Procedure : 2011/0356(COD)
Document stages in plenary
Document selected : A7-0255/2012

Texts tabled :

A7-0255/2012

Debates :

PV 04/02/2014 - 22
CRE 04/02/2014 - 22

Votes :

PV 05/02/2014 - 9.15
CRE 05/02/2014 - 9.15
Explanations of votes
Explanations of votes

Texts adopted :

P7_TA(2014)0084

REPORT     ***I
PDF 444kWORD 334k
25.7.2012
PE 488.067v02-00 A7-0255/2012

on the proposal for a directive of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres (recast)

(COM(2011)0772 – C7‑0426/2011 – 2011/0356(COD))

Committee on the Internal Market and Consumer Protection

Rapporteur: Zuzana Roithová

(Recast – Rule 87 of the Rules of Procedure)

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 ANNEX: LETTER FROM THE COMMITTEE ON LEGAL AFFAIRS
 ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres (recast)

(COM(2011)0772 – C7‑0426/2011 – 2011/0356(COD))

(Ordinary legislative procedure – recast)

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2011)0772),

–   having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0422/2011),

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the opinion of the European Economic and Social Committee of 28 March 2012(1),

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(2),

–   having regard to the letter of 27 March 2012 from the Committee on Legal Affairs to the Committee on the Internal Market and Consumer Protection in accordance with Rule 87(3) of its Rules of Procedure,

–   having regard to Rules 87 and 55 of its Rules of Procedure,

–   having regard to the report of the Committee on the Internal Market and Consumer Protection (A7-0255/2012),

A. whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1.  Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment  1

Proposal for a directive

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a) All obligations imposed on economic operators by this Directive should also apply in the case of distance selling.

Amendment  2

Proposal for a directive

Recital 20 a (new)

Text proposed by the Commission

Amendment

 

(20a) When issuing a single EU declaration of conformity could cause specific problems due to the complexity or scope of that single EU declaration, it should be possible to replace that single EU declaration by individual EU declarations of conformity relevant for the particular product.

Amendment  3

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37) It is necessary to provide for transitional arrangements that allow making available on the market and putting into service of products that have already been placed on the market in accordance with Directive 94/9/EC.

(37) It is necessary to provide for transitional arrangements that allow economic operators a reasonable period of time to make available on the market and put into service products that have already been placed on the market in accordance with Directive 94/9/EC. Economic operators should be able to sell stocks of equipment and protective system intended for use in potentially explosive atmospheres that are already in the distribution chain on the date of application of national measures transposing this Directive.

Amendment  4

Proposal for a directive

Article 2 – paragraph 1 – point 17

Text proposed by the Commission

Amendment

(17) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by a product, process or service;

(17) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by a product or process;

Amendment  5

Proposal for a directive

Article 2 – point 18

Text proposed by the Commission

Amendment

(18) ‘harmonised standard’ means harmonised standard as defined in Article 2(1)(c) of Regulation (EU) No [../..] [on European Standardisation];

(18) ‘harmonised standard’ means standard as defined in Article 2(1)(c) of Regulation (EU) No [../..] [on European Standardisation];

Amendment  6

Proposal for a directive

Article 2 – paragraph 1 – point 21

Text proposed by the Commission

Amendment

(21) ‘conformity assessment’ means the process demonstrating whether the essential health and safety requirements relating to a product, process, service or system have been fulfilled;

(21) ‘conformity assessment’ means the process demonstrating whether the essential health and safety requirements relating to a product, process or system have been fulfilled;

Amendment  7

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall take all appropriate measures to ensure that products may be made available on the market and put into service only if, when properly installed and maintained and used in accordance with their intended purpose, they comply with this Directive.

1. Member States shall take all appropriate measures to ensure that products may be made available on the market and put into service only if, when properly installed and maintained and used in accordance with their intended purpose or for a purpose that can be reasonably foreseen, they comply with this Directive.

Amendment  8

Proposal for a directive

Article 6 – paragraph 6

Text proposed by the Commission

Amendment

6. Manufacturers shall indicate their name and the address at which they can be contacted on the product or, where that is not possible, on its packaging or in a document accompanying the product. The address must indicate a single point at which the manufacturer can be contacted.

6. Manufacturers shall indicate, on the product, their name, registered trade name or registered trade mark, and the postal or, if available, the website address at which they can be contacted or, where that is not reasonably possible, those details shall be provided on the packaging or in a document accompanying the product. The address must indicate a single point at which the manufacturer can be contacted. The contact details shall be in a language easily understood by end-users and by market surveillance authorities.

Amendment  9

Proposal for a directive

Article 6 – paragraph 7

Text proposed by the Commission

Amendment

7. Manufacturers shall ensure that the product is accompanied by instructions and safety information in a language which can be easily understood by end-users, as determined by the Member State concerned.

7. Manufacturers shall ensure that the product is accompanied by instructions and safety information in a language which can be easily understood by end-users, as determined by the Member State concerned. Such instructions and safety information as well as any labelling shall be clear, understandable and intelligible.

Amendment  10

Proposal for a directive

Article 8 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

2. Before placing a product on the market importers shall ensure that the appropriate conformity assessment procedure has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation, that the product bears the CE marking and the specific marking of explosion protection and is accompanied by the required documents, and that the manufacturer has complied with the requirements set out in Article 6(5) and (6).

2. Before placing a product on the market or putting it into service, importers shall ensure that the appropriate conformity assessment procedure has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation, that the product bears the CE marking and the specific marking of explosion protection and is accompanied by the required documents, and that the manufacturer has complied with the requirements set out in Article 6(5) and (6).

Amendment  11

Proposal for a directive

Article 8 – paragraph 3

Text proposed by the Commission

Amendment

3. Importers shall indicate their name and the address at which they can be contacted on the product or, where that is not possible, on its packaging or in a document accompanying the product.

3. Importers shall indicate, on the product, their name, registered trade name or registered trade mark and the postal or, if available, the website address at which they can be contacted or, where that is not reasonably possible, on its packaging or in a document accompanying the product. The contact details shall be in a language easily understood by end-users and by market surveillance authorities.

(for translators: on the right side a part of the text has been repositionned)

Amendment  12

Proposal for a directive

Article 9 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

 

5a. Member States shall ensure that products which were lawfully placed on the market before [the date set out in the second subparagraph of Article 41(1)] may be made available on the market by distributors without further requirements.

Amendment  13

Proposal for a directive

Article 11 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

Economic operators shall, on request, identify the following to the market surveillance authorities, for at least 10 years after the product has been placed on the market:

Economic operators shall, on request, specify the following to the market surveillance authorities, for at least 10 years after the product has been placed on the market:

Amendment  14

Proposal for a directive

Article 11 – paragraph 2

Text proposed by the Commission

Amendment

Economic operators shall be able to present the information referred to in the first paragraph for a period of 10 years after they have been supplied with the product and for a period of 10 years after they have supplied the product.

Economic operators shall present the information referred to in the first paragraph for a period of 10 years after they have been supplied with the product and for a period of 10 years after they have supplied the product. Economic operators shall not be required to update that information after supply is finalised.

Amendment  15

Proposal for a directive

Article 11 a (new)

Text proposed by the Commission

Amendment

 

Article 11a

 

Obligations of economic operators concerning the products in stock

 

Member States shall ensure that the obligations of economic operators concerning the products in stock are applied in accordance with Article 41.

Amendment  16

Proposal for a directive

Article 13 – paragraph 6

Text proposed by the Commission

Amendment

6. Documents and correspondence relating to the procedures referred to in paragraphs 1 to 4 shall be drawn up in a language easily understood by end-users, as determined by the Member State concerned.

6. Documents and correspondence relating to the procedures referred to in paragraphs 1 to 5 shall be drawn up in one of the official languages of the Member States in which those procedures are being applied or in a language accepted by the notified body.

Amendment  17

Proposal for a directive

Article 14 – paragraph 2

Text proposed by the Commission

Amendment

2. The EU declaration of conformity shall have the model structure set out in Annex III of Decision No 768/2008/EC, shall contain the elements specified in the relevant conformity assessment procedures set out in Annexes III to IX of this Directive and shall be continuously updated. It shall be translated into the language or languages required by the Member State in which market the product is made available.

2. The EU declaration of conformity shall have the model structure set out in Annex III of Decision No 768/2008/EC, shall contain the elements specified in the relevant conformity assessment procedures set out in Annexes III to IX of this Directive and shall be continuously updated. Upon the request of the market surveillance authorities, the economic operator shall provide a copy of the EU declaration of conformity in paper form or by electronic means, and shall ensure that it is translated into the language or languages required by the Member State in which the product is placed or made available.

Amendment  18

Proposal for a directive

Article 14 – paragraph 4

Text proposed by the Commission

Amendment

4. By drawing up the EU declaration of conformity, the manufacturer shall assume the full responsibility for the compliance of the product.

4. By drawing up the EU declaration of conformity, the manufacturer shall assume the full responsibility for the compliance of the product with the requirements laid down in this Directive.

Amendment  19

Proposal for a directive

Article 16 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2. The CE marking shall be affixed before the product is placed on the market. It shall be accompanied by the specific marking of explosion protection, followed by the symbol of the equipment group and category, as set out in Annex II, point 1.0.5.

2. The CE marking shall be affixed before the product is placed on the market. It shall be followed by the identification number of the notified body and further marking as set out in point 1.0.5 of Annex II, including the specific marking of explosion protection.

Amendment  20

Proposal for a directive

Article 16 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

The CE marking and the specific marking and symbol referred to in paragraph 2 shall be followed by the identification number of the notified body, where that body is involved in the production control phase.

deleted

Amendment  21

Proposal for a directive

Article 16 – paragraph 4

Text proposed by the Commission

Amendment

4. The CE marking, the specific marking and the symbol referred to in paragraph 2 and, where applicable, the identification number referred to in paragraph 3, may be followed by a pictogram or any other mark indicating a special risk or use.

4. The CE marking, the identification number, where applicable, the specific marking and the symbol referred to in paragraph 2, may be followed by a pictogram or any other mark indicating a special risk or use.

Amendment  22

Proposal for a directive

Article 18 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall designate a notifying authority that shall be responsible for setting up and carrying out the necessary procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies, including compliance with the provisions of Article 23.

1. Member States shall designate a single notifying authority that shall be responsible for setting up and carrying out the necessary procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies, including compliance with the provisions of Article 23.

Amendment  23

Proposal for a directive

Article 25 – paragraph 4

Text proposed by the Commission

Amendment

4. Where a notification is not based on an accreditation certificate as referred to in Article 24, the notifying authority shall provide the Commission and the other Member States with documentary evidence which attests to the conformity assessment body's competence and the arrangements in place to ensure that that body will be monitored regularly and will continue to satisfy the requirements laid down in Article 21.

4. Where a notification is not based on an accreditation certificate as referred to in Article 24(2), the notifying authority shall provide the Commission and the other Member States with documentary evidence which attests to the conformity assessment body's competence and the arrangements in place to ensure that that body will be monitored regularly and will continue to satisfy the requirements laid down in Article 21.

Amendment  24

Proposal for a directive

Article 34 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

Member States shall, on an annual basis, provide the Commission with details of the activities of their market surveillance authorities and of any plans for and increase of market surveillance, including the allocation of more resources, the increase of efficiency and the building of the necessary capacity for achieving those goals.

Amendment  25

Proposal for a directive

Article 34 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

Member States shall provide adequate funding to their market surveillance authorities in order to ensure that their activities are coherent and effective across the Union.

Amendment  26

Proposal for a directive

Article 35 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Where the market surveillance authorities of one Member State have taken action pursuant to Article 20 of Regulation (EC) No 765/2008, or where they have sufficient reason to believe that a product presents a risk to the health or safety of persons or to other aspects of public interest protection laid down in this Directive, they shall carry out an evaluation in relation to the product concerned covering all the requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities.

1. Where the market surveillance authorities of one Member State have taken action pursuant to Article 20 of Regulation (EC) No 765/2008, or where they have sufficient reason to believe that a product presents a risk to the health or safety of persons or to other aspects of public interest protection laid down in this Directive, they shall carry out an evaluation in relation to the product concerned covering all the relevant requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities.

Amendment  27

Proposal for a directive

Article 35 – paragraph 4 – subparagraph 1

Text proposed by the Commission

Amendment

4. Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the being made available on their national market, to withdraw the product from that market or to recall it.

4. Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the making available of the product on their national market, to withdraw the product from that market or to recall it.

Amendment  28

Proposal for a directive

Article 35 – paragraph 5 – point a

Text proposed by the Commission

Amendment

(a) failure of the product to meet requirements relating to the health or safety of persons or to other aspects of public interest protection laid down in this Directive;

(a) failure of the product to meet requirements relating to the health or safety of persons or to other aspects of public interest protection laid down in this Directive; or

Amendment  29

Proposal for a directive

Article 35 – paragraph 5 – point b

Text proposed by the Commission

Amendment

(b) shortcomings in the harmonised standards referred to in Annex II conferring a presumption of conformity.

(b) shortcomings in the harmonised standards referred to in Article 12 conferring a presumption of conformity.

Amendment  30

Proposal for a directive

Article 35 – paragraph 7

Text proposed by the Commission

Amendment

7. Where, within 2 months of receipt of the information referred to in paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

7. Where, within three months of receipt of the information referred to in paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

Amendment  31

Proposal for a directive

Article 35 – paragraph 8

Text proposed by the Commission

Amendment

8. Member States shall ensure that appropriate restrictive measures are taken in respect of the product concerned without delay.

8. Member States shall ensure that appropriate restrictive measures are taken in respect of the product concerned, such as withdrawal of the product from their market, without delay.

Amendment  32

Proposal for a directive

Article 39 – paragraph 1

Text proposed by the Commission

Amendment

Member States shall lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced.

Member States shall build upon existing mechanisms to ensure correct application of the regime governing the CE marking and shall take appropriate action in the event of improper use of the marking. Member States shall lay down rules on penalties applicable to infringements by economic operators of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. Such rules may include criminal penalties for serious infringements.

Amendment  33

Proposal for a directive

Article 39 – paragraph 2

Text proposed by the Commission

Amendment

The penalties provided for shall be effective, proportionate and dissuasive.

The penalties referred to in the first paragraph shall be effective, proportionate to the seriousness of the offence, and dissuasive.

Amendment  34

Proposal for a directive

Article 39 – paragraph 3

Text proposed by the Commission

Amendment

Member States shall notify those provisions to the Commission by [the date set out in the second subparagraph of Article 40(1)] and shall notify it without delay of any subsequent amendment affecting them.

Member States shall notify those provisions to the Commission by [the date set out in the second subparagraph of Article 40(1)] and shall notify it without delay of any subsequent amendment affecting them. The Commission shall make those provisions publicly available by publishing them on the internet.

Amendment  35

Proposal for a directive

Article 41 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. The Commission shall make those texts publicly available by publishing them on the internet.

Amendment  36

Proposal for a directive

Annex III – point 3 – paragraph 1 – indent 5

Text proposed by the Commission

Amendment

– the supporting evidence for the adequacy of the technical design solution. This supporting evidence shall mention any documents that have been used, in particular where the relevant harmonised standards and/or technical specifications have not been applied in full. The supporting evidence shall include, where necessary, the results of tests carried out by the appropriate laboratory of the manufacturer, or by another testing laboratory on his behalf and under his responsibility.

deleted

Amendment  37

Proposal for a directive

Annex VI – point 3 – paragraph 1

Text proposed by the Commission

Amendment

For each individual product manufactured one or more tests on one or more specific aspects of the product shall be carried out by the manufacturer or on his behalf, in order to verify conformity with the type described in the EU-type examination certificate and with the corresponding requirements of this Directive. The tests shall be carried out under the responsibility of a notified body, chosen by the manufacturer.

For each individual product manufactured one or more tests on one or more specific aspects of the product shall be carried out by the manufacturer or on his behalf, in order to verify conformity with the type described in the EU-type examination certificate and with the corresponding requirements of this Directive. The tests shall be carried out by an accredited in-house body or under the responsibility of a notified body, chosen by the manufacturer.

(1)

Not yet published in the Official Journal.

(2)

OJ C 77, 28.3.2002, p. 1.


EXPLANATORY STATEMENT

This report brings modifications to a proposal of the European Commission recasting Directive 94/9/EC on the harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmosphere. It has been presented in November 2011 in the framework of the implementation of the New Legislative Framework (NLF) adopted in 2008 as "the goods package" covering the complementary instruments, Decision 768/2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC and Regulation 765/2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93. The present proposal is part of a package, aligning nine product directives to the NLF.

The existing Directive 94/9/EC on the equipment and protective systems intended for use in potentially explosive atmosphere sets out essential requirements and selects the appropriate conformity assessment procedures which manufactures have to apply in order to demonstrate that their products comply with these essential requirements, before they are made available on the EU market.

The NLF was adopted to remedy shortcomings in existing Union harmonisation legislation in order to complete the Single Market, with fair competition and safe products. Inconsistent implementation and enforcement in the Member States of the existing Union harmonisation, together with complex regulation, has made it increasingly difficult for both economic operators and authorities to correctly interpret and apply legislation, which lead to unequal market conditions and also unsafe products placed on the market. "The goods package" gives the overall framework to streamline product legislation, in order to make it more uniform and comprehensible for both economic operators and market surveillance authorities. However, the provisions of the NLF Decision are not directly applicable. To ensure that all economic sectors subject to Union harmonisation legislation benefit from the improvements of the NLF, the provisions of the NLF Decision need to be integrated into the existing product legislation.

After the adoption of the legal framework in NLF in 2008 the Commission has started an evaluation process on harmonised European product legislation in order to identify instruments to be revised in order to implement the NLF.

A number of directives have been identified here while they will need revision within the next 3 - 5 years due to revision clauses or for sector specific reasons (need to clarify scope, need to up-date safety requirements, etc.). The vast majority of the existing European product legislation will need revision for these reasons and will be dealt with individually according to the Commission work programme.

The 9 proposals in the package presented in November 2011, including Directive 94/9/EC are not part of the first mentioned group of product directives, but have been identified as suitable for an alignment with the NLF due to their common structure. The sectors covered by the directives are all very important industrial sectors which are subject to a strong international competition, and the assessments are, that those industries will benefit from the simplification and creation of a level playing field for European companies targeted by the NLF.

The changes made to the provisions of this Directive concern: the definitions, the obligations of economic operators, the presumption of conformity provided by harmonised standards, the Declaration of Conformity (DoC), CE marking, notified bodies, the safeguard clause procedure and the conformity assessment procedures. The intention of the proposal is restricted to a pure alignment with the horizontal provisions in 768/2008/EC and the new terminology within the Lisbon Treaty, including new rules on comitology.

Procedure

The alignment to the NLF Decision requires a number of substantive amendments to the provisions of this Directive. The technique of recasting has been chosen in line with the Interinstitutional Agreement of 28 November 2001.

Pursuant to Rule 87 of the Rules of Procedure of the European Parliament, the committee responsible for legal affairs has examined the proposal, based on the reports from the Consultative Working Party (legal services of the Parliament, the Council and the Commission), and considered that it entails no substantive changes other than those identified as such in the proposal or those indentified by the CWP.

Rapporteur's Position

Your Rapporteur considers this alignment of nine product directives with the NLF, as an important step towards the completion of the EU single market.

The NLF introduces a simplified regulatory environment for products and allows more consistent implementation of technical norms, which will help improving the functioning of the single market, by ensuring equal treatment of non-compliant products and of economic operators, as well as an equal assessment of notified bodies throughout the EU market.

It is your Rapporteur's opinion, that an alignment of the 9 product directives with the NLF will increase the confidence of both producers and consumers, by clarifying obligations for economic operators and provide Member States authorities with more effective tools to carry out market surveillance controls, all leading to a reduction of non-compliant and unsafe products on the market.

The Commission's proposals in the alignment package are based on a broad stakeholder consultation, including several hundreds of SMEs and their experiences with the Goods package, which is much appreciated by the Rapporteur.

Your Rapporteur supports the Commission's general intention of a pure alignment of the 9 product directives with the horizontal measures in Decision 768/2008, but would nevertheless suggest some changes to Directive 94/9/EC on the equipment and protective systems intended for use in potentially explosive atmospherefor further clarification and sectoral adjustments with the following objectives:

1. Further Align the Directive to the NLF and Ensure Legal Certainty

Your Rapporteur considers important to bring a number of changes to the proposed Directive in order to reach a higher level of consistency with the terms used by the Decision No 768/2008/EC and eliminate the possible inconsistencies in the text which could otherwise create legal uncertainty.

It is also important to clarify the legal situation for products which have been legally placed on the market in compliance with the current Directive before the new Directive applies, but which are still in stock. The non-retroactive nature of EU legislation should be emphasized and it should be clarified that these products can still be made available on the market after the date of application of the new Directive.

In addition, your Rapporteur considers that the Commission should have the obligation to publish on the Internet the national provisions of transposed Directive and relevant sanctions (principle of transparency).

2. Enhance Consumer Protection

The NLF contributes to increase consumer confidence in the single market. Therefore a number of modifications are also linked to your Rapporteur's objective to take full benefit of the NLF provisions related to consumer protection. In that respect, some amendments would allow the new directive to cover a wider scope of situations which fall under the essential safety requirements, when also the use reasonably foreseen should be taken in consideration during the design phase of the product (cf. article 16 on general requirements of regulation 765/2008). Consumer protection would also be deepened by precising that instructions, safety information and labelling must be reliable, understandable and transparent.

3. Cut Down Red Tape

The NLF should contribute to improving the free movement of goods within the European Union. However, a cumbersome bureaucracy would prevent the free flow of goods. Therefore, your Rapporteur has scrutinised the proposed Directive in order to cut-down red tape wherever possible. Thus, it is proposed in the report to modernise the current procedures by allowing the EU DoC to be supplied not only in paper form, but also through the electronic means and to bring down the red tape for economic operators regarding the identification of economic operators.

As expressed earlier, the Rapporteur supports the simplification and modernisation of procedures provided in the NLF, but wants to underline at the same time that a need for flexibility can be necessary regarding some obligations created by the new framework. For instance, it is proposed to add an exception to the rule on 'one single DoC' for cases where the providing a single document creates specific problems due to its complexity or extent. Here it should be possible to provide all relevant DoCs separately.

Higher flexibility is allowed to what concerns the single EU DoC, which as the rule coming from the Article 5 of the Decision is supplemented by an exception for the cases which create specific problems due to its complexity or extent.

4. Ensure a Better Market Surveillance for our Products

Even if the Rapporteur is aware of the forthcoming new regulation on market surveillance prepared by the Commission's services, the last set of changes is focusing on ensuring a higher level of market surveillance of products. To this end, your Rapporteur proposes to increase the market surveillance in distance selling through ensuring that all relevant information requirements are also displayed in electronic commerce, to establish an annual information requirement of Member States to the Commission about their market surveillance activities, to call on the Member States to provide the adequate funding to their market surveillance authorities. Finally, the Rapporteur stressed the need for appropriate actions to be taken by the Member States against improper use of CE marking.

Sectoral changes are also introduced by the Rapporteur on this text. In order to clarify the manufacturers right to use accredited in-house conformity assessment bodies under module A1, A2, C1 and Ca2, which were introduced by Decision 768/2008/EC and have been the practice for manufacturers of measuring instruments since, this is now explicitly included in the text of annex 2, part 2 and part 5.

Your rapporteur supports the absence of a requirement for sample testing in the Directive, which stems from the GPSD and has been introduced in directives related to consumer products. The Directive covers professional products not intended for users. A requirement of sample testing here would furthermore conflict with the private contractual arrangements between the manufacturer and his professional customers.

Your rapporteur further finds, that language requirements for conformity assessments should be adapted to whom they concern - If they are addressed only to notified bodies as is the case in this directive, there is no need to change the requirements from one of the official languages in the Member States in which those procedures are being applied, or in a language accepted by the notified body.

Other amendments seem editorial, but could never the less induce significant costs to companies who have to update their conformity assessment and marking procedure, without any clear added value. For instance here in the ATEX directive the order of the CE marking and further markings have been changed without any justification and it is the suggestion of your rapporteur to change it back to the original order.


ANNEX: LETTER FROM THE COMMITTEE ON LEGAL AFFAIRS

Ref.: D(2012)22809

Mr Malcolm Harbour,

Chair of the Committee on the Internal Market

and Consumer Protection

ASP 13E130

Brussels

Subject:     Proposal for a directive of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres (recast)

                  (COM(2011)0772 – C7‑0426/2011 – 2011/0356(COD))

Dear Chairman,

The Committee on Legal Affairs, which I am honoured to chair, has examined the proposal referred to above, pursuant to Rule 87 on Recasting, as introduced into the Parliament's Rules of Procedure.

Paragraph 3 of that Rule reads as follows:

"If the committee responsible for legal affairs considers that the proposal does not entail any substantive changes other than those identified as such in the proposal, it shall inform the committee responsible.

In such a case, over and above the conditions laid down in Rules 156 and 157, amendments shall be admissible within the committee responsible only if they concern those parts of the proposal which contain changes.

However, if in accordance with point 8 of the Interinstitutional Agreement, the committee responsible intends also to submit amendments to the codified parts of the proposal, it shall immediately notify its intention to the Council and to the Commission, and the latter should inform the committee, prior to the vote pursuant to Rule 54, of its position on the amendments and whether or not it intends to withdraw the recast proposal."

Following the opinion of the Legal Service, whose representatives participated in the meetings of the Consultative Working Party examining the recast proposal, and in keeping with the recommendations of the draftsperson, the Committee on Legal Affairs considers that the proposal in question does not include any substantive changes other than those identified as such in the proposal and that, as regards the codification of the unchanged provisions of the earlier acts with those changes, the proposal contains a straightforward codification of the existing texts, without any change in their substance.

In conclusion, after discussing it at its meeting of 26 April 2012, the Committee on Legal Affairs, by 23 votes in favour and no abstentions(1), recommends that your Committee, as the committee responsible, proceed to examine the above proposal in accordance with Rule 87.

Yours faithfully,

Klaus-Heiner LEHNE

Encl.: Opinion of the Consultative Working Party.

(1)

Raffaele Baldassarre, Sebastian Valentin Bodu, Piotr Borys, Françoise Castex, Sergio Gaetano Cofferati, Christian Engström, Marielle Gallo, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Sajjad Karim, Vytautas Landsbergis, Eva Lichtenberger, Jiří Maštálka, Antonio López-Istúriz White, Bernhard Rapkay, Evelyn Regner, Francesco Enrico Speroni, Dimitar Stoyanov, Rebecca Taylor, Alexandra Thein, Axel Voss, Cecilia Wikström, Tadeusz Zwiefka


ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION

 

 

 

 

CONSULTATIVE WORKING PARTY

OF THE LEGAL SERVICES

Brussels, 27 March 2012

OPINION

             FOR THE ATTENTION OF THE EUROPEAN PARLIAMENT

                                                              THE COUNCIL

                                                              THE COMMISSION

Proposal for a directive of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres

COM(2011)0772 of 21.11.2011 – 2011/0356(COD)

Having regard to the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission met on 1 March 2012 for the purpose of examining, among others, the aforementioned proposal submitted by the Commission.

At that meeting(1), an examination of the proposal for a directive of the European Parliament and of the Council recasting Directive 94/9/EC of the European Parliament and the Council of 23 March 1994 on the approximation of the laws of the Member States concerning equipment and protective systems intended for use in potentially explosive atmospheres resulted in the Consultative Working Party’s establishing, by common accord, as follows.

1) As far as the explanatory memorandum is concerned, in order to be drafted in full compliance with the relevant requirements laid down by the Inter-institutional Agreement such a document should have specified which provisions of the earlier act remain unchanged in the proposal, as is provided for under point 6(a)(iii) of that agreement.

2) In the recast text, the following should have been identified by using the grey-shaded type generally used for marking substantive changes:

- in Article 13(6), the proposed replacement of the words "one of the official languages of the Member States in which those procedures are being applied or in a language accepted by the notified body" with the words "a language easily understood by end-users, as determined by the Member State concerned".

- in Article 41(1), first subparagraph, the words "Article 2(2) and (10) to (26), Article 3, Articles 5 to 40 and Annexes III to IX", as well as the entire text of the final sentence which reads as follows: "They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive";

- in Article 41(1), second subparagraph, the words "from [day after the date mentioned in first subparagraph]";

- in point 1.0.6(b) of Annex II, the proposed replacement of the words "one of the Community languages" with the words "a language easily understood by end-users, as determined by the Member State concerned".

In consequence, examination of the proposal has enabled the Consultative Working Party to conclude, without dissent, that the proposal does not comprise any substantive amendments other than those identified as such therein or in the present opinion. The Working Party also concluded, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing text, without any change in its substance.

C. PENNERA                       H. LEGAL                            L. ROMERO REQUENA

Jurisconsult                            Jurisconsult                            Director General

(1)

The Consultative Working Party had at its disposal the English, French and German language versions of the proposal and worked on the basis of the English version, being the master-copy language version of the text under discussion.


PROCEDURE

Title

Harmonisation of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres (Recast)

References

COM(2011)0772 – C7-0426/2011 – 2011/0356(COD)

Date submitted to Parliament

21.11.2011

 

 

 

Committee responsible

       Date announced in plenary

IMCO

30.11.2011

 

 

 

Committee(s) asked for opinion(s)

       Date announced in plenary

ITRE

30.11.2011

JURI

30.11.2011

 

 

Not delivering opinions

       Date of decision

ITRE

19.12.2011

 

 

 

Rapporteur(s)

       Date appointed

Zuzana Roithová

29.11.2011

 

 

 

Discussed in committee

9.1.2012

28.2.2012

31.5.2012

10.7.2012

Date adopted

10.7.2012

 

 

 

Result of final vote

+:

–:

0:

28

0

0

Members present for the final vote

Adam Bielan, Sergio Gaetano Cofferati, Birgit Collin-Langen, Lara Comi, Anna Maria Corazza Bildt, Cornelis de Jong, Christian Engström, Vicente Miguel Garcés Ramón, Louis Grech, Philippe Juvin, Edvard Kožušník, Toine Manders, Sirpa Pietikäinen, Phil Prendergast, Mitro Repo, Zuzana Roithová, Heide Rühle, Christel Schaldemose, Andreas Schwab, Bernadette Vergnaud

Substitute(s) present for the final vote

Raffaele Baldassarre, Ildikó Gáll-Pelcz, Morten Løkkegaard, Emma McClarkin, Konstantinos Poupakis, Marek Siwiec, Marc Tarabella

Substitute(s) under Rule 187(2) present for the final vote

Ismail Ertug

Date tabled

25.7.2012

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