Documents considered by the Committee on 31 January 2018 Contents

9Carcinogens and Mutagens Directive (Phase I and Phase II)

Committee’s assessment

Politically important

Committee’s decision

(a) Cleared from scrutiny (decision reported on 13 November 2017); (b) Not cleared from scrutiny; drawn to the attention of the Health and the Work & Pensions Committees

Document details

(a) Proposal for a Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase I); (b) Proposal for Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase II)

Legal base

(a) and (b) Article 153(2) TFEU; ordinary legislative procedure; QMV

Department

Health and Safety Executive

Document Numbers

(a) (37758), 8962/16 + ADDs 1–2, COM(16) 248; (b) (38447), 5251/17 + ADDs 1–3, COM(17) 11

Summary and Committee’s conclusions

9.1The EU has been considering two separate amendments to its Carcinogens and Mutagens Directive (CMD), which aims to prevent dangerous levels of exposure to carcinogenic substances in the workplace.174 The proposals are referred to as “Phase I” and “Phase II” respectively.175 The Committee set out the substance of both amendments in more detail in the Reports of April and November 2017.176

9.2The Minister of State for Disabled People, Health and Work (Sarah Newton) wrote to the Committee on 18 January 2018 with information on the state of both proposals.177 She explained that the “Phase I” amendment has now been adopted by the Parliament and the Council, and will require EU Member States to enforce lower exposure limits by workers to Chromium (IV) and hardwood dust. The Government abstained in the vote on the legislation, because of concerns that the lower limits were not “supported by evidence, including impact assessment data”178 and that they were not “practically achievable using currently available control measures”.179

9.3With respect to the Phase II proposal, the Member States in June 2017 agreed their position (which the Government also did not support, due to the lack of an evaluation for the extension of the CMD to a new group of substances called Polycyclic Aromatic Hydrocarbons).180 Trilogue negotiations on Phase II are expected to begin after the relevant committee of the European Parliament has established its position on the proposal at the end of February 2018.

9.4In response to the Committee’s questions181 about the possibility that the amendments to the Carcinogens and Mutagens Directive might have to be transposed into UK law as part of the post-Brexit transitional period, the Minister confirms that the Government is “proceeding on the basis that amendments to the CMD could be implemented despite their likely dates of application falling after March 2019 but stand ready to react swiftly to developments as they occur”.

9.5We thank the Minister for her latest update on the amendments to the CMD. The Committee retains the Phase II proposal under scrutiny in anticipation of further information from the Minister about the position taken by the responsible committee in the European Parliament. We also draw these developments to the attention of the Health Committee and the Work and Pensions Committee.

9.6The Committee has serious concerns about the legal and political implications of an arrangement which sees the UK bound by new EU law adopted after the Government ceases to be represented in the Council and other EU bodies. We will be taking evidence from the Government on this in the near future.

Full details of the documents

(a) Proposal for a Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase I): (37758), 8962/16 + ADDs 1–2, COM(16) 248; (b) Proposal for Directive amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (Phase II): (38447), 5251/17 + ADDs 1–3, COM(17) 11.

Background

9.7Cancer is the leading cause of work-related deaths in the EU, accounting for 53% of the total. In the UK alone, around 3,500 people die each year from occupational cancer caused by exposure to carcinogenic substances, principally through inhalation. To reduce these numbers, the EU has legislation in place to prevent dangerous levels of exposure to such substances in the form of the Carcinogens and Mutagens Directive (CMD).182

9.8The European Commission proposed two sets of amendments to the Directive in May 2016 (referred to as “Phase I”) and January 2017 (“Phase II”) respectively, to add more carcinogens to the list of controlled substances. The Committee set out the details of the proposals, including the substances it would restrict, in the Reports of 25 April and 13 November 2017.183

9.9The Government was broadly supportive of both set of amendments as originally proposed by the European Commission, and the previous Committee granted scrutiny waivers for both proposals. These allowed the previous Minister to support General Approaches in the Council in October 2016 and June 2017 on the condition that they were substantially the same as the original proposals.

9.10The final text of the Phase I proposal was agreed between the Member States and the European Parliament in summer last year, including a further lowering of the original proposed exposure limit values for Chromium (VI) compounds184 and hardwood dust, and an extension of the existing requirement for employers to conduct health surveillance of their workers. These changes were not supported by the UK Government.185 The Committee cleared the Phase I proposal from scrutiny in November, given that that informal agreement has already been reached between the Council and the Parliament. We asked the Minister to inform us when the Directive was formally adopted by the Council, and to confirm whether the UK abstained or voted against.

9.11On the Phase II set of amendments, the Committee in November took note of the Council’s decision of June 2017 to recommend extending the scope of the Directive to a new category of substances called Polycyclic Aromatic Hydrocarbons (PAHs),186 in absence of an evaluation of the impact of such a change (on which grounds the UK abstained from supporting the Council’s general approach). We asked the Minister to keep us informed of the European Parliament’s eventual position on the proposal.

9.12We also reiterated our view that it appeared likely any EU legislation, including the proposals to amend the CMD, would have to be applied in the UK if it took effect during the post-Brexit transitional period.187

Developments since November 2017

9.13On 17 January 2018, the Minister of State for Disabled People, Health and Work (Sarah Newton) wrote with further information on the state of play on both proposals.188

The Phase I proposal

9.14The Minister has confirmed that the Phase I Directive, including the new exposure limits requested by MEPs, was formally adopted by the European Parliament in October 2017 and the Council on 7 December 2017. The UK abstained from supporting the legislation, along with Croatia and Poland.189

9.15The Directive was published in the Official Journal on 27 December 2017.190 Member States will have until January 2020 to transpose it into national legislation, except for the dates the new exposure limits take effect. These will be deferred during an implementation period, until January 2023 (for hardwood dust) and January 2025 (for Chromium (IV)).

The Phase II proposal

9.16The EU Member States in the Council adopted their position on the Phase II proposal in June 2017. In her latest letter, the Minister confirmed that that there has been no request from the Council to the Commission for an impact assessment on its amendment to extend the CMD to Polycyclic Aromatic Hydrocarbons (PAHs). She added that the impact of this element of the Council’s approach in the UK is nevertheless likely to be low “as exposure of a substance via the skin already needs to be considered as part of the risk assessment required by UK legislation”.

9.17We note that the European Parliament’s Employment & Social Affairs Committee will consider its position on the Phase II proposal at the end of February 2018.

9.18The Minister explained that most of the suggested amendments put forward by MEPs are not of concern to the UK, except for the proposal to establish an exposure limit for Diesel Exhaust Emissions (DEEs). The European Commission did not include this in its proposal due to “practical difficulties with measuring techniques and concerns about the legal clarity of a definition”. She added that Government would not support inclusion of an exposure limit for DEEs, if pushed for by the Parliament, unless the Commission could provide assurance that these technical obstacles have been overcome.

Implications of Brexit

9.19The Committee has consistently taken the position that, until the Government confirms otherwise, the post-Brexit transitional period it seeks was likely to require the UK to continue applying EU law as if it were a Member State. The other EU countries have recently confirmed that is the basis on which they are willing to negotiate a transition, and that it would include an obligation for the UK to apply EU law which takes effect only during the transition (i.e. after the UK ceases to be a Member State).

9.20In November 2017, we raised this matter with the Health & Safety Executive in the context of the amendments to the CMD, given that such an arrangement would require these new Directives to be transposed into UK law if they take effect during the transition.191

9.21In response, the Minister has confirmed the Government’s intention to negotiate a post-Brexit transitional arrangement which ensures that “businesses and public services would only have to plan for one set of changes in the relationship between the UK and the EU”. However, the Government appears unwilling to explicitly concede, at this stage, that the UK would have to observe the primacy of EU law in a transitional period. The Minister says:

“Work is underway to agree the detail of how [the transition] will operate in practice, including the application of EU legislation during such a period. We are, therefore, proceeding on the basis that amendments to the CMD could be implemented despite their likely dates of application falling after March 2019 but stand ready to react swiftly to developments as they occur.”

Previous Committee Reports

For Phase I, see: (37758), 8962/16: HC 71–iv Sixth Report (2016–17), chapter 6 (15 June 2016); Thirteenth Report HC 71–xi (2016–17), chapter 6 (12 October 2016); and First Report HC 301–i (2017–19), chapter 29 (13 November 2017). For Phase II, see: (38447), 5251/17: Thirty-first Report HC 71–xxix (2016–17), chapter 9 (8 February 2017); Fortieth Report HC 71–xxxvii (2016–17), chapter 16 (25 April 2017); and First Report HC 301–i (2017–19), chapter 29 (13 November 2017).


174 Directive 2004/37/EC, as amended.

175 The European Commission is expected to table further proposals to amend the Carcinogens and Mutagens Directive later this year.

176 See the Committee’s Reports of 25 April and 13 November 2017 respectively.

177 See letters from Sarah Newton to Sir William Cash on the Phase I and Phase II proposals (17 January 2018).

178 Idem.

179 Letter by Penny Mordaunt to the Chair of the European Scrutiny Committee (15 August 2017).

180 PAHs consists of a group of over a hundred substances released from burning coal, oil, wood, general waste and other organic materials.

181 First Report HC 301–i (2017–19), chapter 29 (13 November 2017).

182 Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work.

183 See the Committee’s Reports of 25 April and 13 November 2017 respectively.

184 See the Health & Safety Executive’s leaflet on “Chromium and you“ for more information on Chromium (IV). It is used in many industrial processes, including the production, welding and cutting of stainless steel.

185 The Minister writes that the UK voiced concerns during the negotiations about the introduction of lower limit values, in particular, for process generated Chromium (VI) during welding of stainless steel and for hardwood dust generated by the wood working and building industry. The Government obtained advice from industry that the new limits are not “practically achievable using currently available control measures”.

186 The Council’s general approach is contained in Council document 9926/17. PAHs consists of a group of over a hundred substances released from burning coal, oil, wood, general waste and other organic materials.

187 In absence of a detailed proposal for the transition period by the Government, the remaining Member States reiterated in December 2017 that a “standstill” transitional arrangement which kept the UK in the Single Market would require the continued application of EU law, including new legislation which takes effect only during the transition period.

188 See letters from Sarah Newton to Sir William Cash on the Phase I and Phase II proposals (17 January 2018).

191 First Report HC 301–i (2017–19), chapter 29 (13 November 2017).




2 February 2018