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ATEX reloaded - explosion protection and the EU's ‘New Legislative Framework’

11 March 2016

This article from R. STAHL examines the European Union’s ‘New Legislative Framework’ (NLF), the latest push to further harmonise legislation for technical products across the single market, and to enforce the rules more comprehensively. 

By establishing common terms and an effective supervisory regime, the approach seeks to ensure easier and more reliable compliance with product safety requirements – for new as well as for existing provisions. The ATEX Directive governing explosion protection is one of several to fall under the scope of an ‘Alignment Package’ for the new framework.

Working towards more homogenous standards has become very popular, as is perhaps best evidenced by the ambitious endeavour to establish a consistent global standards system for explosion protection under the IECEx umbrella. Limited to our own continent, a somewhat humbler effort driven by the European Union is also underway. The EU is reshaping product safety regulations for manufacturers, users and responsible authorities in ways that make them clearer and easier to handle. At the same time, rule violations are to be more severely sanctioned in the future.

All these measures are intended to protect domestic manufacturers and end users of high-quality technology against competitors who do not play by the rules and push non-compliant products onto the single market.

More stringent safety regime

Effective as of early 2010, EU Regulation No. 765/2008 has put in place new provisions for enhanced market supervision and more thorough checks on products from outside the EU – all in order to keep people, technical equipment, and the environment safer than before. The Regulation also attempts to improve conformity testing and evaluation routines by Notified Bodies – which are obligatory for many product groups – across the board, and ensure that these processes are up to par across the EU.

In the same vein, Decision No. 768/2008/EC, which was adopted in 2008, provides patterns for a more authoritative use and clearer uniform definition of technical terms. These are supposed to facilitate a more coherent phrasing of obligations and definition of protective measures. Considered together, the Regulation and the Decision form the New Legislative Framework (NLF).

The scope of this framework is not limited to future legislation. Provisions already in place must be adapted to the NLF as well. In order to keep the administrative effort to a minimum, NLF-related changes were generally supposed to be included with the next otherwise necessary modifications or revisions. However, there are exceptions to this rule, since some EU Directives designated for the NLF are not likely to be revised for other reasons in the short or medium term. In these cases, dedicated NLF adaptations are prescribed to ensure a timely implementation of the new approach.

An Alignment Package was agreed upon in 2014 for nine areas of regulation as diverse as lift products and scales, EMC considerations, or anything pertaining to the safety of low voltage equipment. As regulations concerning these issues are adapted to the new framework, most of them will have to be integrated into national legislation in the EU member states by April 20, 2016. This Alignment Package also includes a modified, NLF-compliant ATEX Directive – now labelled Directive No. 2014/34/EC.

What has changed for ATEX?

Much remains the same: smoking remains prohibited near explosion hazards...
Much remains the same: smoking remains prohibited near explosion hazards...

Other than some aspects only Notified Bodies must observe, there are relatively few changes that apply to economic actors (manufacturers, importers and distributors).

Most importantly, ATEX certifications as per the Directive's earlier version 94/4/EC will remain valid. Only certificates issued after April 20, 2016, must comply with the new, NFL-adapted ATEX incarnation. The EC declaration of conformity is replaced by the EU declaration of conformity. Newly certified devices will receive an EU type examination certificate. Due to the Directive's name change, all references in new certificates and declarations have to be changed to 2014/34/EC. There are also some terminological revisions, as NLF aims to reduce uncertainties and misconceptions that could hitherto arise by establishing a more concise and less ambiguous use of terms than before.

In some cases, various standards applicable at the same time for a specific product used identical terms in an incongruent fashion, signifying different things or leaving room for interpretation. The NLF attempts to remedy this situation through consistent definitions. However, these terminological changes have actually brought about a handful of substantial changes for the ATEX Directive, notably by broadening its scope of application. "Making available on the market" no longer solely means the sale or use of new products. Plant operators manufacturing explosion-protected equipment for internal use may now also be considered “manufacturers” for the purpose of the ATEX standard. Moreover, importers and distributors are obliged to inspect products closely enough to be able to identify questionable cases and alert the supervisory authorities.

Given these changes, users may be liable to observe extended obligations, namely test and documentation provisions for declarations and certifications of conformity. As a rule, records documenting procurement and delivery of ATEX-compliant products have to be kept for ten years to ensure better traceability.

Trust is good, control is better

For reputable manufacturers and end users, ATEX adaptations to the New Legislative Framework will lead to only very moderate changes to existing practices in the production and certification or the selection and deployment of ATEX-compliant equipment. What remains to be seen is whether the more rigid definition of technical terms really does ensure that issues become easier to understand and that less confusion arises.

For the time being, it is also unclear whether competitors with questionable business practices, i.e. those neglecting proper testing procedures or blatantly violating standards, will indeed be shut out of the market more effectively due to the new framework. The EU will monitor to which degree this goal is accomplished: the commission is due to issue a report on de facto improvements to market surveillance in 2018.

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