LEAD-UP TO A LEGISLATIVE PROPOSAL ON SCREENING AND REGISTRATION OF ASBESTOS IN BUILDINGS

Publication date:December 19, 2022

CONTEXT

There has been EU legal protection of workers from exposure to asbestos since 1983 and an EU ban on construction with asbestos since 2005, but, according to the Commission, the problem doesn’t stop there. 85% of the EU building stock predates 2005 and not just workers, but also inhabitants and even neighbours can be at risk when friable asbestos-containing materials are disturbed.

That’s why, for example, Flanders has legislated to have asbestos-free buildings and infrastructure by 2040, and France, the Netherlands and Poland  have ambitious plans for asbestos identification and removal.

That’s also why last year the European Parliament adopted a Resolution calling on the Commission to present a European strategy for the removal of all asbestos including mandatory screening.

The Commission is still at the conception and consultation stage, but it looks likely that in the second quarter of 2023 it will try to add to the existing EU legal obligation to assess the presence of asbestos before works commence by:

  • tabling a proposal for a Directive on the screening and registration of asbestos in buildings upon sale or rental or some other pivotal point in the building life-cycle and requiring member states to set up national strategies for asbestos removal
  • proposing some kind of regulatory approach for an EU model for digital building logbooks either just for asbestos or including it with broader information.

In November, EPF met with the Head of the Commission Unit in charge (Construction) and followed up with the following letter of 15 December:

 

Ms Katharina Klapton-Vierlich                                   
Head of Construction
DG GROW                                                                     
European Commission                                                                                          By e-mail
cc: Messrs Pablo Gutiérrez Velayos and Roman Horvath

Brussels, 15 December 2022

Dear Ms Klapton-Vierlich,

Legal base for EU legislation on building asbestos screening and registration and scope of the Impact Assessment

Once again, many thanks for your and Messrs Gutiérrez and Horvath’s time last month.

Having now consulted internally, I would like to discuss the legal base for this initiative and draw your attention to matters we believe should be covered by the impact assessment (IA).

LEGAL BASE (all article references are to the TFEU)

It is clear from Parliament’s Resolution, the relevant parts of the Asbestos Communication, the Call for Evidence for an IA and the public consultation that the overriding objective is to safeguard public health going beyond workers to owners and tenants of buildings and neighbours.

That excludes Article 153(2)(b) as it is restricted to health and safety at work.

Article 168 on public health would prima facie be the logical base:

1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.

Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.

The second paragraph doesn’t seem to work because although its first sentence fits the bill very well, and the second sentence includes “monitoring”, which can cover screening and even registration, the monitoring is placed in the context of “monitoring, early warning of and combating serious cross-border threats to health.

We see no cross-border aspect to asbestos exposure.

Article 191 on environmental protection includes “protecting human health” as one of its objectives. Your Legal Service will know better than us whether it is possible to have an environmental directive regulating exclusively or even predominantly health protection.

Articles 26 and 114 concern Internal Market legislation. It is noteworthy that the Commission’s public consultation contains no less than four sub-questions, four slight variations on the same Internal Market theme:

Under the question “Which benefits would you see in EU harmonised conditions for the screening, registration and ultimate removal/encapsulation of asbestos in buildings?” four of the five options are:

  • Owners of buildings are subject to similar conditions, facilitating the single market
  • Citizens and economic operators have similar information about protection from asbestos across the EU, facilitating free movement
  • All buildings will be asbestos-free over time, creating equal conditions for economic operators and people
  • Member States will have the same conditions and standards, contributing to harmonising the real estate market

Concerning the two middle options, we have considerable doubts about the extent to which the decisions of citizens and economic operators could be influenced in any significant way by the possibility of greater asbestos exposure in the host country, but we shall concentrate on the first and fourth options, closer to our experience:

It is under no circumstances the role of the EU and its executive arm to “harmonise the real estate market”. Real estate epitomises local variation. Real estate markets are subnational.

In the context of the Internal Market, real estate is essentially a question of free movement of capital. The role of the EU is to ensure that that citizens and economic operators can invest in land and buildings without obstacle. In thirty years, cross-border real estate investment has gone from nothing to being one of the single most important capital flows. However, the vast majority of that is property companies investing in all kinds of high-grade real estate and citizens buying secondary residences.

The vast majority of the property company investment is done by large corporations seeking mostly Grade A real estate which is usually health and sustainability high-performing, often certified as such (BREEAM, LEED, etc.). In those acquisitions, investors always perform environmental due diligence that includes asbestos assessment. As for the secondary residences, without being expert, we doubt that these are a significant source of remaining asbestos.

Bottom line: Despite the increase in cross-border real estate investment flows, the crushing majority of the residential and even commercial building stock – be it asbestos-relevant or not – is nationally, locally, owned and managed, renovated, bought and sold.

Article 169(1) on consumer protection states that protecting the health of consumers is part of consumer protection. But to the extent that paragraph 2(a) allows legislation, it is, again, in the context of the completion of the Internal Market for which we refer again to the remarks above.

Article 169(2)(b) enables “measures which support, supplement and monitor the policy pursued by the Member States”. That might be your best shot:

It is clear from:

  • the Parliamentary Resolution (not the misleading main title but the title of Annex I “A European framework directive for national asbestos removal strategies”);
  • the Communication (“working toward an asbestos-free future”);
  • and the Call for Evidence for an AI (“the [EP] resolution calls on the Commission to present a European strategy for the removal of all asbestos”);

that the overarching objective is total removal. We don’t see what Treaty article would enable the EU to develop a total removal policy ex nihilo, but if each – or even some? – of the 27 has/have such a policy then the EU could “support, supplement and monitor” it via Article 169(2)(b).

We are not competent to judge the extent to which a provision like Article 169(2)(b) enables the use of a framework directive. Perhaps the solution would be an instrument outlining/templating a ‘National asbestos removal plan’ along the lines of the recast EPBD proposal’s ‘National building renovation plan’ article. That would have the advantage of going a long way with less risk of raising conferral and subsidiarity issues. 

MATTERS THAT THE IMPACT ASSESSMENT SHOULD COVER

The scope of the screening and the technical capacity to carry it out

Without pronouncing on the form of the legal instrument and the division of competence between the Union and the member states, we believe there has to be a comprehensive approach along the lines of the European Parliament’s call on the Commission to:

“present a proposal for a framework directive for Member States to set up national asbestos removal plans that include clear and realistic timelines, including priorities and interim targets, detection and registration of asbestos, financing and support to homeowners and SMEs, protection measures for workers against the risk of asbestos exposure in accordance with Directive 2009/148/EC as well as the safe disposal of asbestos in order to prevent asbestos from entering into recycling processes;” (Resolution of 20 October 2021, par. 18)

The merit of that paragraph is its comprehensive coherence. Asbestos screening and registration must go hand-in-hand with:

“a timeline for asbestos removal, including prioritising certain buildings - such as schools, healthcare facilities, sport centres or social housing … (EP Resolution Annex I, par. 2)

Screening and registration should be in sync with that. If they are not, not only will the cost element be a real problem, but it will increase the risk of bottlenecks in the provision of screening services by qualified technicians.

The IA must cover this thoroughly, giving a clear picture of the existing pool of screening experts. The real estate sector had unfortunate experience of energy performance certificate bottlenecks leading to shoddy, near-worthless EPCs in many countries for many years. At the time of the gestation of the original Directive (2000-2001) there were no IAs.

To do this, the consultants must first get a handle on what ‘screening’ consists of:

Among Parliament’s minimum criteria for national digital asbestos registries there are:

(d) the specific location of harmful substances and the parts of the building that have been screened for asbestos;

(e)  an indication of where work will be or has been performed (inside/outside) as well as the part of the building (floors, walls, ceilings, roofs) or infrastructure;

(f)  the type of material (asbestos cement, insulation, putty etc.) and an estimated proportion of those types of material;

(g)  the kind of works that need to be conducted and an indication of work methods that may disturb asbestos containing materials (drilling, cutting etc.) and the expected duration of the works;

(h)  a timeline for removal and a management plan;

EP Resolution, Annex I, A(4)

The IA needs to:

  • establish what the screening consists of;
  • calculate how much time it takes to perform all of its components;
  • and gauge the number of technicians capable of carrying this out.

At that point, the IA consultants should be able to envisage a timeline for selective screening and registration.

Cost and payment

a financial framework, based on the use of ESI funds, for the support of building owners … (EP Resolution Annex I, par. 3)

European Structural and Investment Funds will never cover more than a fraction of the cost. This means that member states must retain total freedom to decide what sectors of society or the state are to pay for the screening.

It was surprising to see questions about who should pay in the public consultation. Deciding who pays is not EU competence. The EPBD steers clear of that for both EPC and renovation costs.

But that is not a reason for the IA not to gauge the costs. On the contrary, it is important for member states, Parliament and stakeholders to have a clear idea of this at the outset of the legislative process. The IA has a particularly important function here and it is cost- and time-effective to do it in conjunction with ascertaining the scope of the screening.

Articulation with the recast EPBD, especially its provision on rapid rooftop solar energy installation and the obligation on permitting authorities to make their decisions within three months

It would suboptimal if an asbestos directive slowed this down, for instance if an asbestos screening report had to be submitted to the permitting authority along with the request for rooftop solar energy installation. The IA should consider this.

The EU digital building logbook

Optimal streamlining dictates that in the event that the same IA covers both the legal instrument for screening and the “regulatory approach for a model for an EU digital building logbook”, or if there is a separate IA, the consultants should consider how this is to articulate with the EPC, the renovation passport* and European Construction Observatory’s databases for buildings.
* According to EPBD recast Proposal Art. 10(3)(c), the renovation passport “… shall indicate … wider benefits related to health and comfort”.

We remain at your disposal.

With kind regards,

Michael MacBrien
Director General
EUROPEAN PROPERTY FEDERATION