Directive 2004/37/EC of the European Parliament and of the CouncilShow full title

[X1 CHAPTER I U.K. GENERAL PROVISIONS

Article 1 U.K. Objective

1. This Directive has as its aim the protection of workers against risks to their health and safety, including the prevention of such risks, arising or likely to arise from exposure to carcinogens or mutagens at work.

It lays down particular minimum requirements in this area, including limit values.

2. This Directive shall not apply to workers exposed only to radiation covered by the Treaty establishing the European Atomic Energy Community.

3. Directive 89/391/EEC shall apply fully to the whole area referred to in paragraph 1, without prejudice to more stringent and/or specific provisions contained in this Directive.

[F1 4. As regards asbestos, which is dealt with by Directive 2009/148/EC of the European Parliament and of the Council (1) , the provisions of this Directive shall apply whenever they are more favourable to health and safety at work.]

Textual Amendments

F1 Substituted by Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council, in order to align them to Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures.

Article 2 U.K. Definitions

For the purposes of this Directive,

(a)

[F1 ‘ carcinogen ’ means:

(i)

a substance or mixture which meets the criteria for classification as a category 1A or 1B carcinogen set out in Annex I to Regulation (EC) No 1272/2008 of the European Parliament and of the Council (2) ;

(ii)

a substance, mixture or process referred to in Annex I to this Directive as well as a substance or mixture released by a process referred to in that Annex;]

(b)

[F1 ‘ mutagen ’ means:

a substance or mixture which meets the criteria for classification as a category 1A or 1B germ cell mutagen set out in Annex I to Regulation (EC) No 1272/2008;]

(c)

‘ limit value ’ means, unless otherwise specified, the limit of the time-weighted average of the concentration for a ‘ carcinogen or mutagen ’ in the air within the breathing zone of a worker in relation to a specified reference period as set out in Annex III to this Directive.

Textual Amendments

F1 Substituted by Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council, in order to align them to Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures.

Article 3 U.K. Scope — determination and assessment of risks

1. This Directive shall apply to activities in which workers are or are likely to be exposed to carcinogens or mutagens as a result of their work.

2. In the case of any activity likely to involve a risk of exposure to carcinogens or mutagens, the nature, degree and duration of workers' exposure shall be determined in order to make it possible to assess any risk to the workers' health or safety and to lay down the measures to be taken.

The assessment shall be renewed regularly and in any event when any change occurs in the conditions which may affect workers' exposure to carcinogens or mutagens.

The employer shall supply the authorities responsible at their request with the information used for making the assessment.

3. When assessing the risk, account shall be taken of all other routes of exposure, such as absorption into and/or through the skin.

4. When the risk assessment is carried out, employers shall give particular attention to any effects concerning the health or safety of workers at particular risk and shall, inter alia, take account of the desirability of not employing such workers in areas where they may come into contact with carcinogens or mutagens.

Editorial Information

X1 Substituted by Corrigendum to 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 or mutagens at work (Sixth individual Directive within the meaning of Article 16(1) of Council Directive 89/391/EEC) (codified version) (Official Journal of the European Union L 158 of 30 April 2004).

CHAPTER II U.K. EMPLOYERS' OBLIGATIONS

Article 4 U.K. Reduction and replacement

1. The employer shall reduce the use of a carcinogen or mutagen at the place of work, in particular by replacing it, in so far as is technically possible, by a substance, [F1 mixture] or process which, under its conditions of use, is not dangerous or is less dangerous to workers' health or safety, as the case may be.

2. The employer shall, upon request, submit the findings of his investigations to the relevant authorities.

Textual Amendments

F1 Substituted by Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council, in order to align them to Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures.

Article 5 U.K. Prevention and reduction of exposure

1. Where the results of the assessment referred to in Article 3(2) reveal a risk to workers' health or safety, workers' exposure must be prevented.

2. Where it is not technically possible to replace the carcinogen or mutagen by a substance, [F1 mixture] or process which, under its conditions of use, is not dangerous or is less dangerous to health or safety, the employer shall ensure that the carcinogen or mutagen is, in so far as is technically possible, manufactured and used in a closed system.

3. Where a closed system is not technically possible, the employer shall ensure that the level of exposure of workers is reduced to as low a level as is technically possible.

4. Exposure shall not exceed the limit value of a carcinogen as set out in Annex III.

5. Wherever a carcinogen or mutagen is used, the employer shall apply all the following measures:

(a) limitation of the quantities of a carcinogen or mutagen at the place of work;

(b) keeping as low as possible the number of workers exposed or likely to be exposed;

(c) design of work processes and engineering control measures so as to avoid or minimise the release of carcinogens or mutagens into the place of work;

(d) evacuation of carcinogens or mutagens at source, local extraction system or general ventilation, all such methods to be appropriate and compatible with the need to protect public health and the environment;

(e) use of existing appropriate procedures for the measurement of carcinogens or mutagens, in particular for the early detection of abnormal exposures resulting from an unforeseeable event or an accident;

(f) application of suitable working procedures and methods;

(g) collective protection measures and/or, where exposure cannot be avoided by other means, individual protection measures;

(h) hygiene measures, in particular regular cleaning of floors, walls and other surfaces;

(i) information for workers;

(j) demarcation of risk areas and use of adequate warning and safety signs including ‘ no smoking ’ signs in areas where workers are exposed or likely to be exposed to carcinogens or mutagens;

(k) drawing up plans to deal with emergencies likely to result in abnormally high exposure;

(l) means for safe storage, handling and transportation, in particular by using sealed and clearly and visibly labelled containers;

(m) means for safe collection, storage and disposal of waste by workers, including the use of sealed and clearly and visibly labelled containers.

Textual Amendments

F1 Substituted by Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council, in order to align them to Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures.

Article 6 U.K. Information for the competent authority

Where the results of the assessment referred to in Article 3(2) reveal a risk to workers' health or safety, employers shall, when requested, make available to the competent authority appropriate information on:

(a)

the activities and/or industrial processes carried out, including the reasons for which carcinogens or mutagens are used;

(b)

the quantities of substances or [F1 mixtures] manufactured or used which contain carcinogens or mutagens;

(c)

the number of workers exposed;

(d)

the preventive measures taken;

(e)

the type of protective equipment used;

(f)

the nature and degree of exposure;

(g)

the cases of replacement.

[F2 The Member States shall take into account the information under points (a) to (g) of the first paragraph of this Article in their reports submitted to the Commission under Article 17a of Directive 89/391/EEC.]

Textual Amendments

F1 Substituted by Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council, in order to align them to Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures.

F2 Inserted by Directive (EU) 2017/2398 of the European Parliament and of the Council of 12 December 2017 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance).

Article 7 U.K. Unforeseen exposure

1. In the event of an unforeseeable event or an accident which is likely to result in an abnormal exposure of workers, the employer shall inform the workers thereof.

2. Until the situation has been restored to normal and the causes of the abnormal exposure have been eliminated:

(a) only those workers who are essential to the carrying out of repairs and other necessary work shall be permitted to work in the affected area;

(b) the workers concerned shall be provided with protective clothing and individual respiratory protection equipment which they must wear; the exposure may not be permanent and shall be kept to the strict minimum of time necessary for each worker;

(c) unprotected workers shall not be allowed to work in the affected area.

Article 8 U.K. Foreseeable exposure

1. For certain activities such as maintenance, in respect of which it is foreseeable that there is the potential for a significant increase in exposure of workers, and in respect of which all scope for further technical preventive measures for limiting workers' exposure has already been exhausted, the employer shall determine, after consultation of the workers and/or their representatives in the undertaking or establishment, without prejudice to the employer's responsibility, the measures necessary to reduce the duration of workers' exposure to the minimum possible and to ensure protection of workers while they are engaged in such activities.

Pursuant to the first subparagraph, the workers concerned shall be provided with protective clothing and individual respiratory protection equipment which they must wear as long as the abnormal exposure persists; that exposure may not be permanent and shall be kept to the strict minimum of time necessary for each worker.

2. Appropriate measures shall be taken to ensure that the areas in which the activities referred to in the first subparagraph of paragraph 1 take place are clearly demarcated and indicated or that unauthorised persons are prevented by other means from having access to such areas.

Article 9 U.K. Access to risk areas

Appropriate measures shall be taken by employers to ensure that access to areas in which the activities in respect of which the results of the assessment referred to in Article 3(2) reveal a risk to workers' safety or health take place are accessible solely to workers who, by reason of their work or duties, are required to enter them.

Article 10 U.K. Hygiene and individual protection

1. Employers shall be obliged, in the case of all activities for which there is a risk of contamination by carcinogens or mutagens, to take appropriate measures to ensure that:

(a) workers do not eat, drink or smoke in working areas where there is a risk of contamination by carcinogens or mutagens;

(b) workers are provided with appropriate protective clothing or other appropriate special clothing;

(c) separate storage places are provided for working or protective clothing and for street clothes;

(d) workers are provided with appropriate and adequate washing and toilet facilities;

(e) protective equipment is properly stored in a well-defined place and is checked and cleaned if possible before, and in any case after, each use;

(f) defective equipment is repaired or replaced before further use.

2. Workers may not be charged for the cost of the measures set out in paragraph 1.

Article 11 U.K. Information and training of workers

1. Appropriate measures shall be taken by the employer to ensure that workers and/or workers' representatives in the undertaking or establishment receive sufficient and appropriate training, on the basis of all available information, in particular in the form of information and instructions, concerning:

(a) potential risks to health, including the additional risks due to tobacco consumption;

(b) precautions to be taken to prevent exposure;

(c) hygiene requirements;

(d) wearing and use of protective equipment and clothing;

(e) steps to be taken by workers, including rescue workers, in the case of incidents and to prevent incidents.

The training shall be:

• adapted to take account of new or changed risk, and

• repeated periodically if necessary.

2. Employers shall inform workers of installations and related containers containing carcinogens or mutagens, ensure that all containers, packages and installations containing carcinogens or mutagens are labelled clearly and legibly, and display clearly visible warning and hazard signs.

Article 12 U.K. Information for workers

Appropriate measures shall be taken to ensure that:

(a)

workers and/or any workers' representatives in the undertaking or establishment can check that this Directive is applied or can be involved in its application, in particular with regard to:

(i)

the consequences for workers' safety and health of the selection, wearing and use of protective clothing and equipment, without prejudice to the employer's responsibility for determining the effectiveness of protective clothing and equipment;

(ii)

the measures determined by the employer which are referred to in the first subparagraph of Article 8(1), without prejudice to the employer's responsibility for determining such measures;

(b)

workers and/or any workers' representatives in the undertaking or establishment are informed as quickly as possible of abnormal exposures, including those referred to in Article 8, of the causes thereof and of the measures taken or to be taken to rectify the situation;

(c)

the employer keeps an up-to-date list of the workers engaged in the activities in respect of which the results of the assessment referred to in Article 3(2) reveal a risk to workers' health or safety, indicating, if the information is available, the exposure to which they have been subjected;

(d)

the doctor and/or the competent authority as well as all other persons who have responsibility for health and safety at work have access to the list referred to in point (c);

(e)

each worker has access to the information on the list which relates to him personally;

(f)

workers and/or any workers' representatives in the undertaking or establishment have access to anonymous collective information.

Article 13 U.K. Consultation and participation of workers

Consultation and participation of workers and/or their representatives in connection with matters covered by this Directive shall take place in accordance with Article 11 of Directive 89/391/EEC.

[F3 Article 13a U.K. Social partners' agreements

Social Partners' agreements possibly concluded in the field of this Directive shall be listed on the website of the European Agency for Safety and Health at Work (EU-OSHA). That list shall be regularly updated.]

Textual Amendments

F3 Inserted by Directive (EU) 2019/130 of the European Parliament and of the Council of 16 January 2019 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance).

CHAPTER III U.K. MISCELLANEOUS PROVISIONS

Article 14 U.K. Health surveillance

[F4 1. The Member States shall establish, in accordance with national law or practice, arrangements for carrying out relevant health surveillance of workers for whom the results of the assessment referred to in Article 3(2) reveal a risk to health or safety. The doctor or authority responsible for the health surveillance of workers may indicate that health surveillance must continue after the end of exposure for as long as they consider it to be necessary to safeguard the health of the worker concerned.]

2. The arrangements referred to in paragraph 1 shall be such that each worker shall be able to undergo, if appropriate, relevant health surveillance:

• prior to exposure,

• at regular intervals thereafter.

Those arrangements shall be such that it is directly possible to implement individual and occupational hygiene measures.

3. If a worker is found to be suffering from an abnormality which is suspected to be the result of exposure to carcinogens or mutagens, the doctor or authority responsible for the health surveillance of workers may require other workers who have been similarly exposed to undergo health surveillance.

In that event, a reassessment of the risk of exposure shall be carried out in accordance with Article 3(2).

4. In cases where health surveillance is carried out, an individual medical record shall be kept and the doctor or authority responsible for health surveillance shall propose any protective or preventive measures to be taken in respect of any individual workers.

5. Information and advice must be given to workers regarding any health surveillance which they may undergo following the end of exposure.

6. In accordance with national laws and/or practice:

• workers shall have access to the results of the health surveillance which concern them, and

• the workers concerned or the employer may request a review of the results of the health surveillance.

7. Practical recommendations for the health surveillance of workers are given in Annex II.

[F4 8. All cases of cancer identified in accordance with national law or practice as resulting from occupational exposure to a carcinogen or mutagen shall be notified to the competent authority.

The Member States shall take into account the information under this paragraph in their reports submitted to the Commission under Article 17a of Directive 89/391/EEC.]

Textual Amendments

F4 Substituted by Directive (EU) 2017/2398 of the European Parliament and of the Council of 12 December 2017 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance).

Article 15 U.K. Record keeping

1. The list referred to in point (c) of Article 12 and the medical record referred to in Article 14(4) shall be kept for at least 40 years following the end of exposure, in accordance with national laws and/or practice.

2. Those documents shall be made available to the responsible authority in cases where the undertaking ceases activity, in accordance with national laws and/or practice.

Article 16 U.K. Limit values

1. The Council shall, in accordance with the procedure laid down in Article 137(2) of the Treaty, set out limit values in Directives on the basis of the available information, including scientific and technical data, in respect of all those carcinogens or mutagens for which this is possible, and, where necessary, other directly related provisions.

2. Limit values and other directly related provisions are set out in Annex III.

[F5 Article 17 U.K. Amendment of Annex II

The Commission is empowered to adopt delegated acts in accordance with Article 17a to make strictly technical amendments to Annex II, in order to take account of technical progress, changes in international regulations or specifications and new findings with regard to carcinogens or mutagens.

Where, in duly justified and exceptional cases involving imminent, direct and serious risks to workers’ and other persons’ physical health and safety, imperative grounds of urgency require action in a very short timeframe, the procedure provided for in Article 17b shall apply to delegated acts adopted pursuant to this Article.]

Textual Amendments

F5 Substituted by Regulation (EU) 2019/1243 of the European Parliament and of the Council of 20 June 2019 adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union (Text with EEA relevance).

[F6 Article 17a U.K. Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 17 shall be conferred on the Commission for a period of five years from 26 July 2019 . The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 17 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (3) .

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 17 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Textual Amendments

F6 Inserted by Regulation (EU) 2019/1243 of the European Parliament and of the Council of 20 June 2019 adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union (Text with EEA relevance).

Article 17b U.K. Urgency procedure

1. Delegated acts adopted under this Article shall enter into force without delay and shall apply as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and the Council shall state the reasons for the use of the urgency procedure.

2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 17a(6). In such a case, the Commission shall repeal the act immediately following the notification of the decision to object by the European Parliament or by the Council.]

Textual Amendments

F6 Inserted by Regulation (EU) 2019/1243 of the European Parliament and of the Council of 20 June 2019 adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union (Text with EEA relevance).

Article 18 U.K. Use of data

The Commission shall have access to the use made by the competent national authorities of the information referred to in Article 14(8).

[F2 Article 18a U.K. Evaluation

The Commission shall, as part of the next evaluation of the implementation of this Directive in the context of the evaluation referred to in Article 17a of Directive 89/391/EEC, also evaluate the need to modify the limit value for respirable crystalline silica dust. The Commission shall propose, where appropriate, necessary amendments and modifications related to that substance.

No later than in the first quarter of 2019, the Commission shall, taking into account the latest developments in scientific knowledge, assess the option of amending the scope of this Directive to include reprotoxic substances. On that basis, the Commission shall present, if appropriate, and after consulting management and labour, a legislative proposal.

[F7 No later than 11 July 2022 , the Commission shall assess the option of amending this Directive to add provisions on a combination of an airborne occupational exposure limit and a biological limit value for cadmium and its inorganic compounds.

No later than 30 June 2020 , the Commission shall, taking into account the latest developments in scientific knowledge, and after appropriate consultation with relevant stakeholders, in particular health practitioners and health professionals, assess the option of amending this Directive in order to include hazardous drugs, including cytotoxic drugs, or to propose a more appropriate instrument for the purpose of ensuring the occupational safety of workers exposed to such drugs. On that basis, the Commission shall present, if appropriate, and after consulting management and labour, a legislative proposal.] ]

Textual Amendments

F2 Inserted by Directive (EU) 2017/2398 of the European Parliament and of the Council of 12 December 2017 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance).

F7 Inserted by Directive (EU) 2019/983 of the European Parliament and of the Council of 5 June 2019 amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Text with EEA relevance).

Article 19 U.K. Notifying the Commission

Member States shall communicate to the Commission the provisions of national law which they adopt in the future in the field governed by this Directive.

Article 20 U.K. Repeal

Directive 90/394/EEC, as amended by the Directives referred to in Annex IV, Part A of this Directive is repealed, without prejudice to the obligations of the Member States concerning the time limits for transposition set out in Annex IV, Part B of this Directive.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex V.

Article 21 U.K. Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 22 U.K. Addressees

This Directive is addressed to the Member States.]