EN Official Journal of the European Union C 451/81

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on cableway installations

COM(2014) 187 final — 2014/0107 (COD)

(2014/C 451/13)

Rapporteur: Jan Simons

On 24 and 2 April 2014, respectively, the Council and the European Parliament decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the:

Proposal for a Regulation of the European Parliament and of the Council on cableway installations.

COM(2014) 187 final — 2014/0107 (COD).

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 23 June 2014.

At its 500th plenary session, held on 9 and 10 July 2014 (meeting of 9 July), the European Economic and Social Committee adopted the following opinion with 184 votes in favour and 6 abstentions.

1. Conclusions and recommendations

1.1 The European Economic and Social Committee (EESC) supports the decision to introduce a regulation based on Article 114 TFEU, given the differing interpretations of certain parts of the existing directive.

1.2 The EESC welcomes the fact that the proposal is in line with Directive 2000/9/EC, which is to be aligned with the ‘goods package’ adopted in 2008, and in particular with the New Legislative Framework (NLF), Decision EC No 768/2008, on which the Committee has already issued a favourable opinion.

1.3 The EESC urges that the terminology, particularly that used in the German-language version, as well as the definitions and the retention of parts of the existing directive whose merit is uncontested — or elements arising from this directive — be examined as closely as possible.

1.4 The EESC has noticed too many shortcomings to list here under conclusions; it instead draws attention in particular to point 4.2 and the subsequent points, as well as to section 5, which also sets out solutions.

2. Introduction

2.1 The EESC issued an opinion (1) back in 1994 on a Commission proposal for a directive on cableway installations designed to carry persons, in which it supported the Commission, particularly in its ‘perceived objective of ensuring that all Member States act in a coordinated manner and that vital supervision is organised throughout the European Union in order to achieve and maintain a high level of safety and thus reduce the risk of future accidents’.

2.2 It also argued that the result should be ‘a broader based and more competitive industry which is better placed to compete in world markets. Since most of the manufacturers for world use are from Europe, any action taken to enhance sales prospects must be a sensible and supportable approach’.

2.3 Cableway installations are principally operated in connection with tourism, particularly in mountain areas, which plays an important role in the economy of the regions concerned and is becoming an increasingly important factor in the trade balances of the Member States (2).

2.4 Member States are responsible for ensuring the safety of cableway installations at the time of manufacture, putting into service and during operation. Moreover, they are responsible together with the competent authorities for such matters as land-use, regional planning and environmental protection. National regulations differ widely as a result of techniques peculiar to the national industry as well as local customs and knowhow. They stipulate specific dimensions and devices and particular characteristics. In the light of these circumstances, manufacturers are obliged to redefine their equipment for each market, making it difficult to provide standard solutions.

2.5 The essential health and safety requirements must be observed in order to ensure that cableway installations are safe. Those requirements are to be applied with discernment to take account of the state of the art at the time of placing on the market, installation and use, and of technical and economic requirements.

2.6 Further, cableway installations may straddle frontiers, and the construction thereof may run up against conflicting national rules.

2.7 However, it was only in 2000 that legislation was introduced. Directive 2000/9/EC relating to cableway installations designed to carry persons (3) was adopted on 20 March 2000 and entered into force on 3 May 2002. The main types of cableway installations covered by Directive 2000/9/EC are funiculars, gondolas, detachable chair lifts, fixed-grip chair lifts, aerial tramways, funitels, combined installations (made of several cableway types, such as those of gondolas and chairlifts) and drag lifts.

2.8 Today, more than ten years later, the legislation on cableway installations is in need of revision for various reasons.

3. Summary of the proposal

3.1 The proposal is meant to replace Directive 2000/9/EC with a regulation and to align the directive with the ‘goods package’ adopted in 2008, and in particular with Decision EC No 768/2008 on the New Legislative Framework (NLF).

3.1.1 The NLF Decision sets out a common framework for EU product harmonisation legislation. This framework consists of the provisions which are uniformly used in EU product legislation (e.g. definitions, obligations of economic operators, notified bodies, safeguard mechanisms, etc.). These common provisions have been reinforced to ensure that the directives can be applied and enforced more effectively in practice. New elements, such as obligations for importers, have been introduced, which are crucial for improving the safety of products on the market.

3.1.2 The proposal is also meant to address some of the difficulties that have been experienced in the implementation of Directive 2000/9/EC. More particularly, authorities, notified bodies and manufacturers have had different views on whether certain types of installation come under the scope of Directive 2000/9/EC and hence have to be manufactured and certified in line with the directive's requirements and procedures.

3.1.3 Views also differed on whether certain equipment should be considered as subsystem, infrastructure or safety component.

3.1.4 Furthermore the directive does not specify which type of conformity assessment procedure has to be applied to subsystems.

3.2 Those divergent approaches led to market distortions and different treatment of economic operators. Manufacturers and operators of the installations concerned had to modify the equipment or to undergo further certification which led to extra costs and to delays in the authorisation and operation of those installations.

3.3 The proposed regulation is therefore meant to enhance legal clarity about the scope of Directive 2000/9/EC and thereby implement the relevant legal provisions more effectively.

3.4 Furthermore, Directive 2000/9/EC contains provisions on the conformity assessment for subsystems. However, it does not determine the specific procedure to be followed by the manufacturer and the notified body, nor does it offer manufacturers the range of conformity assessment procedures that are available for safety components. The proposed regulation thus aligns the conformity assessment procedures available for subsystems with those already used for safety components, based on the conformity assessment modules set out in Decision No768/2008/EC establishing a common framework for the marketing of products (NLF Decision). In this context, it also provides for the affixing of the CE marking to indicate compliance with its provisions, in line with the existing system for safety components.

3.5 The proposal takes into account Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European Standardisation (4). The proposal includes: — the clarification of the scope with regard to cableway installations designed for both transport and leisure purposes; — the introduction of a range of conformity assessment procedures for subsystems based on the existing conformity assessment modules for safety components as aligned to the NLF Decision; and — the alignment to the NLF Decision. Excluded are: — cableway installations used for leisure purposes in fairgrounds or amusement parks; — cableway installations for agricultural and industrial purposes; — all cable-operated installations where the users or carriers are water-borne;

3.6 The conformity assessment procedures for safety components have been kept in the proposal. It however updates the corresponding modules in line with the NLF Decision.

3.7 The requirement for a notified body intervention in the design and production phase of all subsystems and safety components has been kept.

3.8 The proposal introduces a range of conformity assessment procedures for subsystems based on the conformity assessment modules of the NLF Decision. It also introduces the CE marking for subsystems, as there is no reason to treat them differently from the safety components.

3.9 The proposal tightens the notification criteria for notified bodies and introduces specific requirements for notifying authorities. It is necessary to adapt to new technologies so as to enable online notification. It is important to provide for a period during which any doubts or concerns as to the competence of conformity assessment bodies can be clarified before they start operating as notified bodies.

4. General comments

4.1 Given that the provisions of the directive have not always been interpreted consistently, the EESC notes that regulations are a guarantee of consistent interpretation with regard to this type of harmonisation measure (5) aimed at promoting the free movement of goods in the single market. The EESC therefore supports the choice of a regulation, and of Article 114 TFEU as the legal basis.

4.1.1 Where monitoring of the Regulation's implementation is assigned to the Member States, the European Commission should ensure that it is carried out uniformly.

4.2 In this case, however, the parts of the existing directive whose merit is uncontested and the provisions and best practices that follow from them should be carried over as accurately as possible (6), and other, new parts of the Regulation carefully worded.

4.2.1 It is not obvious why ‘designed to carry persons’ has been dropped from the title of the regulation, given that recital 8 in the preamble specifically says that the scope of the directive is to be maintained.

4.2.2 Some of the technical terms differ considerably from the set of harmonised standards for cableway installations, and these should be made consistent with each other.

4.2.3 The present draft regulation (Article 2(2)(a)) does not permit a clear delimitation between lifts (in particular inclined lifts) subject to Directive 95/16/EC and funiculars. The related information given in Recital 11 is insufficient and not suitable for an unambiguous classification in practice. It is important that it remain possible to build inclined lifts according to the Lift Directive for various applications in the open air (links between a car park below and a castle or old city centre above, links between ski runs, etc.).

4.2.4 Installations in which the users or their carriers are water-borne are excluded from the scope of the regulation under Article 2(2)(f). Recital 12 was added to avoid misunderstandings and different interpretations, but it does not aid understanding. Article 2(2)(f) should be made clearer by subdividing it into ‘cable-operated ferries’ — as defined in Directive 2000/9/EC — and ‘water ski lifts’.

4.2.5 Cableway installations designed to carry persons — in contrast with other directives (such as the Machinery Directive) — are subject to regulated licensing procedures determined by the Member States. Accordingly, there is no need for the trade name and postal address to be marked on the safety components and subsystems, especially given that the EU statements of conformity (7), which include this information, must be available both at the installation and to the responsible authority. To give some idea of the financial scope of this article, the Committee notes here by way of example that a fixed-grip chair lift would require approximately 500 plates. Article 11 (Chapter II) should therefore be amended by deleting ‘on the subsystem or the safety component’ and ‘or, where that is not possible, on the packaging and’ from the first sentence.

4.2.6 Article 2(2)(d) excludes cableway installations used in amusement parks exclusively for leisure purposes from the scope of the regulation. It is not clear what difference it makes in terms of safety conditions and basic requirements if the person travelling in a cableway installation is using it for leisure purposes or transport. The EESC thus recommends that only the reference to ‘on-site or mobile equipment for use in fairgrounds’ be retained.

4.2.7 Recitals 57 and 58 in the preamble and Article 41 set out transitional provisions, but there is no general statement to the effect that the draft regulation does not apply to installations that are already in use. The wording ‘It is not necessary to require all existing cableway installations to be brought into conformity with the provisions applicable to new installations,’ which is included in the directive on cableway installations (Recital 28), should be added to Article 9 as a new paragraph 3. In addition, provisions should be included in Article 9, following the current paragraph 3, to allow for the recommissioning of cableway installations. ‘Cableway installations may be recommissioned under the following conditions: — Safety components and subsystems that have undergone a conformity assessment and been placed on the market in accordance with Directive 2000/9/EC or the current Regulation must be used when recommissioning. — The installation to be transferred should be in a technical condition such that, following recommissioning, the level of safety ensured is broadly equivalent to that of new installations.’

4.2.8 Under Article 36(2), notified bodies are also to provide other notified bodies with positive conformity assessment results upon request. Notified bodies are independent entities with commercial interests. To avoid a transfer of knowledge in such cases, ‘and, on request, positive’ should be deleted.

4.3 The EESC welcomes the fact that the proposal is in line with Directive 2000/9/EC and reflects the ‘goods package’ adopted in 2008 and, in particular, Decision EC No 768/2008 on the New Legislative Framework (NLF), on which it has already issued a favourable opinion (8).

5. Specific comments

Comments on other recitals and articles in the proposal.

5.1 In the German-language version of the proposal, the word konstruiert or Konstruktion is often used in place of geplant or Planung (as in Directive 2000/9/EC). This usage runs all the way through the German text, with examples including Recital 1, Article 1, Article 2(1), Article 3(1), Article 3(3) and Article 8(1).

5.2 The definition of ‘safety component’ given in Article 3(4) should be amended by deleting the words ‘or a cableway installation’, because infrastructure, whose procedures are decided by the Member States, cannot contain the ‘safety components’ referred to by the regulation — such components are instead known as ‘safety-critical components’.

5.3 Under Article 11(9), further to a reasoned request from the Member States, manufacturers are to provide them with all the information and documentation relevant to a conformity assessment procedure. To rule out any possibility of components built according to the set of harmonised standards (and for which there is therefore a presumption of conformity) coming under the scope of this article, the EESC recommends that paragraph 9 be clarified by inserting the following words at the beginning: ‘With regard to components not put into circulation according to the set of harmonised standards, manufacturers shall ...’.

5.4 The word Drahtseilbahn used in Recital 8 of the preamble of the German-language version is not a recognised term and does not correspond to the Dutch and English-language versions.

5.5 The German-language version of the proposal refers to Wartung (‘servicing’), for instance in Recital 17 in the preamble. Servicing is only one part of Instandhaltung (‘maintenance’), which covers inspection, serving and repair. The word Wartung should therefore be replaced with Instandhaltung throughout the German text. The term ‘maintained’ used in the English text is correct.

5.6 The term grundlegende Anforderungen used in the German-language version of the EU Cableway Installation Directive has been replaced with wesentliche Anforderungen (in Article 6, for example) in the proposed regulation. The English version continues to refer to ‘essential requirements’, as in Directive 2000/9/EC. The entire German-language version of the proposal should be corrected using the term grundlegende Anforderungen.

5.7 Recital 19 in the preamble does not correspond to any operative part of the text and should therefore be deleted.

5.8 Recital 23 in the preamble is confusing because it places the free movement of goods and safety analysis in the same context, and should therefore be deleted.

5.9 Article 1 defines the subject matter of this regulation. However, the areas ‘design’, ‘assembly’ and ‘putting into service’ were not carried over from Directive 2000/9/EC. They should be included or the text of the directive inserted.

5.10 The definition of ‘cableway installation’ given in Article 3(1) is difficult to understand. The definition given in Directive 2000/9/EC should be used instead.

5.11 The term Schleppaufzug (‘drag lift’) in Article 3(8) of the German-language text should be replaced with Schlepplift. This correction was also made during revision of the set of harmonised standards, which are related.

5.12 Given that ‘entry into service’ as mentioned in Article 3(12) need not always refer to the entire installation, for example in the case of conversions, the text should be supplemented with the words ‘or its components’.

5.13 The requirements for safety analyses in Article 8(1) have been amended so that they no longer specify responsibilities. Since the safety analysis is the key document for builders, the words ‘ordered by the builder or by the builder's agent’ should be inserted into the article.

5.14 Under Article 8(2), the safety analysis is to be included in the safety report. However, Directive 2000/9/EC stipulates that a safety report must be drawn up on the basis of a safety analysis, which is an important difference. The EESC recommends that the text of Article 4(2) of the directive be adopted.

5.15 Article 9(4) is difficult to understand and should be replaced with the text used in Article 12 of Directive 2000/9/EC.

5.16 Article 10(1) stipulates that a cableway installation may only remain in operation if it complies with the conditions set out in the safety report. The operating and maintenance manual is an important document, not least for safe operation of an installation. The EESC therefore recommends that the text be amended by replacing ‘remains in operation’ with ‘is operated’, and the words ‘safety report’ with ‘documentation specified in Article 9(2)’.

5.17 In accordance with the modules set out in the annex, a manufacturer may only carry out the conformity assessment procedures together with a notified body. The text of Article 11(2) should be adapted accordingly: ‘carry out’ should be replaced with ‘have’ and ‘or have it’ should be deleted.

5.18 The term ‘safety information’ used in Article 11(7) is ambiguous and should be explained in more detail.

5.19 Article 16 refers to ‘the first paragraph’, but there is no such paragraph.

5.20 The provisions of Decision 768 on formal objections to a harmonised standard (Articles R9 and R19) should also be inserted into Article 17.

5.21 There is a risk of Article 18(4) also being applied to test trains. To avoid this, ‘with the exception of test trains’ should be added.

5.22 Article 19(2) could be interpreted to mean that the declarations of conformity of safety components or subsystems already put into circulation also have to be updated. Consequently, the final part of the first sentence, ‘shall be continuously updated’, should be replaced with ‘shall be updated when a subsystem or safety component is put into circulation’.

5.23 Under Article 21(2), subsystems are also to be given a CE marking. Given that there are no subsystems on the market that do not contain at least one safety component, and which therefore carry its CE marking, this requirement should be dropped. The EESC therefore recommends that the words ‘the subsystem or’ be deleted.

5.24 Annex II also needs to be revised, but this revision should be comprehensive, and absolutely must involve all parties concerned.

Brussels, 9 July 2014. The President of the European Economic and Social Committee Henri MALOSSE

(1) OJ C 388, 31.12.1994, p. 26.

(2) This and the following three paragraphs are recitals in the preamble to Directive 2000/9/EC.

(3) OJ L 106, 3.5.2000, p. 21.

(4) OJ L 316, 14.11.2012.

(5) Article 114 TFEU.

(6) It is striking that shortcomings were found in various samples of the annexes and articles carried over from Decision EC No 768/2008 (Article R2 et seq.).

(7) The Committee assumes that the EC conformity attestations will remain valid.

(8) OJ C 120, 16.5.2008, p. 1.