title: Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work (Text with EEA relevance)

text:
               16.12.2009

               EN

               Official Journal of the European Union

               L 330/28

      DIRECTIVE 2009/148/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 30 November 2009
   on the protection of workers from the risks related to exposure to asbestos at work
   (codified version)
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 137(2) thereof,
   Having regard to the proposal from the Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   After consulting the Committee of the Regions,
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
   Whereas:

               (1)

               Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks related to exposure to asbestos at work (second individual Directive within the meaning of Article 8 of Directive 80/1107/EEC) (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.

               (2)

               Asbestos is a particularly dangerous agent which may cause serious diseases and which is found in a large number of circumstances at work. Many workers are therefore exposed to a potential health risk. Crocidolite is considered to be a particularly dangerous type of asbestos.

               (3)

               Although current scientific knowledge is not such that a level can be established below which risks to health cease to exist, a reduction in exposure to asbestos will nonetheless reduce the risk of developing asbestos-related disease. It is accordingly necessary to provide for the establishment of specific harmonised procedures regarding the protection of workers with respect to asbestos. This Directive includes minimum requirements which will be reviewed on the basis of experience acquired and of developments in technology in this area.

               (4)

               Optical microscopy, although it does not allow a counting of the smallest fibres detrimental to health, is the most currently used method for the regular measuring of asbestos.

               (5)

               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.

               (6)

               In order to ensure clarity in the definition of the fibres, they should be defined either in mineralogical terms or by reference to their Chemical Abstract Service (CAS) number.

               (7)

               Without prejudice to other Community provisions concerning the marketing and use of asbestos, limiting the activities involving exposure to asbestos should play a very important role in preventing the diseases associated with such exposure.

               (8)

               The notification system for activities involving exposure to asbestos should be adapted to new work situations.

               (9)

               The prohibition on the application of asbestos by means of the spraying process is not sufficient to prevent the release of asbestos fibres into the air. It is also important to prohibit activities which expose workers to asbestos fibres during the extraction of asbestos or the manufacture and processing of asbestos products or the manufacture and processing of products containing intentionally added asbestos fibres, in view of their high and unpredictable level of exposure.

               (10)

               Taking account of the latest technical expertise, it is necessary to specify the sampling methodology to be used to measure the asbestos level in air and the method of counting fibres.

               (11)

               Even though it has not yet been possible to identify the exposure threshold below which asbestos does not involve a cancer risk, occupational exposure of workers to asbestos should be reduced to a minimum.

               (12)

               Employers should be required to record, before the start of any asbestos removal project, the presence or presumed presence of asbestos in buildings or installations and communicate this information to others who may be exposed to asbestos as a result of its use, of maintenance or of other activities in or on buildings.

               (13)

               It should be ensured that demolition or asbestos removal work is carried out by undertakings which are familiar with all the precautions to be taken in order to protect workers.

               (14)

               Special training for workers exposed or likely to be exposed to asbestos should be provided in order significantly to contribute to reducing the risks related to such exposure.

               (15)

               Practical recommendations on the clinical surveillance of exposed workers should be laid down in the light of the latest medical expertise with a view to the early detection of pathologies linked to asbestos.

               (16)

               Since the objective of the proposed action, namely improvement in the protection of workers from the risks related to exposure to asbestos at work, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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.

               (17)

               The provisions contained in this Directive constitute a concrete contribution towards creating the social dimension of the internal market. These provisions are limited to the minimum in order not to impose an unnecessary burden on the creation and development of small and medium-sized enterprises.

               (18)

               This Directive is without prejudice to the obligations of the Member States concerning the time limits for transposition into national law and application of the Directives set out in Annex II, Part B,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   1.   This Directive has as its aim the protection of workers against risks to their health, including the prevention of such risks, arising or likely to arise from exposure to asbestos at work.
   It lays down the limit values for this exposure, as well as other specific requirements.
   2.   This Directive shall not prejudice the right of Member States to apply or introduce laws, regulations or administrative provisions ensuring greater protection for workers, in particular as regards the replacement of asbestos by less dangerous substitutes.
   Article 2
   For the purposes of this Directive, ‘asbestos’ means the following fibrous silicates:

               (a)

               asbestos actinolite, CAS No 77536-66-4 (5);

               (b)

               asbestos grunerite (amosite), CAS No 12172-73-5 (5);

               (c)

               asbestos anthophyllite, CAS No 77536-67-5 (5);

               (d)

               chrysotile, CAS No 12001-29-5 (5);

               (e)

               crocidolite, CAS No 12001-28-4 (5);

               (f)

               asbestos tremolite, CAS No 77536-68-6 (5).

         Article 3
   1.   This Directive shall apply to activities in which workers are or may be exposed in the course of their work to dust arising from asbestos or materials containing asbestos.
   2.   In the case of any activity likely to involve a risk of exposure to dust arising from asbestos or materials containing asbestos, this risk must be assessed in such a way as to determine the nature and degree of the workers’ exposure to dust arising from asbestos or materials containing asbestos.
   3.   Provided that worker exposure is sporadic and of low intensity, and if it is clear from the results of the risk assessment referred to in paragraph 2 that the exposure limit for asbestos will not be exceeded in the air of the working area, Articles 4, 18 and 19 may be waived where the work involves:

               (a)

               short, non-continuous maintenance activities in which only non-friable materials are handled;

               (b)

               removal without deterioration of non-degraded materials in which the asbestos fibres are firmly linked in a matrix;

               (c)

               encapsulation or sealing of asbestos-containing materials which are in good condition;

               (d)

               air monitoring and control, and the collection of samples to ascertain whether a specific material contains asbestos.

         4.   Member States shall, following consultation with representatives from both sides of industry, in accordance with national law and practice, lay down practical guidelines for the determination of sporadic and low-intensity exposure, as provided for in paragraph 3.
   5.   The assessment referred to in paragraph 2 shall be the subject of consultation with the workers and/or their representatives within the undertaking or establishment and shall be revised where there is reason to believe that it is incorrect or there is a material change in the work.
   Article 4
   1.   Subject to Article 3(3), the measures referred to in paragraphs 2 to 5 shall be taken.
   2.   The activities referred to in Article 3(1) must be covered by a notification system administered by the responsible authority of the Member State.
   3.   The notification referred to in paragraph 2 shall be submitted by the employer to the responsible authority of the Member State, before the work commences, in accordance with national laws, regulations and administrative provisions.
   The notification must include at least a brief description of:

               (a)

               the location of the worksite;

               (b)

               the type and quantities of asbestos used or handled;

               (c)

               the activities and processes involved;

               (d)

               the number of workers involved;

               (e)

               the starting date and duration of the work;

               (f)

               measures taken to limit the exposure of workers to asbestos.

         4.   Workers and/or their representatives in undertakings or establishments shall have access to the documents which are the subject of the notification referred to in paragraph 2 concerning their own undertaking or establishment in accordance with national laws.
   5.   Each time a change in working conditions is likely to result in a significant increase in exposure to dust from asbestos or materials containing asbestos, a new notification must be submitted.
   Article 5
   The application of asbestos by means of the spraying process and working procedures that involve using low-density (less than 1 g/cm3) insulating or soundproofing materials which contain asbestos shall be prohibited.
   Without prejudice to the application of other Community provisions on the marketing and use of asbestos, activities which expose workers to asbestos fibres during the extraction of asbestos or the manufacture and processing of asbestos products or the manufacture and processing of products containing intentionally added asbestos shall be prohibited, with the exception of the treatment and disposal of products resulting from demolition and asbestos removal.
   Article 6
   For all activities referred to in Article 3(1), the exposure of workers to dust arising from asbestos or materials containing asbestos at the place of work must be reduced to a minimum and in any case below the limit value laid down in Article 8, in particular through the following measures:

               (a)

               the number of workers exposed or likely to be exposed to dust arising from asbestos or materials containing asbestos must be limited to the lowest possible figure;

               (b)

               work processes must be designed so as not to produce asbestos dust or, if that proves impossible, to avoid the release of asbestos dust into the air;

               (c)

               all premises and equipment involved in the treatment of asbestos must be capable of being regularly and effectively cleaned and maintained;

               (d)

               asbestos or dust-generating asbestos-containing material must be stored and transported in suitable sealed packing;

               (e)

               waste must be collected and removed from the place of work as soon as possible in suitable sealed packing with labels indicating that it contains asbestos; this measure shall not apply to mining activities; such waste shall then be dealt with in accordance with Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (6).

         Article 7
   1.   Depending on the results of the initial risk assessment, and in order to ensure compliance with the limit value laid down in Article 8, measurement of asbestos fibres in the air at the workplace shall be carried out regularly.
   2.   Sampling must be representative of the personal exposure of the worker to dust arising from asbestos or materials containing asbestos.
   3.   Sampling shall be carried out after consultation of the workers and/or their representatives within the undertaking or establishment.
   4.   Sampling shall be carried out by suitably qualified personnel. The samples taken shall be subsequently analysed, in accordance with paragraph 6, in laboratories equipped for fibre counting.
   5.   The duration of sampling must be such that representative exposure can be established for an 8-hour reference period (one shift) by means of measurements or time-weighted calculations.
   6.   Fibre counting shall be carried out wherever possible by phase-contrast microscope (PCM) in accordance with the method recommended in 1997 by the World Health Organization (WHO) (7) or any other method giving equivalent results.
   For the purpose of measuring asbestos in the air, as referred to in paragraph 1, only fibres with a length of more than 5 micrometres, a breadth of less than 3 micrometres and a length/breadth ratio greater than 3:1 shall be taken into consideration.
   Article 8
   Employers shall ensure that no worker is exposed to an airborne concentration of asbestos in excess of 0,1 fibres per cm3 as an 8-hour time-weighted average (TWA).
   Article 9
   The amendments necessary to adapt Annex I to this Directive to technical progress shall be adopted in accordance with the procedure referred to in Article 17 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (8).
   Article 10
   1.   Where the limit value laid down in Article 8 is exceeded, the reasons for the limit being exceeded must be identified and appropriate measures to remedy the situation must be taken as soon as possible.
   Work may not be continued in the affected area until adequate measures have been taken for the protection of the workers concerned.
   2.   In order to check the effectiveness of the measures mentioned in the first subparagraph of paragraph 1, a further determination of the asbestos-in-air concentrations shall be carried out immediately.
   3.   Where exposure cannot be reduced by other means and where compliance with the limit value makes necessary the wearing of individual protective breathing equipment, this may not be permanent and shall be kept to the strict minimum necessary for each worker. During periods of work which require the use of such equipment, provision shall be made for breaks appropriate to the physical and climatological conditions and, where relevant, in consultation with the workers and/or their representatives within the undertaking or establishment, in accordance with national laws and practice.
   Article 11
   Before beginning demolition or maintenance work, employers shall take, if appropriate by obtaining information from the owners of the premises, all necessary steps to identify presumed asbestos-containing materials.
   If there is any doubt about the presence of asbestos in a material or construction, the applicable provisions of this Directive shall be observed.
   Article 12
   In the case of certain activities such as demolition, asbestos removal work, repairing and maintenance, in respect of which it is foreseeable that the limit value set out in Article 8 will be exceeded despite the use of technical preventive measures for limiting asbestos in air concentrations, the employer shall determine the measures intended to ensure protection of the workers while they are engaged in such activities, in particular the following:

               (a)

               workers shall be issued with suitable respiratory and other personal protective equipment, which must be worn;

               (b)

               warning signs shall be put up indicating that it is foreseeable that the limit value laid down in Article 8 will be exceeded; and

               (c)

               the spread of dust arising from asbestos or materials containing asbestos outside the premises or site of action shall be prevented.

         The workers and/or their representatives in the undertaking or establishment shall be consulted on these measures before the activities concerned are carried out.
   Article 13
   1.   A plan of work shall be drawn up before demolition work or work on removing asbestos and/or asbestos-containing products from buildings, structures, plant or installations or from ships is started.
   2.   The plan referred to in paragraph 1 must prescribe the measures necessary to ensure the safety and health of workers at the place of work.
   The plan must in particular specify that:

               (a)

               asbestos and/or asbestos-containing products are to be removed before demolition techniques are applied, except where this would cause a greater risk to workers than if the asbestos and/or asbestos-containing products had been left in place;

               (b)

               the personal protective equipment referred to in point (a) of the first paragraph of Article 12 shall be provided, where necessary;

               (c)

               when the asbestos demolition or removal work has been completed, the absence of asbestos exposure risks in the workplace shall be verified in compliance with national laws and practice.

         At the request of the competent authorities, the plan shall include information on the following:

               (a)

               the nature and probable duration of the work;

               (b)

               the place where the work is carried out;

               (c)

               the methods applied where the work involves the handling of asbestos or of materials containing asbestos;

               (d)

               the characteristics of the equipment used for:

                           (i)

                           protection and decontamination of those carrying out the work;

                           (ii)

                           protection of other persons present on or near the worksite.

         3.   At the request of the competent authorities, the plan referred to in paragraph 1 must be notified to them before the start of the projected work.
   Article 14
   1.   Employers shall provide appropriate training for all workers who are, or are likely to be, exposed to dust from asbestos or materials containing asbestos. Such training must be provided at regular intervals and at no cost to the workers.
   2.   The content of the training must be easily understandable for workers. It must enable them to acquire the necessary knowledge and skills in terms of prevention and safety, particularly as regards:

               (a)

               the properties of asbestos and its effects on health, including the synergistic effect of smoking;

               (b)

               the types of products or materials likely to contain asbestos;

               (c)

               the operations that could result in asbestos exposure and the importance of preventive controls to minimise exposure;

               (d)

               safe work practices, controls and protective equipment;

               (e)

               the appropriate role, choice, selection, limitations and proper use of respiratory equipment;

               (f)

               emergency procedures;

               (g)

               decontamination procedures;

               (h)

               waste disposal;

               (i)

               medical surveillance requirements.

         3.   Practical guidelines for the training of asbestos removal workers shall be developed at Community level.
   Article 15
   Before carrying out demolition or asbestos removal work, firms must provide evidence of their ability in this field. The evidence shall be established in accordance with national laws and/or practice.
   Article 16
   1.   In the case of all activities referred to in Article 3(1), and subject to Article 3(3), appropriate measures shall be taken to ensure that:

               (a)

               the places in which the above activities take place:

                           (i)

                           are clearly demarcated and indicated by warning signs;

                           (ii)

                           are not accessible to workers other than those who by reason of their work or duties are required to enter them;

                           (iii)

                           constitute areas where there should be no smoking;

               (b)

               areas are set aside where workers can eat and drink without risking contamination by asbestos dust;

               (c)

               workers are provided with appropriate working or protective clothing; this working or protective clothing remains within the undertaking; it may, however, be laundered in establishments outside the undertaking which are equipped for this sort of work if the undertaking does not carry out the cleaning itself; in that event the clothing shall be transported in closed containers;

               (d)

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

               (e)

               workers are provided with appropriate and adequate washing and toilet facilities, including showers in the case of dusty operations;

               (f)

               protective equipment is placed in a well-defined place and checked and cleaned after each use, and appropriate measures are taken to repair or replace defective equipment before further use.

         2.   Workers may not be charged with the cost of measures taken pursuant to paragraph 1.
   Article 17
   1.   In the case of all activities referred to in Article 3(1), appropriate measures shall be taken to ensure that workers and their representatives in the undertaking or establishment receive adequate information concerning:

               (a)

               the potential risks to health from exposure to dust arising from asbestos or materials containing asbestos;

               (b)

               the existence of statutory limit values and the need for the atmosphere to be monitored;

               (c)

               hygiene requirements, including the need to refrain from smoking;

               (d)

               the precautions to be taken as regards the wearing and use of protective equipment and clothing;

               (e)

               special precautions designed to minimise exposure to asbestos.

         2.   In addition to the measures referred to in paragraph 1, and subject to Article 3(3), appropriate measures shall be taken to ensure that:

               (a)

               workers and/or their representatives in the undertaking or establishment have access to the results of asbestos-in-air concentration measurements and can be given explanations of the significance of those results;

               (b)

               if the results exceed the limit value laid down in Article 8, the workers concerned and their representatives in the undertaking or establishment are informed as quickly as possible of the fact and the reasons for it and the workers and/or their representatives in the undertaking or establishment are consulted on the measures to be taken or, in an emergency, are informed of the measures which have been taken.

         Article 18
   1.   Subject to Article 3(3), the measures referred to in paragraphs 2 to 5 shall be taken.
   2.   An assessment of each worker’s state of health must be available prior to the beginning of exposure to dust arising from asbestos or materials containing asbestos at the place of work.
   This assessment must include a specific examination of the chest. Annex I gives practical recommendations to which the Member States may refer for the clinical surveillance of workers; these recommendations shall be adapted to technical progress in accordance with the procedure referred to in Article 17 of Directive 89/391/EEC.
   A new assessment must be available at least once every 3 years for as long as exposure continues.
   An individual health record shall be established in accordance with national laws and/or practices for each worker referred to in the first subparagraph.
   3.   Following the clinical surveillance referred to in the second subparagraph of paragraph 2, the doctor or authority responsible for the medical surveillance of the workers shall, in accordance with national laws, advise on any individual protective or preventive measures to be taken or determine such measures.
   Those measures may include, where appropriate, the withdrawal of the worker concerned from all exposure to asbestos.
   4.   Information and advice must be given to workers regarding any assessment of their health which they may undergo following the end of exposure.
   The doctor or authority responsible for the medical surveillance of workers may indicate that medical surveillance must continue after the end of exposure for as long as they consider it necessary to safeguard the health of the person concerned.
   Such continuing surveillance shall be carried out in accordance with national laws and/or practice.
   5.   The worker concerned or the employer may request a review of the assessments referred to in paragraph 3, in accordance with national laws.
   Article 19
   1.   Subject to Article 3(3), the measures referred to in paragraphs 2, 3 and 4 shall be taken.
   2.   The employer must enter the workers responsible for carrying out the activities referred to in Article 3(1) in a register, indicating the nature and duration of the activity and the exposure to which they have been subjected. The doctor and/or the authority responsible for medical surveillance shall have access to this register. Each worker shall have access to the results in the register which relate to him personally. The workers and/or their representatives shall have access to anonymous, collective information in the register.
   3.   The register referred to in paragraph 2 and the medical records referred to in the fourth subparagraph of Article 18(2) shall be kept for at least 40 years following the end of exposure, in accordance with national laws and/or practice.
   4.   The documents referred to in paragraph 3 shall be made available to the responsible authority in cases where the undertaking ceases trading, in accordance with national laws and/or practice.
   Article 20
   Member States shall provide for adequate penalties to be applicable in the event of infringement of national legislation adopted pursuant to this Directive. These penalties must be effective, proportionate and dissuasive.
   Article 21
   Member States shall keep a register of recognised cases of asbestosis and mesothelioma.
   Article 22
   Every 5 years, Member States shall submit to the Commission a report on the practical implementation of this Directive in the form of a specific chapter in the single report provided for in Article 17a(1), (2) and (3) of Directive 89/391/EEC, which serves as a basis for the evaluation carried out by the Commission under Article 17a(4) of that Directive.
   Article 23
   Member States shall communicate to the Commission the provisions of national law which they adopt in the field covered by this Directive.
   Article 24
   Directive 83/477/EEC, as amended by the Directives listed in Annex II, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex II, Part B.
   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 III.
   Article 25
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 26
   This Directive is addressed to the Member States.

      Done at Brussels, 30 November 2009.

            For the European Parliament

            The President

         J. BUZEK

            For the Council

            The President

         B. ASK

      (1)  Opinion of 10 June 2009 (not yet published in the Official Journal).

      (2)  Opinion of the European Parliament of 20 October 2009 (not yet published in the Official Journal) and Council Decision of 26 November 2009.

      (3)  OJ L 263, 24.9.1983, p. 25.

      (4)  See Annex II, Part A.

      (5)  Number in the register of the Chemical Abstract Service (CAS).

      (6)  OJ L 377, 31.12.1991, p. 20.

      (7)  Determination of airborne fibre concentrations. A recommended method, by phase-contrast optical microscopy (membrane filter method), WHO, Geneva 1997 (ISBN 92 4 154496 1).

      (8)  OJ L 183, 29.6.1989, p. 1.

      ANNEX I

         Practical recommendations for the clinical assessment of workers, as referred to in Article 18(2), second subparagraph

                  1.

                  Current knowledge indicates that exposure to free asbestos fibres can give rise to the following diseases:

                              —

                              asbestosis,

                              —

                              mesothelioma,

                              —

                              bronchial carcinoma,

                              —

                              gastro-intestinal carcinoma.

                  2.

                  The doctor and/or authority responsible for the medical surveillance of workers exposed to asbestos must be familiar with the exposure conditions or circumstances of each worker.

                  3.

                  Health examination of workers should be carried out in accordance with the principles and practices of occupational medicine. It should include at least the following measures:

                              —

                              keeping records of a worker’s medical and occupational history,

                              —

                              a personal interview,

                              —

                              a general clinical examination, with particular reference to the chest,

                              —

                              lung function tests (respiratory flow volumes and rates).

                        The doctor and/or authority responsible for health surveillance should decide on further examinations, such as sputum cytology tests or a chest X-ray or a tomodensitometry, in the light of the latest occupational health knowledge available.

      ANNEX II
      PART A

         Repealed Directive with list of its successive amendments

         (referred to in Article 24)

                  Council Directive 83/477/EEC
                  (OJ L 263, 24.9.1983, p. 25)

                  Council Directive 91/382/EEC
                  (OJ L 206, 29.7.1991, p. 16)

                  Council Directive 98/24/EC
                  (OJ L 131, 5.5.1998, p. 11)

                  only Article 13(2)

                  Directive 2003/18/EC of the European Parliament and of the Council
                  (OJ L 97, 15.4.2003, p. 48)

                  Directive 2007/30/EC of the European Parliament and of the Council
                  (OJ L 165, 27.6.2007, p. 21)

                  only Article 2(1)

            PART B

         List of time limits for transposition into national law

         (referred to in Article 24)

                  Directive

                  Time limit for transposition

                  83/477/EEC

                  31 December 1986 (1)

                  91/382/EEC

                  1 January 1993 (2)

                  98/24/EC

                  5 May 2001

                  2003/18/EC

                  14 April 2006

                  2007/30/EC

                  31 December 2012

         (1)  This date is replaced by 31 December 1989 in the case of asbestos-mining activities.

         (2)  As regards the Hellenic Republic, the time limit for transposition of the Directive shall be 1 January 1996. However, the date of transposition of the provisions concerning asbestos-mining activities shall be 1 January 1996 for all the Member States and 1 January 1999 for the Hellenic Republic.

      ANNEX III

         Correlation Table

                  Directive 83/477/EEC

                  This Directive

                  Article 1(1)

                  Article 1(1)

                  Article 1(2)

                  —

                  Article 1(3)

                  Article 1(2)

                  Article 2, first to sixth indents

                  Article 2, points (a) to (f)

                  Article 3(1) to (3)

                  Article 3(1) to (3)

                  Article 3(3a)

                  Article 3(4)

                  Article 3(4)

                  Article 3(5)

                  Article 4, introductory wording

                  Article 4(1)

                  Article 4, point (1)

                  Article 4(2)

                  Article 4, point (2)

                  Article 4(3)

                  Article 4, point (3)

                  Article 4(4)

                  Article 4, point (4)

                  Article 4(5)

                  Article 5

                  Article 5

                  Article 6, points (1) to (5)

                  Article 6, points (a) to (e)

                  Articles 7 and 8

                  Articles 7 and 8

                  Article 9(2)

                  Article 9

                  Article 10

                  Article 10

                  Article 10a

                  Article 11

                  Article 11(1) and (2)

                  Article 12, first and second subparagraphs

                  Article 12(1)

                  Article 13(1)

                  Article 12(2), first subparagraph

                  Article 13(2), first subparagraph

                  Article 12(2), second subparagraph, first indent

                  Article 13(2), second subparagraph, point (a)

                  Article 12(2), second subparagraph, second indent

                  Article 13(2), second subparagraph, point (b)

                  Article 12(2), second subparagraph, third indent

                  Article 13(2), second subparagraph, point (c)

                  Article 12(2), third subparagraph, first indent

                  Article 13(2), third subparagraph, point (a)

                  Article 12(2), third subparagraph, second indent

                  Article 13(2), third subparagraph, point (b)

                  Article 12(2), third subparagraph, third indent

                  Article 13(2), third subparagraph, point (c)

                  Article 12(2), third subparagraph, fourth indent

                  Article 13(2), third subparagraph, point (d)

                  Article 12(2), third subparagraph, fourth indent, first sub-indent

                  Article 13(2), third subparagraph, point (d)(i)

                  Article 12(2), third subparagraph, fourth indent, second sub-indent

                  Article 13(2), third subparagraph, point (d)(ii)

                  Article 12(3)

                  Article 13(3)

                  Article 12a

                  Article 14

                  Article 12b

                  Article 15

                  Article 13(1)(a)

                  Article 16(1)(a)

                  Article 13(1)(b)

                  Article 16(1)(b)

                  Article 13(1)(c)(i) and (ii)

                  Article 16(1)(c)

                  Article 13(1)(c)(iii)

                  Article 16(1)(d)

                  Article 13(1)(c)(iv)

                  Article 16(1)(e)

                  Article 13(1)(c)(v)

                  Article 16(1)(f)

                  Article 13(2)

                  Article 16(2)

                  Article 14(1), introductory wording

                  Article 17(1), introductory wording

                  Article 14(1), first to fifth indents

                  Article 17(1)(a) to (e)

                  Article 14(2)

                  Article 17(2)

                  Article 15, introductory wording

                  Article 18(1)

                  Article 15, points (1) to (4)

                  Article 18(2) to (5)

                  Article 16, introductory wording

                  Article 19(1)

                  Article 16, points (1) to (3)

                  Article 19(2) to (4)

                  Article 16a

                  Article 20

                  Article 17

                  Article 21

                  Article 17a

                  Article 22

                  Article 18(1)

                  —

                  Article 18(2)

                  Article 23

                  —

                  Article 24

                  —

                  Article 25

                  Article 19

                  Article 26

                  Annex II

                  Annex I

                  —

                  Annex II

                  —

                  Annex III


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31997L0005

Directive 97/5/EC of the European Parliament and of the Council of 27 January 1997 on cross-border credit transfers

Official Journal L 043 , 14/02/1997 P. 0025 - 0030

DIRECTIVE 97/5/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 January 1997 on cross-border credit transfersTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,Having regard to the proposal from the Commission (1),Having regard to the opinion of the Economic and Social Committee (2),Having regard to the opinion of the European Monetary Institute,Acting in accordance with the procedure laid down in Article 189b of the Treaty (3) in the light of the joint text approved on 22 November 1996 by the Conciliation Committee,(1) Whereas the volume of cross-border payments is growing steadily as completion of the internal market and progress towards full economic and monetary union lead to greater trade and movement of people within the Community; whereas cross-border credit transfers account for a substantial part of the volume and value of cross-border payments;(2) Whereas it is essential for individuals and businesses, especially small and medium-sized enterprises, to be able to make credit transfers rapidly, reliably and cheaply from one part of the Community to another; whereas, in conformity with the Commission Notice on the application of the EC competition rules to cross-border credit transfers (4), greater competition in the market for cross-border credit transfers should lead to improved services and reduced prices;(3) Whereas this Directive seeks to follow up the progress made towards completion of the internal market, in particular towards liberalization of capital movements, with a view to the implementation of economic and monetary union; whereas its provisions must apply to credit transfers in the currencies of the Member States and in ecus;(4) Whereas the European Parliament, in its resolution of 12 February 1993 (5), called for a Council Directive to lay down rules in the area of transparency and performance of cross-border payments;(5) Whereas the issues covered by this Directive must be dealt with separately from the systemic issues which remain under consideration within the Commission; whereas it may become necessary to make a further proposal to cover these systemic issues, particularly the problem of settlement finality;(6) Whereas the purpose of this Directive is to improve cross-border credit transfer services and thus assist the European Monetary Institute (EMI) in its task of promoting the efficiency of cross-border payments with a view to the preparation of the third stage of economic and monetary union;(7) Whereas, in line with the objectives set out in the second recital, this Directive should apply to any credit transfer of an amount of less than ECU 50 000;(8) Whereas, having regard to the third paragraph of Article 3b of the Treaty, and with a view to ensuring transparency, this Directive lays down the minimum requirements needed to ensure an adequate level of customer information both before and after the execution of a cross-border credit transfer; whereas these requirements include indication of the complaints and redress procedures offered to customers, together with the arrangements for access thereto; whereas this Directive lays down minimum execution requirements, in particular in terms of performance, which institutions offering cross-border credit transfer services should adhere to, including the obligation to execute a cross-border credit transfer in accordance with the customer's instructions; whereas this Directive fulfils the conditions deriving from the principles set out in Commission Recommendation 90/109/EEC of 14 February 1990 on the transparency of banking conditions relating to cross-border financial transactions (6); whereas this Directive is without prejudice to Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering (7);(9) Whereas this Directive should contribute to reducing the maximum time taken to execute a cross-border credit transfer and encourage those institutions which already take a very short time to do so to maintain that practice;(10) Whereas the Commission, in the report it will submit to the European Parliament and the Council within two years of implementation of this Directive, should particularly examine the time-limit to be applied in the absence of a time-limit agreed between the originator and his institution, taking into account both technical developments and the situation existing in each Member State;(11) Whereas there should be an obligation upon institutions to refund in the event of a failure to successfully complete a credit transfer; whereas the obligation to refund imposes a contingent liability on institutions which might, in the absence of any limit, have a prejudicial effect on solvency requirements; whereas that obligation to refund should therefore be applicable up to ECU 12 500;(12) Whereas Article 8 does not affect the general provisions of national law whereby an institution has responsibility towards the originator when a cross-border credit transfer has not been completed because of an error committed by that institution;(13) Whereas it is necessary to distinguish, among the circumstances with which institutions involved in the execution of a cross-border credit transfer may be confronted, including circumstances relating to insolvency, those caused by force majeure; whereas for that purpose the definition of force majeure given in Article 4 (6) of Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (8) should be taken as a basis;(14) Whereas there need to be adequate and effective complaints and redress procedures in the Member States for the settlement of possible disputes between customers and institutions, using existing procedures where appropriate,HAVE ADOPTED THIS DIRECTIVE:SECTION I SCOPE AND DEFINITIONS Article 1 Scope The provisions of this Directive shall apply to cross-border credit transfers in the currencies of the Member States and the ECU up to the equivalent of ECU 50 000 ordered by persons other than those referred to in Article 2 (a), (b) and (c) and executed by credit institutions or other institutions.Article 2 Definitions For the purposes of this Directive:(a) 'credit institution` means an institution as defined in Article 1 of Council Directive 77/780/EEC (9), and includes branches, within the meaning of the third indent of that Article and located in the Community, of credit institutions which have their head offices outside the Community and which by way of business execute cross-border credit transfers;(b) 'other institution` means any natural or legal person, other than a credit institution, that by way of business executes cross-border credit transfers;(c) 'financial institution` means an institution as defined in Article 4 (1) of Council Regulation (EC) No 3604/93 of 13 December 1993 specifying definitions for the application of the prohibition of privileged access referred to in Article 104a of the Treaty (10);(d) 'institution` means a credit institution or other institution; for the purposes of Articles 6, 7 and 8, branches of one credit institution situated in different Member States which participate in the execution of a cross-border credit transfer shall be regarded as separate institutions;(e) 'intermediary institution` means an institution which is neither that of the originator nor that of the beneficiary and which participates in the execution of a cross-border credit transfer;(f) 'cross-border credit transfer` means a transaction carried out on the initiative of an originator via an institution or its branch in one Member State, with a view to making available an amount of money to a beneficiary at an institution or its branch in another Member State; the originator and the beneficiary may be one and the same person;(g) 'cross-border credit transfer order` means an unconditional instruction in any form, given directly by an originator to an institution to execute a cross-border credit transfer;(h) 'originator` means a natural or legal person that orders the making of a cross-border credit transfer to a beneficiary;(i) 'beneficiary` means the final recipient of a cross-border credit transfer for whom the corresponding funds are made available in an account to which he has access;(j) 'customer` means the originator or the beneficiary, as the context may require;(k) 'reference interest rate` means an interest rate representing compensation and established in accordance with the rules laid down by the Member State in which the establishment which must pay the compensation to the customer is situated;(l) 'date of acceptance` means the date of fulfilment of all the conditions required by the institution as to the execution of the cross-border credit transfer order and relating to the availability of adequate financial cover and the information required to execute that order.SECTION II TRANSPARENCY OF CONDITIONS FOR CROSS-BORDER CREDIT TRANSFERS Article 3 Prior information on conditions for cross-border credit transfers The institutions shall make available to their actual and prospective customers in writing, including where appropriate by electronic means, and in a readily comprehensible form, information on conditions for cross-border credit transfers. This information shall include at least:- indication of the time needed, when a cross-border credit transfer order given to the institution is executed, for the funds to be credited to the account of the beneficiary's institution; the start of that period must be clearly indicated,- indication of the time needed, upon receipt of a cross-border credit transfer, for the funds credited to the account of the institution to be credited to the beneficiary's account,- the manner of calculation of any commission fees and charges payable by the customer to the institution, including where appropriate the rates,- the value date, if any, applied by the institution,- details of the complaint and redress procedures available to the customer and arrangements for access to them,- indication of the reference exchange rates used.Article 4 Information subsequent to a cross-border credit transfer The institutions shall supply their customers, unless the latter expressly forgo this, subsequent to the execution or receipt of a cross-border credit transfer, with clear information in writing, including where appropriate by electronic means, and in a readily comprehensible form. This information shall include at least:- a reference enabling the customer to identify the cross-border credit transfer,- the original amount of the cross-border credit transfer,- the amount of all charges and commission fees payable by the customer,- the value date, if any, applied by the institution.Where the originator has specified that the charges for the cross-border credit transfer are to be wholly or partly borne by the beneficiary, the latter shall be informed thereof by his own institution.Where any amount has been converted, the institution which converted it shall inform its customer of the exchange rate used.SECTION III MINIMUM OBLIGATIONS OF INSTITUTIONS IN RESPECT OF CROSS-BORDER CREDIT TRANSFERS Article 5 Specific undertakings by the institution Unless it does not wish to do business with that customer, an institution must at a customer's request, for a cross-border credit transfer with stated specifications, give an undertaking concerning the time needed for execution of the transfer and the commission fees and charges payable, apart from those relating to the exchange rate used.Article 6 Obligations regarding time taken 1. The originator's institution shall execute the cross-border credit transfer in question within the time limit agreed with the originator.Where the agreed time limit in not complied with or, in the absence of any such time limit, where, at the end of the fifth banking business day following the date of acceptance of the cross-border credit transfer order, the funds have not been credited to the the account of the beneficiary's institution, the originator's institution shall compensate the originator.Compensation shall comprise the payment of interest calculated by applying the reference rate of interest to the amount of the cross-border credit transfer for the period from:- the end of the agreed time limit or, in the absence of any such time limit, the end of the fifth banking business day following the date of acceptance of the cross-border credit transfer order, to- the date on which the funds are credited to the account of the beneficiary's institution.Similarly, where non-execution of the cross-border credit transfer within the time limit agreed or, in the absence of any such time limit, before the end of the fifth banking business day following the date of acceptance of the cross-border credit transfer is attributable to an intermediary institution, that institution shall be required to compensate the originator's institution.2. The beneficiary's institution shall make the funds resulting from the cross-border credit transfer available to the beneficiary within the time limit agreed with the beneficiary.Where the agreed time limit is not complied with or, in the absence of any such time limit, where, at the end of the banking business day following the day on which the funds were credited to the account of the beneficiary's institution, the funds have not been credited to the beneficiary's account, the beneficiary's institution shall compensate the beneficiary.Compensation shall comprise the payment of interest calculated by applying the reference rate of interest to the amount of the cross-border credit transfer for the period from:- the end of the agreed time limit or, in the absence of any such time limit, the end of the banking business day following the day on which the funds were credited to the account of the beneficiary's institution, to- the date on which the funds are credited to the beneficiary's account.3. No compensation shall be payable pursuant to paragraphs 1 and 2 where the originator's institution or, as the case may be, the beneficiary's institution can establish that the delay is attributable to the originator or, as the case may be, the beneficiary.4. Paragraphs 1, 2 and 3 shall be entirely without prejudice to the other rights of customers and institutions that have participated in the execution of a cross-border credit transfer order.Article 7 Obligation to execute the cross-border transfer in accordance with instructions 1. The originator's institution, any intermediary institution and the beneficiary's institution, after the date of acceptance of the cross-border credit transfer order, shall each be obliged to execute that credit transfer for the full amount thereof unless the originator has specified that the costs of the cross-border credit transfer are to be borne wholly or partly by the beneficiary.The first subparagraph shall be without prejudice to the possibility of the beneficiary's institution levying a charge on the beneficiary relating to the administration of his account, in accordance with the relevant rules and customs. However, such a charge may not be used by the institution to avoid the obligations imposed by the said subparagraph.2. Without prejudice to any other claim which may be made, where the originator's institution or an intermediary institution has made a deduction from the amount of the cross-border credit transfer in breach of paragraph 1, the originator's institution shall, at the originator's request, credit, free of all deductions and at its own cost, the amount deducted to the beneficiary unless the originator requests that the amount be credited to him.Any intermediary institution which has made a deduction in breach of paragraph 1 shall credit the amount deducted, free of all deductions and at its own cost, to the originator's institution or, if the originator's institution so requests, to the beneficiary of the cross-border credit transfer.3. Where a breach of the duty to execute the cross-border credit transfer order in accordance with the originator's instructions has been caused by the beneficiary's institution, and without prejudice to any other claim which may be made, the beneficiary's institution shall be liable to credit to the beneficiary, at its own cost, any sum wrongly deducted.Article 8 Obligation upon institutions to refund in the event of non-execution of transfers 1. If, after a cross-border credit transfer order has been accepted by the originator's institution, the relevant amounts are not credited to the account of the beneficiary's institution, and without prejudice to any other claim which may be made, the originator's institution shall credit the originator, up to ECU 12 500, with the amount of the cross-border credit transfer plus:- interest calculated by applying the reference interest rate to the amount of the cross-border credit transfer for the period between the date of the cross-border credit transfer order and the date of the credit, and- the charges relating to the cross-border credit transfer paid by the originator.These amounts shall be made available to the originator within fourteen banking business days following the date of his request, unless the funds corresponding to the cross-border credit transfer have in the meantime been credited to the account of the beneficiary's institution.Such a request may not be made before expiry of the time limit agreed between the originator's institution and the originator for the execution of the cross-border credit transfer order or, in the absence of any such time limit, before expiry of the time limit laid down in the second subparagraph of Article 6 (1).Similarly, each intermediary institution which has accepted the cross-border credit transfer order owes an obligation to refund at its own cost the amount of the credit transfer, including the related costs and interest, to the institution which instructed it to carry out the order. If the cross-border credit transfer was not completed because of errors or omissions in the instructions given by that institution, the intermediary institution shall endeavour as far as possible to refund the amount of the transfer.2. By way of derogation from paragraph 1, if the cross-border credit transfer was not completed because of its non-execution by an intermediary institution chosen by the beneficiary's institution, the latter institution shall be obliged to make the funds available to the beneficiary up to ECU 12 500.3. By way of derogation from paragraph 1, if the cross-border credit transfer was not completed because of an error or omission in the instructions given by the originator to his institution or because of non-execution of the cross-border credit transfer by an intermediary institution expressly chosen by the originator, the originator's institution and the other institutions involved shall endeavour as fas as possible to refund the amount of the transfer.Where the amount has been recovered by the originator's institution, it shall be obliged to credit it to the originator. The institutions, including the originator's institution, are not obliged in this case to refund the charges and interest accruing, and can deduct the costs arising from the recovery if specified.Article 9 Situation of force majeure Without prejudice to the provisions of Directive 91/308/EEC, institutions participating in the execution of a cross-border credit transfer order shall be released from the obligations laid down in this Directive where they can adduce reasons of force majeure, namely abnormal and unforeseeable circumstances beyond the control of the person pleading force majeure, the consequences of which would have been unavoidable despite all efforts to the contrary, which are relevant to its provisions.Article 10 Settlement of disputes Member States shall ensure that there are adequate and effective complaints and redress procedures for the settlement of disputes between an originator and his institution or between a beneficiary and his institution, using existing procedures where appropriate.SECTION IV FINAL PROVISIONS Article 11 Implementation 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 14 August 1999 at the latest. They shall forthwith inform the Commission thereof.When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.2. Member States shall communicate to the Commission the text of the main laws, regulations or administrative provisions which they adopt in the field governed by this Directive.Article 12 Report to the European Parliament and the Council No later than two years after the date of implementation of this Directive, the Commission shall submit a report to the European Parliament and the Council on the application of this Directive, accompanied where appropriate by proposals for its revision.This report shall, in the light of the situation existing in each Member State and of the technical developments that have taken place, deal particularly with the question of the time limit set in Article 6 (1).Article 13 Entry into force This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.Article 14 Addressees This Directive is addressed to the Member States.Done at Brussels, 27 January 1997.For the European ParliamentThe PresidentJ. M. GIL-ROBLESFor the CouncilThe PresidentG. ZALM(1) OJ No C 360, 17. 12. 1994, p. 13, and OJ No C 199, 3. 8. 1995, p. 16.(2) OJ No C 236, 11. 9. 1995, p. 1.(3) Opinion of the European Parliament of 19 May 1995 (OJ No C 151, 19. 6. 1995, p. 370), Council common position of 4 December 1995 (OJ No C 353, 30. 12. 1995, p. 52) and Decision of the European Parliament of 13 March 1996 (OJ No C 96, 1. 4. 1996, p. 74). Decision of the Council of 19 December 1996 and Decision of the European Parliament of 16 January 1997.(4) OJ No C 251, 27. 9. 1995, p. 3.(5) OJ No C 72, 15. 3. 1993, p. 158.(6) OJ No L 67, 15. 3. 1990, p. 39.(7) OJ No L 166, 28. 6. 1991, p. 77.(8) OJ No L 158, 23. 6. 1990, p. 59.(9) OJ No L 322, 17. 12. 1977, p. 30. Directive as last amended by Directive 95/26/EC (OJ No L 168, 18. 7. 1995, p. 7).(10) OJ No L 332, 31. 12. 1993, p. 4.JOINT STATEMENT - BY THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION The European Parliament, the Council and the Commission note the determination of the Member States to implement the laws, regulations and administrative provisions required to comply with this Directive by 1 January 1999.