Explanatory Memorandum to COM(2014)187 - Cableway installations - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2014)187 - Cableway installations. |
|---|---|
| source | COM(2014)187  |
| date | 27-03-2014 |
Directive 2000/9/EC relating to cableway installations designed to carry persons was adopted on 20 March 2000 and became applicable on 3 May 2002.
Directive 2000/9/EC ensures a high level of safety for cableway installations for users, workers and third parties. It sets out essential requirements with which cableway installations, their infrastructure, subsystems and safety components must comply in order to be safe.
Directive 2000/9/EC is also an example of that Union harmonisation legislation ensuring the free movement in the EU single market, namely of subsystems and safety components for cableway installations. It harmonises the conditions for the placing on the market and putting into service of subsystems and safety components intended to be incorporated into cableway installations. Manufacturers must demonstrate that their subsystems or safety components have been designed and manufactured in compliance with the essential requirements, affix the CE marking and provide instructions for their incorporation into a cableway installation.
Directive 2000/9/EC is based on Article 114 of the Treaty on the Functioning of the European Union (hereinafter 'the Treaty'). It is a total harmonisation Directive based on the “New Approach” principles, which requires manufacturers to ensure the compliance of their products with the mandatory performance and safety requirements provided for in the legislative instrument without however imposing specific technical solutions or specifications.
Directive 2000/9/EC applies to cableway installations designed to carry persons.
Traction by cable and the passenger transport function are the principal criteria determining the scope of Directive 2000/9/EC.
The main types of cableway installations covered by Directive 2000/9/EC are funiculars, gondolas, detachable chair lifts, fixed-grip chair lifts, aerial tramways, funitels, combined installations (made of several cableway types, such as those of gondolas and chairlifts) and drag lifts.
Cableway installations are defined as the whole on-site system, consisting of infrastructure, subsystems and safety components.
Cableway installations and their infrastructure are directly affected by the characteristics of the region in which they are located, by the nature and physical features of the terrain in which they are installed, by their surroundings, by atmospheric and meteorological factors as well as by structures and obstacles that may be found in their vicinity either on the ground or in the air.
In this framework, the construction and entry into service of cableway installations are subject to national authorisation procedures.
Directive 2000/9/EC sets out harmonised essential requirements with which cableway installations must comply, while Member States remain competent to regulate other aspects such as land-use, regional planning and environmental protection.
Safety components and subsystems are subject to the principle of the free movement of goods Safety components bear the CE marking indicating conformity with the requirements of the Directive 2000/9/EC, including the conformity assessment procedures.
The proposal intends to replace Directive 2000/9/EC by a Regulation, in line with the Commission’s simplification objectives.
The proposal intends to align Directive 2000/9/EC to the “goods package” adopted in 2008 and in particular to the NLF Decision EC No 768/2008.
The NLF Decision sets out a common framework for EU product harmonisation legislation. This framework consists of the provisions which are commonly used in EU product legislation (e.g. definitions, obligations of economic operators, notified bodies, safeguard mechanisms, etc.). These common provisions have been reinforced to ensure that the directives can be applied and enforced more effectively in practice. New elements, such as obligations for importers, have been introduced, which are crucial for improving the safety of products on the market.
The Commission has already proposed the alignment of nine other Directives to the NLF Decision within an “alignment package” adopted on 21 November 2011. It has also proposed the alignment to the NLF Decision of Directive 97/23/EC on pressure equipment.
In view of ensuring consistency across Union harmonisation legislation for industrial products, in accordance with the political commitment resulting from the adoption of the NLF Decision and the legal obligation provided for in Article 2 of the NLF Decision, it is necessary that this proposal is in line with the provisions of the NLF Decision.
The proposal also intends to address some difficulties that have been experienced in the implementation of Directive 2000/9/EC. More particularly, authorities, notified bodies and manufacturers have had different views on whether certain types of installations come under the scope of Directive 2000/9/EC and hence have to be manufactured and certified in line with the directive’s requirements and procedures. Views also differed on whether certain equipment should be considered as subsystem, infrastructure or safety component. Furthermore the Directive does not specify which type of conformity assessment procedure has to be applied to subsystems.
Those divergent approaches led to market distortions and different treatment of economic operators. Manufacturers and operators of the installations concerned had to modify the equipment or to undergo further certification which led to extra costs and to delays in the authorisation and operation of those installations.
The proposed Regulation intends therefore to enhance legal clarity about the scope of Directive 2000/9/EC and thus a better implementation of the relevant legal provisions.
Furthermore, Directive 2000/9/EC contains provisions on the conformity assessment for subsystems. However, it does not determine the concrete procedure to be followed by the manufacturer and the notified body. Furthermore, it does not offer manufacturers the range of conformity assessment procedures that are available for safety components. The proposed Regulation aligns thus the conformity assessment procedures available for subsystems with those already used for safety components, based on the conformity assessment modules set out in Decision No 768/2008/EC establishing a common framework for the marketing of products (NLF Decision). In this context, it also provides for the affixing of the CE marking to indicate compliance with its provisions, in line with the existing system for safety components.
The proposal takes into account Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European Standardisation.
The proposal also takes into account the proposal of the Commission of 13 February 2013 for a Regulation on market surveillance of products, which intends to set out a single legal instrument on market surveillance activities in the field of non-food goods, consumer or non-consumer products and products covered or not by Union harmonisation legislation. This proposal merges the rules on market surveillance of Directive 2001/95/EC on general product safety, Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products and of sector-specific harmonisation legislation in order to increase the effectiveness of market surveillance activities within the Union. The proposed Regulation on market surveillance of products contains also the relevant provisions on market surveillance and safeguard clauses. Therefore, provisions in existing sector specific harmonisation legislation that relate to market surveillance and safeguard clauses should be removed from that harmonisation legislation. The overacting objective of the proposed Regulation on market surveillance of products is to simplify the Union market surveillance framework fundamentally so that it works better for its main users: market surveillance authorities and economic operators. Directive 2000/9/EC provides for a safeguard clause procedure for subsystems and safety components. In line with the framework intended to be established by the proposed Regulation on the market surveillance of products, this proposal does not include the provisions on market surveillance and safeguard clause procedures for subsystems and safety components provided for in the NLF Decision. However, in order to ensure legal clarity, it makes a reference to the proposed Regulation on market surveillance of products.
This initiative is in line with the Single Market Act, which has stressed the need to restore consumer confidence in the quality of products on the market and the importance of reinforcing market surveillance.
Furthermore it supports the Commission’s policy on Better Regulation and simplification of the regulatory environment.
Consultation of the interested parties
The revision of Directive 2000/9/EC has been lengthy and extensively discussed since 2010. More particularly, it has been discussed within the Member States Working Group on Cableway Installations, with national experts responsible for the implementation of the Directive, within the Standing Committee provided for by Directive 2000/9/EC, the Administrative Cooperation Group for Market Surveillance of Cableway Installations (AdCo) and the Cableway Installations Sectoral Group (CSG) of the European Co-ordination of Notified Bodies, as well as with industry and user associations.
Member States and stakeholders, including manufacturers' organisations, notified bodies and representatives of standardisation bodies, have been involved in the Impact Assessment process from the beginning. In the framework of the Standing Committee provided for by Directive 2000/9/EC, regular discussions took place about the functioning of the Directive and the potential issues that would require improvements, either through legislative or non-legislative means.
Additionally, three specific consultations have been carried out.
The first consultation took place in the first half of 2010 in the framework of the preparation of the Report on the implementation of Directive 2000/9/EC provided for by its Article 21.
In its First Report on the implementation of Directive 2000/9/EC[8], the Commission noted that the Directive has been successful in establishing an internal market for subsystems and safety components, while guaranteeing a uniform and high level of safety. It also identified some issues to be examined.
The issues to be examined were the following:
– The extent of the scope of Directive 2000/9/EC, in particular with regard to new types of cableway installations;
– The lack of an appropriate range of conformity assessment procedures for subsystems, which has led to divergent interpretations and implementation of the conformity assessment of subsystems;
– The need to align Directive 2000/9/EC to the NLF Decision.
The second and the third consultation took place in 2012 as part of the Impact Assessment Study the first one concerned the existing situation and the other one the policy options. The Final Report of the Impact Assessment study has been formally presented and discussed at the Standing Committee meetings held on 25 September 2012 and 8 April 2013, in which Member States and sectoral stakeholders had the opportunity to express a number of opinions, contributions and position papers on the policy options included in the study.
Stakeholders have actively contributed to identify the issues needing solutions to improve the functioning of Directive 2000/9/EC. The majority of stakeholders agree with the problems identified. An important number of respondents to the consultation carried out in the context of the Impact Assessment Study have experienced problems with the definition of Cableway installations and the borderline with the scope of the Directive 95/16/EC relating to lifts[9].
In view of the amount of information collected and the rather technical issues, no open public consultation was launched, as targeted expertise consultations were deemed more appropriate for this quite technical initiative.
An impact assessment on the revision of Directive 2000/9/EC has been conducted.
Based on the information collected, the impact assessment carried out by the Commission examined and compared three options:
Option 1 – “Do nothing” - No changes to the existing situation
This option proposes no changes to Directive 2000/9/EC.
Option 2 –Intervention by non-legislative measures
Option 2 considers the possibility of providing more extensive guidance on the implementation of Directive 2000/9/EC with regard to its scope and of recommending the application of specific conformity assessment procedures for the assessment of subsystems, mainly via a redrafting of the Application Guide to Directive 2000/9/EC.
Option 3 – Intervention by legislative measures
This option consists in modifying Directive 2000/9/EC.
Combination of options 2 and 3 were found to be the preferred solution because:
– it is considered the most to address the problem as it will provide clarification in the scope definitions and consistency and flexibility of conformity assessment procedures for subsystems and safety components;
– it does not entail significant costs for economic operators and notified bodies; for those who are already acting responsibly, no significant economic or social impacts could be identified;
– it will improve the functioning of the internal market of subsystems and safety components by ensuring equal treatment of all economic operators, notably importers and distributors, as well as notified bodies;
– option 1 does not provide answers to the problem of legal uncertainty due to some provisions of Directive 2000/9/EC and therefore will not lead to its better implementation.
The proposal includes:
· The clarification of the scope with regard to cableway installations designed for both transport and leisure purposes;
· The introduction of a range of conformity assessment procedures for subsystems based on the existing conformity assessment modules for safety components as aligned to the NLF Decision;
· The alignment to the NLF Decision.
The impact of the proposal will guarantee a fair level playing field for the economic operators and will enhance protection of the safety of passengers and other users, workers and third parties.
Contents
- LEGAL elements of the proposal
- BUDGETARY IMPLICATION
- General context, reasons for and objectives of this proposal
- Consistency with other policies and objectives of the Union
- 2. CONSULTATION OF THE INTERESTED PARTIES AND IMPACT ASSESSMENT
- Collection and use of expertise - Impact assessment
- 3.1. Scope and definitions
- 3.2. Obligations of economic operators
- 3.3. Harmonised standards
- 3.4. Conformity assessment
- 3.5. Notified bodies
- 3.6. Implementing acts
- 3.7. Final provisions
- 3.8. Union competence, legal basis, subsidiarity principle and legal form
- Subsidiarity principle
- Proportionality
- Legislative technique used
- 5. ADDITIONAL INFORMATION
- European Economic Area
The scope of the proposed Regulation corresponds to the scope of Directive 2000/9/EC, and covers cableway installations, including their infrastructure, as well as subsystems and safety components for cableway installations.
The proposal clarifies and updates the existing scope.
In particular, in light of the development of new types of cableway installations, it is clarified that the exclusion of cableway installations used for leisure purposes in fairgrounds or amusement parks does not apply to cableway installations that are intended for a dual function, namely of transporting persons and for leisure activities.
The proposal maintains the exclusion of certain cableway installations intended for agricultural or industrial purposes, but it clarifies that it also covers cableway installations intended for the service of mountain shelters or huts that are not intended for the transport of the public.
The current exclusion of cable-operated ferries is also updated to all cable-operated installations where the users or carriers are water-borne, such as cable-operated water ski installations.
The exclusions provided for in Directive 2000/9/EC relating to rack-and-pinion railways and chain-driven installations are not reintroduced since these installations do not correspond to the definition of cableway installations.
The general definitions resulting from the alignment to the NLF Decision have been inserted.
The proposal contains, with regard to subsystems and safety components, the typical provisions for product-related Union harmonisation legislation and sets out the obligations of the relevant economic operators (manufacturers, authorised representatives, importers and distributors), in accordance with the NLF Decision.
Compliance with harmonised standards provides for a presumption of conformity with the essential requirements. Regulation (EU) No 1025/2012 sets out a horizontal legal framework for European standardisation. The Regulation contains inter alia provisions on standardisation requests from the Commission to the European Standardisation Organisation, on the procedure for objections to harmonised standards and on stakeholder participation in the standardisation process. Consequently the provisions of Directive 2000/9/EC which cover the same aspects have not been reintroduced in this proposal for reasons of legal certainty.
The proposal keeps the conformity assessment procedures for safety components provided for under Directive 2000/9/EC. It however updates the corresponding modules in line with the NLF Decision.
In particular, it keeps the requirement for a notified body intervention in the design and production phase of all subsystems and safety components.
The proposal introduces a range of conformity assessment procedures for subsystems based on the conformity assessment modules of the NLF Decision. In this framework, it also introduces the CE marking for subsystems, as there is no reason to treat them differently than the safety components, for which Directive 2000/9/EC provides already the affixing of the CE marking to indicate their conformity with its requirements.
Proper functioning of notified bodies is crucial for ensuring a high level of health and safety protection and for the confidence of all interested parties in the New Approach system.
Therefore, in line with the NLF Decision, the proposal reinforces the notification criteria for notified bodies and introduces specific requirements for notifying authorities.
The proposal empowers the Commission to adopt, where appropriate, implementing acts to ensure the uniform application of this Regulation in respect of notified bodies that do not meet or no longer meet the requirements for their notification.
Those implementing acts will be adopted in accordance with the provisions on implementing acts laid down in Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers.
The proposed Regulation will become applicable two years after its entry into force to allow manufacturers, notified bodies and Member States time to adapt to the new requirements.
However, the designation of notified bodies pursuant to the new requirements and process needs to start shortly after the entry into force of this Regulation. This will ensure that by the date of application of the proposed Regulation, sufficient notified bodies will have been designated in accordance with the new rules so as to avoid problems with production continuity and market supply.
A transitional provision is foreseen for the certificates issued by notified bodies under Directive 2000/9/EC with regard to subsystems and safety components so as to allow stocks to be absorbed and ensure a smooth transition to the new requirements.
A transitional provision is foreseen for the entry into service of cableway installations constructed under Directive 2000/9/EC so as to ensure a smooth transition to the new requirements.
Directive 2000/9/EC will be repealed and replaced by the proposed Regulation.
Legal basis
The proposal is based on Article 114 of the Treaty.
The subsidiarity principle arises in particular with regard to the newly added provisions aiming at the improvement of effective enforcement of Directive 2000/9/EC, namely, the economic operators' obligations, the traceability provisions, the provisions on the assessment and notification of conformity assessment bodies.
Experience with the enforcement of the legislation has shown that measures taken at national level have led to divergent approaches and to a different treatment of economic operators inside the Union, which undermines the objective of Directive 2000/9/EC. If actions are taken at national level to address the problems, this risks creating obstacles to the free movement of goods. Furthermore action at national level is limited to the territorial competence of a Member State. Coordinated action at Union level can much better achieve the objectives set, and will in particular render market surveillance more effective. Hence it is more appropriate to take action at Union level.
In accordance with the principle of proportionality, the proposed modifications do not go beyond what is necessary to achieve the objectives set.
The new or modified obligations do not impose unnecessary burdens and costs on industry - especially on small and medium sized enterprises - or administrations. Where modifications have been identified to have negative impacts, the analysis of the impacts of the option serves to provide the most proportionate response to the problems identified. A number of modifications concern the improvement of clarity of the existing Directive without introducing new requirements that entail added cost.
The proposal takes the form of a Regulation.
The proposed change from a Directive to a Regulation takes into account the Commission's general objective to simplify the regulatory environment and the need to ensure a uniform implementation throughout the Union of the proposed legislation.
The proposed Regulation is based on Article 114 of the Treaty and aims to ensure the proper functioning of the internal market for subsystems and safety components intended to be incorporated into cableway installations, while maintaining the existing role for Member States with respect to cableway installations. It imposes clear and detailed rules which will become applicable in a uniform manner at the same time throughout the Union.
In accordance with the total harmonisation principles, Member States are not allowed to impose more stringent or additional requirements in their national legislation for the placing on the market of subsystems and safety components. In particular, the mandatory essential requirements and the conformity assessment procedures to be followed by manufacturers must be identical in all Member States.
The same applies with regard to the provisions that have been introduced as a result from the alignment to the NLF Decision. Those provisions are clear and sufficiently precise to be applied directly by the actors concerned.
The obligations provided for the Member States, such as the obligation to assess, appoint and notify the conformity assessment bodies are, in any case, not transposed as such into national law but implemented by the Member States by means of the necessary regulatory and administrative arrangements. This will not change when the obligations concerned are set out in a Regulation.
Therefore, Member States have almost no flexibility in transposing a Directive into their national law. The choice of a Regulation will however allow them to save the costs associated with the transposition of a Directive.
Additionally, a Regulation avoids the risk of possible diverging transpositions of a Directive by the different Member States, which might lead to different levels of safety protection and create obstacles to the internal market, undermining thus its effective implementation.
The change from a Directive to a Regulation will not lead to any change in the regulatory approach.
The characteristics of the New Approach will be fully preserved, in particular the flexibility given to manufacturers in the choice of the means employed to comply with the essential requirements and in the choice of the procedure used, amongst the available conformity assessment procedures, to demonstrate compliance of subsystems and safety components. The existing mechanisms supporting the implementation of the legislation (standardisation process, working groups, administrative cooperation, the development of guidance documents etc.) will not be affected by the nature of the legal instrument.
Furthermore, the choice of a Regulation does not mean that the decision-making process is centralised. Member States retain their competence with regard to cableway installations and the implementation of the harmonised provisions, e.g. the designation and accreditation of notified bodies, the conduct of market surveillance and enforcement action (e.g. penalties).
Finally, the use of Regulations in the area of internal market legislation, allows, in accordance also with the preference expressed by stakeholders, to avoid the risk of ‘gold plating’. It also allows manufacturers to work directly with the Regulation text instead of needing to identify and examine 28 transposition laws.
On this basis, it is considered that the choice of a Regulation is the most appropriate and less costly solution for all involved parties as it will allow a more rapid and coherent application of the proposed legislation and will establish a clearer regulatory environment for economic operators, while avoiding transposition costs to Member States.
This proposal does not have any implications for the EU budget.
Repeal of existing legislation
The adoption of the proposal will lead to repeal of Directive 2000/9/EC.
The proposal concerns the EEA and should therefore be extended to the European Economic Area.