An employer can be sued in the Netherlands in case an employee has been exposed to asbestos in his working environment. Dutch Class Actions against employers have been enabled by recent legislation.
Asbestos claims and class actions
Dutch Law Firms are up for a new challenge. Dutch Courts have expanded the scope of employer liability with regards to asbestos lawsuits. Employer liability may therefor rise in the Netherlands for the exposure of employees to asbestos, chemicals or diesel fume. My law firm provides risk advisory services to manage risk and regulatory compliance requirements.
Old buildings and asbestos
Asbestos can still be found in a number of workplaces and several professions in particular have a greater likelihood of exposure. Especially old (office) building and ships very also contain dangerous asbestos. Old office buildings may nor example hold asbestos in roofing, floor tiles, fireproofing material, and pipe or boiler insulation. Contractors should take special care when employees work in old constructions.
Asbestos Legislation and products
Lawyers need to check the relevant legal definition of asbestos, I refer to European Regulation (EC) No 1907/2006 (as amended) and Directive No 2009/148/EC, which define asbestos (for the purposes of the respective Regulation and Directive), as the fibrous silicates, such as Actinolite, CAS No 77536-66-4; Asbestos grunerite (amosite) CAS No 12172-73-5; Anthophyllite, CAS No 77536-67-5; Chrysotile, CAS No 12001-29-5; Crocidolite, CAS No 12001-28-4 and Tremolite, CAS No 77536-68-6. Under art. 4.37(a) of the Dutch Working Conditions Decree and art. 1(b) of the Product (Asbestos) Decree, asbestos is defined in a similar way.
For manufacturers it is prudent and proper risk management to issue conformity statements also contain representations regarding your products compliance with regulations surrounding asbestos content or chemical substance, even if not obliged by law.
Netherlands Regulation on Asbestos
In the Netherlands, a legal definition of asbestos mirroring the definition under the Regulation and Directive is to be found in the implementing legislation of the aforementioned Directives No 1999/77/EC and 2009/148/EC, the Product (Asbestos) Decree of 17 December 2004 and the Netherlands Working Conditions Decree respectively. The Dutch Legislation on asbestos is spread out is several statutes. Feel free to consult me or one of our asbestos lawyers in our law firm if you have any questions.
Working Conditions and Asbestos Fibres
OK, still there? Products containing asbestos (asbesthoudende producten) are defined as “products containing one of the aforementioned fibrous silicates” (art. 4.37(b) of the Working Conditions Decree). Asbestos fibres (asbestvezels) are defined (for the purposes of the Working Conditions Decree) as asbestos particles longer than 5 micrometres, less than 3 micrometres wide and with a length to width ratio of more than 3:1 (art. 4.37(c) of the Working Conditions Decree). The Product (Asbestos) Decree further distinguishes between “serpentine asbestos” (chrysotile) and “amphibole asbestos): actinolite, amosite, anthophylliet. Please call for anny liability issues under Dutch Law you may encounter.
European ban on Asbestos
In the European Union there is a complete ban on asbestos. This ban has been implemented by a succession of European directives dating back to 1983. Directive 83/478/EEC implemented a ban on marketing and use of asbestos fibres; crocidolite, chrysotile, amosite, anthophyllite, actinolite and tremolite, and products containing these substances (subject to certain exceptions for products containing crocidolite) by adding them to the list of “substances and preparations” banned from being placed on the market or used pursuant to Directive 76/769/EEC.
Asbestos Laws in EU Member States
The European rules regarding asbestos are contained in directives which have to be implemented by the Member States in their national legislation. This means that different rules may apply in different Member States. The initial partial ban was extended by successive directives, including Directive 1999/77/EC, which removed the exceptions for crocidolite with effect from 1 January 2005. Directive 76/769/EEC was replaced by Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing the European Chemicals Agency (the “Regulation”). The Regulation only applies to products “containing these fibres added intentionally”.