Background to the complaint

1. On 20 April 2016, Directive 2014/33/EU on the harmonisation of the laws of the Member States relating to lifts and safety components for lifts[1] (‘the Lifts Directive’) entered into force. Pursuant to Articles 7(1) and 7(2) of the Lifts Directive, when placing a lift on the market, installers should ensure a conformity assessment is carried out to verify that the lift has been tested in accordance with the essential health and safety requirements set out in Annex I to the Lifts Directive.

2. On 18 February 2022, Spain notified[2] a draft royal decree approving the additional technical instruction LHE 1 Lifts[3] (‘the draft royal decree’) to the European Commission. Pursuant to the first paragraph of Article 11(4) of the draft royal decree, before a lift is put into service for the first time, an approved inspection body, other than the one involved in the conformity assessment foreseen by the Lifts Directive, must carry out an inspection (‘the inspection of new lifts before their entry into service’). In addition, it follows from the second paragraph of that same Article that final checks applicable to lifts that have undergone a major modification and carried out in the context of the conformity assessment foreseen by the Lifts Directive (‘the final checks applicable to lifts that have undergone a major modification’) do not have to be carried out again.

3. The complainant is a former staff member of the Spanish Ministry for Industry, Trade and Tourism. On 20 April 2022, the complainant wrote to the Commission raising concerns about the compatibility of some provisions of the draft royal decree with EU law. In particular, the complainant was concerned that two obligations foreseen by the draft royal decree were at odds with EU law. Those obligations concern the inspection of new lifts before their entry into service and the adaptation of the lifts, already on the market and in service, to make sure that they meet current harmonised standards.

4. The complainant and the Commission exchanged several emails concerning the issues raised.

5. On 16 January 2023, the complainant turned to the European Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into how the Commission dealt with the complainant’s concern that there is an overlap between the inspection of new lifts before their entry into service, foreseen by the draft royal decree, and the tests conducted in the context of the conformity assessment procedures foreseen by the Lifts Directive (‘the tests foreseen by the Lifts Directive’).

7. In the course of the inquiry, the Ombudsman received the reply of the Commission to the complaint as well as its reply to a request for further clarifications.  

Arguments presented to the Ombudsman

8. The complainant argued that Member States may require the inspection of new lifts before their entry into service provided that such inspections focus on aspects that are not already covered by the tests foreseen by the Lifts Directive.

9. The complainant argued that the Spanish Minister for Industry, Trade and Tourism signed the draft royal decree but that it does not have powers in areas other than those covered by the tests foreseen by the Lifts Directive.

10. As such, the complainant contended that there is an overlap between the inspection of new lifts before their entry into service, foreseen by the draft royal decree, and the tests foreseen by the Lifts Directive. According to the complainant, the obligation to inspect new lifts before their entry into service hinders, or even prevents, them entering into service.

11. In its reply to the Ombudsman, the Commission explained that Member States may adopt additional national provisions regarding the putting into service, installation or use of products. According to the Commission, the inspections of new lifts before their entry into service, foreseen by the draft royal decree, are in conformity with the Lifts Directive. In this regard, the Commission pointed out that, as provided for in the second paragraph of Article 11(4) of the draft royal decree, “final checks that have been carried out and documented in the context of conformity assessment procedures in the course of placing a lift on the market or introducing to the market do not have to be carried out again”.

12. In addition, the Commission stressed that, pursuant to the Lifts Directive, a lift that has been subject to a major modification after it has been put into service must undergo a conformity assessment again. According to the Commission, Annex II to the draft royal decree, which covers final checks applicable to lifts that have undergone a major modification, merely transposes the requirements of the Lifts Directive into Spanish law.

13. The Commission subsequently argued that the only way that the draft royal decree could be read as imposing a second inspection, on top of and even overlapping with the tests foreseen by the Lifts Directive, is a misunderstanding of the wording ‘final check’. The Commission took the view that those final checks, foreseen by the draft royal decree, are only applicable after a substantial modification of the lift and are in line with the Lifts Directive. In the Commission’s opinion, the draft royal decree does not impose any additional inspection before the first use of the lift nor does it impose an inspection that would overlap with the tests foreseen by the Lifts Directive.

The Ombudsman's assessment

14. According to the first paragraph of Article 11(4) of the draft royal decree, “before a lift is put into service for the first time, an inspection must be carried out by an approved inspection body other than the one involved in the conformity assessment. The result of the inspection must be favourable with no defects.” Moreover, it follows from the Guide to application of the Lifts Directive that “[b]efore the Lifts Directive came into force, many Member States had national procedures providing for inspection of a lift installation before it was put into service. The role of such initial inspection has now been superseded by the Lifts Directive and if such a requirement for initial inspection is maintained, it can only concern aspects which are not covered by the conformity assessment procedures of the Lifts Directive.”[4]

15. In view of the above, it appears that the draft royal decree imposes an inspection before the entry into service of a lift. Moreover, it is clear that, as provided for by the Guide to application of the Lifts Directive and recognised by the Commission in its exchanges with the complainant, such an inspection cannot cover the same aspects as those already covered by the tests foreseen by the Lifts Directive.

16. It is regrettable that the Commission failed to identify and enumerate precisely the aspects not covered by the tests foreseen by the Lifts Directive, which are concerned by the provisions on the inspection of new lifts before their entry into service under the draft royal decree.

17. In its initial reply to the Ombudsman, the Commission referred solely to provisions of the draft royal decree dealing with final checks applicable to lifts that have undergone a major modification. However, the complainant’s concern did not relate to final checks on lifts that have undergone a major modification, but to the imposition of inspections of new lifts before their entry into service and their potential overlap with the tests foreseen by the Lifts Directive.

18. In its subsequent reply, the Commission stated that, in its opinion, the draft royal decree does not impose any additional inspection obligation, on top of the tests foreseen by the Lifts Directive, before the first use of lifts. However, its reply was not clear.

19. It is regrettable that the Commission’s explanations lacked clarity. However, the complainant asked the Commission to take a position on a draft law. As such, this cannot be considered an infringement complaint. Should the complainant consider that, once adopted, the royal decree includes provisions that are contrary to EU law, he could consider making an infringement complaint to the Commission.

20. Based on the above, the Ombudsman considers that no further inquiries are justified at this stage.  

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[5]:

No further inquiries are justified at this stage.

The complainant and the Commission will be informed of this decision.

 

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 04/09/2023

 

[1] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32014L0033

[2] According to Directive 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services, Member States must inform the Commission of any draft technical regulation prior to its adoption.

[3] Available at: https://technical-regulation-information-system.ec.europa.eu/en/notification/17122

[4] Page 38, available at: https://ec.europa.eu/docsroom/documents/29961 

[5] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions