Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council on machinery and amending Directive 95/16/EC"

(2001/C 311/01)

On 23 March 2001 the Council decided to consult the Economic and Social Committee, under Article 262 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 25 July 2001. The rapporteur was Mr De Vadder.

At its 384th plenary session of 12 and 13 September 2001 (meeting of 12 September), the Economic and Social Committee unanimously adopted the following opinion.

1. Summary of the opinion

1.1. The Committee wonders whether it is appropriate to revise the machinery directive at this point. It is very doubtful whether such a revision will be able to draw on sufficient experience. Moreover, it has not been demonstrated that application of the existing directive poses major problems.

1.2. Having studied the proposal for a directive, the Committee considers that the changes proposed by the Commission are not likely to achieve the intended simplification to a sufficient degree, as the rules will remain complex.

1.3. The following features of the proposal for a new directive can be regarded as positive, however:

- the Commission has opted for a new version of the text rather than a series of amendments to the existing texts, which makes for greater clarity;

- an attempt has been made to define the scope of the directive more accurately, with attention being focused on the overlap with Directive 73/23/EEC;

- the scope of the directive is extended to cover portable cartridge-operated devices, construction site hoists intended for lifting persons or persons and goods and devices for the lifting of persons with reduced mobility;

- there are a number of improvements to definitions and procedures;

- assembly instructions are henceforth required for partly completed machinery;

- provision is made for increased cooperation between the Member States with regard to the exchange of information on market surveillance.

1.4. The general impression remains that there is considerable scope for improvement and clarification. The Committee is therefore making a series of proposals aimed at further clarifying the scope of the directive and at clearer definitions, procedures and terminology.

2. Introduction

2.1. This proposal is a revision of Directive 98/37/EC of the European Parliament and of the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery (generally referred to as the machinery directive).

2.2. The aim of the revision is, on the one hand, to improve legal certainty by offering those required to comply with the directive and those responsible for ensuring compliance a more legible text and, on the other hand, to adapt and specify the scope of the directive. At the same time the highest possible level of health and safety is sought.

2.3. The revision takes full account of the proposals put forward by the high-level group of independent experts headed by Bernhard Molitor(1). A number of these proposals were general in scope and applied to all the directives; others referred specifically to the machinery directive.

2.4. In view of the importance of the proposed changes and their large number, and in order to make the text more legible, the proposal has been presented as a revised text rather than a directive amending Directive 98/37/EC. Broadening of the scope also results in an amendment of Directive 95/16/EC on lifts.

2.5. This proposal revising the machinery directive is based on Article 95 of Treaty which sets out the principles for the establishment of the internal market. The directive guarantees free movement of machinery falling within its scope and complying with the fundamental safety, health and consumer protection requirements set out in the directive.

2.6. The proposal for a directive is not only of great importance for the mechanical engineering sector which includes machinery, mechanical equipment and components. As a producer of equipment for other sectors, e.g. agriculture, mining, construction, transport and all other sectors, mechanical engineering plays a key role throughout the economy. The competitive strength of other sectors depends to a high degree on the equipment and plant produced by the mechanical engineering sector.

2.7. The proposal is also of great importance with a view to reducing the social costs arising from accidents occurring in connection with the use of machinery. The number of accidents can be reduced by integrating safety considerations into the design and construction of machinery as well as by means of proper installation and maintenance.

2.8. With regard to the content of the proposal, in addition to more and improved definitions and clearer procedures, attention should also be drawn to three fundamental changes to the directive's scope:

- Portable cartridge-operated devices, such as fixing tools, stunning pistols, marking guns etc., where the cartridge is not direct-acting are incorporated into the directive. Until now such equipment has been excluded as it was regarded as a form of firearm, although it fully matched the definition set out in the directive.

- Construction site hoists intended for lifting persons or persons and goods are also incorporated into the directive. At present there is no European legislation in this area.

- Devices for the lifting of persons with reduced mobility.

3. General comments

3.1. The Committee wonders whether this is the right moment to revise the machinery directive. It has after all been fully in force only since 1995 - or indeed only since 1997 in relation to some machinery. It is very doubtful whether such a revision will be able to draw on sufficient experience. On the other hand, we should not lose sight of the fact that many firms, manufacturers as well as installers and users, have had to make strenuous efforts to assimilate such complex rules. Now that the rules are being correctly applied, it appears paradoxical to wish to make another series of changes.

3.2. Having studied the proposal for a directive, the Committee is glad that the Commission has opted for a general revision in view of the many changes and adjustments to Directive 98/37/EC, which itself is a consolidation of the original Directive 89/392/EC and the amendments made to it. A completely new version of the text makes for greater clarity and considerably facilitates legibility, comprehensibility and the assimilation and application of the directive. The Committee would also like to see training in this still complex field encouraged.

3.3. The Commission has to a great extent taken up the proposals of the group of experts chaired by Bernhard Molitor with regard to the machinery directive. The aim of the proposals is simplification. However, the Committee has the impression that the proposal for a new directive is not entirely consistent with that aim and that it is still far too complex. The Committee calls on the Commission not to complicate the text even more after consultation and to take care in amending texts.

3.4. The proposal for a directive is based on Article 95 of the Treaty and sets out to guarantee free movement of machinery. This intention is translated into a number of proposed changes e.g. extension of the directive's scope to cover portable cartridge-operated devices, construction site hoists intended for lifting persons and goods and devices for the lifting of persons with reduced mobility (and in this connection amendment of Directive 95/16/EC on lifts), as there is at present no European legislation covering this kind of machinery.

3.5. Another positive feature is that the proposal spells out the area of application more clearly and contains improved definitions and clearer procedures. This makes for greater legal certainty. Thus the concepts of "machinery", "placing on the market", "putting into service", "manufacturer" and "authorised representative" are better defined. A number of unclear areas remain however (e.g. the exclusion of all motors). There is certainly room for clarifying the scope of the directive and the new definitions still further. This point is taken up again in the specific comments section of the opinion, particularly in relation to Articles 1 and 2.

3.6. With regard to partly completed machinery, the new provisions require assembly instructions to be drawn up. The Committee considers this an improvement on the existing situation but would point out that many areas of uncertainty remain.

3.7. Particular attention has been paid to the overlap with Directive 73/23/EEC, as amended, on electrical equipment designed for use within certain voltage limits [Article 1(2)(j)]. The text is an improvement but could be made even clearer.

3.8. The procedures for assessing compliance with the directive are amended. The simplified procedure for machinery to which the directive has no relevance, set out in Article 12(2), is a good idea. The Committee also considers that the procedure proposed in Article 12(4) for machinery referred to in Annex IV (dangerous machinery) could be made even simpler for the manufacturer.

3.9. With regard to the conformity assessment of machinery prior to placing on the market (Article 14), the draft directive stresses the Member States' requirements for the recognition of bodies responsible for such assessment. The Committee considers it important that authorisation to carry out assessments be withdrawn from bodies which have repeatedly issued certificates for machinery which does not meet fundamental health and safety requirements, and that the Member States be required to report such cases to the Commission.

3.10. The Committee is also glad that the proposal makes it clear (in Article 16) that no markings are to be affixed to machinery which would impair the visibility, legibility or meaning of the CE marking or otherwise be misleading.

3.11. The Committee considers the increased cooperation between the Member States on the exchange of information relating to market surveillance, provided for in Article 19, to be very positive.

3.12. Finally, the Committee points out that there are inconsistencies between the various language versions of the proposal (including the Dutch translation).

4. Specific comments

4.1. Article 1

4.1.1. Article 1(1)(b) refers only to vehicles used at airports and in the mineral extraction industry and Article 1(2)(e) excludes all vehicles. This means that whole categories of vehicle no longer fall within the scope of the existing rules (e.g. vehicles which are never used on public roads). The current text (ninth indent of Article 1(3) of Directive 98/37/EC) is clearer in this regard.

The Committee therefore proposes that the old terminology be retained.

4.1.2. Article 1(2)(a) makes no distinction according to whether the components or equipment parts in question can also be used for the construction of new machinery. The final use of the components is unknown.

The Committee suggests that a note be inserted in the instructions to the effect that the components are intended solely to replace identical components or equipment parts.

The Committee considers that it is also unclear whether the provision of instructions is required.

4.1.3. Article 1(2)(b) excludes certain equipment for use in fairgrounds and amusement parks. The Committee understands the reasons for this exclusion, but suggests that rules covering such equipment could be laid down in another directive. There are at present no European-level rules in this area.

4.1.4. The concept of "means of transport" used in Article 1(2)(e) is not defined and will be a source of confusion. Does it for example cover tractors (Directive 98/37/EC, Article 1(3), 12th indent)? Or what about seagoing vessels and their equipment (Directive 98/37/EC, Article 1(3), 10th indent)? The Committee suggests that the old terminology be retained.

4.1.5. Article 1(2)(j) should make it clear that it refers to "electrical and electronic" equipment. The English text has "household appliances" and the French text "appareils électroménagers".

4.1.6. The Committee suggests that the definition of "household" appliances in Article 1(2)(j) contain an upper limit on power. This could be applied by means of the procedure described in Article 8.

4.1.7. Article 1(2)(l) refers to "motors of all types". The Committee considers that only electrical motors should be excluded, as they fall within the scope of Directive 73/23/EEC. All other motors (hydromotors, hydraulic motors, atmospheric motors etc.) should fall within the scope of the directive and should therefore be considered as partly completed machines.

4.2. Article 2

4.2.1. Article 2(c) uses the expression "equipment". The Committee feels that this should be defined.

4.2.2. Article 2(c) refers to devices which are assembled after "placing into service". The Committee considers that this should read "placing on the market".

4.2.3. The Committee notes that, in contrast to all other safety components referred to in Article 2(d)(iv), a reference to "safety" and/or "health" is lacking in relation to smoke and dust extraction systems.

4.2.4. Article 2(a) and Article 2(i) refer to a "drive system". It is not clear what this means. The Committee therefore asks that the concept be defined.

4.2.5. Article 2(e) defines a "lifting accessory", "hijs- of hefgereedschap" (NL) and "accessoire de levage" (FR). Point 4.1.1 of Annex I refers to and defines a "lifting operation". Article 2(a)(vi) on the other hand has "lifting apparatus", "hijs- en heftoestel" (NL) and "appareil de levage" (FR). Article 2(d)(vi) and (vii) refers to "lifting appliances", "hijs- en hefwerktuig" (NL) and "appareil de levage" (FR).

The Committee notes that the last two concepts are not defined.

4.2.6. Article 2(i) requires "partly completed machinery" to be "almost" a machine. The Committee feels that the word "almost" should be clarified, otherwise a new "grey area" is likely to be created.

4.2.7. Articles 2(j) and (k) refer only to machinery. This ignores the fact that the directive also applies to the equipment referred to in Articles 2(a) to (i) (partly completed machinery) and vehicles [Article 1(b)]. The Committee feels that a reference to these two kinds of equipment should be added.

4.2.8. The Committee feels that the wording of Article 2(k) is too complicated. The first sentence contains the phrase "designs or manufactures". This means that anyone who merely attaches his name or trademark to a piece of machinery, without actually designing or manufacturing it, cannot be described as the "manufacturer".

4.2.8.1. Subparagraph (i) of Article 2(k) again uses the wording: "designs or manufactures a machine ... or ... has such a machine designed or manufactured". It is suggested that this point be rewritten, otherwise there is a danger of lasting confusion.

4.2.9. The Committee notes that, on the basis of the definitions, where nobody assumes responsibility, nobody can be identified as manufacturer. The Committee therefore suggests reintroducing the very clear procedure laid down in Article 8(7) of Directive 98/37/EC in an adapted form. This states: "Where neither the manufacturer nor his authorised representative established in the Community fulfils the obligations of paragraphs 1 to 6, these obligations shall fall to any person placing the machinery or safety component on the market in the Community. The same obligations shall apply to any person assembling machinery or parts thereof or safety components of various origins or constructing machinery or safety components for his own use".

4.3. Article 6

The Committee feels that Article 6(3) should be applied not only at trade fairs and exhibitions but also during tests. The Committee would also like to see more stringent measures adopted requiring the Member States to monitor compliance with the rules effectively.

4.4. Article 8

4.4.1. The Committee notes that in relation to Article 8(1)(a), (b), (c) and (d) a procedure is in force requiring a decision to be taken within three months [Article 22(3)]. This concerns the updating of the list of safety components or machinery and arrangements for cooperation between Member States. The Committee feels that this deadline is not necessary.

4.5. Article 9

4.5.1. This article allows the Member States to prohibit or restrict the placing on the market of machinery, or to make this subject to special conditions, when such action is considered necessary in order to protect safety and health. This power is to take immediate effect and can be made effective throughout the whole Union within three months.

4.5.2. The Committee feels that this assigns too much decision-making power to the Member States (measures are to be immediately effective without consultation). The Committee feels that the technical requirements of Annex I should be conclusive, and that the market surveillance (Article 4) of compliance with these requirements and the safeguard clause, are sufficient, making this article superfluous [similarly Article 8 (e)].

4.6. Article 12

4.6.1. Article 12(4) deals with the procedures for high-risk machinery and safety components listed in Annex IV. Reference is made to three procedures which are specified in Annexes IX, X, and XI respectively.

4.6.1.1. The Committee suggests adding a simplified procedure for machinery manufactured entirely in conformity with harmonised standards but where no external check has been carried out. There would therefore be the following four options:

a) Internal checks on manufacture (Annex VII)

b) Assessment of adequacy (Annex IX)

c) EC type-examination (Annex X)

d) Full quality assurance (Annex XI).

4.7. Article 22

4.7.1. The Committee notes that the Machinery Committee consists only of representatives of the Member States and is chaired by the Commission representative. The interested parties (employers, workers, consumers etc.) are not involved. Under the current Directive 98/37/EC the interested parties are consulted via a working party, in which their views are heard and taken into account. The Committee feels that the current procedure should be retained.

4.8. Annex I

4.8.1. General remarks

4.8.1.1. The Committee notes that, as a result of translation and additions, major parts of Annex I have changed. Many passages which are not underlined still seem to have been changed. This is confusing.

4.8.2. Definitions

4.8.2.1. The Committee feels that these definitions should be studied very carefully in all the languages by specialists. For example, in the "danger zone" a person is exposed to "dangers" rather than "risks".

4.8.3. Design of machinery to facilitate its handling

4.8.3.1. The second sentence which has been inserted is already contained in the other points of 1.1.6 and is superfluous. Instead, the Committee would suggest that the reference to instructions for "handling" be added to 1.10.2(c), Contents of the instructions.

4.8.4. Stability

4.8.4.1. The Committee considers that machines, or their components, cannot comply with the second sentence, as the stability of components cannot be guaranteed, e.g. during the process of scrapping. It would be worthwhile inserting a reference to instructions for transport and dismantling in 1.10.2(c), Contents of the instructions.

4.8.5. Guards, General requirements

4.8.5.1. The Committee points out that horizontal protection devices remain in place even without their fixings, so that the words "as far as possible" should be added to the fifth indent.

4.8.6. Fixed guards

4.8.6.1. Point 1.4.2.1 of Annex I stipulates that fixing systems must remain attached to the guards when removed. It is suggested that a further stipulation be added that it must also be possible for fixing systems to remain attached to the machinery.

4.8.7. Access to operating positions and servicing points

4.8.7.1. The Committee notes that the first sentence states that this provision applies to production, adjustment and maintenance operations. The Committee would like to see the title used in Directive 98/37/EC, point 1.6.2 retained: "Access to operating position and servicing points"(2).

4.8.8. Marking of machinery

4.8.8.1. The second point in 1.9 is very confusing. The Committee proposes that the first and second points be combined to read: "the name and address of the manufacturer and, where applicable, his authorised representative or, where applicable, the name and address of the natural or legal person who assumes responsibility for its conformity to this Directive".

4.8.8.2. In the second sentence of footnote 2 concerning the year of construction the second sentence should be deleted. The EC declaration of conformity could have been established at another time (e.g. long manufacturing process).

4.8.9. Contents of the instructions

4.8.9.1. The Committee notes that no reference is made in point 1.10.2 to instructions for use. As these are essential for safety, the Committee suggests that point 1.10.2(g) be amended to read as follows: "use and intended conditions of use of the machinery within the meaning of 1.1.2(c)".

4.8.9.2. If account is taken of points 3.8.3 and 3.8.4 of this document, point (p) could be deleted.

4.8.10. Hazards due to a lifting operation

4.8.10.1. The Committee notes that lifting apparatus which is used in such a way that no change of level takes place is not covered by these fundamental requirements. The Committee suggests that the text of Annex I, point 4 of Directive 98/37/EC (stating that risks exist particularly in the case of a change in level) be retained.

4.9. Annex II

4.9.1. The Committee suggests that points A(1) and A(2) be replaced by the same wording as that suggested for the first two points of Annex I, 1.9 (see point 4.8.8.1 above).

4.9.2. The Committee notes that in points A(4), A(5) and B(3) it is stated that the EC declaration of conformity must contain a declaration of conformity. This is confusing. Different wording is needed [especially in point (5)].

4.9.3. The Committee feels that the following should be added to point B, Declaration of incorporation of partly completed machinery:

- B(3): "and/or of the relevant requirements with which the partly completed machinery complies."

- After B(4), points A(9) and A(10) of the EC declaration of conformity.

The addition of the relevant provisions and standards to this declaration would add considerable value.

Brussels, 12 September 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Report of the Group of Independent Experts on Legislation and Administrative Simplification, SEC(95) 2121, 29.11.1995, not published in the Official Journal.

(2) Translator's note: In the English text the title is virtually unchanged, except for the use of the plural "positions".