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"
Date: 2001-09-12
Institutions: European Economic and Social Committee
Subjects: European standard, harmonisation of standards, machinery, safety standard

7.11.2001

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II

(Preparatory Acts)

ECONOMIC AND SOCIAL COMMITTEE

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

— 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;

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
it has not been demonstrated that
experience. Moreover,
application of the existing directive poses major problems.

— 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;

1.2.
Having studied the proposal for a directive, the Com-
mittee 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.

The following features of the proposal for a new

1.3.
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;

— 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 infor-
mation on market surveillance.

1.4.
The general impression remains that there is consider-
able 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.

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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).

The aim of the revision is, on the one hand, to improve
2.2.
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.

In view of the importance of the proposed changes
2.4.
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.

This proposal revising the machinery directive is based
2.5.
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.

The proposal for a directive is not only of great
2.6.
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, mechan-
ical 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.

(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.

2.7.
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 direc-
tive. 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 Com-
mittee 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 Com-
mittee would also like to see training in this still complex field
encouraged.

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3.3.
The Commission has to a great extent taken up the
proposals of the group of experts chaired by Bernhard Molitor
the
with regard to the machinery directive. The aim of
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.

3.9. With regard to the conformity assessment of machin-
ery 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.

The proposal for a directive is based on Article 95 of
3.4.
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.

3.10.
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

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.

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.

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.

The Committee therefore proposes that the old terminology
be retained.

The procedures for assessing compliance with the
3.8.
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.

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.

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

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.

4.1.3.
Article 1(2)(b) excludes certain equipment for use in
fairgrounds and amusement parks. The Committee under-
stands 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.

‘means of

The concept of

4.1.4.
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
1(3),
10th indent)? The Committee suggests that the old terminology
be retained.

98/37/EC, Article

equipment

(Directive

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 électro-
ménagers’.

The Committee suggests that the definition of ‘house-
4.1.6.
hold’ 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

refers

4.2.5.
‘hijs- of
Article 2(e) defines a ‘lifting accessory’,
hefgereedschap’ (NL) and ‘accessoire de levage’ (FR). Point 4.1.1
of Annex I
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.

Article 2(i) requires ‘partly completed machinery’ to
4.2.6.
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’.

Subparagraph (i) of Article 2(k) again uses the
4.2.8.1.
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.

4.2.1.
Committee feels that this should be defined.

Article 2(c) uses the expression ‘equipment’. The

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.

4.2.9.
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 obli-
gations 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’.

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4.3. Article 6

c)

EC type-examination (Annex X)

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.

d)

Full quality assurance (Annex XI).

4.7. Article 22

4.4. Article 8

in

that

notes

relation

The Committee

4.4.1.
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 Mem-
ber States. The Committee feels that this deadline is not
necessary.

4.5. Article 9

This article allows the Member States to prohibit or
4.5.1.
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.

The Committee feels that this assigns too much
4.5.2.
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

4.7.1.
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. G e n e r a l r e m a r k s

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. D e f i n i t i o n s

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. D e s i g n o f m a c h i n e r y t o f a c i l i t a t e i t s

h a n d l i n g

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.

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

4.6.1.1.
The Committee suggests adding a simplified pro-
cedure 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)

4.8.4.

S t a b i l i t y

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.

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4.8.5. G u a r d s , G e n e r a l r e q u i r e m e n t s

4.8.9. C o n t e n t s o f t h e i n s t r u c t i o n s

The Committee points out that horizontal protec-
4.8.5.1.
tion 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.

F i x e d g u a r d s

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. A c c e s s

t o o p e r a t i n g p o s i t i o n s

a n d

s e r v i c i n g p o i n t s

The Committee notes that the first sentence states
4.8.7.1.
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’(*).

4.8.8. M a r k i n g o f m a c h i n e r y

The second point in 1.9 is very confusing. The
4.8.8.1.
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).

The Committee notes that no reference is made in
4.8.9.1.
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.
document, point (p) could be deleted.

If account is taken of points 3.8.3 and 3.8.4 of this

4.8.10. H a z a r d s d u e t o a l i f t i n g o p e r a t i o n

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. Differ-
ent 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.

(*) Translator’s note:

In the English text

the title is virtually

unchanged, except for the use of the plural ‘positions’.

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