Descripción de los tipos de servicios y beneficios que brinda la

Until the mid-1980s the abolition of non-tariff barriers within the Single Market was hampered by time-consuming and cumbersome procedures. With regard to the aim of completing the Internal Market until the end of 1992 a new approach to technical harmonization and the use of standards was necessitated.

On 16 July 1984 the Commission adopted a proposal – prepared on the basis of its own conclusions – on standardisation and paved the way for more efficient procedures to abolish barriers to internal trade. Finally the Council Resolution on a new approach to technical harmonization and standards was adopted on 7 May 1985 (Council Resolution (85/C 136/01)).

The Council resolution established a number of fundamental principles for a European standardisation policy:

• the Member States undertake to keep a constant check on the technical regulations which are applied so as to withdraw those which are deemed obsolete or superfluous, • the Member States ensure the mutual recognition of the results of tests and establish

harmonised rules on the operation of certification bodies,

• the Member States agree to early Community consultation where national regulatory proposals or procedures might pose a threat to the smooth operation of the internal market,

• there is a need to extend the "general reference to standards", preferably to European but if necessary national standards, and to define the task of standardisation as the formulation of technical characteristics of products, in particular as regards health protection and safety,

• there is a need to rapidly strengthen the capacity to standardise, preferably at European level and

• the adoption of European standards should be submitted to the European standardisation bodies for approval.

The Council resolution established four fundamental principles for the New Approach: • legislative harmonisation is limited to essential safety requirements (or other

requirements in the general interest) with which products put on the market must conform and can therefore enjoy free movement throughout the Community; • the task of drawing up technical production specifications is entrusted to

organisations competent in industrial standardisation, which take the current stage of technology into account when doing so;

• these technical specifications are not mandatory and maintain their status of voluntary standards;

• the authorities are obliged to recognise that products manufactured in conformity with harmonised standards are presumed to conform to the essential requirements

established by the Directive. If the producer does not manufacture in conformity with these standards, he has an obligation to prove that his products conform to the essential requirements.

The concept of harmonized standards plays an outstanding role in the framework of the New Approach Directives. Manufacturers have to ensure the conformity of their products with the essential requirements of the relevant directives. The conformity assessment is facilitated by harmonized standards in the sense that if a product conforms with a harmonised standard, it is presumed to be in conformity with the essential requirements. However, the New Approach does not ban product innovations that are not designed in accordance with harmonized standards. Manufacturers are not obliged to follow the road of harmonised standards to demonstrate the conformity of this product with the essential requirements. They can do it directly by other alternative ways. On 7 May 2003 the Commission issued a Communication to the Council and the European Parliament entitled “Enhancing the Implementation of the New Approach Directives”. In its Resolution of 10 November 2003 the Council confirmed the necessity of extending the application of its principles to new areas and recognised the need for a clearer framework for conformity assessment, accreditation and market surveillance. On 13 August 2008 the New Legislative Framework (NLF), the further development of the New Approach for marketing of products, was published in the Official Journal. The framework consists of two complementary pieces of legislation, a Decision and a Regulation.46

Decision 768/2008/EC on a common framework for the marketing of products is intended to harmonise specifications regarding definitions, obligations for economic operators, Notified Bodies, conformity assessment procedures, safeguard mechanisms and CE- marking. The Decision addresses legislators and provides a toolbox for use for future legislation. It covers elements already included in existing legislation (e.g. NBs,

safeguard clause). Regulation (EC) 765/2008 sets out the requirements for accreditation and market surveillance relating to the marketing of products covers elements not yet included in existing legislation. The Regulation lays down rules on the organisation and operation of accreditation of conformity assessment bodies. It provides a framework for

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the market surveillance of products including for controls on products from third

countries and lays down general principles of the CE marking. The Regulation is binding and will come into force from 1 January 2010. The provisions of the Decision can be used immediately but to be operational they need to be fed into existing Directives when they are revised. The NLF is a horizontal measure which has the objective of removing the remaining obstacles to free circulation of products and intends an essential improvement for trade in goods between EU Member States.

The Gas Appliances Directive 90/396/EEC (GAD) was one of the first directives based on the New Approach and the overall framework conditions for the internal trade of gas appliances (GA) have been improved by this initiative. With regard to GA the Member States are called upon to ensure safety, health and economic use of energy by European law. In order to ensure the functioning of the internal market and the free movement of GA the EU Council in cooperation with the EU Parliament enacted provisions in compliance with Article 95 and Article 194 EC Treaty. The GAD was transposed into national law and has contributed to the free circulation of GA. This EU Directive has proved to be the core legal tool in that product area. However, other European regulations also add to the framework conditions of GA.

To better understand the regulatory framework it is necessary to know that numerous European directives affect the bringing of GA onto the Community market. The Gas Appliance Directive aims at the free circulation of safe gas appliances within the Single Market. Beyond the GAD there are other directives that set requirements on gas

appliances. Some of these directives have an impact

• primarily on design and construction of GA dedicated for the European Market. • Others have an impact above all on the placing of the products on the Single Market

and the free circulation.

Expert interviews unveiled that it makes sense to differentiate between both of these interdependencies. The following directives have to be taken into account during construction and design of gas appliances:

• Electro-Magnetic Compatibility Directive 2004/108/EC (EMC) • Pressure Equipment Directive 97/23/EC (PED)

• Low Voltage Directive 2006/95/ECC (LVD)

• Restriction of the use of certain Hazardous Substances 2002/95/EC (RoHS)

However in order to put and keep GA in operation other directives become applicable, in particular:

• Boiler Efficiency Directive 1992/42/EEC (BED) • Construction Products Directive 1989/106/EEC (CPD)

• Energy Performance of Buildings Directive 2002/91EC (EPBD) • Energy-Using Products Directive 2005/32/EC(EuP)

Above all the legal framework derived from these directives seems to cause many of the drawbacks to the market access of GA.

A very specific impact on the free circulation of GA is due to the Waste from Electrical

appliances the provisions of the WEEE have to be applied. This means that before bringing a GA – as far as it is in the scope of the directive - onto a Member State’s market, the manufacturer or importer has to set-up a waste management system.

6.2.1 Essential aspects of directives of importance for the GAS

Gas Appliance Directive (GAD)

With regard to GA the "Council Directive of 29 June 1990 on the approximation of the laws of the Member States relating to appliances burning gaseous fuels (90/396/EEC)", the so called Gas Appliance Directive (GAD), was one of the first New Approach directives. The scope of the GAD is restricted to appliances burning gaseous fuels used for cooking, heating, hot water production, refrigeration, lighting and washing, i.e. The GAD covers mainly common consumer and commercial products. So-called fittings are also covered. This term comprises controls, sensors, and other parts and components necessary for an economic and efficient use of gaseous fuel. Appliances specifically designed for the use in industrial processes carried out on industrial premises are excluded.

The essential requirements that an appliance must meet when it is placed on the

Community market are laid down in the GAD. The Directive does not indicate how these requirements must be met, thus leaving manufacturers to make decisions about the most appropriate technical solution. This gives room for the emergence of innovative GA which are based on new technologies on the Community market. In order to facilitate market access, harmonized standards (cited in the Official Journal) provide the

presumption of conformity with the Directive’s essential requirements. Using harmonized standards is voluntary. (For a list of the latest harmonized standards of relevance for GA see Annex B) The GAD has provided a well accepted legal framework which has much contributed to the free circulation of the products in question.

Interviewees reported that – with the exception of Belgium – no formal market

surveillance exists. However, similar to other product markets the manufacturers of gas appliances keep an eye on competing products and in case of non-conformity will react immediately. No problems were reported throughout the fieldwork.

The Boiler Efficiency Directive (BED)

The Boiler Efficiency Directive 92/42/EEC (BED) aims at the efficiency of new hot-water boilers fired with liquid or gaseous fuels. According to the Directive, boilers must comply with specified efficiency requirements.

Table 6.2 Categorization of boilers by the Boiler Efficiency Directive

Range of power output

Efficiency at rated output Efficiency at part load Average boiler- water temperature Efficiency requirement Average boiler- water temperature Efficiency requirement Type of boiler kW (in o_C) expressed (in %) (in o_C) expressed (in %) Standard boilers 4 to 400 70 ≥ 84 + 2 logPn ≥ 50 ≥ 80 + 3 logPn Low- temperature boilers a) 4 to 400 70 ≥ 87,5 + 1,5 logPn 40 ≥ 87,5 + 1,5 logPn Gas condensing boilers 4 to 400 70 ≥ 91 + 1 logPn 30 b) ≥ 97 + 1 logPn a) Including condensing boilers using liquid fuels; - b) Temperature of boiler water-supply.

The Directive constitutes an implementing measure within the meaning of Article 15 of Directive 2005/32/EC (6 July 2005) establishing a framework for the setting of eco- design requirements of energy-using products. (see below)

The Construction Products Directive (CPD)

The Construction Products Directive 89/106/EEC (CPD) applies to construction products which are used for the permanent incorporation in buildings or civil engineering works. The products must allow construction works to meet the requirements defined in Annex 1 of the Directive,

• Mechanical resistance and stability, • Safety in case of fire,

• Hygiene, health and the environment, • Safety in use,

• Protection against noise,

• Energy economy and heat retention,

provided that the works are subject to regulations containing such requirements.

The scope of the CPD has been broadly defined and therefore comprises a wide range of different products. Thus the CPD is very special amongst the New Approach directives because the essential requirements apply to works and not to products. It can even be said that it does not follow the “New Approach” at all. Due to the specific approach of the Directive, its scope is not clear-cut and a grey area exists in which it is questionable if a specific product falls under the CPD or not. However, the already available

Harmonized European Standards (hEN) and European Technical Approvals (ETA) concern building products, most of them traded as commodities, which are indisputably within the scope of the Directive.

The CPD acknowledges regional differences in climate, geography, protection levels and way of life (Art. 3.2).47 For this reason, the CPD allows Member States to set up

different requirements of performance for the use of products, in order to reflect these different conditions. As a consequence the objective of the CPD – the free circulation of construction products – is not achieved through the harmonisation of products but through the harmonisation of the methods of evaluating their performance. All European manufacturers use the same methods (harmonised standards) and all Member States recognise them.

For certain construction products neither hEN nor ETA is available. For those

construction products national assessment methods are applied. Sometimes even regional or local authorities create their own regimes. In theory, the concept of mutual recognition laid down in the White Paper on Completing the Internal Market, approved by the European Council in 1985, could be used as a tool for the free circulation of construction products.48 _{As outlined in the preamble of the CPD, however, the diversity of national} standards and marks constitute a high technical barrier to trade for construction products and mutual recognition and does not generally work for construction products.

Energy Performance of Buildings Directive (EPBD)

The Energy Performance of Buildings Directive 2002/917EC (EPBD) is based on Article 6 of the EC Treaty. Accordingly, environmental protection has to be integrated into the definition and implementation of Community policies and actions. Article 174 of the Treaty refers to the prudent and rational utilisation of natural resources. It includes natural and liquefied gas, which are, among other fossil fuels, the leading sources of carbon dioxide emissions. The Directive cites Council Directive 93/76/EEC to limit carbon dioxide emissions by improving energy efficiency (SAVE). However, the Council also considers it necessary to have a complementary legal instrument to lay down more concrete actions taking into account potential energy savings and the large differences between Member States' efforts in this field. Yet another argument for the necessity of the EPBD is also provided by the "Green Paper – Towards a European Strategy for the Security of Energy Supply".

The objective of the EPBD is to set up basic requirements for energy consumption in the EU and establish assessment criteria for energy efficiency in buildings. The directive lays down requirements regarding:

• A general framework for a methodology of calculation of the energy performance of buildings,

• The application of minimum requirements on the energy performance of buildings, • The energy certification of buildings, and

• A regime of boiler inspections at regular intervals and in addition an assessment of the heating installations with boilers of more than 15 years of age.

Member States shall apply a methodology, at national or regional level, to be used for the calculation of the energy performance. Hereby it is acknowledged that there are major differences among the Member States with regard to the building stock and construction

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Construction Products Directive, Guidance Paper E, Levels and Classes in the Construction Products Directive, Revision Sep 2002. http://www.lnec.pt/qpe/marcacao/outros_docs/gp_e.pdf

works which have an impact on the state and the evolution of energy efficiency. One of the objectives of the recasting of the EPBD is to reduce national differences and – in the long run –establish a common system for the assessment of energy efficiency. However, the draft of the Directive mentions a comparative methodology which implicitly means that in the future national differences will be accepted.49 A more recent investigation in the possibilities to harmonize energy performance assessment procedures indicates that, even between countries which share a similar climate, there are considerable differences in the building stock. Hence it will be difficult to compare energy performance.50

As a consequence there are different regulatory framework conditions between Member States which are of importance for GA. These have an impact on the assessment of the energy performance not only concerning the building in which a GA will be installed but also to the calculation method applied in a certain Member State.51

Energy-Using Products Directive (EuP)

In 2005 the European Parliament and the Council passed the Framework Directive 2005/32/EC Ecodesign Requirements for Energy-Using Products (EuP).This Directive refers to disparities between the laws or administrative measures adopted by the Member States in relation to the Ecodesign of energy-using products. These disparities can create barriers to trade, distort competition within the community and may thus have a direct impact on the functioning of the internal market. The EuP aims at creating a framework for the application of Community Ecodesign requirements for energy-using products. Subject matter and scope as defined in Article 1 apply to GA. As shown in the EcoBoiler Project, the environmental impact of boilers is of outstanding importance for the climate change and the criteria mentioned in Article 15, §2 are to the point.52 _Therefore,

provisions of the BED fall under the EuP regarding Minimum Efficiency Performance Standards (MEEPS) and labelling.

6.2.2 Transposition of directives of relevance for GA into national law

GA are regulated through several EU directives. A large part of these are covered within the tests for CE-marking, following Article 95 EEC Treaty, while others are based on Article 175 of the Treaty. It is in the nature of directives that the transposition into the law of each Member State is of crucial importance. The aims of a directive can be achieved only if the transformation is conducted in a proper style. The differences of national systems of jurisdiction give rise to diverse forms of the implementation of the directives. For placing on the market and putting into service in each country, different legal provisions for GA exist. In many cases the integration of EU directives into national law demands a specific legal procedure which takes into account existing institutions and the legal system.

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See: Directive of the European Parliament and of the Council on the energy performance of buildings (recast); 13 November 2008; http://ec.europa.eu/energy/strategies/2008/doc/2008_11_ser2/buildings_directive_proposal.pdf

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Peter D’Herdt, Dirk Van Orshoven, Peter Wouters et al. (Belgian Building Research Institute (BBRI)); Energy performance regulations: small scale comparison between Flanders, the Netherlands, Germany and France – Subreport 4: Some Lessons learned about comparing EP-requirements, 22 Sept. 2008

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In view of the transposition of the directives there are differences regarding the type of legal act and the amount of acts in the respective Member States. The GAD was

transposed by administrative acts. While most countries carried out the implementation in a single legal act, in Germany the Directive was transposed into two different legal systems. This is due to the German federal system of jurisdiction. Placing GA on the market is ruled on the federal level whereas putting into service is ruled on the regional level. For the same reason Germany has implemented the CPD through two different laws, the Federal Law on Construction Products and the Model Building Code, which is in the framework jurisdiction of the 16 Länder. Also Poland needed a law and an