Explanatory Memorandum to COM(2005)457 - Placing on the market of pyrotechnic articles - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)457 - Placing on the market of pyrotechnic articles. |
|---|---|
| source | COM(2005)457  |
| date | 11-10-2005 |
Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses explicitly excludes pyrotechnic articles from its scope. However, one of its recitals indicates that additional legislation on pyrotechnic articles is planned.
The present proposal aims to create a comprehensive and coherent legislative framework at Community level and introduces minimum safety requirements with the aim of:
* ensuring the free movement of pyrotechnic products within the EU,
* improving the overall protection of consumers and professionals,
* contributing to the reduction of accidents,
* harmonising the safety requirements applicable in the different Member States,
1.1. The current situation
The legal framework for placing on the market and the use of pyrotechnic articles differs widely from Member State to Member State. In order to obtain an overview of the situation, in 2003 the Commission sent out a questionnaire concerning the legal framework in relation to pyrotechnic articles, notably fireworks. The questionnaire also aimed to collect statistics on accidents resulting from fireworks in the EU and EEA.
The data on accidents presented below concerns only fireworks and not other pyrotechnic articles such as stage effects and distress flares or pyrotechnic articles for the automotive industry. For these products no consistent system to report accidents exists in the Member States.
1.1.1. Placing fireworks on the market
Classification and approval
Current legislation in the Member States divides fireworks into a number of classes. These classes are separated by the quantity of pyrotechnic substance contained within the firework, and in some cases, also by the location of use (indoors or outdoors) of the firework. Although these national classification systems display a similarity in being based on the quantity of pyrotechnic substance used, they are not the same.
Many Member States have approval systems for placing of fireworks on their markets linked to classification. These approval systems currently use national standards for the examination of fireworks. In recognition of these differences, CEN, the European Committee for Standardisation, is seeking to develop harmonised EU standards on fireworks. A first series of CEN standards for fireworks was published in May 2003. Some Member States report that they have plans to adopt the CEN standards into their national legislation.
Consumer Restrictions
There are significant differences in the types of fireworks that may be sold according to national restrictions. All Member States prohibit the sale of large fireworks to consumers. Three Member States ban the sale of all fireworks generally to all consumers. In addition, one Member State allows the sale of small fireworks to consumers and prohibits the rest.
Some Member States ban the sale of fireworks with bang effects (e.g. bangers). The sale of certain other types of fireworks is also banned in some Member States. The reasons behind these measures vary from safety concerns to concerns about nuisance effects.
Minimum age restrictions for different categories of fireworks differ widely throughout the EU.
Three Member States only allow the sale and/or use of fireworks on certain days, e.g. between Christmas and New Year’s Day.
Labelling
Labelling requirements vary to some extent throughout Member States. These requirements can include information on classification and certification and some information on safe use or age restrictions. All national legislations require the provision of information on safe handling and use.
1.1.2. Accidents
In response to the Commission questionnaire, only a minority of Member States and one EFTA Member provided numerical information on accidents involving fireworks. One reason for this might be that national systems for the recording of accidents do not contain specific information on fireworks as a cause of accidents.
It appears that accident rates vary significantly between countries. This may be in part due to local customs for the public usage of fireworks.
The recorded accident rate in Greece (about 1 per million) and Ireland (3.9) is lower than that in Denmark (5.4), the UK (60.1), Sweden (about 50) and Norway (4.5). The reasons for these differences are unclear. However it is interesting to note that the two Member States with the lowest reported rate have a ban on the sale of fireworks to consumers.
It should be noted that the information stated above only refers to reported accidents and is based on cases requiring hospital treatment. It does not include information on accidents which may have been treated by a General Practitioner or that may have occurred in the home and have not been reported. It is therefore possible that the number of accidents recorded underestimates the actual figure.
Given that it is not possible to read much into the information beyond stating factual data, any attempt to estimate a figure for the total number of accidents across the EU must be treated very cautiously. However, a lower accident rate might be in the region of 15 per million and an upper rate might be in the region of 100 per million. Using these rates for an enlarged EU population of 455 million would give a total number of accidents involving fireworks of between 7,000 and 45,000 for this area.
Information on whether accidents are a result of a malfunction or a misuse of a firework is also limited. The information presented suggests that the majority are the result of misuse, although it is interesting to note that in Denmark in 2002, almost half of the recorded accidents were the result of a malfunction of the firework. General concern over the quality and standard of some fireworks which might find their way onto the EU market was also expressed by some replying to the questionnaire.
Other pyrotechnic articles such as stage effects and distress flares are also subject to differing national legislations. However, the Commission does not have any statistics on malfunctions or accidents for these products, but it cannot be excluded that accidents due to malfunctions occur.
1.1.3. Placing automotive pyrotechnic articles on the market
Many Member States have different approval processes for the placing of inflators, modules and safety devices for automotive and other uses on their markets. These approval processes currently use national regulations and laws for the approval of these products.
1.2. Intended effects of EU legislation
EU legislation on the marketing and use of pyrotechnic articles is intended to develop the essential safety requirements which are necessary for the effectiveness of harmonised EU standards on pyrotechnic articles. The draft Directive also aims at developing a harmonised EU approach to the provision of information on the safe handling and use of pyrotechnic articles.
A harmonised EU approach on standards for pyrotechnic articles will ensure that sub-standard pyrotechnic articles are not placed on the EU market and should result in a significant reduction in the number of accidents caused through the malfunction of a firework. It extends the CE marking of pyrotechnic articles with the result that only CE marked pyrotechnic articles can be placed on the market.
A harmonised EU approach to the provision of information on the safe handling and use of pyrotechnic articles might also be helpful in reducing the number accidents resulting from misuse.
A harmonised approach to the categorisation, use of standards, and approval system in relation to pyrotechnic articles should lead to significant benefits in terms of product safety coupled with a single market for manufacturers and importers.
At the same time, taking into account the variety of different national regulations on the marketing and use of fireworks, the proposal leaves the possibility for Member States to maintain their own regulations as far as the minimum age and the marketing and use of certain categories of fireworks are concerned.
1.3. Coherence with other community legislation
Other pyrotechnic articles which already fall under existing EU legislation e.g. on marine equipment have been excluded from the scope of the Directive. It also does not apply to explosives falling within the scope of the Council Directive 93/15/EEC.
The Directive therefore is coherent with other Community legislation.
Contents
As a working group for pyrotechnic articles at EU level did not previously exist, the consultation process for the Directive started in May 2003 with the sending out of the questionnaire, as described above. This was accompanied by a letter to the Permanent Representations of the Member States and to the Missions of the candidate and EFTA countries, which encouraged the circulation of the questionnaire to potential stakeholders, and which made clear that all persons were free to respond.
A first meeting of a stakeholder working group was organised on 23 September 2003, followed by two more meetings on 1 December 2003 and 16 March 2004 in Brussels. For these meetings, invitations were sent to Member State, candidate country and EFTA member administrations and to those associations which had replied to the questionnaire or which had declared their interest to participate in the working group.
The Pyrotechnics industry was represented by delegates from the European Pyrotechnics Association. The automotive components supplier industry was represented by CLEPA, their European association.
CEN, the European Committee for Standardisation, and in particular its technical committee for pyrotechnic articles have also been closely associated with the preparation of the Directive. It has assisted in the drafting of the essential safety requirements, which were finalised at a meeting hosted by the Netherlands in Delft on 17 to 18 November 2003.
Several earlier drafts of the Directive were widely distributed by the working group participants, and subsequently comments were received not only from the public authorities in charge of pyrotechnics, but also from several industry associations and individual companies (fireworks, automotive component suppliers and aerospace sectors).
In principle, most Member States and the associations of the pyrotechnics industry and the automotive component suppliers welcome the initiative for a Directive on pyrotechnic articles. However, the competent authorities of the UK and Sweden think that EU legislation in this area is not necessary, a point of view supported by some UK pyrotechnics manufacturers.
While the European automotive component suppliers have explicitly requested that airbags and other pyrotechnic car safety equipment be included in the scope of the Directive, there was a request to exclude aerospace parts because they were already covered by other international rules.
The main discussion with the Member States during the working group meetings concerned the extent to which Member States could maintain national restrictions on the sale and use of certain categories of fireworks.
Since there are markedly different cultural traditions when it comes to fireworks, the proposal foresees the possibility for Member States to restrict the use and/or sale to the public of category 2 and 3 fireworks.
Some Member States also want to be able to restrict the use and/or sale of category 1 fireworks (i.e. fireworks which present a very low hazard and which are intended for use in confined areas, including fireworks which are intended for use inside domestic buildings), from which there is by definition only very little risk. While we cannot accept this in principle, as it is necessary to create internal market conditions for this product group, the Commission is prepared to give a new mandate to CEN in order to redefine category 1 and to work on a list of those articles which can be regarded as harmless by all Member States and which should subsequently be able to circulate freely on the internal market.
Another controversial issue raised by a number of Member States was that of the minimum age limits. However, the Commission has made it clear that these are minimum requirements and that the Member States have the right to impose stricter limits if deemed necessary. For those Member States which do not yet have minimum age limits for the sale of fireworks to end consumers, these minimum age limits are expected to have a positive effect on the number of fireworks-related accidents.
Impact assessment
The EU market for fireworks for sale to consumers (categories 1, 2 and 3) is estimated to be around €700 million per year. The EU market for fireworks for sale to professionals only is also estimated to be around €700 million per year. Few fireworks are manufactured in the EU. Many of the fireworks which are manufactured in the EU are for professional use (category 4).
It is estimated that automotive occupant restraint systems are placed in around 20 million vehicles in the EU each year. In the case of airbags, this amounts to around 80 million systems being placed on the market each year with a value of around €3.5 billion. And in the case of seat belt pre-tensioners, around 90 million units are placed on the market each year with a value of around €2 billion.
The proposed Directive would create a single market for pyrotechnical articles. This is expected to result in the elimination of barriers to trade currently caused through national provisions in place throughout the EU. The Directive will set out essential safety requirements for pyrotechnical articles with Member State competent authorities assessing the compliance of these articles against the requirements. Articles which are considered to meet the safety requirements can be CE marked, guaranteeing their free circulation within the EU, whilst at the same time ensuring a high level of protection to consumers.
The Directive is expected to lead to a considerable reduction in costs as a single CE assessment of conformity will replace up to 25 parallel national approval procedures.
The main benefits are therefore: reduced burdens on enterprises through a harmonised approval system for the placing of pyrotechnic articles on the market along with the creation of a single market, and a high level of protection to consumers.
Pyrotechnic articles intended for use by the armed forces, police, in aircraft or falling within the scope of the Marine Equipment Directive (96/98/EC) will be excluded from the Directive.
Legal Basis
The legal basis of the proposal is Article 95 of the Treaty.
The present Directive will determine the conditions for placing and using pyrotechnic products on the EU market by harmonising the essential requirements. The objective will be to introduce minimum safety requirements to protect the general public and professionals while eliminating or avoiding barriers to trade and preventing distortion of competition due to divergent regulatory systems. The focus is therefore on protecting users whilst improving the conditions for the functioning of the internal market.
Article 95 of the EC Treaty is therefore appropriate for harmonising the conditions of marketing and use of pyrotechnic products whilst improving the protection of users.
Subsidiarity and proportionality principles
Legislation on the marketing and use of pyrotechnic articles is currently determined nationally throughout the EU and such divergent national legislation is liable to cause barriers to intra-community trade.
Therefore, the Commission’s intention is to create a genuine internal market for certain categories of pyrotechnic articles and to introduce essential safety requirements. This is only possible by using a Directive or Regulation.
As far as accidents are concerned, and taking into account that it is very easy to transport fireworks illegally from one Member State to another over open borders, it is not easy for authorities to control the placing on the market of fireworks. Without the definition of essential safety requirements, it can be expected that the number of accidents due to the effective fireworks would further increase.
However, subsidiarity will also be taken into account as the proposed Directive will not preclude Member States from taking measures on grounds of public security or safety to restrict the placing on the market of certain categories of fireworks. The proposed Directive also will allow Member States to maintain higher minimum age limits for the sale of fireworks to consumers again on grounds of public security or safety.
The proposed Directive is proportionate to the aims of improving consumer safety and creating the internal market for pyrotechnic articles.
Choice of instruments
The Commission has chosen a Directive as the best instrument for achieving its objectives, since there is the necessity to harmonise the differing national legislations on pyrotechnic articles. An alternative would have been a Regulation, however, this has never been done before for the New Approach, and a number of provisions contained in the Directive (e.g. obligation of the Member States to notify notified bodies and to engage in market surveillance) could not be contained in the Regulation, because it is directly applicable.
There are no immediate budgetary implications from the proposed Directive. The Committee referred to in Article 18 will decide upon the possibility to establish a Register of European Union registration numbers for pyrotechnic articles that will make it easier to identify pyrotechnic articles and their manufacturer or the authorised representative in case of accidents through malfunctioning. This provision could have budgetary implications later on which need to be studied in detail when such a proposal is being made.