COUNCIL DIRECTIVE of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels (90/396/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas 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;
Whereas, 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; whereas 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;
Whereas different conditions as regards types of gas and supply pressures are in force in the Member States; whereas these conditions are not harmonized because each Member State's energy supply and distribution situation is peculiar to it;
Whereas paragraphs 65 and 68 of the White Paper on the completion of the internal market, approved by the European Council in June 1985, provide for a new approach to legislative harmonization;
Whereas 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 recognized as being necessary to satisfy mandatory requirements; whereas, therefore, the harmonization of legislation in the
present case must 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; whereas these requirements must replace the national provisions in this matter because they are essential requirements;
Whereas 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;
Whereas the essential safety and health requirements must be observed in order to ensure that appliances burning gaseous fuels are safe; whereas energy conservation is considered essential; whereas these requirements must be applied with discernment to take account of the state of the art at the time of construction;
Whereas this Directive therefore contains only essential requirements; whereas, to facilitate proof of conformity with the essential requirements, it is necessary to have harmonized standards at European 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; whereas these standards, harmonized at European level, are drawn up by private bodies and must remain non-mandatory texts; whereas for that purpose the European Committee for Standardization (CEN) and the European Committee for Electrotechnical Standardization (Cenelec) are recognized as the competent bodies for the adoption of harmonized standards in accordance with the general guidelines for cooperation between the Commission and those two bodies signed on 13 November 1984; whereas, for the purposes of this Directive, a harmonized standard is a technical specification (European standard or harmonization document) adopted by one or both of those bodies upon a remit from the Commission in accordance with Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (4), as last amended by Directive 88/182/EEC (5), and the abovementioned general guidelines;
Whereas, pending the adoption of harmonized standards within the meaning of this Directive, conformity with the essential requirements and the free movement of appliances burning gaseous fuels should be facilitated by the acceptance, at Community level, of products conforming to the national
standards whose conformity with the essential requirements has been confirmed by a Community checking procedure;
Whereas a check on compliance with the relevant technical requirements is necessary in order to provide effective protection for users and third parties; whereas the existing certification procedures differ from one Member State to another; whereas, 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; whereas, in order to facilitate mutual recognition of certification procedures, harmonized Community procedures should be set up and the criteria for appointing the bodies responsible for carrying out these procedures should be harmonized;
Whereas the Member States' responsibility on their territory for safety, health and energy conservation covered by the essential requirements must be recognized in a safeguard clause providing for an adequate Community procedure;
Whereas the addressees of any decision taken under this Directive must be informed of the reasons for such a decision and the legal remedies available to them;
Whereas the Council adopted, on 17 September 1984, a framework Directive on gas appliances (84/530/EEC) (6), as last amended by Directive 86/312/EEC (7), and a separate Directive on gas water heaters (84/531/EEC) (8), as last amended by Directive 88/665/EEC (9); whereas those Directives cover the same area as this Directive and should therefore be repealed;
Whereas the measures aimed at the gradual establishment of the internal market must be adopted by 31 December 1992; whereas the internal market consists of an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
Scope, placing on the market and free movement
Article 1
1. This Directive shall apply to:
- 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 gC, hereinafter referred to as 'appliances'. Forced draught burners and heating bodies to be equipped with such burners will also be considered as appliances,
- safety devices, controlling devices or regulating decives 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, hereinafter referred to as 'fittings'.
2. Appliances specifically designed for use in industrial processes carried out on industrial premises are excluded from the scope defined in paragraph 1.
3. For the purposes of this Directive, 'gaseous fuel' means any fuel which is in a gaseous state at a temperature of 15 gC under a pressure of 1 bar.
4. For the purposes of this Directive, an appliance is said to be 'normally used' when it is:
- correctly installed and regularly serviced in accordance with the manufacturer's instructions,
- used with a normal variation in the gas quality and a normal fluctuation in the supply pressure, and
- 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 the appliances referred to in Article 1 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 the types of gas and corresponding supply pressures used on their territory to the other Member States and the Commission before 1 January 1991. They shall also communicate all changes in good time. The Commission shall ensure that this information is published in the Official Journal of the European Communities.
Article 3
Appliances and fittings as referred to in Article 1 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 satisfy the essential requirements of this Directive.
2. Member States may not prohibit, restrict or impede the placing on the market of fittings as referred to in Article 1 accompanied by a certificate as referred to in Article 8 (4).
Article 5
1. Member States shall presume compliance with the essential requirements referred to in Article 3 of appliances and fittings when they conform to:
(a) the national standards applicable to them implementing the harmonized standards whose reference numbers have been published in the Official Journal of the European Communities.
Member States shall publish the reference numbers of these national standards;
(b) the national standards applicable to them referred to in paragraph 2 in so far as, in the areas covered by such standards, no harmonized standards exist.
2. Member States 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 referred to in Article 3. 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 referred to in
Article 3.
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 referred to in Article 3, the Commission or the Member State concerned shall bring the matter before the standing committee set up under Directive 83/189/EEC, hereinafter referred to as 'the committee', giving the reasons therefore. 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 Article 5 (1).
2. After receipt of the communication referred to in Article 5 (2), the Commission shall consult the committee. Upon receipt of the latter's opinion, the Commission shall, within one month, inform the Member States whether or not 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 Communities.
Article 7
1. Where a Member State finds that normally used appliances bearing the EC mark 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 referred to in Article 3, 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 EC mark, the competent Member State shall take appropriate action against whomsoever has affixed the mark 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 II
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 section 1 of Annex II, and
(b)
prior to their being placed on the market, at the choice of the manufacturer:
- the EC declaration of conformity to type referred to in section 2 of Annex II, or
- the EC declaration of conformity to type (guarantee of production quality) referred to in section 3 of Annex II, or
- the EC declaration of conformity to type (guarantee of product quality) referred to in section 4 of Annex II, or
- EC verification as referred to in section 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 section 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 EC mark of conformity shall be affixed to conforming appliances in accordance with Article 10.
4. The procedures referred to in paragraph 1 shall be applied in respect of fittings as referred to in Article 1 with the exception of the affixing of the EC mark of conformity 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.
The certificate shall be supplied with the fitting.
5. Where the appliances are also subject to other Community Directives:
- their compliance with the essential requirements of this Directive shall be verified in accordance with the procedures laid down in paragraphs 1 and 2, and
- it shall be ensured that they also comply with the essential requirements of the other Directives in accordance with the procedures laid down in those Directives.
The affixing of the EC mark as referred to in paragraph 3 shall certify that the provisions of all the applicable Directives have been complied with.
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. Each Member State shall notify the Commission and the other Member States of the bodies, hereinafter called the 'notified bodies', responsible for carrying out the procedures referred to in Article 8.
The Commission shall publish for information purposes in the Official Journal of the European Communities a list of the notified bodies with their identification symbols 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 harmonized 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 referred to in paragraph 2. It shall immediately inform the Commission and the other Member States accordingly.
CHAPTER III
EC mark of conformity
Article 10
1. The EC mark of conformity 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 to appliances of marks which are likely to be confused with the EC mark shall be prohibited.
Article 11
Where it is established that the EC mark has been wrongly Where it is established that the EC mark has been wrongly affixed to appliances or that certification for fittings has been wrongly attributed because:
- the appliances or the fittings do not conform to the appliance or fitting as referred to in the EC type-examination certificate,
- the appliances or the fittings conform to the appliance or fitting as referred to in the EC type-examination certificate but do not meet the essential requirements applicable to them,
- the manufacturer has failed to fulfil his obligations as specified in Annex II,
the notified body shall withdraw the right to affix the EC mark or to issue the certificate and shall so inform the other notified bodies and report to the Member State concerned.
CHAPTER IV
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
Directives 84/530/EEC and 84/531/EEC are hereby repealed.
Article 14
1. Before 1 July 1991, Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall inform the Commission thereof.
They shall apply such provisions from 1 January 1992.
2. However, in derogation from Article 2, Member States may, during the period up to 31 December 1995 and without prejudice to Articles 30 to 36 of the Treaty, permit the placing on the market and/or the putting into service of appliances and fittings which comply with the regulations in force in the Member States before 1 January 1992.
3. 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 15
This Directive is addressed to the Member States.
Done at Luxembourg, 29 June 1990.