A Look at the European Commission’s New Low Voltage Directive Guide

Originally published in 1973, the Low Voltage Directive (LVD) has a long history as law in the European Union (EU). Indeed, it was first adopted when the EU was referred to by its original name, the European Economic Community. It would take another two decades for a union intent on socio-political as well as economic integration to become established, and a move into the 21^st century before geographical expansion through accession of ex-Eastern bloc states. The early 1970s was also before one of the signal achievements of the EU – the European Single Market – was completed.

In this respect, the 1973 LVD was somewhat ahead of its time. It sought to harmonize safety requirements and so remove a potential non-tariff technical barrier to trade in electrical equipment before the European Commission created the “New Approach to Technical Harmonization and Standards” to help facilitate the Single Market. Of course, the LVD later became a New Approach law with all the familiar hallmarks of CE marking, presumption of conformity, preparation of technical documentation and so on.

Fundamentally, the LVD has not changed that much in its 45-year history. It has only experienced two revisions, as follows:

• Codification in 2006. This saw the European Commission propose a new Directive – Directive 2006/95/EC – to merge the 1973 Directive with legislative amendments adopted over 33 years. Directive 2006/95/EC was adopted and, in 2007, the European Commission published an accompanying set of guidelines. Although lacking the force of law, the guidelines offered interpretation and advice spanning legislative scope, the Directive’s safety requirements, conformity assessment procedures, and the relationships between the LVD and other laws.
• Recast in 2014. A legislative recast was proposed by the European Commission to align the LVD with the New Legislative Framework (NLF). The NLF evolves the New Approach such that it continues to require the specification of essential requirements in product law and recourse to standardization to determine the technical details required for implementation (i.e., creation of harmonized standards), CE marking, conformity assessment, etc. while introducing additional elements. One such additional element is the setting of different obligations depending on what businesses (“economic operators”) do within product supply chains. The proposed recast was carried into law as Directive 2014/35/EU. The European Commission subsequently published provisional guidance on the 2014 Directive, first in draft form in 2015 then as final copy in 2016.

The provisional guidance on Directive 2014/35/EU is worth reflecting upon before moving to discuss the new LVD Guide that supersedes it. If anything, the provisional guidance sought to downplay the LVD’s recast. Suggesting that there had been little substantive change to the Directive, the guidance proceeded to answer a series of questions. In doing so, it offered advice on the difference between “placing on the market” and “making available on the market,” what to do regarding placing a name and address on electrical equipment, what constitutes an unacceptable risk, what is to be included in an EU Declaration of Conformity, and clarification around dates of publication/adoption/applicability.

Mindful of this, it may be a little surprising that the new LVD Guide is more than three times the length of the 2007 guidelines. One might then expect the new LVD Guide to reflect a decade’s worth of enquiries to the European Commission from assorted stakeholders, with the outcomes of the Commission’s deliberations documented in a longer set of guidelines. Not so.

If you were already familiar with the 2007 guidelines and had kept pace with the development of the NLF, the LVD’s alignment to it in 2014, and the provisional guidance of 2014-2015, the new LVD Guide does not offer much more by way of interpretation and instruction. The length of the new LVD Guide really reflects a different approach to structuring the guidelines,  essentially reproducing the Directive’s recitals and articles verbatim before commenting upon them.

What, then, are the key points of interest if you are involved in making electrical equipment for, and/or supplying this equipment to, EU Member States? This article suggests that these points emerge through consideration of four topics:

1. Scope of the LVD
2. Potential overlap with other EU product legislation
3. Generally applicable economic operator obligations
4. Obligations specific to certain economic operators (e.g., a manufacturer, a distributor)

These topics will be discussed in turn. In all cases it should be remembered that, while the LVD Guide constitutes official interpretation and advice from the European Commission, it does not have the force of law.

Scope of the LVD

The new LVD Guide offers some useful clarification. This includes the following:

• A statement that the LVD applies to all forms of supplying electrical equipment intended for the EU, regardless of the selling technique. This means that if you supply the EU market via distance selling or electronic means you are not without responsibilities.
• Regarding the LVD’s voltage rating, it is clear from the legal text that the LVD applies to all electrical equipment designed for use between 50-1000 V AC and 75-1500 V DC. The new LVD Guide clarifies that the rating is for voltage of the electrical input or output, and not to voltages that may appear inside the equipment.
• Unless the battery provides a power supply between 75 and 1500 V DC, battery operated electrical equipment is out of scope of the LVD. However, the new LVD Guide makes the point that “…any accompanying battery-charger as well as equipment with integrated power supply unit within the voltage ranges of the LVD are in the scope of the LVD.” A good example in this regard is the power supply that might be provided with a laptop; if the LVD’s voltage rating applies then it will fall within the scope of the Directive. Note that this is true for mains chargers but not for USB chargers.
• Whether or not components are in scope of the LVD has been a longstanding question for industry. The following clarification is offered in the new LVD Guide:
  • As a point of general principle, the scope of the LVD includes both electrical equipment intended for incorporation into other equipment, and equipment intended to be used directly without being incorporated.
  • However, when the safety of components largely depends on how these components are integrated into final products and what the characteristics of the products are, the LVD Guide recognizes that component manufacturers may be unable to perform safety risk assessments. In these circumstances, the LVD Guide suggests that the components are not covered by the LVD and should not be CE marked unless other CE marking legislation applies (e.g., the RoHS Directive).
  • Care should be taken with this guidance, though. Seemingly, it applies to basic components such as capacitors and resistors. In contrast, transformers and electrical motors are said to be in scope of the LVD, as are lamps, starters, fuses, switches for household use, and elements of electrical installations. Even though these are often used in conjunction with other electrical equipment and have to be properly installed in order to deliver their useful function, they fall within the scope of the LVD.
• When a power cord set has not been placed on the EU market as an individual item but is instead bundled with electrical equipment in scope of the LVD, there is no need to affix the CE marking on the cord set. However, this only applies when the cord set is provided for use with the main article that it accompanies. If a cord set is placed on the EU market as a spare part or as a standalone item for use with various electrical products, it must carry the CE marking. It should also be noted that the manufacturer (or manufacturer’s authorised representative) is responsible for demonstrating that both items placed on the market (i.e., equipment and accompanying cord set) comply with the LVD.

In addition, the new LVD Guide’s Annex VII is of note. In the first instance, this lists 30 example products within or outside the scope of the LVD that provides valuable reference. In the second instance, Annex VII discusses the case of a socket outlet with switch. The advice varies depending on the type of socket outlet:

• Type E and Type F socket outlets are generally supplied without a switch, meaning they are not in scope of the LVD and should not be CE marked.
• Type E and Type F socket outlets supplied with switches (generally being a socket outlet assembly and a switch assembly supplied as a common assembly) should be CE marked.
• With Type G and Type K systems, the switched socket outlets constitute a complete assembly (i.e., a single product). These are only used as part of the national plug and socket outlet system and so are excluded from scope of the LVD and should not be CE marked.

Legislative Overlap

The new LVD Guide highlights that electrical equipment placed on the EU market may be regulated for safety in EU product legislation other than, or in addition to, the LVD. This is an important point. While the LVD exists with EU product legislation that regulates concerns like electromagnetic compatibility and energy efficiency, these laws will typically apply alongside the LVD and do not take precedence over it (the laws are regulating different matters after all). On occasion, however, other EU product legislation can take priority over the LVD when it comes to the protection of health and safety.

The new LVD Guide notes that when electrical equipment with a voltage rating that would ordinarily see it falling in scope of the LVD is also:

• a machine, meaning an assembly of linked parts or components, at least one of which moves; or
• an item of radio equipment, meaning products that intentionally emit and/or receive radio waves for purpose of radio communication and/or radio determination; or
• a part for a passenger or goods lift; or
• intended for use in potentially explosive atmospheres

Then, subject to certain caveats, other EU legislation applies and takes precedence over the LVD. These laws are, respectively, the Machinery Directive (2006/42/EC), the Radio Equipment Directive (2014/53/EU), the Lifts Directive (2014/33/EU), and the Equipment and Protective Systems intended for use in Potentially Explosive Atmospheres (“ATEX”) Directive (2014/34/EU).

Separate to the above, the new LVD Guide discusses three scenarios where the LVD’s safety requirements apply to electrical equipment with a voltage rating of 50-1000 V AC and 75-1500 V DC together with requirements of other EU product safety legislation. The scenarios are as follows:

• When the equipment is to be permanently incorporated in construction works: In this instance LVD Annex I safety objectives must be met alongside relevant Construction Products Regulation (No 305/2011) requirements. The new LVD Guide emphasizes that:

“Most importantly, products covered by harmonized standards under Regulation (EU) No 305/2011 have to be assessed in conformity with the applicable standards and be accompanied by a declaration of performance and the CE mark.

…Should these essential conditions not be met, the provisions of Regulation (EU) No 305/2011 cannot in practice be applied to the relevant electrical equipment.”

• When the equipment is intended to be a gas appliance “fitting:” The term “fitting” refers to a safety device, controlling device or regulating device and subassembly designed to be incorporated into an appliance that burns gaseous fuels and is used for cooking, heating, hot water production, refrigeration, lighting or washing. Here LVD Annex I safety objectives must be met together with Gas Appliance Regulation (No 206/426) requirements, but the LVD Guide explains that the latter is specific to “…gas related risks due to the hazards of electrical origin of the appliances or of the fittings.”
• When the equipment is intended for consumer use: Under this scenario, specific provisions of the General Product Safety Directive (2001/95/EC) apply while the LVD maintains precedence as the EU product safety law that must be complied with. Page 85 of the LVD Guide lists the applicable provisions of the General Product Safety Directive.

Generally Applicable Economic Operator Obligations

The LVD specifies obligations for economic operators, a term that spans four different business entities: manufacturers, authorised representatives of manufacturers, importers, and distributors (see Figure 1).

Under the LVD, some obligations are specific to individual entities while others have wider application. In addition, legal obligations falling upon two or more economic operators can sometimes be insufficiently detailed to account for which entity has direct responsibility for their fulfilment. The new LVD Guide recognizes where challenges arise and provides some useful advice for industry that is now discussed.

Provision of information/documentation in response to an authority

Any economic operator involved in the supply of electrical equipment falling within scope of the LVD faces the obligation to provide a competent national authority with “all the information and documentation in paper or electronic form necessary to demonstrate the conformity of the electrical equipment with [the LVD].” Providing this information and documentation should follow what the LVD terms a “reasoned request,” but this is not elaborated upon any further in the Directive.

All the economic operators also share the obligation to “cooperate with [the] authority, at its request, on any action taken to eliminate the risks posed by electrical equipment which they have placed on the market.” As the new LVD Guide acknowledges, there is no specific time limit when it comes to providing requested information and documentation. It is then suggested that this is likely to be judged on a case-by-case basis with a possible default period of 10 working days.

More interestingly, perhaps, is the comment in the LVD Guide that Member States “are free to fix a default period in their national laws,” something that does not appear to have been legislated for to date. Whether a default period is written into any national legislation in the future only time will tell. For the moment, practitioners should keep 10 working days in mind as the window for responding to an authority, should a reasoned request be received.

Translation of instructions and safety information

Manufacturers, importers and distributors share the obligation to ensure that the electrical equipment is accompanied by instructions and safety information “in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned.” However, as the new LVD Guide points out, the Directive does not state which of the three economic operators is responsible for translating the information.

The LVD Guide’s advice is to begin with a point of principle: it is for each economic operator that makes in-scope electrical equipment available in an EU Member State to ensure that instructions are available in all the languages required. Furthermore, economic operators may wish to share meeting the obligation via contractual arrangements.

The LVD Guide contextualizes this by discussing a situation in which a manufacturer provides the instructions and safety information in a set of languages applicable to the EU Member States where equipment is destined for shipment. However, if the equipment then sees movement into a market not originally intended for supply by the manufacturer, the importer and the distributor must ensure translation into the required language(s). In any case, translations are to be clear, understandable and intelligible.

Translation of the Declaration of Conformity (DoC)

Upon request by a national authority, the DoC is to be made available in the language required by the Member State in whose territory the electrical equipment is placed on the market. Just as with instructions and safety information discussed above, the LVD does not state which economic operator must fulfil this obligation (the manufacturer is to draw up the DoC, but is not necessarily obliged to translate it). Also, just as with instructions and safety information, the LVD Guide suggests that the fulfilment of the obligation is addressed in contractual arrangements between relevant entities.

Addressing formal non-compliance

Article 22 of the LVD identifies various non-compliance issues (e.g., absence of a CE marking, no DoC) that “the relevant economic operator” may be obliged to address, although it says nothing about timings. Unfortunately the new LVD Guide offers little additional direction here, merely suggesting it is for authorities to judge on a case-by-case basis and, for economic operators, good cooperation with the authorities is key.

Presumption of conformity

The presumption of conformity is only conferred when the reference of the harmonized standard is published in the EU Official Journal. Also, it is just the harmonized standard that is relevant; guidance documents on harmonized standards cannot confer the presumption of conformity.

Equipment modification and/or “own labelling” of the equipment by an importer or distributor

Under these circumstances, the LVD Guide is quite clear that the importer or distributor is considered the manufacturer and should assume the corresponding obligations. This means replacing/updating the DoC (it should be in the importer’s or distributor’s name and signed by a suitable representative of the business), but not necessarily replacing test reports, certificates and other accompanying documentation provided this remains relevant.

Obligations Specific to Certain Operators

Relevant advice from the new LVD Guide is presented in Table 1.

Table 1: Summary of specific obligations with corresponding LVD Guide advice

Conclusion

This article has suggested that for economic operators, the most salient advice given in the new LVD Guide arises in the discussion of the Directive’s scope, overlap with other EU product legislation, and operators’ legal obligations. For instance, the LVD Guide clarifies that, if you are involved in supplying electrical equipment to the EU via distance selling, you will have legal responsibilities, while the LVD’s voltage rating applies to input or output, not to voltages that may appear inside the electrical equipment.

An economic operator should be aware of situations where electrical equipment with a voltage rating of 50-1000 V AC and 75-1500 V DC falls in scope of both the LVD and other EU product safety legislation (e.g., the Construction Products Regulation), or else falls in scope of EU product legislation that takes precedence over the LVD (e.g., the Machinery or Radio Equipment Directives). In the latter case, the laws will still confer a presumption of conformity if LVD harmonized standards are applied to meet electrical safety requirements, only the EU DoC must reference the law that applies (e.g., the Machinery Directive rather than the LVD in the case of electrical machinery).

Finally, LVD legal obligations vary for economic operators, with most falling upon manufacturers. The new LVD Guide offers interpretation and instruction on these obligations, clarifying when importers and distributors might take on manufacturer responsibilities among other issues.