Opinion of the European Economic and Social Committee on the "Commission Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws of the Member States relating to electromagnetic compatibility"

(COM(2002) 759 final - 2002/0306 (COD))

(2003/C 220/03)

On 31 January 2003, the Council of the European Union decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 4 June 2003. The rapporteur was Mr Green.

At its 400th plenary session on 18 and 19 June 2003 (meeting of 18 June) the European Economic and Social Committee unanimously adopted the following opinion.

1. Background to the proposal

1.1. The aim of the existing EMC Directive is to ensure the free movement of the products referred to in it by guaranteeing a homogeneous electromagnetic environment and ensuring the proper functioning of the products concerned.

1.2. Some time after its adoption, users began to experience problems with the interpretation and application of the EMC Directive 89/336/EEC. Although the Commission attempted to resolve the difficulties by issuing explanatory guidelines, many problems remained. Around 1995, therefore, the Commission launched a major initiative to draw up a guide that would tackle all major problems. Reflecting the growing experience of industry, the Commission, Member States and other stakeholders, a guide to the application of Directive 89/336/EEC was published in 1997. That was a major step forward. The weakness, however, is that a guide does not have legal force. Nevertheless, the 1997 guide was, and still is, broadly supported by the parties concerned.

1.3. Meantime, the Council decided that the EMC Directive should be one of the areas dealt with in the framework of the SLIM initiative (Simpler Legislation for the Internal Market), which attempts to simplify EU legislation by involving user groups in the preparatory work. The Commission's EMC SLIM Working Group drew up the recommendations in document COM(2002)759 final, drawing on the work of the SLIM panel.

2. The Commission proposal

2.1. The Commission is proposing the direct incorporation of parts of its 1997 guide to the EMC Directive into the new draft directive.

2.2. The proposal gives more detailed definitions of:

- essential requirements; and

- harmonised standards.

2.3. The text states that the directive covers fixed installations. That is not new since the Commission has already stated that fixed telephone networks fall under the scope of the existing directive.

2.4. The scope of the directive is widened slightly to include components and sub-assemblies. Similarly, the directive also covers ready-made connecting devices intended for connection to an apparatus by the end-user for the transmission of signals.

2.5. A further new feature is that, in all cases, producers, and others, can chose not to involve a notified body and are free to furnish proof of conformity in any way, regardless of whether harmonised standards are in place or not.

3. General comments on the Commission proposal

3.1. The parties concerned have, generally speaking, been quite happy with the existing directive, provided the 1997 guide to its application is properly applied. In practice, all parties comply with the guide. Nevertheless, this new draft directive is preferable, because it gives more legal certainty on the various issues. Moreover, it is somewhat more adapted to market needs and removes some existing unnecessary requirements.

3.2. Scope of the proposal

3.2.1. The scope is clarified by means of improved definitions and more clearly defined exclusions.

3.2.2. The definitions of components and sub-assemblies in particular clarify the practical application of the directive.

3.2.3. The term "ready-made connecting devices" is unclear and is ambiguously translated in, for instance, the Danish, Dutch and English language versions. The Commission should put forward a more precise definition of the term. The question is whether it is necessary at all to include these "ready-made connecting devices" within the scope of the directive.

3.3. Fixed installations

3.3.1. A more appropriate regulatory regime is applied to fixed installations. Industry welcomes the inclusion under the fixed installation regime of large machines, high-voltage equipment and energy distribution and telecommunication networks.

3.3.2. An example of the main problem with the existing directive is the requirement to assess fixed installations before they are placed on the market or put into service. It is technologically impossible to assess many installations. Moreover, installations may be changed from time to time or even every day. Given that installations cause very few EMC problems for the surrounding area, it is unrealistic to assess each and every fixed installation. Therefore, under the new draft directive, installations only have to be constructed in accordance with good engineering practice. If, on a very rare occasion, EMC problems do perhaps come to light, the authorities will have legal tools to resolve them adequately. The cost of this arrangement is extremely low compared to the cost of assessing all installations before they are put into service.

3.3.3. Administrative obligations are another issue. The existing directive requires an EC declaration of conformity and the affixation of the CE marking. Every time an installation is changed, the EMC radiation is no longer the same as it was originally. Thus, a new assessment has to be performed before a new EC declaration of conformity can be drawn up. That makes the practical application of the existing directive impossible. For this reason, the 1997 guide provided a pragmatic approach that is supported by all the parties concerned. The solution provided in the guide is now included into the new draft directive.

3.4. Essential requirements

3.4.1. The draft directive extends the essential requirements, not least in relation to the EMC assessment, external devices and information requirements. Because of the extra costs involved, the inclusion of "ready-made connecting devices" is probably the most controversial change made in the draft directive.

3.4.2. The added requirement to perform an electromagnetic compatibility assessment is rather obvious, because electromagnetic radiation and susceptibility have to be measured before adequate information can be provided on compliance with the directive. The information requirements were added in order to enhance the traceability of the manufacturer or the authorised representative in the EU.

3.4.2.1. It is unnecessary and costly to require information from both the manufacturer and his authorised EU representative if the manufacturer is not established within the Community. The Commission proposal fails to provide adequate reasons for this provision.

3.4.2.2. Annex I, point 4(b) of the proposed directive (Essential requirements) should therefore be amended as follows:

"Each apparatus shall be accompanied by the name and address of the manufacturer. If the manufacturer is not established within the Community, each apparatus shall be accompanied the name and address of his authorised representative ..."

3.5. Conformity assessment

3.5.1. Article 10(2) of the existing directive requires involvement of a competent body when the applicable harmonised standard is not (entirely) met. Such mandatory involvement was necessary at the time the existing directive was adopted in the 1980s because EMC-related engineering practice and education were not then widespread. In the intervening years, the EMC Directive gave a huge boost to the sector, i.e. industry and education. Nowadays, most manufacturers have much more experience of EMC and there are many possibilities for education. The competent bodies report a decreasing amount of work under Article 10(2). Moreover, because it is obligatory to involve a competent body, many cases have, in the recent past, been referred by manufacturers, who themselves are proficient enough. Such manufacturers launched the procedure merely because it is mandatory, but in fact it was unnecessary because their knowledge of EMC is far beyond what was expected in the early days when the existing directive was first adopted. Finally, some large manufacturers have created their own in-house competent body in order to avoid expensive third-party involvement.

3.5.2. However, it is still very useful to include the possibility of involving an official expert for manufacturers who do not feel secure. Therefore, the new draft provides for a notified body, which can be involved by manufacturers at their own discretion.

3.5.3. The proposed directive gives manufacturers the choice between drawing up the technical documentation themselves or assigning the task to the notified body referred to in Article 11. The proposed text is however unclear, and the second paragraph of Article 7(2) should be recast as follows:

"In order to confirm the compliance of the apparatus with the relevant essential requirements set out in Annex I, the manufacturer may choose either to draw up his own report or to submit a report from the notified body referred to in Article 11. The manufacturer may determine the subject and depth of the assessment to be carried out."

3.6. Market surveillance

3.6.1. Over the past few years, market-surveillance authorities have reported increasing difficulty in finding manufacturers of non-compliant products. It is hoped that the new information requirements will resolve these problems properly.

3.6.2. The Commission should ensure that the provisions of the proposed directive accord with the recently adopted Directive on waste electrical and electronic equipment (the so-called WEEE Directive).

4. Conclusion

4.1. The European Economic and Social Committee endorses the Commission proposal, which gives more legal certainty on the issues involved. The proposal is better adapted to market needs and removes existing unnecessary requirements.

4.2. The term "ready-made connecting devices" is unclear and, in certain cases, the marking requirements are needlessly comprehensive and costly.

Brussels, 18 June 2003.

The President

of the European Economic and Social Committee

Roger Briesch