Explanatory Memorandum to COM(2014)258 - Appliances burning gaseous fuels - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2014)258 - Appliances burning gaseous fuels. |
|---|---|
| source | COM(2014)258  |
| date | 12-05-2014 |
Directive 2009/142/EC on appliances burning gaseous fuels is the codification of Directive 90/396/EEC i that was adopted on 29 June 1990 and became applicable as from 1 January 1992.
Directive 2009/142/EC is an example of Union harmonisation legislation, ensuring the free movement of appliances burning gaseous fuels. It has contributed considerably to the completion and operation of the Single Market with regard to appliances burning gaseous fuels. It harmonises the conditions for the placing on the market and/or putting into service of appliance burning gaseous fuels covered within its scope with regard to gas safety risks and rational use of energy.
Directive 2009/142/EC sets out essential requirements that appliances burning gaseous fuels must comply with in order to be made available on the EU market.
Directive 2009/142/EC is based on Article 114 of the Treaty on the Functioning of the European Union (hereinafter 'the Treaty') and is one of the first harmonisation Directives based on the “New Approach” principles, according to which manufacturers must ensure compliance of their products with the mandatory performance and safety requirements provided for in the legislative instrument, without out however imposing specific technical solutions or specifications.
This proposal intends to replace Directive 2009/142/EC on appliances burning gaseous fuels by a Regulation, in line with the Commission’s simplification objectives.
Experience from the implementation of Directive 2009/142/EC made necessary to update and clarify some of its provisions, without however modifying its scope. Those provisions concern mainly some sector specific definitions, the content and the form of the Member States communications of their gas supply conditions, the relationship with other Union harmonisation legislation applying to gas appliances (for other aspects) and some essential requirements in order to complete them and reduce thus the need for interpretation.
The proposed Regulation does not change the current scope of Directive 2009/142/EC, it however, modifies some of its provisions in order to clarify and update their content. The proposed Regulation is also aligned to the provisions of Decision No 768/2008/EC establishing a common framework for the marketing of products (NLF Decision).
The proposed Regulation clarifies also the relationship between its provisions and other more specific EU harmonisation legislation. It also clarifies that the rational use of energy essential requirement in point 3.5 of Annex I to this Regulation will not apply with regard to the energy efficiency aspect concerning appliances burning gaseous fuels falling within an implementing measure of Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products. To this date the implementing measures under Directive 2009/125/EC are Directive 92/42EEC on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels i, Commission Regulation (EU) No 813/2013 implementing Directive 2009/125/EC with regard to ecodesign requirements for space heaters and combination heaters, Commission Regulation (EU) No 814/2013 implementing Directive 2009/125/EC with regard to ecodesign requirements for water heaters and hot water storage tanks and Commission Regulation (EU) No 932/2012 implementing Directive 2009/125/EC with regard to ecodesign requirements for household tumble driers i.The rational use of energy requirement of this Regulation will not apply to appliances burning gaseous fuels which will be covered by future Ecodesign implementing measures under Directive 2009/125/EC. In the absence of Ecodesign implementing measures, the rational use of energy requirement continues to apply. However, this does not affect the obligations of Member States to adopt national measures with regard to the promotion of the use of energy from renewable sources and to the energy efficiency of buildings in accordance with Directive 2009/28/EC on the promotion of the use of energy from renewable sources i, Directive 2010/31/EU on the energy performance of buildings i and Directive 2012/27/EU on energy efficiency i. Such measures, which may in certain circumstances, limit the installation of gas appliances which comply with the rational use of energy requirement of this Regulation, must be compatible with the Treaty and take into account of the need to ensure the coherent implementation of the all aspects of Union law.
The proposal intends also to align Directive 2009/142/EC to the “goods package” adopted in 2008 and in particular to the NLF Decision.
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 legislation can be applied and enforced more effectively in practice. New elements, such as obligations on 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 Directives to the NLF Decision within an NLF implementation package adopted on 21 November 2011.
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 takes into account Regulation (EU) No 1025/2012 of the European Parliament and of the Council on European Standardisation[11].
The proposal also takes into account the proposal of the Commission of 13 February 2013 for a Regulation on market surveillance of products[12], which intends to set out a single legal instrument on the 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[13], 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[14] 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 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 2009/142/EC provides for a safeguard clause procedure for gas appliances. 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 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[15], which stressed the need to ensure consumer confidence in the quality of products on the market and the importance of reinforcing market surveillance. It is consistent with the Union energy policy as it does not affect the application and implementation of Union legislation in the field of energy efficiency and renewable energy.
It complements and is coherent with Union policy on energy supply and energy efficiency by not applying where more specific Union acts apply.
Furthermore it supports the Commission’s policy on Better Regulation and simplification of the regulatory environment.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- 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
- Consultation of interested parties
- Collection and use of expertise - Impact assessment
- 3.1. Scope and definitions
- 3.2. Member States communications on gas supply conditions on their territory
- 3.3. Making available on the market of gas appliances and fittings, obligations of economic operators, CE marking, free movement
- 3.4. Harmonised standards
- 3.5. Notified bodies
- 3.6. Conformity assessment
- 3.7. Implementing and delegated acts
- 3.8. Final provisions
- 3.9. Union competence, legal basis, subsidiarity principle and legal form
- Subsidiarity principle
- Proportionality
- Legislative technique used
- 5. ADDITIONAL INFORMATION
- European Economic Area
The revision of Directive 2009/142/EC has been discussed with national experts responsible for the implementation of the Directive, the conformity assessment bodies’ forum, the administrative cooperation group on market surveillance as well as in bilateral contacts with industry associations.
The consultation included meetings with the Member States Working Group Gas Appliances (WG-GA), the Working Group GAD Revision (WG GAD REV) and the Gas Appliances Directive Advisory Committee (GAD-AC).
An Ex-post Evaluation Study was carried out in 2010-2011, intending to evaluate the results of the implementation of Directive 2009/142EC[16]. The study assessed the effectiveness of Directive 2009/142/EC, its impact on companies and users, possible trade barriers limiting the free movement of appliances, innovation and whether the provisions of the Directive are sufficient to ensure that appliances burning gaseous fuels and fittings placed on the market and/or put into service in accordance with it, are designed and manufactured so as to operate safely and present no gas related risks.
Although the Ex-post evaluation study concluded that Directive 2009/142/EC was functioning well and contributed to the improvement of safety of appliances burning gaseous fuels, it also highlighted some areas for possible improvements.
From December 2011 to March 2012, a public consultation was organised with as main objective to have the views and opinions of authorities, manufacturers, associations, standardisation organisations, notified bodies, consumer organisations and citizens on various issues that needed to be addressed in preparing the options for the revisions of Directive 2009/142/EC.
The participation in the public consultation was important and the Commission services received 90 replies with contributions from public authorities, industry associations, notified bodies, standardisation and consumer organisations, both big enterprises and SMEs and consumers.
The results of the public consultation are published at:
ec.europa.eu/enterprise/sectors/pressure-and-gas
The consultation process in all related fora revealed widespread support for the revision.
There is unanimity on the need to align to the NLF and thus to improve the existing general regulatory framework. Authorities fully support the exercise because it will strengthen the existing system and improve cooperation at EU level. Industry expects a more level playing field resulting from more effective actions against products that do not comply with the legislation, as well as a simplification effect from the alignment of legislation. Certain concerns were expressed on some obligations which are, however, indispensable for increasing the efficiency of market surveillance. These measures will not entail significant costs for industry and the benefits resulting from improved market surveillance should by far outweigh the costs.
An impact assessment on the revision of Directive 2009/142/EC has been conducted. The impact assessment sets out extensively the different options of revision of the sector related aspects of Directive 2009/142/EC.
With regard to the NLF alignment aspects, the impact assessment report for the revisions of Directive 2009/142/EC refers to the general impact assessment conducted in the framework of the NLF Implementation package of 21 November 2011[17].
In particular, the modifications due to the alignment to the NLF Decision and their impacts are expected to be the same as for the nine product harmonisation Directives included in the Alignment Package.
The Impact Assessment Report on this Alignment Package has already examined in depth the different options, which are exactly the same with regard to Directive 2009/142/EC. The Report contained also an analysis of the impacts resulting from the legislative alignment to the provisions of the NLF Decision.
Therefore, the Impact Assessment Report on the revision of Directive 2009/142/EC did not examine those aspects and it focussed on specific issues relating to Directive 2009/142/EC as well as on the ways to address them.
Based on the information collected, the impact assessment carried out by the Commission examined and compared three options with regard to problems and issues relating to Directive 2009/142/EC.
Option 1 – “Do nothing” - No changes to the existing situation
This option proposes no changes to Directive 2009/142/EC.
Option 2 – Intervention by non-legislative measures
Option 2 considers the possibility of encouraging voluntary interventions to resolve the identified issues, e.g., guidance documents containing a commonly agreed interpretation of Directive 2009/142/EC.
Option 3 – Intervention by legislative measures
This option consists in modifying Directive 2009/142/EC.
Option 3 was found to be the preferred option because:
– it is considered more effective than option 2: due to the lack of enforceability of option 2 it is questionable that the positive impacts would materialise under that option;
– it does not entail significant costs for economic operators and notified bodies; for those who are already acting responsibly, no extra costs or only negligible costs are expected, as the scope and the provisions remain in substance unchanged and only legal clarifications are inserted;
– not any significant economic or social impacts could be identified;
– options 1 and 2 do not provide answers to legal inconsistencies or ambiguities and therefore will not lead to a better implementation of Directive 2009/142/EC.
The proposal includes:
· The removal of the outdated temperature limit of 105°C from the definition of the scope;
· The introduction of currently missing definitions for the sector specific terminology under Directive 2009/142/EC;
· The introduction of a harmonised content and form of the communications of the Member States under Article 2 i of Directive 2009/142/EC, of the types of gas and corresponding supply pressures used on their territory;
· The clarification of the relationship between Directive 2009/142/EC and other EU harmonisation legislation, including Ecodesign implementing measures under Directive 2009/125/EC and other Union energy policy instruments;
· The improvement of the readability of some of the provisions of Directive 2009/142/EC.
The impact of the proposal will lead to strengthening the competitiveness of European enterprises as a result of guaranteeing a level playing field for the economic operators and to enhanced safety protection for consumers and other end-users.
The scope of the proposed Regulation corresponds to the scope of Directive 2009/142/EC, and covers “appliances” and “fittings”.
The proposal introduces some definitions relating to sector specific issues, in order to improve its readability.
Additionally, the general definitions resulting from the alignment to the NLF Decision have been inserted.
The proposed Regulation contains current Article 2 i of Directive 2009/142/EC, according to which Member States must communicate the types of gas and corresponding supply pressures used on their territories and any changes in their gas supply conditions to other Member States and the European Commission. Subsequently, this information is published in the Official Journal of the European Union (OJEU)[18].
This information is very important for manufacturers as the gas supply conditions at the place where an appliance burning gaseous fuels is put into service are very important for its safe and correct functioning. Therefore, this aspect has to be taken into account by the manufacturer already in the design phase.
The availability of adequate information is also the prequisite for the determination of the "appliance category” marking or markings that must be indicated on the appliance and are defined by the European Committee for Standardisation (CEN). Cureently, this information is provided in harmonised standard hEN 437:2003+A1:2009 and in product specific European harmonised standards.
However, as the currently published information is not sufficient, there is a need to better determine the parameters which should be communicated by the Member States in order to ensure the adequacy and comparability of this information.
Additionally, the gas supply conditions in the Union are currently under rapid development. This is due, amongst others, to the general Union objective to increase the proportion of energies from renewable sources. As a result, more and more gases from non-conventional sources[19] will be supplied both through isolated local networks and by injecting them into natural gas distribution networks.
Despite the attempts to achieve a higher degree of harmonisation of gas qualities across Europe[20], the gradual depletion of the sources of gas extracted from some gas fields and their replacement with biogas will lead to an increasing diversity of gas qualities.
As the types of gas and their supply pressures are not subject to harmonisation in the framework of Directive 2009/142/EC and cannot be subject to such harmonisation under this proposal, the gas quality issue has to be taken into account in the proposal in order to ensure the link with the safety and performance of the appliances.
It is therefore important that this proposal ensures that manufacturers have adequate information about the types of gas and supply pressures available as gas appliances are very sensitive to the composition of the fuel. Inadequate or missing pieces of information during the design phase would lead to unsafe and/or not correctly performing (e.g. significantly reduced energy efficiency level) appliances being placed on the market.
Therefore the proposal defines the parameters that should be included in the communications, in order to better ensure the compatibility of the appliances with the gas supply conditions and provides for a harmonised form for those communications.
3.3. Making available on the market of gas appliances and fittings, obligations of economic operators, CE marking, free movement
The proposal contains 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.
According to Directive 2009/142/EC, fittings do not bear the CE marking (as also they are not subject to a safeguard clause procedure). Fittings are not appliances burning gaseous fuels, but intermediate products made separately available only between professionals and intended to be incorporated into an appliance before the latter is placed on the market. According to Directive 2009/142/EC, fittings must however been accompanied by a certificate declaring their conformity with the provisions of the Directive and stating their characteristics and how they should be incorporated into an appliance or assembled to assist compliance with the essential requirements applicable to finished appliances. As the appropriate design of a fitting contributes to the correct and safe functioning of a finished appliance and as the gas related risks of an appliance can only be assessed after incorporation of the fitting, the proposed Regulation keeps the existing provision according to which fittings do not bear the CE marking. However, in order to improve clarity, the certificate accompanying fittings under Directive 2009/142/EC has been qualified as “Fitting conformity certificate”, in order to better define its content and clarify its relationship with the EU declaration of conformity requirement under other possibly applicable Union harmonisation legislation.
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 2009/142/EC which cover the same aspects have not been reintroduced in this proposal for reasons of legal certainty.
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 keeps the conformity assessment procedures provided for under Directive 2009/142/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 appliances and fittings.
Furthermore, it keeps the current approach for the design phase, according to which the type examination of the product by the notified body takes the form of examination of the complete appliance or fitting.
Therefore, in accordance with Article 4 of the NLF Decision, it provides only for the EU-type examination – production type, as the examination of the technical documentation in conjunction with the examination of the complete type is considered, as in Directive 2009/142/EC, to better correspond with the high risks related to gas safety.
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 proposal empowers the Commission to adopt, where appropriate, delegated acts in accordance with Article 290 of the Treaty in respect of the content and the form of the Member States communications relating to the gas supply conditions on their territory, in order to take into account technical developments.
The proposed Regulation will become applicable two years after its entry into force to allow manufacturers, notified bodies, Member States and European Standardisation Bodies, 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 2009/142/EC so as to allow stocks to be absorbed and ensure a smooth transition to the new requirements.
Directive 2009/142/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 2009/142/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 objectives of Directive 2009/142/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 gas appliances. 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 gas appliances. 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 gas appliances. 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 e.g. as regards the designation and accreditation of notified bodies, market surveillance and enforcement action and of defining their gas supply conditions as far as the gas qualities are not harmonised at Union level.
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 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.
This proposal does not have any implication for the Union budget.
Repeal of existing legislation
The adoption of the proposal will lead to repeal of Directive 2009/142/EC.
The proposal concerns the EEA and should therefore be extended to the European Economic Area.