EC Request UK to Comply Fully with EU Legislation on Asbestos

07/03/2011 : go back

ARCA Statement on the European Commission’s request for the UK to comply fully with EU legislation on asbestos

During 2005 the Health and Safety Commission (HSC) issued a Consultative Document titled ‘Proposals for revised Asbestos Regulations and an Approved Code of Practice’ (CD205). This Consultative Document sought views on draft Regulations and an Approved Code of Practice (ACoP) to implement amendments to the European Asbestos Worker Protection Directive (2003/18/EC amendment to the Asbestos Worker Protection Directive 83/477/EEC). HSC requested comments on the proposals by 31st January 2006.

The Asbestos Removal Contractors Association (ARCA) entered into correspondence with the Health and Safety Executive both during the consultation period and following the introduction of the Control of Asbestos Regulations 2006 (CAR 2006). Concern was expressed by ARCA that CAR 2006 did not correctly transpose certain Articles of the European Directive correctly, particularly with regard to Article 3.

Despite lengthy debate between ARCA and the HSE; the HSE failed to convince ARCA that CAR 2006 implemented the minimum requirements of Article 3 of the Directive as required under European Union law. Following a meeting in Luxembourg on the 10th November 2006 between ARCA and representatives from the European Commission, ARCA took the decision to make a formal complaint to the Secretary General of the European Commission regarding the manner in which the UK Government had implemented the requirements of the European Asbestos Worker Protection Directive.

On the 19th of January 2007 the European Commission Secretary General’s office confirmed that the complaint made by ARCA had been registered under reference number 2006/5042, SG(2006) A/8864/2. Further correspondence was entered into with the European Commission relating to correspondence they had received from the United Kingdom authorities. On the 2nd February 2009 the European Commission sent a letter of formal notice to the United Kingdom as a result of the complaint made by ARCA concerning the transposition of Article 3 of Directive 2003/18/EC. A letter of formal notice is the beginning of the infringement process and it must be responded to within a specified period.

On the 16th February 2011 the following press release was issued by the European Commission:

‘The European Commission has asked the UK to change provisions in its legislation that exempt some maintenance and repair activities from the application of the EU directive on protection of workers from asbestos. UK authorities do not comply with three clear obligations, undermining the protection foreseen by EU law for workers exposed to asbestos. The request takes the form of a reasoned opinion under EU infringement procedures. The UK now has two months to bring its legislation into line with EU law. Otherwise, the Commission may decide to refer the UK to the EU's Court of Justice.

The asbestos Directive 2009/148/EC lays down provisions to protect workers from asbestos related risks, mainly through preventive measures. Asbestos is a particularly dangerous agent, found for example in buildings. The inhalation of asbestos fibres can cause serious diseases, including cancer. The EU legislation applies to activities where workers are or may be exposed to dust arising from asbestos or materials containing asbestos at work.

The Commission received a complaint that Article 3(3) (a) and (b) of the asbestos Directive has not been correctly transposed in UK legislation. This Article 3(3) gives the possibility for an exemption from three obligations set out in the directive for activities that involve only sporadic and low intensity exposure to asbestos - like for example the case of some maintenance and repair activities.

These three obligations refer to notifying asbestos works to the responsible national authority; making a prior health assessment for the workers and a new assessment every three years, for as long as exposure continues; and keeping a register of the workers who are, or may be, exposed to asbestos at work.

In the Commission's view, the UK law omits certain specific parts of Article 3(3) (a) and (b) and so widens the scope of the derogation of this Article. The UK legislation currently focuses on the measurement of exposure to asbestos and not enough on the how the material will be affected by the work itself, while the directive deals with both exposure and the material. This is why the Commission is sending a reasoned opinion to the UK authorities, requesting them to bring its legislation into line with EU law. The Commission may decide to refer the UK to the Court of Justice of the EU if action to ensure compliance is not taken.’

A spokesman for HSE said: "The reasoned opinion is a long and complex legal document and we need to look at it carefully before we decide how to respond. We may have more to say in due course".