

2012/0320 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to ratify, in the interests of the European Union, the 
Convention concerning Safety in the Use of Chemicals at Work, 1990, of the 
International Labour Organization (Convention No 170) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

This  proposal  will  enable  Member  States  to  legally  ratify  Convention  No  170  concerning 
Safety in the Use of Chemicals at Work, 1990 of the International Labour Organisation (ILO), 
hereinafter "the Chemicals Convention No.170" or "the Convention".  

The  Chemicals  Convention  No.170  was  adopted  at  the  77th  Session  of  the  International 
Labour Conference on 25 June 1990 and entered into force on 4 November 1993. The purpose 
of the Convention is the prevention and reduction of chemically induced illnesses and injuries 
at work, and  the Convention  shall  also  enhance  the  protection  of  the  general  public  and  the 
environment.  

As of June 2012, the Chemicals Convention No.170  has been ratified by 17 State parties to 
the ILO. It is among the ILO Conventions that have been classified by the ILO as up to date 
and are therefore actively promoted. 

The European Union (EU) is committed to promote the decent work agenda, both internally 
and  in  its  external  relations.  Labour  standards  are  a  core  element  of  the  concept  of  decent 
work. The ratification of ILO Conventions by Member States thus sends an important signal 
as  to  the  coherence  of  the  Union's  policy  in  improving  labour  standards  worldwide.  It  is 
therefore necessary that any legal impediments for ratification by Member States be removed 
at the level of the EU for such Conventions, the substance of which does not cause concern in 
the light of the existing Union acquis.  

The provisions of the Chemicals Convention No 170 address the following: the establishment 
of  evaluation  of  chemicals,  the  obtaining  of  information  by  employers  from  their  suppliers, 
the provision of information to workers, the need for appropriate preventive measures, and the 
establishment  of  protective  programmes  for  workers.  Part  I  of  the  Convention  contains 
provisions  on  scope  and  definitions,  part  II  establishes  general  principles,  part  III  relates  to 
classification  systems  and  related  measures,  parts  IV  and  V  refer  to  the  obligations  of 
employers  and  the  duties  of  workers  respectively,  while  part  VI  stipulates  workers'  rights, 
including  the  right  of  the  workers  to  remove  themselves  from  a  dangerous  situation  while 
remaining protected against undue consequences when exercising their rights. Part VII relates 
to the communication duties involved in exporting towards importing ILO Member States.  

In the EU, chemicals safety is an important concern under social, environmental and internal 
market policies, and is regulated by a body of Union legislation, including: 

- Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and 
mixtures,  amending  and  repealing  Directives  67/548/EEC  and  1999/45/4C,  and  amending 
Regulation (EC) No 1907/20061; 

-  Regulation  (EC)  No  1907/2006  of  the  European  Parliament  and  of  the  Council  of  18 
December  2006  concerning  the  Registration,  Evaluation,  Authorisation  and  Restriction  of 
Chemicals  (REACH),  establishing  a  European  Chemicals  Agency,  amending  Directive 
1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation 

1 

OJ L351, 31.01.2008, p.1. 

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(EC)  No  1488/94  as  well  as  Council  Directive  76/769/EEC  and  Commission  Directives 
91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC2; 

- Directive 2004/37/EC of the European Parliament and the Council of 29 April 2004 on the 
protection of workers from the risks related to exposure to carcinogens or mutagens at work 
(Sixth  individual  Directive  within  the  meaning  of  Article  16(1)  of  Council  Directive 
89/391/EEC)3; 

- Council Directive 98/24/EC on the protection of the health and safety of workers from the 
risks  related  to  chemical  agents  at  work  (14th  individual  Directive  within  the  meaning  of 
Article 16(1) of Directive 89/391/EEC)4. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Not applicable. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

In accordance with the rules on external competences that have been elaborated by the Court 
of  Justice  of  the  European  Union5,  and  more  specifically  as  regards  the  conclusion  and 
ratification  of  the  Chemicals  Convention  No.1706,  Member  States  are  not  in  a  position  to 
autonomously decide on the ratification of the Convention without prior authorization by the 
Council, because parts of the Convention fall under Union competence. 

At  the  same  time,  the  European  Union  as  such  cannot  ratify  any  ILO  Convention,  because 
only States can be parties thereto. 

If  the  subject-matter  of  an  agreement  or  contract  falls  in  part  within  the  competence  of  the 
Union and in part within that of the Member States, the Union institutions and the Member 
States must therefore take all the necessary measures in order to best ensure cooperation in the 
ratification of the Convention and in the implementation of commitments resulting from that 
Convention7.  

As regards three ILO Conventions adopted over the last decade, parts of which fell under the 
competence of the Union, the Council has therefore authorized Member States to ratify, in the 
interests of the Union, those parts falling under Union competence8. 

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OJ L 396, 30.12.2006, p.1. 
OJ L 158, 30.4.2004, p.50. 
OJ L 131, 5.5.1998, p.11.. 
AETR judgment of the ECJ, case 22/70 of 31 March 1971, ECR, 1971, 263; see also Article 3(2) TFEU 
which codified these principles. 
Opinion 2/91 of the ECJ of 19 March 1993, ECR 1993-I, page 1061. 
Opinion 2/91 of the ECJ (ibid), para. 36, 37 and 38.  
Over  the  last  decade,  three  Council  decisions  have  been  adopted  authorising  Member  States  to  ratify 
ILO Conventions: Council Decision of 7 June 2007 authorizing Member States to ratify, in the interests 
of  the  European  Community,  the  Maritime  Labour  Convention,  2006,  of  the  International  Labour 
Organization  (OJ  L  161/63  of  22.6.2007);  Council  Decision  of  14  April  2005  authorizing  Member 
States  to  ratify,  in  the  interests  of  the  European  Community,  the  Seafarers'  Identity  Documents 
Convention  of  the  International  Labour  Organization  (Convention  no  185),  OJ  L  136/1  of  30.5.2005, 
and  Council  Decision  of  7  June  2010  authorizing  Member  States  to  ratify,  in  the  interests  of  the 

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Specifically with reference to the Chemicals Convention No 170, the Court had already stated 
in 1993, that the degree of regulation on classification, packaging and labelling of dangerous 
substances and preparations had reached an advanced stage, to the point where Member States 
were  no  longer  able  to  act  sovereign  in  the  external  sphere  in  this  regard9.  Since  then,  the 
related  Union  acquis  has  been  further  developed  and  consolidated.  The  area  is  mainly 
governed by Regulation (EC) No 1272/2008 on the classification, labelling and packaging of 
substances and mixtures, hereinafter "the Regulation".  The  Regulation  implements  at  Union 
level  the  Globally  Harmonised  System  of  Classification  and  Labelling  of  Chemicals  ("the 
GHS") developed by the United Nations. The Union legislation, which is based on Article 114 
TFEU,  is  much  more  detailed  than  the  general  principles  established  in  the  Chemicals 
Convention  No  170.  There  is  no  contradiction  between  the  general  principles  established  in 
the Convention and the Regulation.  

It follows from Article 19(8) of the ILO Constitution that the Convention contains minimum 
standards,  which  means  that  national  implementation  can  provide  for  higher  standards  than 
those under the Convention. 

There  is  no  inconsistency  in  the  approach  taken  under  the  rules  on  the  safety  and  health  of 
workers  between  the  Convention  and  the  minimum  requirements  under  the  Union  acquis  in 
this area. This means that Union measures can be more stringent than the ILO standards and 
vice versa.10 

The aim of this proposal is therefore to authorise Member States to ratify, in the interests of 
the Union, those parts the Chemicals Convention No 170 that fall under Union competence. 

The  proposal  is  based  on  Article  218  (6)  of  the  Treaty  on  the  Functioning  of  the  European 
Union (TFEU), applicable by analogy, in conjunction with Article 114 TFEU, which provides 
the legal basis for Union legislation on the approximation of laws in the area of classification, 
labelling and packaging of substances and mixtures. 

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European  Union,  the  Work  in  Fishing  Convention,  2007,  of  the  International  Labour  Organisation 
(Convention No 188), OJ 145/12 of 11.6.2010.  
Opinion 2/91 of the ECJ, para 25 and 26. 
Opinion 2/91 of the ECJ, para 18. 

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2012/0320 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to ratify, in the interests of the European Union, the 
Convention concerning Safety in the Use of Chemicals at Work, 1990, of the 
International Labour Organization (Convention No 170) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 in conjunction with Article 218 (6) (a) (v) and Article 218(8), first subparagraph 
thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament11,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

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The  European  Parliament,  the  Council  and  the  Commission  are  promoting  the 
ratification  of  international  labour  conventions  that  have  been  classified  by  the 
International  Labour  Organisation  as  up-to-date,  as  a  contribution  to  the  European 
Union's  effort  to  promote  decent  work  for  all  both  inside  and  outside  the  Union,  of 
which  the  protection  and  improvement  of  workers'  health  and  safety  is  an  important 
aspect. 

The  rules  under  part  III  of  Convention  No  170  concerning  Safety  in  the  Use  of 
Chemicals at Work, 1990 of the International Labour Organisation (ILO), hereinafter 
"the Convention", are covered to a large extent by Union acquis on the approximation 
of  laws,  regulations  and  administrative  practices  in  the  area  of  classification, 
packaging and labelling that has been developed since 1967 and further consolidated12. 

As a consequence,  parts of the Convention fall within the competence of the Union, 
and  Member  States  may  not  enter  into  commitments  outside  the  framework  of  the 
Union's institutions in relation to these parts13. 

The  European  Union  cannot  ratify  the  Convention,  as  only  States  can  be  parties 
thereto. 

OJ C , , p. . 
Regulation(EC)  No  1272/2008  on  classification,  labelling  and  packaging  of  substances  and  mixtures, 
amending  and  repealing  Directives  67/548/EEC  and  1999/45/EC,  and  amending  Regulation  (EC)  No 
1907/2006, OJ L 353/1 of 31 January 2008. 
Opinion 2/91 of the European Court of Justice of 19 March 1993, ECR 1993-I, page 1061, para.26. 

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(5) 

(6) 

In this situation, Member States and the Union's institutions must cooperate in regard 
to the ratification of the Convention. 

The Council shall therefore authorise the Member States that are bound by Union law 
on the approximation  of  laws, regulations and administrative practices in the area of 
classification, packaging and labelling to ratify the Convention in the interests of the 
European Union. 

HAS ADOPTED THIS DECISION:  

Article 1 

Member  States  are  hereby  authorised  to  ratify,  for  the  parts  falling  under  the  competence 
conferred  upon  the  Union  by  the  Treaties,  the  Convention  concerning  Safety  in  the  Use  of 
Chemicals at Work, 1990, of the International Labour Organization (Convention No 170). 

Article 2 

This Decision is addressed to the Member States. 

Done at Brussels,  

For the Council 
The President 

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