(1)

Directive 2009/148/EC of the European Parliament and of the Council (4) aims to protect workers against risks to their safety and health from exposure to asbestos at work. A consistent level of protection from the risks related to the occupational exposure to asbestos is provided for in that Directive by a framework of general principles to enable Member States to ensure the consistent application of minimum requirements. The aim of those minimum requirements is to protect workers at Union level, while more stringent provisions can be set by Member States.

(2)

The provisions of this Directive should apply without prejudice to the provisions of Directive 2004/37/EC of the European Parliament and of the Council (5) that are more favourable to workers with regard to health and safety at work.

(3)

Asbestos is a highly dangerous carcinogenic agent, which still affects various economic sectors, such as building renovation, mining and quarrying, waste management and firefighting, in which workers are at high risk of exposure. Asbestos is classified as carcinogen category 1A pursuant to Annex VI, Part 3, to Regulation (EC) No 1272/2008 of the European Parliament and of the Council (6). According to the European occupational diseases statistics, it is by far the major cause of occupational cancer, with as much as 78 % of occupational cancers recognised in the Member States as being related to exposure to asbestos. When inhaled, airborne asbestos fibres can lead to serious diseases such as mesothelioma and lung cancer, and the first signs of disease may take an average of 30 years from the moment of exposure to manifest, ultimately leading to work-related deaths. This Directive therefore applies to all activities, including construction, renovation and demolition work, waste management, mining and firefighting, during which workers are or may be exposed in the course of their work to dust arising from asbestos or materials containing asbestos.

(4)

In line with the Health in all Policies approach, the protection of workers’ health from exposure to asbestos has a cross-cutting dimension and is relevant to numerous Union policies and activities, in particular in the field of the environment, where Union action is to contribute, inter alia, to the protection of human health. The Union also has an important role to play at the international level to lead by example as regards the prevention of asbestos-related diseases and to work with other international organisations and third countries to achieve a global ban of asbestos. In addition, this Directive applies in synergy with other Union initiatives.

(5)

There are types of exposure to asbestos that do not result from the active handling of asbestos. Such types of exposure include passive exposure, where workers who work either in the vicinity of someone working with materials containing asbestos, or in premises where materials containing asbestos are degrading in building structures, are exposed to asbestos, and secondary exposure, where people are exposed to asbestos fibres brought home by occupationally exposed individuals mostly from their clothing or hair. Both passive and secondary exposure can have significant impacts on health. Although all forms of asbestos have been banned in the Union, asbestos is still present in some structures, particularly in buildings that were constructed before the ban, which may lead to both occupational and non-occupational exposure if materials containing asbestos in the building are disturbed or damaged. Avoiding exposure to asbestos, in whatever form, therefore remains an imperative. With regard to the passive exposure of workers to asbestos, Council Directive 89/391/EEC (7) and Directive 2009/148/EC require employers to be in possession of an assessment of all the risks to the safety and health of workers at work by identifying potential hazards, including those stemming from passive exposure to asbestos, and to put in place the necessary preventive and protective measures to protect the safety and health of workers, with the risk avoidance principle always being the primary basis for any measures to be implemented. With regard to secondary exposure to asbestos or materials containing asbestos, the occupational safety and health requirements provided for in this Directive are important means by which to avoid such exposure.

(6)

Women are at particular risk of certain types of exposure to asbestos, including secondary exposure. The gender distribution of activities at the place of work constitutes a risk factor for the monitoring, diagnosis, treatment and recognition of asbestos-related diseases. It is therefore essential to take into account gender differences in exposure to asbestos and health complications following such exposure, in order to better prevent and detect diseases caused by such exposure.

(7)

Following new scientific and technological developments in the area, there is scope to improve the protection of workers exposed to asbestos and thus to reduce the probability that exposed workers contract asbestos-related diseases. Because asbestos is a non-threshold carcinogen, it is not scientifically possible to identify a level below which exposure would not lead to adverse health effects. Instead, an exposure-risk relationship can be established, which facilitates the setting of an occupational exposure limit value (limit value) by taking into account an acceptable level of excess risk. As a consequence, the limit value and measurement methodology for asbestos should be revised in order to reduce the risk by lowering exposure levels to improve workers protection from work-related asbestos diseases.

(8)

The derogation from certain provisions of Directive 2009/148/EC for sporadic and low-intensity exposure provided for in that Directive should not apply to a non-threshold carcinogen such as asbestos with regard to requirements relating to registering exposure and the medical surveillance of workers laid down in that Directive.

(9)

Europe’s Beating Cancer Plan, presented in the Commission communication of 3 February 2021, supports the need for action in the field of protection of workers against carcinogenic substances. Improved protection of workers exposed to asbestos is also important in the context of the green transition and the implementation of the European Green Deal, including, in particular, the Renovation Wave for Europe, launched in the Commission communication of 14 October 2020. Citizens’ recommendations in the framework of the Conference on the Future of Europe, which ran from April 2021 to May 2022, also highlighted the importance of fair working conditions, in particular the revision of Directive 2009/148/EC.

(10)

Within the framework of the Renovation Wave for Europe, the goal of which is to decarbonise buildings, tackle energy poverty and boost the Union’s sovereignty by means of energy efficiency, it is essential that the safe removal and disposal of materials containing asbestos be prioritised, because repair, maintenance, encapsulation or sealing can lead to the postponement of removal, which can, in turn, perpetuate the risks of workers’ exposure. Therefore, employers should, when assessing whether any activity involves or is likely to involve a risk of exposure to asbestos or materials containing asbestos, consider the total removal of asbestos as a preferred option over any other handling activity, whenever this is feasible and beneficial to the protection of workers. In addition, workers who are, or who are likely to be, exposed to asbestos urgently need to be trained. In order to ensure minimum requirements for high-quality training, an annex to Directive 2009/148/EC should provide for minimum training requirements, including specific requirements, for workers in specialised asbestos removal undertakings.

(11)

A binding limit value for asbestos, which is not to be exceeded, is an important component of the general arrangements for the protection of workers established by Directive 2009/148/EC, in addition to the appropriate risk management measures and to the provision of adequate respiratory and other personal protective equipment.

(12)

The limit value for asbestos laid down in Directive 2009/148/EC should be revised in light of the Commission’s evaluations and recent scientific evidence and technical data. Strengthened preventive and protective measures are needed to implement that revised limit value in the Member States.

(13)

A revised limit value should be laid down in this Directive in light of available information, including up-to-date scientific evidence on health effects and technical data, based on a thorough assessment of the socioeconomic impact and availability of exposure measurement protocols and techniques at the place of work. That information should be based on opinions of the Committee for Risk Assessment of the European Chemicals Agency, established by Regulation (EC) No 1907/2006 of the European Parliament and of the Council (8), and on opinions of the Advisory Committee on Safety and Health at Work (ACSH), established by Council Decision of 22 July 2003 (9).

(14)

Current available technologies for measuring asbestos fibres do not allow for the measurement at very low concentrations when thin fibres are counted. In order to ensure a high level of protection of workers’ health while duly considering the feasibility of measuring, when using such technologies, it is therefore necessary to choose whether to count thin fibres or to apply low concentration limits. Some Member States have opted for a lower limit value without counting thinner fibres, while others have opted for a higher limit value and count thin fibres. With a view to guaranteeing a balanced approach, different limit values should be established, depending on the fibre size taken into consideration for the purpose of measuring asbestos fibres in the air, namely fibres with a breadth of between 0,2 and 3 micrometres as well as, from the moment of technological transition to electron microscopy, fibres with a breadth of less than 0,2 micrometres.

(15)

Taking into account the relevant scientific expertise and a balanced approach that ensures, at the same time, the adequate protection of workers at Union level, revised limit values should be established, which, depending on the fibre counting method used in a particular Member State, should be equal to 0,002 fibres per cm3 when counting fibres with a breadth of between 0,2 and 3 micrometres, or 0,01 fibres per cm3, when also counting fibres with a breadth of less than 0,2 micrometres, as an 8-hour time-weighted average (TWA).

(16)

The Commission has carried out a two-stage consultation of management and labour at Union level in accordance with Article 154 of the Treaty on the Functioning of the European Union. It has also consulted the ACSH, which has adopted an opinion providing information for the successful implementation of the revised limit value options. The European Parliament adopted a resolution on 20 October 2021 (10) calling for a proposal to update Directive 2009/148/EC in order to strengthen Union measures for protecting workers from the threat of asbestos.

(17)

Although optical microscopy does not allow the thinnest fibres detrimental to health to be counted, it is currently the most used method for the regular measuring of asbestos. As it is possible to measure a limit value equal to 0,01 fibres per cm3 with phase-contrast microscopy (PCM), no transitional period is needed for the implementation of that limit value. In line with the opinion of the ACSH, a more modern and more sensitive method based on electron microscopy or any other method giving equivalent or more accurate results, should be used, while taking into account the need for an adequate period of technical adaptation and for higher consistency between different methodologies currently applied within the Union. In order to allow sufficient time to comply with the new requirements relating to the measurement of asbestos fibres, there should be a transposition period of six years. The Commission is well placed to support and facilitate Member States with regard to the replacement of the methodology, in particular through the development of guidelines.

(18)

The measuring of asbestos fibres in the air using analytical methods based on electron microscopy would constitute a significant improvement with regard to the monitoring of asbestos as it will allow for the counting of thinner fibres. The transition to electron microscopy, or to any other method giving equivalent or more accurate results, could result in identifying considerably more fibres than those detectable with PCM. Member States and employers need time to gain experience with the fibre counting carried out by electron microscopy, implement improved preventive measures and collect new exposure data resulting from the combined application of the limit value and the method based on electron microscopy. That experience will be of importance in order to pave the way for assessing the feasibility of a further reduction of the limit values.

(19)

Asbestos sampling should reflect the worker’s personal exposure to asbestos. Samples should therefore be taken at regular intervals during specific operational phases in representative and realistic situations in which workers are exposed to asbestos dust.

(20)

Taking into account the exposure minimisation requirements set out in Directives 2009/148/EC and 2004/37/EC, employers should ensure that the risks related to the exposure of workers to asbestos at work are reduced to a minimum and in any case to as low a level as is technically possible.

(21)

Special control measures and precautions, including by means of state-of-the art technology, are needed for workers exposed or likely to be exposed to asbestos to lower the concentration of asbestos fibres in the air to as low a level as is technically possible below the limit value, through measures such as dust suction at source and the cleaning and maintenance of the premises. For work under confinement, specific measures for the protection of workers are needed, such as dust suppression, fresh air supply and the use of HEPA filters. Subjecting workers to a decontamination procedure and strengthening the related training requirements are important elements for a significant contribution to reducing the risks related to such exposure.

(22)

Preventive measures for the protection of the health of workers exposed to asbestos and the commitment envisaged for Member States with regard to the surveillance of their health are important, in particular the continuation of health surveillance after the end of exposure. Annex I to Directive 2009/148/EC, which relates to the medical surveillance of workers, should be updated in light of current knowledge on diseases that can be caused by exposure to asbestos. It is important that Annex I is revised regularly to reflect the evolution of scientific knowledge.

(23)

A notification system is important in order to enable the competent authorities of Member States to supervise works during which asbestos may be disturbed and to allow, where appropriate, the intervention of the competent authorities to ensure the protection of workers involved.

(24)

Employers should take all necessary steps to identify presumed materials containing asbestos, if appropriate by obtaining information from the owners of the premises as well as other sources of information, including relevant registers. If such information is not available, the employer should ensure that an examination, by a qualified operator, in accordance with national law and practice, of the occurrence of materials containing asbestos is carried out and should obtain the result of such examination before the start of the work. On the basis of the information received, the employer should record, before the start of any asbestos removal project, or of any demolition, maintenance or renovation work, information relating to the presence or presumed presence of asbestos in buildings, ships, aircrafts or other installations that were built before the entry into force of the Member State’s asbestos ban. It is important that employers communicate that information to workers who may be exposed to asbestos as a result of working with it, of maintenance work or of other activities. The identification of materials containing asbestos should not absolve the employer from undertaking a risk assessment as provided for in this Directive.

(25)

Directive 2009/148/EC should be regularly updated to take into account the latest scientific knowledge and technical developments. Any such updates should take into account an assessment of different types of asbestos fibres and their adverse health effects. In the context of the next evaluation pursuant to Article 22 of that Directive, the Commission should assess whether there is a need to extend the scope of that Directive, in particular to erionite, riebeckite, winchite, richterite and fluoro-edenite, and whether there is a need for additional measures to ensure protection against secondary exposure to asbestos at the place of work. The Commission should submit a report to the European Parliament and to the Council, setting out the results of its assessment, after consulting the social partners. The report should be accompanied, if appropriate, by a legislative proposal to amend Directive 2009/148/EC accordingly.

(26)

There is a need to provide sufficient and focused technical support to help employers, in particular small and medium-sized enterprises, to implement this Directive.

(27)

Before carrying out demolition or asbestos removal work, undertakings should obtain from competent authorities permits that are renewable in accordance with national law and practice.

(28)

Firefighters and emergency services personnel are at risk of exposure to asbestos in the course of their work. It is therefore important that the employers of those workers assess, in accordance with this Directive, the risk to workers of exposure to asbestos and that they take the necessary measures to protect the safety and health of those workers. In order to support employers in taking such measures, it is important that the Commission develop guidelines that take into account the specificities of those workers' activities and the information relating to the risks of their exposure. Such guidelines should build on best practices available in the Member States and on the consultation of relevant stakeholders. A more systematic exchange of best practices across Member States should be established for that purpose.

(29)

It is important that the Commission, in cooperation with the ACSH, develop and issue guidelines no later than two years from the date of entry into force of this Directive, in order to facilitate the implementation of this Directive. Those guidelines should, where appropriate, include sector-specific solutions. Those guidelines should also include indications for employers on how to prioritise the removal of asbestos or materials containing asbestos over other forms of asbestos handling when assessing the risk of exposure to asbestos or materials containing asbestos. Those guidelines should, if appropriate, be reviewed every five years in light, in particular, of technological and scientific developments on asbestos identification, measurement and warning technology.

(30)

Russia’s war of aggression against Ukraine is not only causing suffering for the Ukrainian people but also considerable damage to infrastructure, housing and the built environment more generally. As Ukraine did not ban the use of asbestos until 2017, the forthcoming reconstruction of the country poses a significant risk to workers, in particular those that handle rubble. It is therefore important that Union employers consider in an appropriate manner the risks to workers of exposure to asbestos when carrying out rebuilding activities in third countries.

(31)

In view of the upcoming increase in the thermal renovations of buildings, there is a crucial need to support research and development in order to ensure the highest possible level of protection for workers who are or who may be exposed to asbestos.

(32)

Since the objective of this Directive, namely to protect workers against risks to their health and safety arising from or likely to arise from exposure to asbestos at work, including the prevention of such risks, cannot be sufficiently achieved by the Member States, but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(33)

Directive 2009/148/EC should therefore be amended accordingly,

(1)

in Article 1(1), the following subparagraph is added:

‘The provisions of Directive 2004/37/EC of the European Parliament and of the Council (*1) shall apply wherever they are more favourable to health and safety of workers at work.

(*1)  Directive 2004/37/EC of the European Parliament and of the Council of 29 April 2004 on the protection of workers from the risks related to exposure to carcinogens, mutagens or reprotoxic substances at work (Sixth individual directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (OJ L 158, 30.4.2004, p. 50).’;"

(2)

Article 2 is replaced by the following:

(*2)  Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 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, 31.12.2008, p. 1)."

(*3)  Number in the Chemical Abstract Service (CAS).’;"

(3)

Article 3 is amended as follows:

(4)

in Article 4(3), the second subparagraph is replaced by the following:

‘The notification shall include at least a brief description of:

Member States shall ensure that the competent authorities keep the information referred to in point (d) of the second subparagraph, in accordance with national law, for no longer than necessary for the purpose of ensuring that workers who perform asbestos-related work are properly trained, having due regard to the long-term effects of asbestos on workers’ health.’;

(5)

Article 6 is replaced by the following:

(*4)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ L 312, 22.11.2008, p. 3).’;"

(6)

Article 7 is amended as follows:

(7)

Article 8 is replaced by the following:

(8)

Article 10 is amended as follows:

(9)

in Article 11, the first paragraph is replaced by the following:

‘Before beginning demolition, maintenance or renovation work on premises built before the entry into force of the Member State’s asbestos ban, employers shall take all necessary steps to identify presumed materials containing asbestos, in particular by obtaining information from the owners of premises, from other employers and from other sources, including relevant registers. If such information is not available, the employer shall ensure an examination, by a qualified operator in accordance with national law and practice, of the occurrence of materials containing asbestos and shall obtain the result of such examination before the start of the work. The employer shall make available to another employer, upon request and solely for the purpose of complying with the obligation laid down in this paragraph, any information obtained within the framework of such an examination.’;

(10)

in Article 12, the first paragraph is amended as follows:

(11)

in Article 13(2), second subparagraph, point (c) is replaced by the following:

(12)

Article 14 is amended as follows:

(13)

Article 15 is replaced by the following:

(14)

in Article 18, paragraph 1 is deleted;

(15)

the following article is inserted:

(16)

Article 19 is amended as follows:

(17)

Article 21 is replaced by the following:

(18)

the following article is inserted:

(19)

in Annex I, point 1 is replaced by the following:

(20)

the text set out in the Annex to this Directive is inserted as Annex Ia.