Opinion on the Commission proposal for a Council Directive on the approximation of the laws of Member States with regard to the transport of dangerous goods by road (1) (94/C 195/07)

On 20 December 1993 the Council decided to consult the Economic and Social Committee, under Article 75 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport and Communications, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 6 April 1994. The Rapporteur was Mr Giesecke.

At its 315th Plenary Session (meeting of 27 April 1994) the Economic and Social Committee adopted the following Opinion with no votes against and one abstention.

1. Introduction

1.1. The globalization of international and particularly European markets furthers competition. Science and research are leading to a rapid expansion of the volume and range of goods classified as dangerous. Accordingly, the volume and proportion of dangerous goods shipments is rising rapidly. This is particularly true of dangerous goods shipments by road.

1.2. After a number of well-publicized accidents, the general public has become much more aware of the risks to mankind and the environment of dangerous goods shipments, with the result that governments have acted to lessen such risks. Some of the steps taken by them have been drastic.

1.3. These government measures are frequently based on the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR), although this Agreement applies only to the cross-border transport of dangerous goods.

1.4. National rules and regulations in this area vary considerably in some cases, thereby hindering the free movement of dangerous goods within the European Union and the European Economic Area.

1.5. There is therefore a good case for harmonization at the highest possible level of safety.

1.6. When a new, harmonized set of regulations is drawn up, consideration should also be given to the rapid increase in the shipment of goods, including dangerous goods by road to and from the countries of central and eastern Europe.

2. The Commission proposal

2.1. The EU, acting on the basis of the responsibilities it shares with the Member States in accordance with Article 75(1)(c) of the Maastricht Treaty, has submitted this proposal for a Directive with the intention of achieving the necessary harmonization.

2.2. In doing so, the EU has based its proposal on international ADR and UN regulations. With the exception of Ireland, all Members States of the Community are contracting parties to the ADR.

2.3. It is not the intention of this proposal for a Directive, in harmonizing existing legislation in Member States throughout the Community, to lower the level of safety required for the transport of dangerous goods. Such safety should be maintained at as high a level as possible and this will be achieved by adopting amendments agreed in the regular updating of the ADR and United Nations Recommendations on the Transport of Dangerous Goods, which aim to reach the highest possible acceptable levels of safety.

2.4. Furthermore, given the special nature of this transport, Member States should be allowed to introduce additional non-safety-related provisions concerning aspects of dangerous goods shipments - e.g. provisions relating to the environment or national security.

This proposal does not address the issue of controls, which the Commission intends to cover in a separate Community instrument.

3. General comments of the Committee

3.1. The Committee welcomes the proposal to harmonize diverging national regulations governing the transport of dangerous goods at as high a level as possible.

3.2. The Committee also welcomes the proposal that the ADR's provisions should regulate the transport of dangerous goods within national frontiers.

3.3. As a general principle, the Committee believes that the provisions governing the transport of dangerous goods in the Member States should be as homogenous as possible. Such provisions should cover all modes of transport and be based on international regulations and agreements.

3.4. The Committee believes, however, that the safety gain would be considerable if the Directive contained a dynamic reference to whatever ADR Agreement was currently in force, rather than being brought into line with successive ADR Agreements, as envisaged.

3.5. This approach would not only enhance the effectiveness and transparency of the measure; it would above all make the definitions and terms clearer and easier to understand.

3.6. This would obviate the danger of highly dangerous misunderstandings and misinterpretations resulting from the simultaneous application of three different sets of rules, viz:

a) the ADR

b) the EU Directive based on the ADR

c) national provisions.

Staff working in what are often small or very small transport firms have grown accustomed to the ADR - at least as far as the cross-border transport of dangerous goods is concerned. Training and instruction are also geared to the ADR.

3.7. A dynamic reference to the ADR Agreement would also facilitate dangerous goods shipments to and from Eastern Europe and so achieve a higher level of safety.

3.8. A dynamic reference to the ADR Agreement is possible under EU law insofar as original texts are published and accessible to all citizens.

3.9. In the case of a dynamic reference, the Commission would merely have to make sure that changes in the ADR Agreement were published in good time in the other Member State languages.

3.10. Should there be legal objections to a dynamic reference of this sort, the effects this might have on the proposed Directive's implementation (dealt with in points 3.5 and 3.6) would have to be re-examined.

3.11. Should there be objections to the substance of the changes to the ADR Agreement - objections which are an argument against a dynamic reference - then the Committee can only assume that the representatives of the EU and EEA, who have at least 18 votes in the constituent bodies of the 23 Member State ADR, will be able to exercise a considerable influence over the future tenor of the ADR.

3.12. In the context of a dynamic reference to the ADR Agreement, the EU reserves the right to introduce more restrictive provisions than those laid down in the ADR. If it does so, it will immediately campaign within the ADR to have these more restrictive provisions incorporated swiftly into the ADR Agreement.

4. Specific comments

4.1. Article 1

Member States should be free to decide whether or not vehicles of the armed forces should be subject to this Directive. The Committee recommends that Member States should regulate the question of the inclusion of vehicles of the armed forces under their own general national regulations. Postal consignments should be covered by the Directive since the state monopolies with regard to postal services have either been broken up or are to be broken up in the future.

4.2. Article 2

The definitions should be taken over from the ADR Agreement in the interests of the greatest possible clarity. If this is done, Article 1(2) can also be left out.

4.3. Article 3

For safety reasons, the transport of dangerous goods within the meaning of this Directive should not only include their conveyance from one place to another, but also the receipt and delivery of the goods, their temporary storage during the transport operation, and their preparatory and final handling (packing and unpacking, loading and unloading), even if such operations are not effected by the carrier.

4.4. Article 4

The provisions contained herein are designed solely to protect the existing body of laws; no new laws may be introduced.

4.5. Article 5(2)

Article 5(2) should make it clear that special provisions may be introduced in the Member States at national, regional and local levels. Such measures shall apply without discrimination to all those involved in dangerous goods shipments within the territory concerned.

4.6. Article 5(3)

Article 5(3) should make it clear that special and traditional national, regional and local provisions (e.g. those on markings) may continue to apply only to a country's own vehicles.

4.7. Article 6

Article 6(1): This should be reviewed since it is inconsistent with the ADR Agreement. It is nevertheless proposed that an application be made to have the provision included in the ADR Agreement.

Article 6(2): For clarity's sake a third sentence should be added reading as follows:

'This shall apply in particular to the national language of the Member State in question.'

Article 6(7): The Committee proposes that existing national derogations for small quantities (domestic needs) should as far as possible be harmonized by the Committee set up under the provisions of Article 8.

Article 6(8): The Committee considers that the imposition of a maximum period for derogations should be reviewed. Limiting Member State derogations to a period of four years without any possibility of extension is in many cases insufficient. In view of the fact that the ADR Agreement is more or less aligned on UN recommendations, the corresponding UN recommendation often has to be amended before amendments can be made to the ADR Agreement. Four years are rarely long enough for this purpose.

Article 6(10): The Committee recommends that bilateral and multilateral agreements concerning cross-border transport and permitted by the ADR Agreement should remain in force indefinitely.

4.8. Article 8

The Committee is concerned lest the 'Committee' referred to in Article 8 will be overburdened with work. It therefore calls on the Commission to ensure that this 'Committee' will be capable of operating efficiently.

Work on adaptation could be dispensed with if there is a dynamic reference to the ADR Agreement.

One important task which the 'Committee' could be given is to discuss the general provisions governing derogations.

4.9. Article 9

The industry concerned should be involved in the work of the 'Committee' via trade and industrial associations.

4.10. Annexes A and B

Since the text already exists officially in French and English, and has by now been unofficially translated into German by a Drafting Group on which Germany, Austria and Switzerland are represented, it should be translated and published by the Commission only in those official Community languages in which it is not yet available.

This is to avoid the possibility of diverging translations of a specialized legal text leading to different interpretations.

Done at Brussels, 27 April 1994.

The Chairman

of the Economic and Social Committee

Susanne TIEMANN

(1) OJ No C 17, 20. 1. 1994, p. 6.