DIRECTIVE 2009/142/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 30 November 2009
relating to appliances burning gaseous fuels
(codified version)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1)
Council Directive 90/396/EEC of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels (3) has been substantially amended (4). In the interests of clarity and rationality the said Directive should be codified.
(2)
Member States are responsible for ensuring the health and safety on their territory of their people and, where appropriate, of domestic animals and goods in relation to the hazards arising out of the use of appliances burning gaseous fuels.
(3)
In certain Member States, mandatory provisions define in particular the safety level required of appliances burning gaseous fuels by specifying design, operating characteristics and inspection procedures. These mandatory provisions do not necessarily lead to different safety levels from one Member State to another but do, by their disparity, hinder trade within the Community.
(4)
Different conditions as regards types of gas and supply pressures are in force in the Member States. These conditions are not harmonised because each Member State’s energy supply and distribution situation is peculiar to it.
(5)
Community law provides - by way of derogation from one of the fundamental rules of the Community, namely the free movement of goods - that obstacles to movement within the Community resulting from disparities in national legislation relating to the marketing of products must be accepted in so far as such obstacles can be recognised as being necessary to satisfy mandatory requirements. Therefore, the harmonisation of legislation in the present case should be limited to the provisions necessary to satisfy both the mandatory and essential requirements regarding safety, health and energy conservation in relation to gas appliances. These requirements should replace the national provisions in this matter because they are essential requirements.
(6)
The maintenance or improvement of the level of safety attained in Member States constitutes one of the essential aims of this Directive and of safety as defined by the essential requirements.
(7)
The essential safety and health requirements should be observed in order to ensure that appliances burning gaseous fuels are safe. Energy conservation is considered essential. These requirements should be applied with discernment to take account of the state of the art at the time of construction.
(8)
This Directive should therefore only contain essential requirements. To facilitate proof of conformity with the essential requirements, it is necessary to have harmonised standards at Community level in particular as to the construction, operation and installation of appliances burning gaseous fuels so that products complying with them may be assumed to conform to the essential requirements. These standards, harmonised at Community level, are drawn up by private bodies and must remain non-mandatory texts. For that purpose the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (Cenelec) and the European Telecommunications Standards Institute (ETSI) are recognised as the competent bodies for the adoption of harmonised standards in accordance with the general guidelines for cooperation between the Commission, the European Free Trade Association (EFTA) and those three bodies signed on 28 March 2003 (5). ‘Harmonised standard’ means a technical specification (European standard or harmonisation document) adopted by CEN, Cenelec or ETSI or by two or three of those bodies upon a remit from the Commission in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (6) and the above mentioned general guidelines for cooperation.
(9)
The Council has adopted a series of Directives designed to remove technical barriers to trade in accordance with the principles established in Resolution of 7 May 1985 on a new approach to technical harmonisation and standards (7); each of these Directives provides for the affixing of the CE marking. The Commission, in its Communication of 15 June 1989 on a global approach to certification and testing (8), proposed that common rules be drawn up concerning a CE marking with a single design. The Council, in its Resolution of 21 December 1989 on a global approach to conformity assessment (9), approved as a guiding principle the adoption of a consistent approach such as this with regard to the use of the CE marking. The two basic elements of the new approach which should be applied are the essential requirements and the conformity assessment procedures.
(10)
A check on compliance with the relevant technical requirements is necessary in order to provide effective protection for users and third parties. The existing certification procedures differ from one Member State to another. In order to avoid multiple inspections, which are in effect barriers to the free movement of appliances burning gaseous fuels, arrangements should be made for the mutual recognition of certification procedures by the Member States. In order to facilitate mutual recognition of certification procedures, harmonised Community procedures and the criteria for appointing the bodies responsible for carrying out these procedures should be set up.
(11)
The Member States’ responsibility on their territory for safety, health and energy conservation covered by the essential requirements should be recognised in a safeguard clause providing for an adequate Community procedure.
(12)
The addressees of any decision taken under this Directive should be informed of the reasons for such a decision and the legal remedies available to them.
(13)
This Directive is without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives in Annex VI, Part B,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER 1
SCOPE, DEFINITIONS, PLACING ON THE MARKET AND FREE MOVEMENT
Article 1
1. This Directive shall apply to appliances and fittings.
Appliances specifically designed for use in industrial processes carried out on industrial premises shall be excluded from its scope.
2. For the purposes of this Directive the following definitions shall apply:
(a)
‘appliances’ means appliances burning gaseous fuels used for cooking, heating, hot water production, refrigeration, lighting or washing and having, where applicable, a normal water temperature not exceeding 105 °C. Forced draught burners and heating bodies to be equipped with such burners shall also be considered as appliances;
(b)
‘fittings’ means safety devices, controlling devices or regulating devices and sub-assemblies, other than forced draught burners and heating bodies to be equipped with such burners, separately marketed for trade use and designed to be incorporated into an appliance burning gaseous fuel or assembled to constitute such an appliance;
(c)
‘gaseous fuel’ means any fuel which is in a gaseous state at a temperature of 15 °C under a pressure of 1 bar.
3. For the purposes of this Directive, an appliance is said to be ‘normally used’ when it is:
(a)
correctly installed and regularly serviced in accordance with the manufacturer’s instructions;
(b)
used with a normal variation in the gas quality and a normal fluctuation in the supply pressure; and
(c)
used in accordance with its intended purpose or in a way which can be reasonably foreseen.
Article 2
1. Member States shall take all necessary steps to ensure that appliances may be placed on the market and put into service only if, when normally used, they do not compromise the safety of persons, domestic animals and property.
2. Member States shall communicate in good time to the other Member States and the Commission all changes to the types of gas and corresponding supply pressures used on their territory which have been communicated in accordance with Article 2(2) of Directive 90/396/EEC.
The Commission shall ensure that this information is published in the Official Journal of the European Union.
Article 3
Appliances and fittings shall satisfy the essential requirements applicable to them set out in Annex I.
Article 4
1. Member States may not prohibit, restrict or impede the placing on the market and the putting into service of appliances which comply with this Directive and which bear the CE marking provided for in Article 10.
2. Member States may not prohibit, restrict or impede the placing on the market of fittings accompanied by a certificate as referred to in Article 8(4).
Article 5
1. Member States shall presume compliance with the essential requirements set out in Annex I of appliances and fittings when they conform to:
(a)
the national standards applicable to them implementing the harmonised standards the reference numbers of which have been published in the Official Journal of the European Union;
(b)
the national standards applicable to them in so far as, in the areas covered by such standards, no harmonised standards exist.
2. Member States shall publish the reference numbers of the national standards referred to in paragraph 1(a).
They shall communicate to the Commission the texts of their national standards as referred to in paragraph 1(b) which they regard as complying with the essential requirements set out in Annex I.
The Commission shall forward these national standards to the other Member States. In accordance with the procedure provided for in Article 6(2), it shall notify the Member States of those national standards which are presumed to conform with the essential requirements set out in Annex I.
Article 6
1. Where a Member State or the Commission considers that the standards referred to in Article 5(1) do not entirely meet the essential requirements set out in Annex I, the Commission or the Member State concerned shall bring the matter before the standing committee established under Article 5 of Directive 98/34/EC, hereinafter referred to as ‘the committee’, giving the reasons therefor.
The committee shall deliver an opinion without delay.
In the light of the committee’s opinion, the Commission shall inform the Member States whether or not it is necessary to withdraw those standards from the publications referred to in the first subparagraph of Article 5(2).
2. After receipt of the communication referred to in the second subparagraph of Article 5(2), the Commission shall consult the committee.
Upon receipt of the committee’s opinion, the Commission shall, within one month, inform the Member States whether the national standard(s) in question are to enjoy the presumption of conformity. If they are, the Member States shall publish the reference numbers of those standards.
The Commission shall also publish them in the Official Journal of the European Union.
Article 7
1. Where a Member State finds that normally used appliances bearing the CE marking might compromise the safety of persons, domestic animals or property, it shall take all appropriate measures to withdraw those appliances from the market and prohibit or restrict their being placed on the market.
The Member State concerned shall immediately inform the Commission of any such measure, indicating the reasons for its decision and, in particular, whether non-compliance is due to:
(a)
failure to meet the essential requirements set out in Annex I, where the appliance does not correspond to the standards referred to in Article 5(1);
(b)
incorrect application of the standards referred to in Article 5(1);
(c)
shortcomings in the standards referred to in Article 5(1) themselves.
2. The Commission shall enter into consultation with the parties concerned as soon as possible. Where, after such consultation, the Commission finds that any measure as referred to in paragraph 1 is justified, it shall immediately so inform the Member State that took the measure and the other Member States.
Where the decision referred to in paragraph 1 is attributed to shortcomings in the standards, the Commission, after consulting the parties concerned, shall bring the matter before the committee within two months if the Member State which has taken the measures intends to maintain them, and shall initiate the procedures referred to in Article 6.
3. Where an appliance which does not comply bears the CE marking, the competent Member State shall take appropriate action against whomsoever has affixed the CE marking and shall inform the Commission and the other Member States thereof.
4. The Commission shall ensure that the Member States are kept informed of the progress and outcome of the procedures.
CHAPTER 2
MEANS OF CERTIFICATION OF CONFORMITY
Article 8
1. The means of certification of conformity of series-manufactured appliances shall be:
(a)
the EC type-examination as referred to in point 1 of Annex II; and
(b)
prior to their being placed on the market, at the choice of the manufacturer:
(i)
the EC declaration of conformity to type referred to in point 2 of Annex II, or
(ii)
the EC declaration of conformity to type (guarantee of production quality) referred to in point 3 of Annex II, or
(iii)
the EC declaration of conformity to type (guarantee of product quality) referred to in point 4 of Annex II, or
(iv)
EC verification as referred to in point 5 of Annex II.
2. In the case of production of an appliance as a single unit or in small quantities, EC verification by single unit, as referred to in point 6 of Annex II, may be chosen by the manufacturer.
3. After completion of the procedures referred to in paragraphs 1(b) and 2, the CE marking shall be affixed to conforming appliances in accordance with Article 10.
4. The means of certification of conformity referred to in paragraph 1 shall be applied in respect of fittings with the exception of the affixing of the CE marking and, where appropriate, the drawing-up of the declaration of conformity.
A certificate shall be issued declaring the conformity of the fittings with the provisions of this Directive which apply to them and stating their characteristics and how they must be incorporated into an appliance or assembled to assist compliance with the essential requirements applicable to finished appliances set out in Annex I.
The certificate shall be supplied with the fitting.
5. Where the appliances are covered by other Directives dealing with other aspects and specifying the affixing of the CE marking, the latter shall indicate that the appliances are also presumed to conform to the provisions of those Directives.
However, where one or more of these Directives allow the manufacturer, during a transitional period, to choose which arrangements to apply, the CE marking shall indicate conformity to the provisions only of those Directives applied by the manufacturer. In this case, particulars of the Directives applied, as published in the Official Journal of the European Union, must be given in the documents, notices or instructions required by the Directives and accompanying such devices.
6. Records and correspondence relating to the means of certification of conformity shall be drawn up in the official language(s) of the Member State where the body responsible for carrying out these procedures is established or in a language accepted by it.
Article 9
1. Member States shall notify the Commission and the other Member States of the bodies which they have appointed to carry out the procedures referred to in Article 8 together with the specific tasks which these bodies have been appointed to carry out and the identification numbers assigned to them beforehand by the Commission.
The Commission shall, for information, publish in the Official Journal of the European Union, a list of those bodies, and the identification numbers it has assigned to them and shall ensure that the list is kept up to date.
2. Member States shall apply the criteria set out in Annex V for assessing the bodies to be notified.
Bodies which satisfy the assessment criteria laid down in the applicable harmonised standards shall be presumed to satisfy the criteria set out in that Annex.
3. A Member State which has notified a body must withdraw approval if it finds that the body no longer meets the criteria set out in Annex V. It shall immediately inform the Commission and the other Member States accordingly.
CHAPTER 3
CE MARKING
Article 10
1. The CE marking and the inscriptions set out in Annex III shall be affixed in a visible, easily legible and indelible form to the appliance or to a data plate attached to it. The data plate shall be so designed that it cannot be re-used.
2. The affixing of markings on the appliances which are likely to deceive third parties as to the meaning and form of the CE marking shall be prohibited. Any other marking may be affixed to the appliance or to the data plate provided that the visibility and legibility of the CE marking are not thereby reduced.
Article 11
Without prejudice to Article 7:
(a)
where a Member State establishes that the CE marking has been affixed unduly, the manufacturer or his authorised representative established within the Community shall be obliged to make the product comply as regards the provisions concerning the CE marking and to end the infringement under conditions imposed by that Member State;
(b)
where non-compliance continues, the Member State must take all appropriate measures to restrict or prohibit the placing on the market of the appliance in question or to ensure that it is withdrawn from the market in accordance with the procedure laid down in Article 7.
CHAPTER 4
FINAL PROVISIONS
Article 12
Any decision taken pursuant to this Directive which includes restriction on the placing on the market and/or putting into service of an appliance shall state the precise grounds on which it is based. It shall be notified without delay to the party concerned, who shall at the same time be informed of the legal remedies available to him under the laws in force in the Member State in question and of the time-limits to which such remedies are subject.
Article 13
Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.
Article 14
Directive 90/396/EEC, as amended by the Directive listed in Annex VI, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex VI, Part B.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VII.
Article 15
This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
Article 16
This Directive is addressed to the Member States.
Done at Brussels, 30 November 2009.