COMMISSION of the EUROPEAN COMMUNITIES Brussels, 26.01
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COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 26.01.2001 COM(2000) 899 final 2001/0004 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on machinery and amending Directive 95/16/EC (presented by the Commission) EXPLANATORY MEMORANDUM 1. BACKGROUND/EXISTING LEGISLATION Council Directive 89/392/EEC1 of 14 June 1989 on the approximation of the laws of the Member States relating to machinery, more generally known as the Machinery Directive, entered into force on 1 January 1993 and has been fully applicable since 1 January 1995. It was amended by Council Directives 91/368/EEC2, 93/44/EEC3 and 93/68/EEC4. All of these Directives have been fully applicable since 1 January 1997. These texts were consolidated by Directive 98/37/EC5 of the European Parliament and of the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery. 2. REASONS AND OBJECTIVES Anxious to demonstrate greater efficiency and transparency to the outside world, the Commission undertook to eliminate excessive red tape and to simplify the implementation of legislative texts. With this in mind, the Commission, supported by the Council, considered it necessary to seek the views of a number of individuals not directly involved in the drafting and administration of directives. In September 1994, it therefore set up a high-level group of independent experts from various backgrounds (industry, trade unions, universities, the judiciary and the civil service) who were asked to assess the impact of Community and national legislation on competitiveness and employment and to make recommendations to the Commission. This group was chaired by Dr Bernhard Molitor and drew up general proposals which were applicable to all of the directives. It also considered a number of individual directives, including the Machinery Directive. This proposal for a Directive has been prepared on the basis of those proposals and of the Commission's comments on the report issued by the group of independent experts6 (18 general proposals and 12 relating to the Machinery Directive). It also takes account of the experience gained in the practical application of the amended Directive 89/392/EEC. This proposal for a Directive amends Directive 98/37/EC. Given the scope and number of these amendments, and in order to make the text more comprehensible, it is presented as a recast directive rather than a directive amending Directive 98/37/EC. 1 OJ L 183, 29.6.1989, p. 9. 2 OJ L 198, 22.7.1991, p. 16. 3 OJ L 175, 19.7.1993, p. 12. 4 OJ L 220, 30.8.1993, p. 1. 5 OJ L 207, 23.7.1998, p. 1. 6 Document SEC(95) 2121, 29.11.1995 (not published in the OJ). 2 The various parts which have been amended are underlined. The Commission wishes to emphasise that only these underlined sections form part of the recasting proposal. 3. LEGAL BASIS This proposal for a revision of the Machinery Directive is based on Article 95 of the Treaty which sets out the principles for the establishment of the internal market. The Machinery Directive ensures the free movement of machinery falling within its scope and which satisfies the essential requirements laid down in it in respect of safety, health and consumer protection. The principles of the New Approach, set out in the Council Resolution of 7 May 1985, apply. The draft spells out the essential health and safety requirements with which the machinery must comply before being placed on the market and/or put into service, as well as the conformity assessment procedures applicable. While the Directive details the objectives to be attained, the European standardisation bodies, i.e. CEN, CENELEC and ETSI, are responsible for the practical means of fulfilling these essential requirements. This proposal for a Directive is of relevance for the European Economic Area (EEA). 4. IMPORTANCE OF THE SECTOR COVERED BY THE DIRECTIVE Although there are no statistics relating to the area covered by the Directive, it is possible to use as a basis statistics covering the engineering industry, which includes machinery, mechanical apparatus and components. With a production of around EUR 300 billion in 1998 (EUR 314 billion if EFTA members are included), the engineering sector makes up approximately 8% of the Union's industry. As a producer of the capital goods needed in agriculture, mining, the construction industry, transport and all other industrial sectors, the engineering sector plays a key role for the economy as a whole. The competitiveness of the other sectors of the economy is therefore heavily reliant on equipment and installations provided by the engineering industry. In terms of production volume, the European Union leads the world in this sector together with the United States, and is ahead of Japan. The sector employs over 2.2 million engineers, technicians and workers, mostly highly skilled, in the 15 Member States. The European Union is by far the largest exporter of machinery and mechanical equipment, totalling EUR 113 billion; it is followed by the United States (EUR 66 billion) and Japan (EUR 57 billion). Of all the industrial sectors, it is the engineering sector that generates the European Union's largest trade surplus. With annual sales of EUR 227 billion, the European Union's engineering market is second in the world, after the United States, in terms of consumption. 3 5. THE TEXT MUST BE ACCESSIBLE AND EASY TO APPLY In addition to the Molitor report which advocated, among other things, a better definition of various concepts, the Commission has endeavoured to clarify the procedures described by the Directive. To this end, it has explained the conformity assessment and market surveillance procedures so as to avoid differing interpretations of these procedures. 6. PROPORTIONALITY This proposal contains two major changes to the scope. The first concerns the inclusion of portable cartridge-operated devices, such as fixing tools, stunning pistols, marking guns etc, where the cartridge is not direct-acting. At present, these are excluded from the Directive because they are regarded as firearms, even though they fully comply with the definition set out in the Directive. It therefore seems expedient to include them so that they can benefit from freedom of movement within the European Union. Appliances in which the cartridge is direct-acting can be considered as firearms and naturally remain outside the scope of the Directive. The second proposal concerns construction site hoists intended for lifting persons or persons and goods. At the moment there is no European legislation in this area. Construction site hoists intended for lifting persons or persons and goods are explicitly excluded from the Machinery Directive 98/37/EC and the Lifts Directive 95/16/EC7, although they can in fact be treated in the same way as other appliances for the lifting of persons under this Directive. There is no reason to make an exception for them, and it is altogether logical that they be included. All the parties concerned, especially industry and workers' representatives, have readily accepted Directive 98/37/EC. It has led to an improvement in the safety of machinery placed on the market since its application. It is considered as being suited to market demands and observes the principles of subsidiarity and proportionality as Community texts are required to do. 7. FOLLOW-UP TO THE MOLITOR REPORT The general proposals in the report of the Molitor Group have been taken into consideration, in particular: – Proposal 6, which sets out the criteria to be met by each legislative proposal (clear and understandable provisions, consistency with existing Community legislation, etc.). The proposed text meets all of these criteria; – Proposal 8 requires that all parties concerned be consulted before a proposal is drawn up. The preliminary draft has been the subject of numerous discussions in which all the parties concerned (Member States, consumers, enterprises, workers) have been associated. 7 OJ L 213, 7.9.1995, p. 1. 4 The specific proposals put forward by the Group which are germane to the Machinery Directive are set out below: – the first proposal concerns the definition of machinery. This proposal has been followed, the definition of machinery covered by the Directive has been improved and the machines to be excluded have been clearly identified; – the second proposal, with regard to placing on the market, has been taken into account. The concepts of "placing on the market", "putting into service", "manufacturer" and "authorised representative" have also been clarified so as to avoid divergent interpretations by economic operators. As for placing on the market, it has been made quite clear that this refers to the moment when the machine is first made available on the territory of the European Union; – the third proposal, namely that the Directive should apply only to complete ready-for-use machines, has been followed. The definition of partly completed machinery (formerly called subassemblies), which must be allowed to move freely within the European Union, has been clarified. Such machines are not subject to all of the Directive's provisions but only to the following two requirements: – a declaration of incorporation in its present form; – assembly instructions, which must be part of the technical file of the complete machine. By the same token, components are not included in the text of the Directive. – The fourth proposal concerns the CE marking and calls for the uncertainties surrounding the affixing of this marking to be removed. The Commission ascertained that other marks were being used to indicate conformity with the essential health and safety requirements, in some cases applying conformity assessment procedures which differed from those required by the Directive. It was not possible to improve on this point in this text.