COMMON POSITION (EC) No 11/2000

adopted by the Council on 29 March 1999

with a view to adopting Directive 2000/.../EC of the European Parliament and of the Council on minimum examination requirements for safety advisers for the transport of dangerous goods by road, rail or inland waterway

(2000/C 36/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71(1)(c) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the Economic and Social Committee(2),

After consultation with the Committee of the Regions,

Acting in accordance with the procedure referred to in Article 251 of the Treaty(3),

Whereas:

(1) the improvement of transport safety and the protection of the environment, especially within the context of the transport of dangerous goods by road, rail and inland waterway, are important issues, as is also the human element in the safe operation of these modes of transport;

(2) under the terms of Council Directive 96/35/EC of 3 June 1996 on the appointment and vocational qualification of safety advisers for the transport of dangerous goods by road, rail and inland waterway(4) all undertakings the activities of which include the transport of dangerous goods, as well as the loading or unloading related to that type of transport, are obliged to appoint one or more safety advisers; the said Directive does not contain any detailed provisions aimed at the harmonisation of examination requirements for safety advisers or any provisions applicable to examination bodies;

(3) Member States should set up a common minimum framework for the examination of safety advisers and the conditions for the examination bodies in order to guarantee a certain level of quality and to facilitate the mutual recognition of EC certificates of training;

(4) the examination of safety advisers will as a minimum include a written test consisting of questions relating at least to the subjects listed in Annex II to Directive 96/35/EC and a case study whereby the candidates can demonstrate that they have the ability to carry out the tasks of a safety adviser;

(5) Member States may provide that candidates who intend to work for undertakings whose activities are concerned only with specific dangerous goods will be examined only on subject matters related to their activities; in this case, the EC certificate of training should clearly indicate the limits of its validity;

(6) the examination carried out by the examination bodies will be subject to approval of the Member States' competent authorities; Member States will define the criteria applicable to examination bodies in order to maintain a high level of quality of service; the examination bodies should be technically competent, reliable and independent;

(7) Member States should assist one another in the implementation of this Directive,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

Scope and definitions

Article 1

1. This Directive lays down the minimum examination requirements for the examination needed to obtain the EC certificate of training as safety adviser for the transport of dangerous goods provided for in Directive 96/35/EC.

2. Member States shall take all necessary measures to ensure that safety advisers for the transport of dangerous goods are examined in such a way that they satisfy these minimum requirements.

Article 2

For the purposes of this Directive:

(a) "safety adviser for the transport of dangerous goods", hereinafter referred to as "adviser", shall mean any person specified in Article 2(b) of Directive 96/35/EC;

(b) "dangerous goods" shall mean goods defined in Article 2 of Directive 94/55/EC(5) and Article 2 of Directive 96/49/EC(6);

(c) "undertaking" shall mean the undertakings specified in Article 2(a) of Directive 96/35/EC;

(d) "examination" shall mean the examination specified in Article 5(2) of Directive 96/35/EC;

(e) "examination body" shall mean any body designated by the competent authorities of the Member States to hold examinations;

(f) "EC certificate" shall mean the certificate established in accordance with the model given in Annex III to Directive 96/35/EC.

CHAPTER II

Examinations

Article 3

1. The competent authority or examining body shall organise a compulsory written examination which it may supplement with an oral examination to check whether candidates possess the necessary level of knowledge required to carry out the tasks of adviser in order to obtain the EC certificate.

2. The compulsory examination shall consist of a written test adapted to the mode(s) of transport in respect of which the EC certificate is issued.

3. (a) The candidate shall be given a questionnaire. It shall consist of at least 20 open questions relating, in accordance with Article 5(4) of Directive 96/35/EC, at least to the subjects listed in Annex II to the said Directive. However, use may be made of multiple choice questions. In that case, two multiple choice questions shall be equal to one open question.

Among those subjects, particular attention, appropriate to the mode of transport concerned, shall be given to the following topics:

- general prevention and safety measures;

- the classification of dangerous goods;

- general packaging requirements, including tanks, tank containers and rail tankers;

- danger markings and labels;

- references in transport documents;

- handling and stowage;

- the vocational training of crews;

- vehicle papers and transport certificates;

- safety instructions;

- transport equipment requirements.

(b) Candidates shall carry out a case study in connection with Annex I to Directive 96/35/EC whereby they can demonstrate that they have the ability to carry out the tasks of adviser.

(c) Member States may provide that candidates who intend to work for undertakings specialised in the transport of certain types of dangerous goods shall be tested, in accordance with Annex II of Directive 96/35/EC, only on matters related to their activities.

These types of goods shall be:

- class 1 (explosives);

- class 2 (gases);

- class 7 (radioactive material);

- classes 3, 4.1, 4.2, 4.3, 5.1, 5.2, 6.1, 6.2, 8 and 9 (solids and liquids);

- UN numbers 1202, 1203, 1223 (mineral oils).

The heading of the EC certificate must clearly indicate that it is valid only for types of dangerous goods referred to in this paragraph and on which the adviser has been examined in accordance with the requirements defined in (a) and (b).

4. The competent authority or examination body shall gradually establish a compendium of the questions which have been included in the examination.

CHAPTER III

Criteria applicable to examination bodies

Article 4

1. If Member States do not take direct charge of the organisation of the examination, they shall appoint the examination bodies on the basis of the following criteria:

(a) competence of the examination body;

(b) specification of the examination arrangements proposed by the examination body;

(c) measures intended to ensure the impartiality of the examinations;

(d) independence of the body as regards any natural or legal persons employing advisers.

2. The approved examination body shall be designated in writing. Such approval may be of limited duration.

Article 5

Member States shall assist one another in implementing this Directive.

Each Member State shall submit on a regular basis to the Commission the compendium of questions referred to in Article 3(4). The Commission shall inform the other Member State thereof.

CHAPTER IV

Final provisions

Article 6

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 1999 at the latest. They shall forthwith inform the Commission thereof.

When the Member States adopt these measures, they shall include a reference to this Directive or shall be accompanied by such a reference upon their official publication. The Member States shall lay down the manner in which such references shall be made.

2. The Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive.

Article 7

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 8

This Directive is addressed to the Member States.

Done at Brussels ...

For the European Parliament

The President

...

For the Council

The President

...

(1) OJ C 148, 14.5.1998, p. 21, and OJ C 52, 23.2.1999, p. 16.

(2) OJ C 407, 28.12.1998, p. 118.

(3) Opinion of the European Parliament of 20 October 1998 (OJ C 341, 9.11.1998, p. 29), Council Common Position of 29 March 1999 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(4) OJ L 145, 19.6.1996, p. 10.

(5) Council Directive 94/55/EC of 21 November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road (OJ L 319, 12.12.1994, p. 7). Directive as last amended by Commission Directive 1999/47/EC (OJ L 169, 5.7.1999, p. 1).

(6) Council Directive 96/49/EC of 23 July 1996 on the harmonisation of the laws of the Member States with regard to transport of dangerous goods by rail (OJ L 235, 17.9.1996, p. 25). Directive amended by Commission Directive 1999/48/EC (OJ L 169, 5.7.1999, p. 58).

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 20 March 1999, the Commission forwarded to the Council a proposal for a Council Directive on the harmonisation of examination requirements for safety advisers for the transport of dangerous goods by road, rail or inland waterway(1).

The proposal is based on Article 71(1)(c) of the EC Treaty.

The European Parliament and the Economic and Social Committee delivered their opinions on the Commission proposal on 20 October 1998(2) and on 9 September 1998(3), respectively.

Following the Council's request for consultation on 25 May 1999, the Committee of the Regions communicated its decision not to give an opinion by letter on 22 July 1999.

In the light of the European Parliament's opinion, the Commission forwarded an amended proposal(4) to the Council on 23 December 1998.

On 29 March 1999, the Council adopted its common position in accordance with Article 251 of the EC Treaty.

II. OBJECTIVES

1. On 3 June 1996, the Council adopted Directive 96/35/EC(5) with a view to facilitating compliance with the rules on the prevention of the risks inherent in the transport of dangerous goods. Directive 96/35/EC covers all undertakings whose activity includes the transport of dangerous goods or loading or unloading connected with such transport and concerns only transport by road, rail or inland waterway. It lays down the obligation for the undertakings concerned to appoint one or more safety advisers for the transport of dangerous goods with the task of helping to prevent the risks to persons, goods or the environment inherent in such activities. An adviser must hold a Community-type vocational-training certificate issued by the competent authority or the body designated for that purpose by each Member State. This certificate, which is recognised by all the other Member States, is valid for the mode or modes of transport concerned and certifies the vocational qualifications of the advisers. To obtain a certificate a candidate must undergo training providing him with sufficient knowledge of the tasks defined in Annex I to the above Directive and pass an examination covering the minimum list of subjects given in Annex II. Directive 96/35/EC does not contain any detailed provisions for harmonising the examination requirements for safety advisers or any provisions applicable to the examining bodies. In order, however, to enable all Member States to provide the necessary training and prior examination, the Council has laid down a deadline for transposing the Directive that is sufficiently far in the future, namely 31 December 1999.

2. The Commission noted that the organisation of examinations already envisaged by certain Member States might result in differing levels and major discrepancies between the tests, and therefore thought it advisable to propose minimum harmonisation of the level of training of safety advisers in order to make transport safer and fix examination requirements at a high level. It therefore submitted a proposal for a Directive with a view to laying down minimum requirements for the organisation and content of examinations and conditions for participation by undertakings wishing to offer their services as examiners.

Since Directive 96/35/EC stipulates that Member States should apply that Directive no later than 31 December 1999, the Commission is proposing that Member States apply the new Directive six months earlier.

III. ANALYSIS OF THE COMMON POSITION

The Council's common position takes the amended Commission proposal on board, subject to the amendments given below:

- in Article 3(3)(a), the common position allows more flexibility in the breakdown of examination questions than proposed by the Commission in Article 3(5)(a).

The Council felt it would be preferable for the Member States to have greater discretion as to the minimum content of tests. Candidates would have to answer at least 20 questions on subjects listed in Annex II to Directive 96/35/EC. They might also have to answer multiple-choice questions, with two multiple-choice questions counting as one open question.

The Council did not think it necessary to divide the subjects listed in Annex II into three groups and to require that three questions be set on the first group of subjects, two on the second and one on the third.

The Council felt it would suffice for particular attention to be paid to the subjects in the first group listed in the amended Commission proposal;

- deletion of Article 4(2) and Article 8 of the amended Commission proposal. Article 4(2) provides that the Commission must approve, by committee procedure, the conditions of examination of candidates intending to work for the specialised undertakings referred to in Article 4 (Article 3(3)(c) of the common position). Article 8 lays down the committee procedure to be used.

The Council felt it would be preferable for Member States to be responsible for organising the testing of candidates intending to work for the above specialised undertakings;

- Article 4 of the common position broadly covers the requirements of Articles 5 and 6 of the amended Commission proposal;

- in Article 6(1), the date set by the Commission in Article 9(1), namely 30 June 1999, has been put back and now falls on the same date as set in Directive 96/3/EC, namely 31 December 1999.

Bearing in mind that one of the aims of the new Directive is to harmonise the organisation and content of the examinations provided for in Directive 96/35/EC, the Council felt that it would be wise to set the same transposition date for both Directives;

- deletion of Article 9(3) of the Commission proposal (Article 6 of the common position), which was intended to introduce a system of penalties.

The Council did not think there was any need for the new Directive to include a provision designed to lay down a system of penalties to apply if the Directive were infringed.

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments adopted by the Council and accepted by the Commission

The Council has followed the amended Commission proposal in adopting the content, if not the wording, of the following European Parliament amendments:

- in Article 1(2), the common position takes on board the first part of amendment 1, which is an addition to the wording to indicate the area of activity covered by the safety advisers, namely the transport of dangerous goods;

- in Article 1(2), the common position takes on board the second part of amendment 1, which is intended to make clear that provisions of the Directive constitute minimum requirements;

- in Article 3(1), the common position takes account of amendment 2, which is designed to define more accurately the knowledge which candidates must demonstrate in order to perform the duties of an adviser;

- in Article 3(1), the common position takes account of amendment 4, which provides that the compulsory written examination may be supplemented by an oral test;

- in Article 3(3)(a), the common position takes account of amendment 5, which is designed to amend Article 3(5)(a) of the amended Commission proposal to state that the requirements laid down as regards questions on the subjects listed in Annex II to Directive 96/35/EC constitute minimum requirements;

- in Article 3(3)(a), the common position takes on board amendment 7, which is intended to increase Member States' ability to grant exemptions restricting the number of subjects for examination and to issue specific certificates;

- in Article 5, the common position takes account of amendment 9, which is designed to improve the efficiency of the exchange of information on the catalogue of questions referred to in Article 3(3) of the amended Commission proposal (Article 3(4) of the common position) as it provides that Member States are to forward this catalogue to the Commission, which will inform the other Member States thereof.

2. European Parliament amendments not adopted by the Council, and

(a) not accepted by the Commission

The Council has followed the amended Commission proposal in not adopting:

- the third part of amendment 1, whereby a provision on the mutual recognition of the EC certificate of training by the Member States and the EEA would be added to Article 1(2) of the amended Commission proposal.

The Council stressed that this was superfluous, given that the certificate was an EC certificate established in accordance with the model given in Annex III to Directive 96/35/EC.

- amendment 3, whereby a provision also requiring candidates to demonstrate their ability to perform the duties of an adviser by making a case study would be added to Article 3(3) of the amended Commission proposal.

The Council pointed out that this was already provided for in Article 3(5)(b) of the amended Commission proposal and appeared in Article 3(3)(b) of the common position.

- amendment 6, adding a new paragraph on the period of validity and renewal of the diploma to Article 3(5) of the amended Commission proposal.

The Council pointed out that Article 6 of Directive 96/35/EC already contained a provision to this effect.

- amendment 8, clarifying the criteria laid down in Article 5(b) of the amended Commission proposal (Article 4(1)(b) of the common position) by adding that examining bodies must also allow candidates to use certain documents during the examination (documents permitted).

The Council felt that this addition was already encompassed in the more general concept laid down both in the amended proposal and in the new wording for Article 4(1)(b): "specification of the examination arrangements proposed by the examination body".

(b) accepted by the Commission

- amendment 10, intended to adjust the deadline for notification for penalties referred in Article 9(3) of the amended Commission proposal.

Article 6 of the common position does not include Article 9(3), since the Council felt it preferable not to lay down any specific provisions on penalties in the Directive (see section III above).

(1) OJ C 148, 14.5.1998, p. 21.

(2) OJ C 341, 9.11.1998, p. 29.

(3) OJ C 407, 28.12.1998, p. 118.

(4) OJ C 52, 23.2.1999, p. 16.

(5) Council Directive 96/35/EC of 3 June 1996 on the appointment and vocational qualification of safety advisers for the transport of dangerous goods by road, rail and inland waterway (OJ L 145, 19.6.1996, p. 10).