Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on establishing a framework for the setting of Eco-design requirements for Energy-using Products and amending Council Directives 92/42/EC, 96/57/EC and 2000/55/EC
Date: 2004-12-10
Institutions: European Commission
Subjects: EC conformity marking, European standard, approximation of laws, clean technology, energy consumption, environmental protection, environmental standard, product design, technical regulations

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 10.12.2004 
COM(2004) 800 final 

2003/0172 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on establishing a framework for the setting of Eco-design 
requirements for Energy-using Products and amending Council Directives 92/42/EC, 
96/57/EC and 2000/55/EC  

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2003/0172 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on establishing a framework for the setting of Eco-design 
requirements for Energy-using Products and amending Council Directives 92/42/EC, 
96/57/EC and 2000/55/EC  

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2003) 453 final – C[5–0453/2003] - 
2003/0172(COD)): 

1 August 2003 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

31 March 2004 

Date of the opinion of the European Parliament, first reading: 

20 April 2004 

Date  of  the  amended  proposal  (made  orally  to  the  WG  of  the 
Council) 

27 April 2004 

Date of adoption of the common position: 

29 November 2004 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

In the light of the estimation that over 80% of all product-related environmental impacts (such 
as  climate  change  linked  to  energy  consumption)  are  determined  during  the  product  design 
phase,  the  Commission  proposed  to  establish  a  legislative  framework  for  the  adoption  of 
implementing  measures  concerning  eco-design  requirements  for  energy-using  products 
(EuPs) (excluding means of transport). Each implementing measure would be adopted by the 
Commission, assisted by a regulatory committee, and would address products in accordance 
with  the  criteria  established  in  this  Directive.  The  objective  of  the  proposal  is  to  ensure  the 
free  movement  of  energy-using  products  in  the  internal  market  and  to  contribute  both  to 
environmental protection policy and to security of energy supply. 

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3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

Overall remarks on the common position 

The  Commission  is  of  the  opinion  that  the  common  position  improves  the  proposal  by 
clarifying  a  number  of  issues,  such  as  the  scope  of  harmonisation  of  the  Directive,  the 
conditions  for  particular  products  to  become  subject  to  implementing  measures  and  the 
procedure for adopting implementing measures. 

All  the  main  elements  put  forward  by  Parliament  on  first  reading  and  accepted  by  the 
Commission are largely reflected in the common position. Reference is made to the creation 
of  a  consultative  forum  to  ensure  stakeholders’  involvement  in  the  preparation  of 
implementing measures; introduction of a working plan; emphasis on reduction of greenhouse 
gasses in the first years of implementation; revision clause for the framework directive and for 
the individual implementing measures; attention to conformity of imported products; impact 
on medium and small business; criteria for assessing self-regulation by industry. 

On  the  other  hand,  the  Commission  would  have  preferred  stricter  drafting  for  clauses 
concerning  market  surveillance  by  the  Member  States  and  the  inclusion  of  the  eligibility 
criteria  for  self-regulatory  activities.  However,  the  compromise  text  also  appears  acceptable 
on  those  points,  considering  that,  on  the  one  hand,  the  Council  objected  to  more  detailed 
provisions on market surveillance more on the grounds of subsidiarity than substance and, on 
the other, the common position keeps a reference to the Commission communication (recital 
16) where the eligibility criteria are listed.  

3.2. 

Amendments accepted by the Commission and incorporated in full or in part in 
the common position 

Amendments  5,  6,  7,  8,  9  and  10  were  inserted  in  the  common  position  (recitals  2-7); 
amendment 5 with minor and amendment 10 with substantial redrafting. They provide in the 
recitals further justification for a framework Directive to promote the eco-design of EuPs, in 
terms of environmental improvement and energy efficiency. 

Amendment  13:  A  recital  (No  9)  on  consumer  information  was  introduced  in  the  common 
position  based  on  EP  amendment  13;  it  is  acceptable  to  the  Commission  because  it  further 
clarifies the need for consumer information. 

Amendment 16: Recital 11 of the common position is a redrafting of EP amendment 16 in a 
way that is acceptable to the Commission (priority on energy efficiency but in a way that is 
not detrimental to the integrated approach promoted by the Directive). 

Amendment 17: Recital 12 of the common position is a redrafting of EP amendment 17 in a 
way  that  is  acceptable  to  the  Commission  (commitment  to  adopt  implementing  measures 
establishing specific eco-design requirements within 12 months is not acceptable). 

Amendment  20:  Recital  13  of  the  common  position  takes  on  board  a  small  part  of  EP 
amendment  20  in  a  way  that  is  acceptable  to  the  Commission  (adopting  the  whole  of  EP 
amendment  20  would  lead  to  a  generalisation  of least  life  cycle  cost  (LLCC)  analysis,  with 
the risk of making decision-making too rigid and lengthy and would affect the Commission’s 
prerogatives on use of resources). 

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Amendment 23: Recital 17 of the common position is a redrafting of EP amendment 23 in a 
way that is acceptable to the Commission. 

Amendment 24: Recital 18 of the common position is a redrafting of EP amendment 24 in a 
way  that  is  acceptable  to  the  Commission  (by  deleting  the  requirement  to  report  on  market 
surveillance activities every two years). 

Amendment 25: Recital 22 of the common position is a redrafting of EP amendment 25 in a 
way  that  is  acceptable  to  the  Commission  (information  on  market  surveillance  is  separated 
from technical knowledge; the Commission’s prerogative on the way of running preparatory 
work on draft measures and use of its resources is not affected). 

Amendment 26: Recital 23 of the common position is a redrafting of EP amendment 26 in a 
way  that  is  acceptable  to  the  Commission  (the  Commission’s  prerogative  on  the  way  of 
running preparatory work on draft measures and use of its resources is not affected). 

Amendment 35: Article 2(5) of the common position is identical to EP amendment 35. 

Amendment  47:  Article  3(2)  and  (3)  of  the  common  position  takes  on  board  most  of  EP 
amendment  47;  in  line  with  the  Commission  position,  there  is  no  reference  to  voluntary 
agreements; the Commission can also accept the modified version on consumer information 
because it maintains the essential elements. 

Amendment 48: Article 4(5), 2nd indent, of the common position takes on board the only part 
of EP amendment 48 that was accepted by the Commission. 

Amendment 59 and Article 13 of the common position deal with two issues not included in 
the original Commission proposal: the “working plan” (WP) to be presented periodically by 
the Commission and priority implementing measures to be proposed pending the adoption of 
the first working plan. The Commission can agree with the formulation of Article 13, given 
that a realistic timeframe and efficient procedure (WP should be adopted by the Commission, 
after  consultation  with  stakeholders,  reference  to  Article  12)  for  the  adoption  of  the  WP  is 
established.  With  regard  to  the  priority  measures  aimed  at  reducing  CO2  emissions  in  the 
context of Kyoto, the formulation of Article 13(2) of the common position is acceptable since 
it  meets  the  criteria  of  Article  12.  It  does  not  pre-empt  the  outcome  of  impact  assessments, 
and nor does it limit the Commission’s right of initiative to adopt implementing measures or 
not. 

Amendment  63  and  Article  14  of  the  common  position  deal  with  the  creation  of  a  new 
consultation body (not provided for in the Commission’s original proposal). The Commission 
can agree with the formulation of Article 14, given that it makes for a balanced representation 
and proper involvement of stakeholders. 

Amendment 65 and Article 19 of the common position deal with the review of the Directive. 
The Commission can agree with the formulation of Article 19, given that it does not pre-empt 
the outcome of the review and it does not single out particular environmental themes in the 
light of which this review must take place (as is the case with EP amendment 65). 

Amendment  66  refers  to  Annex  I,  which,  as  redrafted  by  the  Council,  is  acceptable  to  the 
Commission; it introduces a number of clarifications which seem useful, while not affecting 

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the eco-design parameters; it also further clarifies the role of the producer and, as requested 
by the EP, provides for a separate chapter covering the requirements on information supply. 

The  last  part  of  EP  amendment  69  (drafting  improvement)  accepted  by  the  Commission  is 
reflected in the common position (Annex IV). 

EP  amendment  73  (and  the  part  of  amendment  60  accepted  by  the  Commission)  aims  to 
introduce  eligibility  criteria  for  voluntary  commitments  by  industry  to  be  taken  as  an 
acceptable  alternative  to  regulatory  implementing  measures.  Although  it  has  not  been 
incorporated as such in the common position, recital No 16 refers to the relevant chapter of 
the Commission’s Communication on Environmental agreements, which includes the criteria 
of amendment 73. 

3.3. 

Amendments accepted by the Commission and not incorporated in the common 
position 

None 

3.4. 

New elements introduced by the Council  

Article 1.4 makes clear that the proposed directive is without prejudice to other Community 
environmental legislation. Recital 20 highlights the importance of taking into account existing 
national environmental legislation when preparing implementing measures. 

A number of new definitions  have been added in Article 2 and others amended. In order to 
ensure  that  in  all  cases  (including  for  imported  products)  an  identifiable  natural  or  legal 
person is responsible for the conformity of the product, the definition of “manufacturer” has 
been modified to include text previously in Article 7 of the Commission’s proposal. 

The scope of harmonisation of the proposed Directive has been further defined (Articles 5(1), 
5(2),  12(6),  last  sentence,  and  Annex  VII  (3)).  Existing  national  environmental  legislation 
which the Member States consider to be relevant shall be taken into account when preparing 
implementing measures (Article 12(4)(c)). 

In Article 7, the Council maintains Annex V as an option for conformity assessment (Annex 
V  has  been  amended  with  a  view  to  leaving  manufacturers  the  option  of  using  quality 
management  systems  as  instruments  for  proving  conformity,  as  long  as  they  meet  the 
requirements laid down in that Annex). 

In  Article  12,  criteria  to  be  met  by  particular  products  before  they  can  be  subject  to 
implementing measures have been added (Article  12(2)), in particular a minimum sales and 
trade  volume  threshold  (this  restricts  the  scope  by  excluding  marginal  products,  the  overall 
environmental  impact  of  which  would  in  any  case  not  be  significant  at  EU  level).  The 
necessary  steps  for  adopting  implementing  measures  have  also  been  further  developed 
(Article 12(4)(b) to (f)).  

Implementing  measures  may  extend  the  possibility  of  using  other  “ecolabels”  for  proving 
conformity, mirroring what is accepted as a rule for the Community Eco-label (Article 8(4)). 

In Annex I, the role of the manufacturer is further clarified. 

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Each  implementing  measure  will  include  dates  for  evaluation  and  possible  revision  (Annex 
VII.9). 

Remark:  the  Commission  had  rejected  the  part  of  amendment  58  providing  that  the 
Commission  shall  (instead  of  “may”)  adopt  implementing  measures  when  the  criteria  of 
Article  12  are  met  (as  infringing  its  right  of  initiative).  However,  in  order  to  further 
circumscribe  the  delegation  of  powers  to  be  exercised  by  the  Commission,  the  Council  has 
introduced  this  amendment.  The  Commission  can  accept  this  as  part  of  an  overall 
compromise, given that implementing measures will be needed unless market forces properly 
address the issue. 

4. 

CONCLUSION 

The Commission considers that the common position unanimously adopted on 10 June 2004 
further clarifies certain issues, and introduces additional and cost-effective flexibility for the 
implementation by manufacturers, while not altering the aims and approach of its proposal. It 
can therefore support it. 

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