ACTIVITIES CONCERNING THE PROFESSIONAL USE OF TOXIC PRODUCTS RULES

SUBSIDIARY LEGISLATION 430.06

ACTIVITIES CONCERNING THE

PROFESSIONAL USE OF TOXIC PRODUCTS

RULES

28th October, 2005

LEGAL NOTICE 350 of 2005.

(1) The title of these rules is the Activities concerning the

Professional Use of Toxic Products Rules.

(2) The scope of these rules is to implement the rules found

under European Union Council Directive 74/556EEC, hereinafter

referred to as "the Directive".

(1) Malta shall adopt the transitional measures defined in

the Directive in respect of establishment or provision of services in

its territory by natural persons and companies or firms covered by

Ti t l e I o f t h e G e n e r a l P r o g r a m m e s , h e r e i n a f t e r c a l l e d

"beneficiaries" wishing to pursue the activities referred to in sub-

rule (2).

(2) The activities referred to are those covered by Council

Directive No 74/557/EEC of the 4th June 1974 on the attainment of

freedom of establishment and freedom to provide services in

respect of activities of self-employed persons and of intermediaries

engaging in the trade and distribution of toxic products.

The Directive also covers activities involving the

professional use of toxic products in so far as such activities have

been or will be liberalized by the following Directives

(a) Council Directive No 65/1/EEC of 14th December

1964 laying down detailed provisions for the

attainment of freedom to provide services in

agriculture and horticulture;

(b) Council Directive No 667/654/EEC of the 24th

October, 1967 laying down detailed provisions for the

attainment of freedom of establishment and freedom to

provide services in respect of activities of self-

employed persons in forestry and logging;

(c) Council Directive No 71/18/EEC of the 16th

December, 1970 laying down detailed provisions for

the attainment of freedom of establishment in respect

of self-employed persons providing agricultural and

horticultural services;

(d) Council Directive No 74/.../EEC of ... concerning the

attainment of freedom of establishment and the

freedom to provide services in respect of various

activities of self-employed persons (ex ISIC Major

Group 01 to Major Group 85) as regards the activities

covered by that Directive which fall within ISIC

Group 859 and entail the use of toxic products.

(3) The transitional measures shall also apply to persons

pursuing as paid employees the activities referred to in sub-rule (2),

as shall Article 7(1) to (4) of Council Directive No 74/557/EEC.

Where, in Malta, the taking up or pursuit of any activity

referred to in rule 2(2)(a) is dependent on the possession of

general, commercial or professional knowledge and ability, it shall

accept as sufficient evidence of such knowledge and ability the fact

that the activity in question has been pursued in another Member

State for any of the following periods

(a) five consecutive years in an independent capacity or in

a managerial capacity, such activity not having ceased

more than two years before the date when the

application referred to in rule 5(2) is made;

(b) two consecutive years in an independent capacity or in

a managerial capacity where the beneficiary possesses

a certificate of ability and competence for the activity

in question authorizing him to pursue the activities of

trade in or distribution of toxic products in the

Member State of origin or the Member State whence

he comes;

(c) three consecutive years in an independent capacity or

in a managerial capacity where the beneficiary proves

that for the activity in question he has received

previous training attested by a certificate recognized

by the State or regarded by the competent professional

or trade body as fully satisfying its requirements;

(d) three consecutive years in a non-independent capacity

where the beneficiary possesses a certificate of ability

and competence for the activity in question

authorizing him to pursue the activities of trade in or

distribution of toxic products in the Member State of

origin or the Member State whence he comes;

(e) four consecutive years in a non-independent capacity

where the beneficiary proves that for the activity in

question he has received previous training, attested by

a certificate recognized by the State or regarded by the

competent professional or trade body as fully

satisfying its requirements.

This rule only relates to trade in or distribution of packaged

toxic products intended for delivery to the final user in their

original packaging.

(1) Where, in Malta, the taking up or pursuit of any

activity referred to in rule 2(2)(b) is dependent on the possession of

general, commercial, or professional knowledge and ability, that

M e m b e r St a t e s h a l l a c c e p t a s s u ff i c i e n t e v i d e n c e o f s u c h

knowledge and ability the fact that the activity in question has been

pursued in another Member State for any of the following periods

(a) six consecutive years in an independent capacity or in

a managerial capacity such activity not having ceased

more than two years before the date when the

application referred to in rule 5(2) is made;

(b) three consecutive years in an independent capacity or

in a managerial capacity where the beneficiary

possesses a certificate of ability and competence for

the activity in question authorizing him to pursue

activities entailing the professional use of toxic

products in the Member State of origin or the Member

State whence he comes;

(c) four consecutive years in an independent capacity or in

a managerial capacity where the beneficiary proves

that for the activity in question he has received

previous training, attested by a certificate recognized

by the State or regarded by the competent professional

or trade body as fully satisfying its requirements;

(d) four consecutive years in a non-independent capacity

where the beneficiary possesses a certificate of ability

and competence for the activity in question

authorizing him to pursue activities entailing the

professional use of toxic products in the Member State

of origin or the Member State whence he comes;

(e) five consecutive years in a non-independent capacity

where the beneficiary proves that for the activity in

question he has received previous training, attested by

a certificate recognized by the State or regarded by the

competent professional or trade body as fully

satisfying its requirements.

(2) The provisions in sub-rule (1)(a), (c) and (e) are not

applicable to activities entailing the professional use of certain

highly toxic products given below

(a) Hydrocyanic acid and its soluble salts,

(b) Hydrofluoric acid and its soluble salts,

(c) Acrylonitrile,

(d) Liquid compressed ammonium,

(e) Methyl bromide,

(f)

Chloropicrin,

(g) Hydrogen phosphide and products liable to liberate it,

(h) Ethylene oxide,

(i)

Carbon disulphide,

(j)

Carbon tetrachloride,

(k) Trichloroacetronitrile.

For the purpose of applying the provisions in paragraphs (b)

and (d) to these highly toxic products, the certificate of ability and

competence must state the product or products which the

beneficiary is authorized to use in the Member State of origin or the

Member State whence he comes.

In this case, the beneficiary’s activity shall not have ceased

more than two years before the date when the application referred

to in rule 5(2) is made.

(1) A person shall be regarded as having pursued an

activity in a managerial capacity within the meaning of rules 2 and

3 if he has pursued such an activity in an industrial or commercial

undertaking in the occupational field in question

(a) as manager of an undertaking or manager of a branch

of an undertaking; or

(b) as deputy to the proprietor or to the manager of an

undertaking, where such post involves responsibility

equivalent to that of the proprietor or manager

represented; or

(c) in a managerial post with duties relating to trade in or

distribution of toxic products and with responsibility

for at least one department of the undertaking, or in a

managerial post with responsibility for the use of the

said products.

(2) Proof that the conditions laid down in rules 2 and 3 are

satisfied shall be established by an attestation issued by the

competent authority or body in the Member State of origin or

Member State whence the person concerned comes, which the latter

shall submit in support of his application for authorization to

pursue the activity or activities in question in the host Member

States. Such attestation shall state, where appropriate, whether, in

the Member State of origin or Member State whence the person

concerned comes, authorization is limited to the taking up of

activities relating to the distribution of toxic products or to

activities entailing the professional use of such products, or

whether certain toxic products are excluded from these latter

activities.

(3) Malta shall designate the authorities and bodies competent

to issue the certificates referred to in sub-rule (2) and shall

forthwith inform the other Member States and the European

Commission thereof.

Where, in the Member State of origin or the Member State

whence the person concerned comes, the formal qualifications laid

down in rules 3 and 4 or the attestations laid down in rule 5(2)

authorize only the taking up of activities relating to the distribution

of toxic products or of activities entailing the professional use of

such products, or exclude certain toxic products from these latter

activities, the host Member State may apply the same limitations in

its territory and also exclude from activities entailing the

professional use of toxic products consisting of the same active

material as products excluded by formal qualifications and

attestations or involving similar risks for human, animal and plant

health either directly or indirectly through the environment.