WRITTEN QUESTION E-4121/00

by Paul Rübig (PPE-DE) to the Commission

(11 January 2001)

Subject: Prohibition of markings by independent third-party certifiers in addition to the CE marking

Article 10(3) of the machinery directive 98/37/EC(1) mentions form and meaning as cumulative criteria justifying the prohibition of markings by private third-party certifiers. But in the explanatory text to the 1999 directive this and becomes an or instead; which means that the prohibition does not apply merely in the presence of both criteria, but even if only one criterion obtains. The explanation also says that voluntary marking must not generally apply to aspects that are covered by the directive.

Is the Commission aware that, as regards prohibiting or permitting the affixing of markings by private third-party certifiers, its explanatory text on the machinery directive contradicts the directive's unambiguous wording on the rule and the exception?

Is the Commission aware that, without any democratic authority from Parliament, it is using an explanatory text that does not have the force of law to make nonsense of the directive's provisions?

Is the Commission aware that the industry takes the explanatory text to be a kind of legal provision, and that this misleading impression is causing considerable uncertainty in the market and placing jobs at risk?

(1) OJ L 207, 23.7.1998, p. 1.

Answer given by Mr Liikanen on behalf of the Commission

(28 February 2001)

Although some directives (and in particular Article 10(3) 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) contain phrases such as The affixing of markings on the machinery which are likely to deceive third parties as to the meaning and form of the CE marking shall be prohibited, other New Approach directives(1) contain equivalent phrases referring to the meaning or the graphics.

In view of these differences, which are not based on considerations linked to the different directives, the Guide to the implementation of directives based on the New Approach and the Global Approach(2), drawn up by the Commission, provides in section 7.4 CE marking and other marks a uniform interpretation of the principles to be applied for the New Approach directives. This interpretation is as follows: In view of the objectives of technical harmonisation, markings and marks additional to the CE marking need to fulfil a different function from that of the CE marking. Thus, they should provide an added value in signifying conformity with objectives that are different from those to which the CE marking relates (for example environmental aspects not covered by applicable directives). The affixing of legal marking (such as a protected trademark of a manufacturer), or of acceptable certification and other marks additional to the CE marking, is allowed to the extent that such markings or marks do not create confusion with the CE marking, and that they do not reduce the legibility and visibility of the CE marking. This confusion may either refer to the meaning or form of the CE marking(3). Whether or not a marking or mark is confusing should be decided from the point of view of all relevant parties likely to come into contact with it.

This guide has been discussed with the Senior Officials Group on Standardisation and Conformity Assessment Policy, who agreed to its publication.

The comments on the Machinery Directive(4) offer the same interpretation.

The above-mentioned guides are intended to clarify the directives based on the New Approach and to ensure that those directives are applied uniformly across the different sectors of the Single Market. The guides are informal and non-binding, and this is clearly indicated in their forewords. The forewords also point out that only the Directives themselves are compulsory.

(1) Particularly Directives 98/79/EC (OJ L 331, 7.12.1998) and 97/23/EC (OJ L 181, 9.7.1997).

(2) Office for Official Publications of the European Communities, Cat. No CO-22-99-014-EN (DE, FR)-C.

(3) (132) The wording used in various New Approach directives varies slightly, but any other interpretation would prevent achieving the purpose of the applicable provisions.

(4) Community legislation on machinery Comments on Directive 98/37/EC, Publications Office Catalogue No CO- 01-96-279-EN (DE, ES, FR, IT)-C.