Common Position (EC) No 38/2000

adopted by the Council on 26 June 2000

with a view to adopting a Directive of the European Parliament and of the Council of ... amending Council Directive 94/55/EC on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road

(2000/C 245/02)

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 consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1) The standardisation work of the European Committee for Standardisation (CEN) on quality control in the transport of dangerous goods has not yet been completed; the Commission cannot therefore make a report on the subject at present. It is therefore necessary to amend the deadline laid down in the fourth subparagraph of Article 1(2) of Directive 94/55/EC(4).

(2) The work of the United Nations Economic Commission for Europe (UNECE) on the provisions concerning the centres of gravity of tank-vehicles laid down in Annex B to the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) has not yet been completed. It is therefore necessary to amend the deadline laid down in Article 5(3)(b) of Directive 94/55/EC.

(3) A provision should be included to allow certain Member States, because of their climatic conditions, to apply stricter standards relating to certain equipment used in transport.

(4) The standardisation work of the CEN on receptacles and tanks has not yet been completed; it is therefore necessary to amend the deadlines laid down in Article 6(4) of Directive 94/55/EC.

(5) It is necessary to ensure consistency between the provisions of Directive 94/55/EC and the amendments required to adapt the annexes thereto to scientific and technical progress.

(6) The deadlines laid down in Article 6(4) of Directive 94/55/EC regarding certain equipment should be put back. Identifying the equipment concerned and the latest date for the application of Directive 94/55/EC should be made subject to the procedure laid down in Article 9 thereof.

(7) The derogation provided for in Article 6(9) of Directive 94/55/EC should be made subject to the procedure laid down in Article 9 thereof.

(8) Member States should be allowed to adopt derogations with regard to local transport operations and authorisation for that purpose should be made subject to the procedure laid down in Article 9 of Directive 94/55/EC.

(9) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(5).

(10) The conditions to be fulfilled before a transport operation may be regarded as an ad hoc transport operation should be specified.

(11) Directive 94/55/EC should be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 94/55/EC is amended as follows:

1. in Article 1(2), point (c) shall be replaced by the following:

"(c) quality controls on undertakings where they carry out national transport operations as indicated in paragraph 1 of Annex C.

The scope of the national provisions concerning the requirements set out in this point may not be extended.

The provisions in question shall cease to apply if similar measures are made obligatory under Community provisions.

At the latest two years after the entry into force of a European standard on quality control in the transport of dangerous goods, the Commission shall submit to the European Parliament and the Council a report assessing the safety aspects covered by this point together with an appropriate proposal for its continuation or repeal.";

2. Article 5 shall be amended as follows:

(a) in paragraph 2, "by Marginal 10599 of Annex B" shall be replaced by "by the special provision referred to in paragraph 2 of Annex C";

(b) in paragraph 3:

- subparagraph (b) shall be replaced by the following:

"(b) Member States may, however, maintain their specific national provisions on the centres of gravity of tank-vehicles registered within their territories until the amendment, if any, of the special provision referred to in paragraph 3 of Annex C, but not, in any event, after 30 June 2001 in the case of tank-vehicles covered by the special provision referred to in paragraph 3 of Annex C, in accordance with the amended version of the ADR applicable as from 1 July 2001 and not, in any event, after 30 June 2005 in the case of other tank-vehicles.";

- the following subparagraph shall be added:

"(c) Member States in which the ambient temperature is regularly lower than -20 °C may impose more stringent standards as regards the operating temperature of materials used for plastic packaging, tanks and their equipment intended for use in the national transport of dangerous goods by road within their territory until provisions on the appropriate reference temperatures for given climatic zones are incorporated in the Annexes.";

3. Article 6 shall be amended as follows:

(a) paragraph 3 shall be replaced by the following:

"3. Within its territory each Member State may authorise the use of vehicles constructed before 1 January 1997 which do not comply with this Directive, but were constructed in accordance with national requirements in force on 31 December 1996 provided that such vehicles are maintained to the required safety levels.

Tanks and vehicles constructed on or after 1 January 1997 which do not comply with Annex B but were constructed in accordance with the requirements of this Directive that were applicable on the date of their construction may continue to be used for national transport until a date determined in accordance with the procedure laid down in Article 9.";

(b) paragraph 4 shall be replaced by the following:

"4. Each Member State may maintain its national provisions in force on 31 December 1996 relating to the construction, use and conditions of carriage of new receptacles within the meaning of the special provision referred to in paragraph 4 of Annex C and new tanks which do not comply with Annexes A and B, until references to standards for the construction and use of tanks and receptacles with the same binding force as the provisions of this Directive are added to Annexes A and B and in any event no later than 30 June 2001. Receptacles and tanks constructed before 1 July 2001 and maintained to the required safety levels may continue to be used under the original conditions.

These dates shall be put back for receptacles and tanks for which there are no detailed technical requirements or for which no sufficient references to the appropriate European standards have been added to Annexes A and B.

The receptacles and tanks referred to in the second subparagraph and the latest date for the application of this Directive as regards those receptacles and tanks shall be determined in accordance with the procedure laid down in Article 9.";

(c) at the end of paragraph 6 the following shall be added: "..., except that in the case of plastic packaging not exceeding 20 litres in capacity, that date may be put back to 30 June 2001 at the latest";

(d) paragraph 9 shall be replaced by the following:

"9. Provided they give the Commission advance notification no later than 31 December 2002 or until two years after the last date of application of amended versions of Annexes A and B to this Directive, Member States may adopt provisions that are less stringent than those in the Annexes for the transport within their territory only, of small quantities of certain dangerous goods, with the exception of substances having a medium or high level of radioactivity.

Provided they give the Commission advance notification no later than 31 December 2002 or until two years after the last date of application of amended versions of Annexes A and B to this Directive, Member States may adopt provisions different from those contained in the Annexes in respect of local transport limited to their territory.

The derogations provided for in the first and second subparagraphs shall be applied without discrimination.

Notwithstanding the above, Member States may, provided they give the Commission advance notification, at any time adopt provisions similar to provisions adopted by other Member States with reference to this paragraph.

The Commission shall examine whether the conditions laid down in this paragraph have been met and shall decide, in accordance with the procedure laid down in Article 9, whether the Member States concerned may adopt these derogations.";

(e) in the second subparagraph of paragraph 10, "of Marginals 2010 and 10602 of Annexes A and B" shall be replaced by "of the special provisions referred to in paragraph 5 of Annex C";

(f) paragraph 11 shall be replaced by the following:

"11. The Member States may issue authorisations, valid for their territory only, to carry out ad hoc transport operations of dangerous goods which are either prohibited by Annex A or B or are performed under conditions different from those laid down in those Annexes, on conditions that these ad hoc transport operations are clearly defined and limited in time";

(g) in paragraph 12, "Marginals 2010 and 10602 of Annexes A and B" shall be replaced by "the special provisions referred to in paragraph 5 of Annex C";

4. in Article 8, "Annexes A and B" shall be replaced by "Annexes A, B and C";

5. Article 9 shall be replaced by the following:

"Article 9

1. The Commission shall be assisted by a committee on the transport of dangerous goods.

2. Where reference is made to this Article, Articles 5 and 7 of Decision 1999/468/EC shall apply having regard to the provisions of Article 8 thereof.

The period referred to in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.";

6. the text set out in the Annex to this Directive, shall be added as Annex C.

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ...(6). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be adopted by the Member States.

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

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 171, 18.6.1999, p. 17.

(2) OJ C 329, 17.11.1999, p. 10.

(3) European Parliament opinion of 18 January 2000 (not yet published in the Official Journal), Council Common Position of 26 June 2000 and European Parliament Decision of ... (not yet published in the Official Journal).

(4) 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).

(5) OJ L 184, 17.7.1999, p. 23.

(6) Six months after the entry into force of this Directive.

ANNEX

"ANNEX C

Special provisions relating to certain Articles of this Directive

1. The national transport operations referred to in Article 1(2)(c) are as follows:

(i) explosive substances and articles in class 1, where the quantity of explosive substance contained per transport unit exceeds:

- 1000 kg for division 1.1, or

- 3000 kg for division 1.2, or

- 5000 kg for divisions 1.3 and 1.5;

(ii) the following substances in tanks or in tank containers of a total capacity exceeding 3000 litres:

- substances in class 2: gas assigned to the following risk groups: F, T, TF, TC, TO, TFC, TOC,

- substances in classes 3, 4.1, 4.2, 4.3, 5.1, 5.2, 6.1 and 8: substances not listed under (b) or (c) in those classes or listed therein but having a hazard code with three or more significant digits (not including any zero);

(iii) the following packages of class 7 (radioactive materials): packages of fissile materials, packages of type B(U), packages of type B(M).

2. The special provision applicable to Article 5(2) is Marginal 10599 of Annex B.

3. The special provision applicable to Article 5(3)(b) is Marginal 211128 of Annex B.

4. The special provision applicable to Article 6(4) is Marginal 2211 of Annex A.

5. The special provisions applicable to Article 6(10) and (12) are Marginals 2010 and 10602 of Annexes A and B."

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 18 May 1999 the Commission submitted to the European Parliament and the Council a proposal for a Directive amending Council Directive 94/55/EC on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road, which is based on Article 71(1)(c) of the EC Treaty(1).

The European Parliament and the Economic and Social Committee delivered their opinions on 18 January 2000(2) and 22 September 1999(3) respectively.

Following the Council's request for consultation of 7 June 1999 the Committee of the Regions communicated by letter of 22 July 1999 its decision not to give an opinion.

In the light of the European Parliament's opinion, the Commission forwarded an amended proposal to the Council on 25 April 2000(4).

On 26 June 2000, the Council adopted its Common Position pursuant to Article 251 of the EC Treaty.

II. OBJECTIVE

The main purpose of the Commission proposal is to settle the problems arising from the application of certain transitional provisions laid down by Directive 94/55/EC(5) which were valid until 31 December 1998.

The Commission proposes that the deadline of 31 December 1998 be deferred in view of the delay in:

- the work of the European Committee for Standardisation (CEN) on quality control of undertakings (Article 1(2)(c) of Directive 94/55/EC) and on the construction, use and conditions of carriage of receptacles for the transport of class 2 gases and tanks (Article 6(4) of the Directive),

- the work of the United Nations Economic Commission for Europe (UNECE) on amending the provisions on the centre of gravity of tank-vehicles (Article 5(3)(b) of the Directive).

The proposal is also intended to ensure consistency between some of the Directive's provisions and the amendments to the Annexes to the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR).

It also seeks to flesh out a number of the derogations provided for in Article 6 of the Directive, their long-term treatment and the procedure for their acceptance.

III. ANALYSIS OF THE COMMON POSITION

Like the Commission's amended proposal, the Council's Common Position takes on board the four amendments proposed by the European Parliament.

It covers:

- in the ninth recital, amendment 1 and, in Article 1(5), amendment 4 altering Article 9 of Directive 94/55/EC,

- in Article 1(2), amendment 2 adding a further subparagraph to Article 5(3),

- in Article 1(3)(a), amendment 3 altering Article 6(3).

The Common Position further incorporates the following changes fitting in with the objectives of the Commission's amended proposal:

- the first indent of Article 1(2)(b) stipulates that Article 5(3)(b) of Directive 94/55/EC enables Member States, in accordance with the Commission proposal, to maintain national provisions on the centres of gravity of tank-vehicles registered within their territories until 30 June 2001 at the latest. These tank-vehicles are covered by the special provision referred to in paragraph 3 of Annex C.

Unlike the proposal, the Common Position provides for this date to be deferred until 30 June 2005 at the latest for tank-vehicles not yet covered by that special provision,

- Article 1(3)(c) of the Common Position provides for an addition to be made to Article 6(6) whereby the transitional period for plastic packaging not exceeding 20 litres is deferred until 30 June 2001 at the latest. The period provided for in the existing paragraph 6 for all plastic packaging is five years from their date of manufacture up to a final date of 31 December 1998.

Under Article 6(6) of Directive 94/55/EC Member States may, under certain conditions, derogate within their territory from the Directive's provisions on packaging, the length of the transitional period differing according to the packaging concerned.

The Council considers that this derogation does not constitute a barrier to intra-Community trade as it applies to small packaging used for local distribution operations involving the ultimate consumers,

- Article 1(3)(d) of the Common Position also limits in time the period during which Member States may notify the Commission of derogations for the transport of small quantities of certain dangerous goods within their territory and also for local transport operations.

(1) OJ C 171, 18.6.1999, p. 17.

(2) Not yet published in the Official Journal.

(3) OJ C 329, 17.11.1999, p. 10.

(4) Not yet published in the Official Journal.

(5) Council Directive 94/55/EC of 21 October 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).