COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/148/EC on the protection of workers from the risk related to exposure to asbestos at work
Date: 2022-09-28
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: asbestos, cancer, carcinogenic substance, disease prevention, health risk, occupational safety

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.9.2022  SWD(2022) 310 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/148/EC on the protection of workers from the risk related to exposure to asbestos at work […] {COM(2022) 489 final} - {SEC(2022) 342 final} - {SWD(2022) 311 final} - {SWD(2022) 312 final}  
 
 
Subsidiarity grid 

1.  Can the Union act? What is the legal basis and competence of the Union’s intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

Article 153 of the Treaty on the Functioning of the European Union (TFEU), which empowers the EU 
to  support  and  complement  the  activities  of  the  Member  States  in  the  field  of  improvement  in 
particular of the working environment  to protect workers’  health and safety. It also empowers the 
European Parliament and the  Council  to adopt,  by means of directives, minimum requirements for 
gradual implementation, having regard to the conditions and technical rules obtaining in each of the 
Member States. 

Article 154 TFEU, which requires the Commission to carry out a two-stage consultation of the social 
partners at EU level before submitting proposals in the social policy field. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

The Union’s competence in social policy is shared. Article 153(1)(a) TFEU states that the Union shall 
support  and  complement  the  activities  of  the  Member  States  in  the  field  of  ‘improvement  in 
particular of the working environment to protect workers’ health and safety’. 

Subsidiarity does not apply to policy areas where the Union has exclusive competence as defined in 
Article  3  TFEU1.  It  is  the  specific  legal  basis  which  determines  whether  the  proposal  falls  under  the 
subsidiarity  control  mechanism.  Article  4  TFEU2  sets  out  the  areas  where  competence  is  shared 
between the Union and the Member States and Article 6 TFEU3 sets out the areas for which the Union 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is  there  a  detailed  statement  with  qualitative  and,  where  possible,  quantitative  indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

Under Article 154 TFEU, a formal two-stage consultation of the social partners at EU level is required 
before submitting proposals in the social policy field. Such a two-stage consultation was carried out 
in 2021. The Commission also consulted the tripartite Advisory Committee  on Safety and Health at 
Work  (ACSH)  and  its  Working  Party  on  Chemicals.  Both  are  composed  of  representatives  from 
Member States, representing national governments and workers’ and employers’ organisations. The 
ACSH  adopted  an  opinion on 24 November 2021.  In addition,  a  call  for  evidence  was  published  for 
feedback on the Europa website in February 2022.  

The  explanatory  memorandum  and  the  impact  assessment  contain  a  section  on  the  principle  of 
subsidiarity. More information is available under question 2.2. 

2.2 Does  the  explanatory  memorandum  (and  any 

impact  assessment)  accompanying  the 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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Commission’s  proposal  contain  an  adequate  justification  regarding  conformity  with  the 
principle of subsidiarity? 

Both  the  explanatory  memorandum  and  the  impact  assessment  accompanying  the  Commission’s 
proposal contain an adequate justification regarding conformity with the principle of subsidiarity. 

As risks to workers’ health and safety are broadly similar across the EU, there is a clear role for the 
EU in supporting Member States in addressing such risks.  

Data gathered during the preparatory work indicate that there are differences in the Member States 
regarding the setting of limit values for asbestos. As a result, workers in the EU have various levels of 
protection. Three Member States have set binding occupational-exposure limits (OELs) below the EU 
OEL (Denmark, the Netherlands and France), while one Member State (Germany) has set a limit value 
corresponding to an acceptable concentration in addition to the binding limit value.  

Updating  the  Asbestos  at  Work  Directive5  (AWD)  is  an  effective  way  to  ensure  that  preventive 
measures  are  updated  accordingly  in  all  Member  States.  It  will  help  achieve  a  uniform  level  of 
minimum  requirements  designed  to  guarantee  a  better  standard  of  health  and  safety,  and  thus 
minimise differences in the protection of workers’ health and safety between Member States. 

Moreover, revising the AWD OEL can only be done by action at EU level. Such revision is necessary 
because of the development of scientific knowledge in this area. The fact that four Member States 
have already reduced their exposure limit values for asbestos demonstrates this need. The tripartite 
ACSH has also recognised the need for revision. 

Revising the AWD OEL will lead to a greater harmonisation of limit values across the EU. Companies 
willing  to operate  in  multiple  Member  States  will  further  benefit  from  streamlined  applicable  limit 
values. This may result in savings, as common solutions can be adopted across facilities, as opposed 
to having to design site-specific solutions to meet various OEL requirements.  

Revising  limit  values  is  very  complex  and  requires  a  high  level  of  scientific  expertise.  A  significant 
advantage of the revision of the EU OEL is that it eliminates the need for Member States to carry out 
their  own  scientific  analysis,  with  likely  substantial  savings  on  administrative  costs.  Instead,  these 
saved  resources  could  be  dedicated  to  further  improving  occupational  safety  and  health  (OSH) 
policies in each Member State.  

2.3 Based  on  the  answers  to  the  questions  below,  can  the  objectives  of  the  proposed  action  be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

Risks to workers’ health and safety are broadly similar across the EU. National action alone leads to 
insufficient and divergent levels of protection of workers’ health, and to an uneven playing field for 
businesses. 

(a)  Are  there  significant/appreciable  transnational/cross-border  aspects  to  the  problems  being 

tackled? Have these been quantified? 

As  explained  in  point  2.2,  risks  to  workers’  health  and  safety  are  broadly  similar  across  the  EU. 
However,  data  gathered  during  the  preparatory  work  indicate  that  there  are  differences  in  the 
Member States regarding the OEL for asbestos. 

It is estimated that currently 4.1 to 7.3 million workers are exposed to asbestos, with the major share 
(3.5 to 5.5 million) being workers in a situation of sporadic and low intensity exposure. 

In  the  construction  sector,  which  is  the  main  sector  concerned,  workers  move  across  countries. 

5 Directive 2009/148/EC. 

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Therefore, OEL differences result  in  large  disparities  in the protection of workers’ health and  in an 
unfair distribution of healthcare costs across Members States. 

The  impact  assessment  accompanying  the  proposal  contains  more  detailed  information  on  the 
presence  of  asbestos  in  the  residential  building  stock  at  EU  regional  level  (based  on  a  recent  Joint 
Research Centre study6).  

(b)  Would national action or the absence of EU level action conflict with core objectives of the 

Treaty7 or significantly damage the interests of other Member States? 

National action alone leads to large disparities in national OELs, with the consequences described in 
point  2.3(a)  above.  EU-level  action  would  not  conflict  with  any  core  objectives  of  the  TFEU  or 
significantly  damage  the  interests  of  other  Member  States.  On  the  contrary,  it  would  make  it 
possible, among other things, to:  

ensure a similar and fair minimum level of protection across the EU; 

- 
-  help level the playing field for businesses; 
- 
- 

clarify and enforce the AWD; and 
shoulder the burden of revising the OEL at EU level, eliminating the need for Member States 
to individually carry out their own scientific analysis. 

(c)  To  what  extent  do  Member  States  have  the  ability  or  possibility  to  enact  appropriate 

measures? 

The AWD aims to protect workers against risks to their health and safety from exposure to asbestos 
at the workplace.  A  framework of general principles  provides  a  consistent level of protection from 
the  risks  related  to  asbestos.  This  framework  enables  Member  States  to  ensure  the  consistent 
application of minimum requirements. The minimum requirements provided for in  the AWD aim to 
protect  workers  at  EU  level.  Member  States  can  set  more  stringent  binding  OELs  or  take  other 
protective measures.  

(d)  How  does  the  problem  and  its  causes  (e.g.  negative  externalities,  spill  over  effects)  vary 

across the national, regional and local levels of the EU? 

Risks to workers’ health and safety are broadly similar across the EU.  

However,  without  EU  action,  the  level  of  workers’  protection  from  exposure  to  asbestos  can  vary 
between Member States depending, among other things, on whether the national OEL has already 
been  revised  following  scientific  development.  For  instance,  France,  the  Netherlands  and Denmark 
have  implemented  binding  OELs  below  the  current  EU  OEL,  and  Germany  has  a  limit  value 
corresponding to an acceptable concentration in addition to the binding limit value. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

Although  four Member  States  already  have  a  revised  OEL  for  asbestos, the  problem  is widespread 
across the EU as risks to workers’ health and safety are broadly similar. Indeed, exposure to asbestos 
at  the  workplace  is  a  reality  in  each  Member  State,  in  particular  given  the  continued  presence  of 
asbestos-containing materials in all Member States’ built environment. 

6 Maduta, C., Kakoulaki, G., Zangheri, P., Bavetta, M., Towards energy efficient and asbestos-free dwellings 
through deep energy renovation, EUR 31086 EN, Publications Office of the European Union, Luxembourg, 2022, 
ISBN 978-92-76-52961-3, doi:10.2760/00828, JRC129218. 
7 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

The  process  of  setting  limit  values  is  very complex  and  requires  a  high  level of  scientific  expertise. 
This  could  partly  explain  why  some  Member  States  have  not  yet  introduced  an  OEL  for  asbestos 
lower than the  EU  OEL. A  significant  advantage of setting OELs at EU  level is that it eliminates the 
need for Member States to carry out their own scientific analysis, with likely substantial savings on 
administrative costs. Given the limited resources for OSH at national level, this could release funds to 
be redirected to other OSH priorities. 

(g)  How  do  the  views/preferred  courses  of  action  of  national,  regional  and  local  authorities 

differ across the EU? 

The  Council  Conclusions  entitled  A  New  EU  Strategic  Framework  on  Health  and  Safety  at  Work: 
Enhancing  the  implementation  of  Occupational  Safety  and  Health  in  the  EU8  state:  ‘Work  on 
identifying  further  carcinogens  and  mutagens  at  the  workplace  and  setting  limit  values  for  them 
therefore needs to continue to be a high priority.’ 

Acknowledging the development of scientific knowledge, four Member States have already reduced 
their limit value. 

In  November  2021,  the  tripartite  ACSH  (composed  of  representatives  of  national  authorities  and 
employers’ and workers´ organisations from all Member States) reached a consensus on the need to 
substantially  lower  the  current  binding  OEL  to  better  protect  workers’  health  and  safety  and  thus 
reduce the probability for asbestos-related diseases to develop9. 

2.4 Based  on  the  answers  to  the  questions  below,  can  the  objectives  of  the  proposed  action  be 
better achieved at Union level by reason of the scale or effects of that action (EU added value)? 

Acting at EU level would make it possible, among other things, to: 

  ensure a fair, similar minimum level of protection across the EU; 
  help level the playing field for businesses; and  
 

improve clarity and enforcement. 

Revising the OEL at EU level would also make it possible to eliminate the need for Member States to 
carry out their own scientific analysis, with likely substantial savings on administrative costs.  

(a)  Are there clear benefits from EU level action?  

Amending the AWD provides EU added value by:  

ensuring a similar and fair minimum level of protection across the EU; 

- 
-  helping to level the playing field for businesses; and 
- 

shouldering the burden of revising the limit value at EU level.  

See point 3.2 of the impact assessment for more information. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The process of setting limit values is very complex and requires a high level of scientific expertise. A 
significant advantage of setting OELs at EU level is that it eliminates the need for Member States to 
carry out their own scientific analysis. This economy of scale will likely lead to substantial savings on 

8 14942/19. 
9 ACSH, Opinion on an EU Binding Occupational Exposure Limit Value (BOEL) for Asbestos under the Asbestos at 
Work Directive 2009/148/EC (Doc. 008-21), adopted on 24.11.2021. 

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administrative costs. Given the limited resources for OSH at national level, this could release funds to 
be redirected to other OSH priorities. 

(c)  What  are  the  benefits  in  replacing  different  national  policies  and  rules  with  a  more 

homogenous policy approach? 

The  AWD  does  not  aim  to  replace  national  policies  and  rules  but  rather  to  set  minimum 
requirements to protect workers at EU level. Member States can set more stringent binding OELs or 
take other protective measures.  

However, the minimum requirements under the AWD aim, among other things, to ensure a similar 
minimum level of protection across the EU while helping to level the playing field for businesses and 
improving the functioning of the internal market. 

(d)  Do  the  benefits  of  EU-level  action outweigh  the  loss of  competence  of  the  Member  States 
and  the  local and  regional  authorities  (beyond  the  costs  and  benefits of  acting  at  national, 
local and regional levels)? 

The fight against occupational cancer remains a high priority in the area of OSH at EU level.  

Tackling work-related exposure to asbestos is one of the priorities under the EU strategic framework 
on health and safety at work for 2021-2027, in line with the Vision Zero for work-related deaths, and 
of the cancer-prevention pillar of Europe’s Beating Cancer Plan. In the letter of intent accompanying 
the  2021  State  of  the  Union  address,  the  Commission  made  a  commitment  to  the  European 
Parliament and the Council to present a legislative proposal on the protection of workers from the 
risks  related  to  exposure  to  asbestos  at  work.  This  commitment  was  confirmed  in  the  2022 
Commission work programme. Furthermore, it is also highlighted as one of priorities under action 3 - 
A stronger economy, social justice and jobs – in the Commission Communication on the follow-up of 
the Conference on the Future of Europe (CoFE). 

Therefore,  acting  at  EU  level  will  make  it  possible  to  support  all  Member  States  in  addressing 
occupational  cancer.  In  addition,  Member  States  can  continue  to  set  additional  or  more  stringent 
binding OELs and to take other protective measures. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Revising the EU OEL under the AWD will lead to a greater harmonisation of limit values across the EU, 
which  is  expected  to  level  the  playing  field  for  businesses,  particularly  those  operating  in  multiple 
Member States. 

3.  Proportionality: How the EU should act 

3.1  Does  the  explanatory  memorandum  (and  any  impact  assessment)  accompanying  the 
Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal  and  a  statement  allowing  appraisal  of  the  compliance  of  the  proposal  with  the 
principle of proportionality? 

Both  the  explanatory  memorandum  and  the  impact  assessment  accompanying  the  Commission’s 
proposal contain such a justification.  

This  proposal  is  a  step  forward  in  achieving  the  objectives  set  to  improve  living  and  working 
conditions of workers.  

With regard to the proposed revision of the limit value, socio-economic feasibility factors have been 
taken  into  account  after  intensive  discussions  with  all  stakeholders  (representatives  of  workers’ 

5 

 
 
organisations, representatives of employers’ organisations, and representatives of governments). 

The  proposed  OEL  option  has  the  best  cost/benefit  ratio  and  the  estimated  cost/turnover  ratio  is 
small  for  all  companies  and  sectors.  Employers  endorsed  it,  meaning  that  although  the  quantified 
costs may be higher than the benefits, businesses consider it a proportionate option. On average, the 
yearly cost per company will be EUR 375. 

In  accordance  with  Article  153(4)  TFEU,  this  proposal  does  not  prevent  any  Member  State  from 
maintaining  or  introducing  more  stringent  protective  measures  compatible  with  the  Treaties,  for 
example in the form of lower limit values. Article 153(3) TFEU gives Member States the possibility to 
entrust  management  and  labour,  at  their  joint  request,  with  the  implementation  of  directives 
adopted pursuant to Article 153(2) TFEU, thus respecting well-established national arrangements for 
regulation in this area.  

It follows that in line with the principle of proportionality, as set out in Article 5(4) of the Treaty on 
European Union, this proposal does not go beyond what is necessary to achieve its objectives. 

3.2 Based  on  the  answers  to  the  questions  below  and  information  available  from  any  impact 
assessment,  the  explanatory  memorandum  or  other  sources,  is  the  proposed  action  an 
appropriate way to achieve the intended objectives? 

The European Pillar of Social Rights10, jointly proclaimed by the European Parliament, the Council and 
the  Commission  at  the  Social  Summit  for  Fair  Jobs  and  Growth  on  17 November 2017,  enshrines 
workers’  right  to  a  healthy,  safe,  and  well-adapted  work  environment,  including  protection  from 
carcinogens including asbestos. 

Therefore, it is appropriate to act at EU level to ensure workers’ right to a high level of protection of 
their health and safety at work, and to support and complement the activities of the Member States 
in this regard, pursuant to Article 153 TFEU. 

It is all the more appropriate as the AWD already exists, and this initiative is limited to revising the 
OEL for asbestos laid down in Article 8 AWD on the basis of scientific and technical data available. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

This  initiative  aims  to  ensure  a  balanced  approach,  i.e.  to  prevent  companies  from  facing  severe 
economic disadvantages while providing appropriate protection to workers at EU level. The initiative 
is  considered  balanced  and  justified  in  light  of  the  accrued  and  longer-term  benefits  in  terms  of 
reducing health risks arising from workers’ exposure to asbestos and saving lives, without putting a 
disproportionate  burden  on  businesses  in  the  concerned  sectors,  including  on  micro-,  small-  and 
medium-sized enterprises. 

(b)  Is  the  form  of  Union  action  (choice  of  instrument)  justified,  as  simple  as  possible,  and 
coherent with the satisfactory achievement of, and ensuring compliance with, the objectives 
pursued  (e.g.  choice  between  regulation,  (framework)  directive,  recommendation,  or 
alternative regulatory methods such as co-regulation, etc.)? 

Under  Article  153(2)(b)  TFEU,  minimum  requirements  in  the  field  of  workers’  health  and  safety 
protection  may  be  adopted  ‘by  means  of  directives’.  In  addition,  the  AWD  already  exists,  and  this 

10 Available at: https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-
pillar-social-rights_en. 

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initiative is limited to revising the OEL on the basis of scientific and technical data available. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily  the  objectives  set?  (e.g.  is  it  possible  to  limit  European  action  to  minimum 
standards or use a less stringent policy instrument or approach?) 

Under  Article  153(2)(b)  TFEU,  minimum  requirements  in  the  field  of  workers’  health  and  safety 
protection  may  only  be  adopted  ‘by  means  of  directives’.  These  minimum  requirements  are 
proposed  by  the  European  Commission  after  consulting  representatives  of  workers’  organisations, 
representatives of employers’ organisations, and representatives of governments. This initiative does 
not prevent any Member State from maintaining or introducing more stringent protective measures 
compatible with the Treaties. 

(d)  Does  the 

initiative  create  financial  or  administrative  cost  for  the  Union,  national 
governments,  regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

This  initiative  will  affect  operating  costs  for  companies,  which  will  have  to  put  in  place  additional 
protective  and  preventive  measures.  However,  these  costs  represent  a  very  small  share  of 
companies’ turnover.  

Enforcing  authorities  might  incur  additional  administrative  and  enforcement  costs.  However,  these 
costs are not expected to be significant (around EUR 390 000 per country per year). Moreover, this 
initiative  should  help  reduce  the  costs  related  to occupational  diseases  for social-security  systems. 
Revising the EU OEL would also limit the need for national administrations to carry out the costly and 
burdensome work that is necessary to revise limit values at national level. 

In addition, this initiative should result in benefits in terms of avoided occupational cases of cancer, 
and  related  monetised  health  benefits  including  intangible  costs  such  as  reduced  quality  of  life, 
suffering  of  workers  and  their  families,  etc.  The  estimated  benefits  for  public  authorities 
(EUR 3.4 million over 40 years) are smaller than the quantified costs (around EUR 421 million over 40 
years). 

(e)  While respecting Union law, have special circumstances applying in individual Member States 

been taken into account? 

As  mentioned  above,  the  Commission  consulted  the  tripartite  ACSH,  composed  of  three  full 
members  per  Member  State,  representing  national  governments,  trade  unions  and  employers’ 
organisations. This broad representation makes it possible to take into account special circumstances 
applying in individual Member States. 

7