6 APPLICATION OF DIRECTIVE 94/9/EC ALONGSIDE OTHERS THAT MAY APPLY - ATEX 94/9/EC guidelines 4th edition

6 APPLICATION OF DIRECTIVE 94/9/EC ALONGSIDE OTHERS THAT MAY APPLY

In principle if a product is within the scope of other directives at the same time, all directives have to be applied in parallel to fulfil the provisions of each directive.

6.1 Electromagnetic Compatibility 2004/108/EC (EMC)

In the case of Directive 94/9/EC and the Directive relating to Electromagnetic Compatibility 2004/108/EC (EMC), the Directive 94/9/EC has to be applied to fulfil the requirements concerning "explosive atmospheres" safety requirements. The EMC Directive must also be applied so as to ensure that the product does not cause electromagnetic disturbance and that its normal operation is not affected by such disturbances. There will be some applications, where the "normal" level for electromagnetic immunity provided by Directive 2004/108/EC might not be sufficient for granting the necessary immunity level for safe performance under the scope of Directive 94/9/EC. In this case the manufacturer is required to specify the electromagnetic immunity achieved by his products according to Annex II 1.2.7 to Directive 94/9/EC. For example, protective systems where the performance of data acquisition and data transmission may have direct influence on explosion safety.

6.2 Low Voltage 2006/95/EC (LVD)

Products for use in potentially explosive atmospheres are explicitly excluded from the scope of the Low Voltage Directive 2006/95/EC (LVD). All "Low Voltage essential objectives" have to be covered by the Directive 94/9/EC (see Annex II 1.2.7). The standards published in the Official Journal of the European Union with reference to Directive 2006/95/EC may be listed in the EC declaration of conformity to fulfil the requirements 1.2.7 of Annex II to Directive 94/9/EC. Not excluded from the scope of the LVD are the safety, controlling and regulating devices mentioned in Article 1(2) of the Directive 94/9/EC which are intended for use outside potentially explosive atmospheres but required for or contributing to the safe functioning of equipment and protective systems. In such cases both Directives shall be applied.

6.3 Machinery 2006/42/EC (MD)

The relation between Directive 94/9/EC and the Machinery Directive 2006/42/EC is different. The Directive 94/9/EC, which is a "specific Directive" within the meaning of Article 3 of the Machinery Directive, contains very specific and detailed requirements to avoid hazards due to potentially explosive atmospheres, while the Machinery Directive itself contains only very general requirements against explosion hazards (Annex I, 1.5.7 MD). With regard to explosion protection in a potentially explosive atmosphere Directive 94/9/EC takes precedence and has to be applied. So equipment that complies with ATEX, and which is also a machine can be assumed to comply with the specific essential safety requirements concerning ignition risk with respect to explosive atmospheres in the Machinery Directive. For other relevant risks concerning machines, the requirements of the Machinery Directive also have to be applied.

See also § 4.1.2.3.

6.4 Transport of dangerous goods by road 94/55/EC and 98/91/EC (ADR)

In order to avoid possible overlapping with Directives 94/55/EC and 98/91/EC on transport of dangerous goods by road most means of transport have been excluded from the scope of Directive 94/9/EC (Art. 1 (4)). Generally, those vehicles still included in 94/9/EC do not leave the user's premises. Typical examples are means of transport on rails used in "gassy" mines, forklift trucks and other mobile machinery where the internal combustion engine, braking systems and electrical circuits may be potential sources of ignition.

It is possible for both Directives to be applied in parallel. For example, where the manufacturer designs and constructs a means of transportation intended for transporting dangerous (in this case flammable) goods on public roads as well as for use in areas where explosive atmospheres may exist.

The criteria for application of Directive 94/9/EC are that the vehicle would need to:

• be defined as an equipment, a protective system or safety device according to Article 1(2) of the Directive;
• have its own potential source of ignition;
• be intended for use in a potentially explosive atmosphere36.

In order to determine under which intended conditions both Directives will apply the exclusion at Article 1(4) of Directive 94/9/EC needs to be considered.

This exclusion explicitly determines that "means of transport" except those "intended for use in a potentially explosive atmosphere shall not be excluded".

The definition of "means of transport" is given further detail at Article 2 of Directive 98/91/EC and, in broad terms, is interpreted to be an activity on a public highway or space including unloading and loading operations.

The ATEX Standing Committee therefore considered that, as described in the Commission guidance, a vehicle under the scope of Directive 98/91/EC might also be covered by the ATEX Directive 94/9/EC.

Where such a vehicle is intended for use in a potentially explosive atmosphere both Directives will apply. However, this does not include where such environments are likely to occur solely as a result of loading and unloading operations as described in 98/91/EC. An example of this is a road tanker transporting petrol when the loading/unloading site is such that it is not initially considered to have a potentially explosive atmosphere because of its location with respect to the storage facility. As noted above, if this environment becomes potentially explosive because of the loading/unloading operation, only the requirements of Directive 98/91/EC need be applied.

In addition, it was agreed that the conformity assessment and technical requirements of 94/55/EC as further defined by 98/91/EC may not fully align with those required for compliance to Directive 94/9/EC.

In this context the question arose whether manufacturers of internal monitoring or other devices attached to or inside a vehicle such as a petrol tanker have to apply the ATEX Directive 94/9/EC and to affix CE marking? The following has been concluded:

1.  Based on Article 75 of the EC Treaty and transposing the ADR, Directive 94/55/EC fully harmonises rules for the safe transport of dangerous goods by road.
2. Additionally, based on Article 95 of the EC Treaty, Directive 98/91/EC provides for full harmonisation regarding technical requirements for the following categories of vehicles intended for the transport of dangerous goods by road as follows:

• Category N: Motor vehicles having at least four wheels when the maximum weight exceeds 3.75 metric tons, or having three wheels when the maximum weight exceeds 1 metric ton, and used for the carriage of goods.
• Category O: Trailers (including semi-trailers).

According to Article 4, if the requirements of the Annexes of this Directive are fulfilled for the completed vehicle, Member States may not refuse to grant EC type approval or to grant national type approval, or prohibit the registration, sale or entry into service of those vehicles on grounds relating to the transport of dangerous goods.

3. Directive 98/91/EC contains, by reference to Directive 94/55/EC, requirements covering both electrical (e.g. wiring, batteries) and non electrical equipment (e.g. heat protection of engine,

Unless it is a safety device as defined under Article 1(2) of Directive 94/9/EC.

combustion heaters) of vehicles designed for the carriage of dangerous goods, which may contribute towards the formation of explosive atmospheres.

4. Provided that:

-Such vehicles are not intended for use in a potentially explosive atmosphere other than that caused temporarily by loading or unloading.

• The goods, which shall be transported, are substances and articles as defined in Article 2 of Directive 94/55/EC.
• The exemptions of Annex A, paragraph 1.1.3, of Directive 94/55/EC and the ADR agreement are not pertinent.

Under these circumstances the exclusion at Article 1(4) of Directive 94/9/EC applies to the WHOLE of the vehicle including ALL associated equipment necessary for the carriage of dangerous goods

(e.g. "breather valves" of manhole covers, vehicle tracking systems).

In all other cases Directive 94/9/EC may apply.

Note 1: At some sites tankers may have to access a zone (e.g. Zone 1). In this case users responsible for that site may demand the supplier to use tankers with ATEX compliant products.

Note 2: Even if the vehicle or parts of it are intended to be permanently used in a potentially explosive atmosphere, devices like "breather valves" of manhole covers normally would not fall within the scope of Directive 94/9/EC. Normally these devices have no own ignition source, are no safety devices in the sense of ATEX and are normally not provided with a protective system, such as a flame arrester.

6.5 Personal Protective Equipment 89/686/EEC (PPE)

The equipment covered by the Personal Protective Equipment (PPE) Directive 89/686/EEC is specifically excluded from Directive 94/9/EC. However, the manufacture of PPE for use in explosive atmospheres is covered by Basic Health and Safety Requirement 2.6 in Annex II to the PPE Directive. PPE intended for use in explosive atmospheres must be so designed and manufactured that it cannot be the source of an electric, electrostatic or impact-induced arc or spark likely to cause an explosive mixture to ignite. Following the EHSRs in Directive 94/9/EC is one way to demonstrate compliance.

6.6 Pressure Equipment 97/23/EC (PED)

Pressure Equipment Directive (PED) 97/23/EC is a single market directive similar to Directive 94/9/EC. Relatively few items of pressure equipment have their own source of ignition. There are a small number of examples of safety accessories which may be autonomous protective systems or, possibly, equipment. Flame arrestors have been judged to be pressure accessories in the sense of the PED. There are no additional requirements for the flame arrester element under the PED. PED specifically excludes from its own scope equipment classified no higher than Category I under Article 9 of PED but inside the scope of ATEX.

The Pressure Equipment Directive deals only with the pressure hazard and does not consider the prevention of and protection against explosions/inflammations, which are not triggered by pressure. In most cases it is presumed that PED equipment does not have an own ignition source when it is properly installed according to the instructions of the manufacturer (including information about maintenance and repair of the connecting devices, e.g. valves, flanges). If such PED equipment shows hot surfaces occurring during operation caused by the temperature of its content solely, it is not applicable to consider this equipment under the ATEX Directive 94/9/EC.

6.7 Simple Pressure Vessels 87/404/EEC

Simple Pressure Vessel Directive 87/404/EEC applies to a limited range of equipment for holding air or nitrogen under pressure. ATEX equipment may incorporate a simple pressure vessel in an assembly, but it is considered that there are relatively few occasions when both Directives will apply to the same product.

6.8 Gas Appliances 90/396/EEC (GAD)

Gas Appliances Directive (GAD) 90/396/EEC applies to equipment for domestic and non commercial use but does not apply to equipment designed for industrial processes. Most equipment within scope of GAD is capable of igniting a surrounding explosive atmosphere and cannot comply with ATEX.

It should also be noted that the Directive 94/9/EC contains the following exclusion:

"- equipment intended for use in domestic and non-commercial environments where potentially explosive atmospheres may only rarely be created, solely as a result of the accidental leakage of fuel gas;"

The question has been raised as to whether this implicitly conveys the meaning that such equipment, where the leakage is not fuel gas, are included in the scope of ATEX Directive 94/9/EC.

It was agreed that, as a general rule, such types of equipment are excluded from the Directive as they are not intended for use in a potentially explosive atmosphere.

6.9 Construction Products 89/106/EEC (CPD)

Besides the above Directives it is necessary to mention the relationship between Directive 94/9/EC and the Construction Products Directive (CPD) 89/106/EEC. During the standardisation work for both Directives it was identified that (in a few areas) the scopes of both Directives could overlap. The areas already identified where:

• explosion protection systems and fire suppression systems using the same media;
• both areas are using common hardware for distribution systems such as pipes, pipe hangers, nozzles, etc.

In general, it can be stated that in cases of doubt the Construction Products Directive is applicable if the subject under discussion is fixed to a building and becomes then a part of the building or if it can be seen as a building itself (e.g. a silo). In such instances the CPD and the ATEX Directive 94/9/EC apply in parallel. Compliance with the EHSRs of Directive 94/9/EC will in general show compliance with the EHSRs of the CPD regarding ignition hazards.

In this context it is important to note, that a Notified Body is only allowed to cover aspects related to two or more directives if the Body is notified under all directives with an appropriate scope.

6.10 Marine Equipment Directive 96/98/EC (MED)

The Marine Equipment Directive (MED) 96/98/EC is not a "New Approach" Directive, as it is based on the principles of the "Global Approach" and does not provide for CE marking. Directive 94/9/EC specifically excludes from its scope "seagoing vessels and mobile offshore units together with equipment on board such vessels or units", and equipment for use on board a ship is subject only to the MED directive, excluding all others. Nevertheless, the constructional requirements for explosion-protected equipment at sea are generally the same as onshore: this is illustrated by the reference of the MED to the same or very similar standards, as harmonised under the ATEX Directive. In fact, certain products (as gas detection equipment) are used offshore and onshore, thus requiring certification per the ATEX Directive and/or by the MED, according to their intended use.