Activity Report

Activity Report
Update June - December 2014
European Federation for Elevator Small and Medium-sized Enterprises
2
INDEX
LEGISLATIVE FOLLOW-UP …………………………………………………………
7
EUROPEAN UNION INSTITUTION …….………………………………………… 8
MEETINGS WITH RELEVANT STAKEHOLDERS ………………………… 11
ACTIVITIES RELATED TO STANDARDISATION ………………………… 12
SUPPORTING DOCUMENTS ………………………………………………………..15
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EFESME ACTIVITY REPORT
Update June—December 2014
EFESME represents for almost 10 years now one of the strongest representations in
Europe for the protection of SMEs in the lifts sector.
The last few years, marked by a severe economic and financial crisis, as well as
employment
and
social
crisis,
have
imposed
to
our
Federation
a
necessary
reorganization of the services offered and of its structure, with the aim to increasingly
seek to give concrete answers to the Associated Members.
2014 has been a strategic year for Institutions, as the European Parliament was
renewed on 1st July 2014 and the new European Commission was elected on 1st
November 2014. Europe is now called upon to give concrete answers to the Member
States and to the economic realities operating within the European market.
In this sense EFESME, acting as a stakeholder and representative of the European lift
sector, is called to a greater commitment to defend the interests of the companies it
represents.
Here it is presented the update to the Activity Report 2013-2014, which was illustrated
during the EFESME Board of Diretors on 4th June 2014.
This update report consists of 4 items:
► Legislative Follow up
► European Union Institutions
► Meetings With Relevant Stakeholders
► Activities Related To Standardisation
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6
LEGISLATIVE FOLLOW UP
► ENERGETIC CLASSIFICATION - Energy Efficiency, Eco-design of EnergyRelated Products and Energy Labelling.
The Ecodesign Directive 2009/125/EC is the basis of the EU’s sustainable industrial
policy, which aims at fostering an improved environmental performance of products in
the internal market. It establishes a framework for the setting of ecodesign
requirements through Implementing Measures for
energy-related products. According to Article 16,
the Commission should establish Working Plans
which determine the list of products for which a
preparatory study shall be conducted during a
given period and eventually implementation
measures shall be adopted. So far, three
subsequent phases of implementation have taken
place: the transitional period (starting from 2005),
the First Working Plan (2009-2011) and the
Second Working Plan (2012-2014).
To develop the next Working Plan (2015-2017), a
supporting study has been conducted with the aim to identify priority products ant to
set up an indicative list of priority product groups (indicative number of 20) for
Ecodesign (and Energy Labelling) legislation.
Given the importance of this study, EFESME took part as interested stakeholder in
the Study to establish the Ecodesign Working Plan 2015-2017 ; the study, led on
behalf of the European Commission, started in January and draft reports for Tasks 1 to
3 were published from May to July, whereas the revised draft report for Task 3 and Task
4 were presented from September to November. During the study, a group of product
was selected for a supplementary analysis to the European Commission as items
suitable for further evaluation. Elevator were included in this product list and EFESME
made sure that the interests and views of the SMEs were taken into account. We
commented orally and in written form all the draft reports and our contribution was very
much appreciated by the study staff. Moreover, we were present in the two stakeholder
meeting organised in Brussels on 3rd July 2014 and on 29th October 2014. Thanks to our
involvement, we made sure that the overview on our sector was clear and not
influenced by a single actor, mainly the big industry.
7
EUROPEAN UNION INSTITUTIONS
►
EUROPEAN COMMISSION
► Meeting with Mr Peter Van Loon, Case handler – Directorate General for
Competition, Unit: “Markets and cases IV: Basic industries, Manufacturing and
Agriculture” – “Antitrust: Consumer goods, Basic industries, Agriculture and
Manufacturing”.
After the first official meeting in late 2013, an EFESME delegation met again this Case
Handler specialized in competition issues. Van Loon said he discussed the case within
his Unit, and that the after-sales market appears as a very important market but also a
problematic one.
Regarding the management of our case ex officio, by the time the DG Competition has
still not started an in-depth analysis on our market, but Van Loon advised us to try to
introduce our case again when the new Commissioner will be appointed.
In support of our discussion, Van Loon had received a summary letter of our previous
encounter and an updated position paper, as well
as the complete material of the French Ilex case
against Schindler and a summary in English of the
CNC report on maintenance of elevators market in
Spain. Van Loon however assured that the after
sales market is of great interest to DG Competition,
and he specified that the debriefing that they
prepared for the new Commissioner includes as
main focuses online sales, consumer goods and
after-sales market, where elevators were
mentioned as one of the possible areas to
work on.
The success will depend on the guidelines of the
new Commissioner. He therefore invited us to
continue to put pressure on the DG Competition, especially when the new Commissioner
would have been appointed, in the hope that our case will be considered a priority by
the new Cabinet.
► Meeting with Mr John Clark and Ms Tihana Meić, Case handlers –
Directorate General for Competition, Unit: “Markets and cases IV: Basic industries,
Manufacturing and Agriculture” – “Antitrust: Consumer goods, Basic industries,
Agriculture and Manufacturing”.
In lieu of Mr Van Loon, who could not be present at the meeting that day, on 16 th
October a delegation of EFESME met two Case handlers of the DG Competition, in order
to update the DG COMP on the developments in our industry. After an introductory
overview on the problems affecting the sector, where we also included the limits of
representation within the CEN, EFESME illustrated the problem of access to tools and
softwares. EFESME in particular showed the case of Spain and France. Finally, we focus
to explain the French Decree, the only case in which the Directive has been applied
extensively. The two officials invited us to provide them with further developments
especially on the Ilex against Schindler case, to schedule a meeting with the Head of
Unit in 2015.
8
EUROPEAN UNION INSTITUTIONS
►
LEGAL ACTION TO THE EUROPEAN COMMISSION
► Official Complaint to the EC against Portugal
Thanks to the support of our Portuguese member, EFESME found out in July
2014 the existence in Portugal of the Portaria 349-D2013, a Decree whose
goal is to increase the energetic efficiency of buildings and equipment integrated,
where elevators are also included in its scope.
Unfortunately, the provisions of the Portuguese Decree 349-D2013, which are
mandatory for commercial and service buildings in the Portuguese territory,
create a discrimination for hydraulic lifts.
Moreover, this piece of legislation was prepared without the support of
any technical standard released by the competent European
Standardisation Body, but according to the German private Guide VDI 4707.
Additionally, the Portuguese Decree establishes that starting from 31.12.2015
an energy label for elevators will be required, where the Energy Labelling
Directive is still not applicable to elevators.
In our opinion the requirements of the Portuguese Decree are not in line with the
Lifts Directive 95/16/EC on the approximation of the laws of the Member States
relating to lifts, with the Directive 2010/30/EU on the indication by labelling and
standard product information of the consumption of energy and other resources
by energy-related products and, finally, with the Directive 2009/125/EC
establishing a framework for the setting of ecodesign requirements for energyrelated products.
These provisions seriously hinder free competition in the European single market,
an obstacle which is mainly at the detriment of the small and medium
enterprises, as the hydraulic technology is most commonly adopted by small
businesses.
For this reason, EFESME committed itself to prepare and submit an Official
Complaint to the European Commission, which was sent on 5th August 2014.
The European Commission took into consideration our complaint and
asked Portugal for clarifications.
More precisely, our dossier is being treated now under the EU Pilot, a system that
ease the exchanges of information between the European Commission and the
UE Member States. Portugal should respond by 10th March 2015.
According to the EU Pilot website, the procedure will afterwards take 10 weeks
for the EC to assess the answers of the Member State. In case the Commission
will esteem their effectiveness, the case will resolve with a voluntary regulatory
text editing by Portugal (if a non-compliance with the European directives will be
declared). If the response will not be satisfactory, the Commission will normally
launch infringement proceedings by sending a letter of formal notice.
EFESME welcomes the Commission’s concern on our warning, and the
fact that they have open an inquiry is a positive factor, as this makes
explicit that our concerns in relation to this Decree are well founded.
9
EUROPEAN UNION INSTITUTIONS
►
LEGAL ACTION IN A MEMBER STATE
►
ACGM - measures concerning misleading and comparative
advertising against Kone and Schindler
Following a report by EFESME in December 2013, the Italian Competition and
Market Authority (AGCM) reviewed the advertisements contained in the websites
of Kone and Schindler and acquired information through inspection findings at
corporate headquarters. After some months of investigation, the AGCM
concluded that such messages could negatively affect the correct choice
of potential customers. The Italian Authority questioned the data on energy
consumption of some types of lifts, made without providing the necessary
information for their correct interpretation; moreover, the AGCM also contested
the reference to Guideline VDI 4707, used as is was the official industry
standard, which assigned to the products of the two companies a "class A" label
of energy efficiency.
The two companies misused a label, which was very
similar to the energy label introduced by European Union
legislation, but, to date, this label is only applicable to
some home appliances and consumer products.
In the course of the proceedings, Kone and Schindler
challenged the content of our report and the remarks
made by the AGCM, judging them unfounded. However,
in order to avoid the prolongation of the procedure and
the risk of failure resulting in sanctions against them, the two companies
preferred to commit themselves to remove the misleading advertisements from
their websites. The AGCM, after having heard the opinions of EFESME,
agreed to these commitments and made them mandatory, forcing Kone
and Schindler to remove the advertisements.
Although the behaviour condemned consisted in an infringement of EU laws, the
measures of the AGCM unfortunately apply exclusively to the Italian territory,
this means that in other EU Member States the websites of Schindler and
Kone still give misleading information.
Given this great result achieved by EFESME in one EU Member State, we
warmly invite all associate remembers to monitor at their national level
all misleading advertisement and unclear activities and to particularly
report this specific case to your relevant National Competition Authority,
so as to open other proceedings in other EU Member States.
EFESME is currently evaluating whether to bring the case directly to the
European Commission, because the misuse of the VDI 4707 Guideline and
pseudo-energy labels is not attributable only to the two companies in question in
Italy, but it belongs to many notified bodies at European level, which release
"energy certificates" to various companies.
As regards the Italian territory, based on what was requested by the AGCM, our
Italian Associate Anacam has already synthesised the issue to its members in
order to warn them on the consequences of breaking the rules on energy
labelling of products but also inviting them to correct any misleading content in
their websites.
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MEETINGS WITH RELEVANT STAKEHOLDERS
► Meeting with UEAPME SG Peter Faross - UEAPME is the employers’
organisation representing the interests of European crafts, trades and SMEs at EU level,
and is also a recognised European Social Partner.
On 16th October 2014 an EFESME delegation met the Secretary General of UEAPME
Peter Faross, to discuss in detail the issue of Energy
Efficiency for our sector. In the recent years, this particular
item has attracted our concerns, as we have been actively
following the development and implementation of the
EPBD, Eco-labelling and Eco-design Directives. Although
EFESME is convinced of the importance and the need to
reduce energy consumption in order to reach the targets
set for 2020, we believe that our industry is not ready to
be included in the scope of the above-mentioned
Directives. Given the extreme diversity of types and uses
of elevators, and various technologies used, an exact
evaluation of the real energy consumption of lifts is very subjective and depends on
many variables. EFESME reported the state of the art of the legislation applicable to our
sector, our concerns regarding the questionable adoption of the German VDI 4707
Guideline and the new voluntary Product Category Rules for the elevators.
The UEAPME Secretary General Peter Faross expressed that in his views, as Energy
Efficiency measures have undergone an acceleration in the recent years, Members
States are not ready nor willing anymore to be forced to
impose to the industries such massive changes in the short
period. For this reason, the esteemed that the approach of
the new Commissioner for Energy (Mr Miguel Arias Cañete,
acting from 1st November 2014) will be to leave this ‘policy
enlargement’ up to Member States and industries. Finally,
as Mr Faross was a former EU Official in DG ENER, he said
he will investigate our concerns with some former
colleagues of him, currently working at the DG ENER.
► Meeting with CEAHR, the European Confederation of Watch & Clock
Repairer's Associations
CEAHR is an international association representing entrepreneurs engaged in
maintenance, repair or restoration of horological items (clocks and watches).
On 16th October 2014 an EFESME delegation met the Secretary General of CEAHR
Michael Van Gompen and Mr. Peter Dyrberg (lawyer of CEAHR). CEAHR has been
fighting for years for a free repair service market, facing some challenges which are
very similar to ours. Over the years, CEAHR submitted two complaints to the European
Commission, but unfortunately, their dossier has always been rejected.
As we are facing a similar contest, we met them to compare our experiences and be
acknowledged on the obstacles they had to overcome.
11
ACTIVITIES RELATED TO STANDARDISATION
► SBS – SBS, Small Business Strandards is a new association established in October
2013 to represent the interests of all EU SMEs in the European standardisation system
in its various forms as well as to raise awareness for standardisation and facilitate the
introduction and use of standards in SMEs.
EFESME was one of its eight founding members, backing this
project since its first drafting as EC Call for proposal. The
purposes of SBS are to involve directly in the development of
standards, represent and defend SMEs towards European and
National Organisations of Standardisation, and combine tools to
ensure a sound understanding of standards benefits and uses
towards SMEs.
EFESME is a pillar for this project and was the only associate
member to manage to nominate two technical experts to
attend CEN and ISO meetings; in this regard, Mr. Giuseppe Iotti
and Mr. Luciano Faletto were respectively appointed to defend
SMEs’ voice. Moreover, our engagement in this activity has also a
political connotation, as our Vice President Mr. Massimo Bezzi was appointed Vice
President of SBS.
Our actions so far through SBS:
March 2014 – EFESME answered to the consultation for the preliminary
draft of the “Annual Union work programme for European standardisation” and
proposed two amendments to emphasize SMEs’ needs;
►
May 2014 – EFESME issued a Position paper on standards accessibility for
SMEs. This position paper aims at reporting some issues that still hinder a correct
access to standards and standard drafting process: complexity of the rules and
incidence of their review, cost of the standardisation, representativeness in the CEN/
TC 10 and linguistic accessibility. We asked that the Think Small First principle
should be applied in any new legislation and in all established practices within the
European Standardisation Organisations.
►
May 2014 – EFESME answered to the consultation of the European
Commission’s draft Mandate requesting the European standardisation
organisations (ESOs) to develop European standards on material efficiency
aspects for energy-related products in support of implementation of the
Ecodesign Directive 2009/125/EC.
►
December 2014 – EFESME issued a position paper on the lift sector and the
issue of standards translation. This document was co-drafted by SBS and
EFESME and reflects one of our concerns, presented to SBS in a position paper in
May (see above); on our explicit solicitation, SBS has decided to dedicate a position
paper on the last point, the linguistic accessibility for our sector. The document
is therefore the result of an impulse that comes from our Federation, to shed light
on the state of the art of the availability of translated standards related to
the elevators in the European Union. Among the proposals in the conclusions of
the document, SBS (and EFESME) calls the European Commission to enable a fair
European Single market and guarantee to all enterprises an equal access to
standards. A European Commission Decision of 2006 actually took into account the
possibility for the EU budget to cover the translation costs for the official EU
languages, and we therefore stressed for this solution to be evaluated.
►
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13
14
Supporting
Documents
15
16
EFESME
Comments to the
Working Plan 2015-2017
task 3 report
August 2014
17
Who is EFESME?
EFESME represents and defends the interests of the European SMEs operating in the lift
sector and embodies a wider European initiative aiming to redefine the representation of
Lift SMEs.
EFESME was created in April 2005 and draws together the European Federation of National
Associations belonging to all branches of the lift sector; to date EFESME brings together 14
National associations from 13 EU Member States.
EFESME is broadly included in European Bodies representing the SMEs: the Federation is a
member of UEAPME since 2009 and became founding member of SBS – Small Business
Standards – in October 2013.
Today, SMEs are constantly promoting their presence at the European level, seeking a
common and meaningful participation in the technical and normative evolution for the lift
sector.
In this context, EFESME is pleased to provide the Study to establish the Working Plan 2015
-2017 for the Ecodesign Directive with a first group of comments to the section of the
"working plan 2015-2017 task 3” concerning lifts.
We strongly believe that developed and complete information to draft the text at its best
can only be gained with the participation of all interested stakeholders in this sector.
EFESME represents thousands of micro, small and medium enterprises active in the
installation, maintenance and production of lifts and for this reason, we are convinced that
we could give a strong contribution to the study.
Further information and evidence would be provided in due time, anyway before the
compilation of the next report for task 4.
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Comments to the Working Plan 2015-2017 task 3 report
1. As first comment, we consider that the pictures in figure 12, which were provided to
you to explain how electric and hydraulic lifts are currently constructed and work,
illustrate solutions which are very seldom adopted for the products normally placed in the
market nowadays. We suggest that, if possible and agreed, more suitable pictures and
descriptions, which we might provide to you in due time, replace the existing ones in order
to allow a better understanding of the issues at stake.
2. In our opinion the number of trips per year given by the E4 project and taken as a
reference in your document are not realistic, especially as far as residential buildings are
concerned, for which an average of 30,000 to 60,000 trips per year are the values
collected during the development of such project. For some reasons, which are becoming
clearer to us only in the recent times, somebody decided that this number had to be much
higher, equal to 100,000 trips per year, with the consequence of undermining the
reliability of the descending evaluations. Detailed evidence of such arbitrary decision
would be provided in due time.
3. The figures given in fig 13 and in table 44 are quite unrealistic as far as the future
reduction of hydraulic lifts is concerned, due to the fact that their life time normally
exceeds 30 years by far and only a limited number of such lifts is subject to such high
traffic to justify their replacement with lifts based on different technologies. On the other
end, the lower number of trips per year to be taken into account for all lifts in residential
buildings would lead to a much lower yearly energy consumption, thus affecting also the
data shown in the relevant tables later on in the report.
4. Data shown in table 45 cannot be considered as applicable to the average type of lifts
currently installed in residential buildings and, even more, they cannot at all be related to
hydraulic lifts for residential buildings. As a matter of fact:
a. hydraulic lifts, as an average, serve buildings having up to 4 or 5 floors and their
average speed is equal to 0.65 m/s. It is commonly agreed that their number of
trips per year spans from 20,000 to 50,000.
b. Most of electric lifts currently installed by the majority of companies have 1:2
suspension and an average speed of:
i. 1,0 or 1,6 m/s in case of residential buildings with up to 8 floors
ii. 2,0 or 3,0 m/s in case of office buildings with up to 20 floors.
c. It is our opinion that such table 45 should be deeply revised and, for completeness
of information, should include at least one column concerning hydraulic lifts for
residential buildings. A suitable example would be provided in due time
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5. The data provided in the tables from 45 to 49 should include the updated values and refer to
the lower speeds and lower number of tips per year mentioned in our points above. We suggest
that these new data for tables 45 and 46 are possibly provided by KONE, the company which
owns the tool used in first instance. In addition, we can anticipate that a quick survey is being
carried out by us to evaluate if an additional type of lifting equipment might be included in the
volumes to be taken into account. These lifting equipments, often indicated as lifting platforms
or home lifts, are oriented to the lower segment of the market and are characterized by
continuously growing volumes: already achieved many thousands of units per year. In case of a
positive outcome of our survey, we would provide you with the necessary details for you to
decide whether this matter might be relevant for your investigations and worth being taken into
account.
a.
The new data, supported by some evidence which we would provide in due time,
would be a more reliable reference for the estimation of the annual energy consumption
values. This would explain why the information provided by the E4 project should be
considered as overestimated, This would, then, allow a better estimation of the expected
savings due to the implementation of newer, more efficient technologies, with an important
impact on the information shown in tables 52 to 54, concerning potential savings.
b.
Information provided in tables 46, 47 and 48, in our opinion, concern situations based
on the 100,000 and 300,000 trips per year proposed by the E4 project. As anticipated
earlier, we consider that they are by far overestimated and are clearly influenced by the
arbitrary decisions affecting the data of the lifts as shown in table 45. If necessary, we
might try to provide an updated calculation in due time.
6. Concerning both the "other services consumption" based on the information shown in table
50 and also the life cycle analysis (mentioned for the escalators, with reference to figure 51),
we highlight that such sort of list of materials, their relevant percentage impact and their
distribution, might concern only a certain model of electric lifts and cannot be directly applied to
a wider range of lifts, including hydraulic lifts. Without going now into too deep details, we
suggest that more specific information would be provided as soon as these issues have been
clarified by the group currently working on the development of the PCR for lifts which we
already mentioned.
7. Last, but not least, we confirm that an investigation is going on with reference to the costs
for some larger volume type of lifts, in order to collect and make available some reasonably
reliable data which might assist in comparing different types of new lifts based on different
technologies. This as a starting base for evaluating the expected payback time in case of
replacement or major renovation of existing lifts, in order to try to fully justify the improvement
of the energy efficiency of such units. We are expecting that major renovations or full
replacement may more easily apply to lifts with high traffic, high running energy consumption
and, probably, also most severe wear and quicker obsolescence, such as lifts for office, hotels,
commercial buildings, etc. On the other end, this might not be applicable to the much lower
traffic type of lifts for residential buildings, unless their type of construction doesn't allow for a
reasonably long life duration expectancy. As soon as any reasonable information would be
appropriately consolidated, it would be made available to you for further discussions.
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8. Concerning our opinion on the overlaps existing with other products, we can anticipate
that:
a. Motors for lifts, in many cases, require special design, construction and
performance, so that it is likely that they might not fall within the types covered by
the relevant directives. More detailed information would be provided later on for an
appropriate evaluation.
b. Energy consumption in standby mode, is already being improved in the most
recent lift models and might not be subject to the limitations introduced by the
relevant directives, due to the peculiarity of the lifts operation in their various
applications. Also in this case investigations are being made and information on the
outcome would be provided as soon as available.
c. Technological new options would require much longer investigation times, so we
might not immediately be in a position to provide reliable, up-to-date indications at
this point in time. Any further development of some interest would be brought to
your attention as soon as it would be disclosed.
Conclusion
As stated in the introduction, we will soon provide further information and evidence –
where possible – to better support our position.
In the meantime, we remain available for any discussion on the items presented.
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22
EFESME comments to the Working Plan 3, Task 4.
We would like you to consider some comments, a few editorials and some more technical, which we
are submitting to you here below.
1. In paragraph 14.1.1 we suggest to modify, in the last line, "use of rare earth materials in
permanent motors" with "use of rare earth materials in traction motors".
2. In paragraph 14. 1.2 we need to highlight the fact that most of the improvement options
mentioned are already being implemented, especially concerning the hydraulic lifts, for which
the risk of accidentally spilling oil during replacement is being taken care by a progressive
reduction in the quantity of oil being used, procedures and tools for the replacement, in
addition to the selection of more environmental friendly type of oils.
3. In paragraph 14. 2. 1, under the heading Lifts Directive, we need to point out that the essential
health and safety requirements listed in Annex 1 are not the only ones applicable to lifts,
because they are supplemented by a good number of those listed in the machinery directive
and also considered as applicable. In addition it is left to the responsibility of the designer has
to carry out a risk assessment in order to identify if there are other risks which are not covered
by those essential safety requirements. The harmonized standards are the documents which
provide specifications in order to guarantee compliance with the directive. In these standards,
for instance, there are already provisions concerning the risks of oil leakage. Anyway, as soon
as it appears that new risks might affect the health and safety of people, there are procedures to
carry out the revision of the standard in order to take also these new risks into account. By the
way, recently under the New Legislative Framework (NLF), there was a recast of the Lifts
Directive but no modification was introduced in the Essential Health and Safety Requirements
in Annex 1. Vibration and noise produced by lifts do not seem to be an issue, and the moment,
because the competition in the market is driving a progressive improvement from this point of
23
view, while specific restrictions to the maximum noise in some building areas might be depending
on the specific structure of the building and not necessarily only on the performance of the lift.
Energy consumption was never considered a problem, in the past, and now its progressive
reduction might be considered as a good marketing opportunity, as long as the tools made
available for its evaluation are transparent, correctly planned, properly applied and do not
cause undue discrimination to the specific detriment of some types of products.
4. In paragraph 14. 2. 1, under the heading Energy Performance of Buildings Directive we want to
point out that, by the time all new buildings in the EU will have to consume nearly 0 energy,
most likely the energy consumed by lifts would need to be taken into account and, in that case,
would need to be known. This means that the implementation of the 2010 recast of the EPB
Directive, in our opinion, would probably include also lifts. But knowing the energy
consumption of lifts in a specific building does not necessarily imply classifying the lifts
according to an energy efficiency classification system which would be very unlikely to
consider their real performance, which depends on the practical use of the lift in that specific
building.
5. In paragraph 14.2.2 we have to strongly oppose the idea to define energy efficiency
requirements as proposed by ELA, especially when this energy efficiency classification is the
one given by document VDI 4707. This document is not a standard and was developed by a
private body, VDI, which considered only a restricted number of stakeholders. VDI did not
care to avoid discriminating some type of products which are still very popular in the market
and, when properly applied, provide an energy efficiency performance much higher than that
estimated by applying the VDI 4707. Such reference in the regulation being implemented in
Portugal is likely to be considered as a limitation to the free circulation of products within the
EU market. In our opinion, the reference should be made to the standards ISO 25745- 1 and
ISO 25745-2 and should consider only the energy consumption in the running phase and in the
standby condition, as apparently already specified in Denmark.
24
6. Concerning paragraph 14. 2. 3 we, at the moment, are supporting the proposal of finalizing a PCR
for lifts, to be agreed upon by the largest possible number of stakeholders. This might be the bases
for Energy Performance Declarations to be provided in addition to the value of the energy
consumption of lifts under the EPBD. In our opinion the specifications of the PCR shall be such
that they may be considered an appropriate tool to guarantee reliable and comparable Life Cycle
Assessments. Considering the presence of a large number of competitors and the already proved
market drive towards a continuous improvement of the energy performance of lifts, this might be
the only good opportunity to ensure that in the future more and more environmental friendly lifts
would be placed in the market. For instance it might encourage the industry to further develop the
technology of drives for the "variable reluctance" motors, which might usefully replace the
"permanent magnet" ones with a fair reduction of costs and environmental impact But, we repeat
again, It is important that the PCR specifications, to be considered as legal prescriptions, really
satisfy the requirement of providing fair rules which do not cause undue discrimination for any of
the possible types of products, as long as they are sufficiently efficient for the intended use. In
addition, it is of paramount importance that the PCR shall also consider the environmental impact
of partial modernizations. This would encourage the improvement of the energy efficiency of lifts
in existing buildings, because it would guarantee a more efficient and less expensive way of
greatly improving the energy performance of the existing stock of lifts, without the need to fully
produce completely new lifts and cause too much waste when fully dismantling the existing ones.
7. Concerning paragraph 14.2.5 we have to say that the European standards EN 81-20 and EN 81-50
do not deal with the energy consumption and the energy efficiency of lifts. We strongly doubt that
they will ever deal with such matters also in the future, although they are actually the bases for the
development of new ISO prescriptive safety standards for lifts to be adopted worldwide. On the
contrary the document VDI 4707, as mentioned earlier, is not a standard and should not be taken
as a reference as it is not appropriately considering the performance of various types of products,
causing an unacceptable discrimination and a distortion in the market. We acknowledge that the
VDI guidance for the evaluation of the energy consumption is an appropriate concept, but the way
the values are calculated in VDI 4707 is not correct and the results in most cases are quite far from
those obtained by the implementation of the real standard, ISO 25745-2.
25
8. In paragraph 14.4.2 the reference to the number of workers involved in the lift sector in year 2008
is incorrectly indicated to concern only the UK, while it actually refers to the total of the EU
market.
26
EFESME
POSITION PAPER
DG COMP – July 2014
THE STATUS OF COMPETITION IN THE ELEVATOR
PRODUCT AND SERVICES MARKET
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Who is EFESME?
EFESME represents and defends the interests of the European SMEs operating in the lift
sector and embodies a wider European initiative aiming to redefine the representation of Lift
SMEs.
EFESME is broadly included in European Bodies representing the SMEs: the Federation is a
member of UEAPME since 2009 and became founding member of SBS – Small Business
Standards – in October 2013.
Please see also our document of December 2013.
Brief updating on the European elevator market
The elevator market in Europe represented in 2012 a total value of around 10 billion euros,
corresponding to a sale of about 120.000 new elevators, a complete or semi-complete
modernization of about 100.000 existing elevators, and the maintenance of 5,4 million units,
the 50% of which date more than 20 years.
About 80% of this market value is therefore attributable to services, namely to maintenance,
repair and modernization of existing lifts.
Over 50% of the market is covered only by four multinational groups - Otis, Schindler, Kone,
ThyssenKrupp Elevator - with a smaller presence of other International brands such as
Mitsubishi (which are associated in ELA), and the rest of the market share is spread over
thousands of independent SMEs.
The majority of European SMEs are bound to National associations belonging to the European
Federation EFESME, which directly represents around 150.000workers, that is 67% of the
whole personnel employed in this sector.
Moreover, upstream the whole lift sector as properly defined, there is the independent
components industry (associated in ELCA), concentrated in a few countries, such as Italy,
Germany and Spain, and which has a relevant turnover and staff as well.
A matter of fair competition: the special tools issue
A description of this issue was included in our document of December 2013; but here are
some important updates.
After the requests made in 2008 by the DG ENTR of the European Commission to the CEN/
TC10, which is responsible for the elevator sector, the existing standards EN 81-1/2 should
have been amended at that time but they were not; moreover, the text of the new standards
EN 81-20 and 50 (wrote by CEN/TC10 in accordance with the DG ENTR requests). should
have been published within 2014, but they were not so far, and there will be a transitional
period of 3 years during which it will be possible to continue using the old standards, where
the requirement is not covered; in any case, the application of an EN standard is never
mandatory. But the essential safety requirement should be covered in any way, irrespective
of what the standard states as an “indication”; unfortunately, it is quite evident that market
surveillance
authorities
have
tolerated
this
situation
for
too
long.
This issue should be more under the focus of the DG ENTR, but it definitely has relevant
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effects on the competition in the market, and it will still have effects in the next 3 or 4 years,
which is a period long enough to let the competition suffer more and more.
It has to be underlined that for “special tools” it should be also meant any necessary tools
such as spare parts and instructions on how to use these tools and parts, in order to keep the
lift working safely. In brief, anything needed for emergency operations, preventive and
corrective maintenance and modernization. The Machinery Directive 2006/42/EU did not
mean to limit the relevance of the term “special tools” in the way wished by the ones who
support a reductive interpretation.
Among these tools, we particularly focus on the two-way voice interfaces, as described in our
previous position paper of December 2013.
Action by the National Competition Commission of Spain of September 11th 2013
On 7th May 2012 the above mentioned Commission started an investigation on a group of 5
Spanish companies, among them Zardoya Otis and Schindler, parts of their multinational
groups, for their supposed actions against competitions, consisting in communications to
clients which were reputed unfair, just referring to special tools, spare parts and instructions.
After this investigation, the decision has been to fine these companies for a total of about 4.8
millions Euro (among them 2.845.362 to Otis, and 1.892.690 to Schindler, this sum being
98% of the total fine).
The investigation started from some answers given by these companies to clients wishing to
withdraw their maintenance contracts with them; in these letters the a.m. companies
doubted the technical capabilities of the competitors, claiming among other statements that
they did not have available the necessary spare parts. On 13 th March 2012 Schindler even
stated to a client that they only may produce a certain product (Micromatic system), whose
intellectual property is theirs only, so that they are the only ones who may sell them. In the
same date Schindler stated that their personnel is trained to only use these tools and spare
parts. In some cases it has been written that the spare parts were available also to
competitors, but at a higher price and after a certain time, compared to the “original”
supplier.
According to the Spanish authorities, these statements were misleading and/or disparaging to
the competitors, trying eventually to eliminate competition from the market.
These companies have been fined 1% of their annual turnover in the Spanish market, apart
from Schindler, whose fine has been doubled, because it has been found that the company
made available to its officials some forms to make this kind of illegal activity normal.
It should be noted that the Spanish legislation on Competition originates from the European
one, therefore similar behaviours in other EU markets should be dealt in the same way.
Finally, it might be interesting to be noted that previously in Spain at least three important
surveys on the lift maintenance and repair market have been issued by local and national
competition authorities. The first one in December 2008 by the Basque Government, already
cited in our previous position paper; the second one in February 2010 by the Competition
Authority of Catalonia. Both expressed the worry about possible behaviours which were
actually demonstrated in the Spanish market some time later.
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In particular, the study of the antitrust authorities in the Basque Country identified clearly the
following barriers to competition in the lift sector: a) technological barriers, b) maintenance
contracts, c) misinformation and consequent need for public information campaigns, d)
distortions in administrative authorization of maintenance (this issue is of course pertinent to
various national situations). Finally, in September 2011 the National Competition Commission
(CNC) has published a report on the functioning of the lift maintenance market in Spain, in
which it proposes the adoption of measures to increase the limited competition that exists in
the sector. Among those measures, CNC asks for legislative provisions aimed at ensuring that
maintenance companies which compete with manufacturers and installation companies that
also carry out maintenance activities are given access by such companies to supplies of the
tools and spare parts that are necessary to carry out their business on conditions that permit
effective competition by these third-party maintenance companies.
France
France is the first Country - and so far, the only one - where the situation we are denouncing
has been changed, or at least is now changing, after the publishing of the National Decree
2012-674 (see later in this document; it was reported also in our previous position paper of
December 2013).
As an example, we may here report what happened to some clients of the company Ilex,
affiliate of our French member association ANPA, a behaviour which has become a cause of
litigation between our member and Schindler of France.
The problems denounced by Ilex were concentrating on three issues:
A) two-way voice interfaces
B) delivery of spare parts
C) special tools for control and diagnosis
A) Before the release of the Decree 2012-674, on 1st March 2010 Ilex signed a maintenance
contract on four Schindler elevators located in the Blue Marine condominium, in Port Fréjus,
because the client decided to switch the maintenance contract from Schindler to Ilex.
As provided by law, each lift should be equipped with a backup phone connected to the call
centre of the maintenance company, in order to face rescue operation safely. Moreover, even
though the regulation imposes to immediately reprogram the numbers of emergency
telephones to the company's maintenance center, on 1st March Schindler did not reprogram
the phones, leaving the new maintenance company Ilex also without the documentation to
change them itself. For this reason Ilex was forced to solicit the intervention of Schindler, but
they had to wait for nine months to get an intervention from a Schindler technician to
reprogram the telephone number from the Schindler emergency center to the Ilex one; during
this time the work of the lifts was obviously unsafe. In many other cases the client couldn’t
wait, and Ilex had to substitute the equipment, which is not an economically efficient practice,
as the equipment was new as hardware.
After the release of the Decree 2012-674, this has become explicitly illegal in France, so the
company which used to have the maintenance contract before has mandatorily to cooperate to
exchange the telephone number. But the fact is that this common practice before the 2012674 in France is eventually illegal wherever in Europe, even though no European or local
Authority can directly asks the multinational companies to respect the provision of the Lifts
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Directive about it. Here, it has to be noted that one of the defence issues of Schindler is that
the applicable standard EN 81-28 does not asks for such a cooperation, it does not enter the
issue itself, it does not even deal with this phone number programmed or not into the
equipment. And it is true, this issue is not a surprise for them, due to a quite normal attitude
of CEN/TC10: when a question may become delicate for the multinational companies, the
standard may avoid entering in detail on how to realize an essential safety requirement. This
is the same to say that the standard not always does what it was theoretically made for, and
CEN/TC10 is not working for the safety only. But many companies and even NBs or Member
State authorities behave as the standard only exist, more than the Directive itself. As it is the
case of the special tools. We suppose that the practices used by Schindler in this case in
France before the Decree 2012-674 are still in use in other parts of Europe, against the
provisions of the Directive, but many technicalities are involved, so we are annexing a
document in French to illustrate in details the point of view of our party, in order to make
possible for the Competition authorities at European level to investigate on this.
B) In August 2010, two Schindler elevators maintained by Ilex broke down due to an overvoltage and two pieces, called EPROM ("Erasable Programmable Read Only Memory")
containing all the program of each lift, had to be replaced. Schindler is the only supplier of
this spare part compatible with Schindler elevators. The EPROM is an electronic circuit where
the operational lift program is, without this device a correct and safe working is impossible.
After having had no answer to their request for two new EPROM to Schindler, Ilex turned to
the Frejus agency (closer to their place) where they claimed not to have available the spare
part, sending Ilex to the central agency in the Paris region. The central workshop claimed
that they would have need some detailed information about that particular lifts, and this
discussion, probably unfounded, took about two weeks. Only after 4 weeks the EPROM was
delivered on place, while Schindler claims to deal with such issues normally within 8 days.
This kind of problem with spare parts happened several times, in similar modalities (see also
client Le Palazio), and in the case here described the delay in providing Ilex with the two
EPROMs made Ilex lose its maintenance contract, which maybe was the scope of the
Schindler behaviour, to show that actually competitors cannot deal with their machines.
C) Ilex, when taking the maintenance service on any lifts, should be able to know all the
safety and functional parameters; so, where needed, it is necessary to have available the
appropriate diagnosis and programming tools. It should be noted that, in the view of the
Directive such as in the common sense, these tools should be on place (which will be the
text of EN 81-20), and, over all, available to those who bought the elevator. Schindler
refused to deliver such tools claiming in written form that these technologies are intellectual
property of the enterprise and may not be distributed to other parties. According to
Schindler, external companies may supply the Schindler lifts, but using the Schindler local
technical assistance only. It has to be underlined that here it is told only of “maintenance”
tools, which means also repair, etc., but this has nothing to do with the project or even the
installation stage of the product. This point has been clearly taken, once again, by the
Decree 2012-674 in France after what happened to Ilex in this case, but what about the rest
of Europe? By the way, an observation of Ilex at that time was that even the multinational
companies were not all consistent in this behaviour, because for instance Kone had no
difficulty in releasing their special tools. But Ilex observed also that among its clients there
are many more from the rest of the 3 multinationals (Otis, Kone, ThyssenKrupp) than from
Schindler, and this maybe is not just a case, showing clearly the close relation between
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To make his voice heard, Ilex invested many resources to bring its case to expert judgment
of the Court, which is a difficult practice for a SME.
The case above described is under process now, and some finding could be reached in the
forthcoming months.
Italy and the Netherlands
In Italy, our associate member ANACAM sent us, just as one of several examples, a
correspondence dated June 2012 between Ceam (100% Otis – indeed they were talking
mainly of some Otis Gen2 lifts) and the company Sannascensori. This member of ANACAM is
an estimated maintenance company serving the Hospital of Sassari (Sardinia) who asked for
the instructions and special tools which should have been on place in order to let the lifts
work safely in such a building. Ceam answered that the requests were “generic” and
“confused”, and would like to know if there was a specific technical problem on the lifts and
on which one, before sending any document or material. Sannascensori recalled in its letter
the contents of the Italian Decree n. 162/1999 (annex I, point 6, Instruction for use) but
Ceam answered these juridical fundaments were not justified, and insisted to know a specific
reason for sending such information, as a general requirement of the Lift Directive was not
there, and less than less considering the existence of any standards about it. Finally, Ceam
quoted a copy of the electrical diagrams (supposed to be lost by the client?) for a cost of 250
Euro, and a delivery time of 15 working days.
More generally, in Italy there are huge problems of competition in the maintenance service
market, with the use of unfair terms in the maintenance contracts. Just to report a recent
case, the Italian Authority for Competition and Market concluded on 4 th November 2013 that
some unfair terms were included in the contracts of 8 companies, among them Kone, Ceam
(100% Otis), ThyssenKrupp and Otis itself. These terms had no direct relationship with the
a.m. issue of special tools, spare parts and instructions, but it is quite clear that, where for a
competitor is hard and/or expensive to find them on place or at the right price within right
time terms, the level of competition on the maintenance service contracts is lower than it
should be in different market conditions, and other unfair terms cooperates to this result. It
should be recalled the Basque Country survey a.m., which identified as barriers to a more
free market in the first position the technological ones, in the second maintenance contracts.
There is a recent case reported by our member association from The Netherlands, NLB,
where the maintenance company of one of their members, Mr. Krouwel, asked ThyssenKrupp
for a spare part and received an offer of 3.405 Euro which is far over the market price.
Another example reported by the Secretary of NBL which happened to a Dutch member is an
offer of Kone tacho MX18, from Kone, at 5.024 Euro, which is likely to be around ten times
its fair value on the real market.
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The post-sales service market as an oligopolistic market
These examples and other anti-competitive practices make the post-sales service market
(which as stated above represents the 80% of the whole lift market in Europe) have an
oligopolistic aim, because independent maintainers are hampered in getting the information
and the technologies needed to operate with effectiveness and safety. Moreover, these
practices contribute to restrict the competition also in the new elevators market, since
access to the necessary standards is restricted to a few subjects who have produced them.
The evidence proved by fines for anti-competitive behavior in the maintenance
market
Sometimes the results of this situation emerge with clarity even at European level, like in
the well-known case of huge fines inflicted several years ago to some of these companies in
a series of Member States in Central and Northern Europe, due to anti-competitive practices
in the maintenance market, even against customers such as the European institutions.
The controls at National level
Some Member States are identifying these situations at their level, which is useful, but it
should not be forgotten that the operations of multinational companies have a global or
however European logic, although parts of the legislation are at the national level, which
creates some ambiguity and operational difficulties. But this is now quite a common
problem, faced and solved within the Union frame in other cases, such as the car repair
issue.
A possible solution at national level: The French Decree n° 2012-674 on
maintenance
In July 2012 the French Government issued a Decree which very clearly and concisely defines
obligations which are unavoidable for elevator installers.
Given that the market includes operating elevator systems without instructions, equipment
and facilities essential to safely perform maintenance operations and rescue, this Decree tries
to hinder the current situation. Indeed, the owner of the lift should put at disposal of the
maintainer, if different from the installer, all the essential information and tools, necessary for
a safe and prompt maintenance. The provisions of article 3 of that Decree - implemented to
compensate the above highlighted shortcomings of harmonised technical rules under
European Directives – fully satisfy the EHSRs laid down in Annexes I to Directives 95/16/EC
(notably the 6.1 and 6.2) and 2006/42/EC (notably the 1.1.2):
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Art. 3. − Après l’article R. 125-2-1 du code de la construction et de l’habitation est ajouté un
article R. 125-2-1-1 ainsi rédigé :
« Art. R. 125-2-1-1. − I. – 1o Toutes les parties de l’installation doivent être accessibles au
prestataire d’entretien pour l’exécution de sa mission. En conséquence, le ou les éventuels
codes d’accès à tout ou partie de l’installation ou toute autre forme de déverrouillage,
nécessaires à l’entretien, au dépannage ou à la remise en service doivent être fournis
intégralement sans frais et sans restriction de durée d’usage par le fabricant ou l’installateur
qui les a introduits sur l’installation au propriétaire de l’ascenseur qui pourra les remettre à
l’entreprise d’entretien de son choix.
« Notamment les dispositifs de téléalarme doivent être accessibles pour la réalisation des
tests cycliques et pour la modification du numéro de réception des appels ;
« 2o La documentation technique, les dispositions de remise en service, les outils spécifiques
et notices d’utilisation nécessaires à l’entretien, au dépannage ou à la remise en service de
tout ou partie de l’installation doivent être fournis, sans restriction de durée d’usage, par le
fabricant ou l’installateur au propriétaire de l’installation à sa demande, dans des conditions
de prix et de délais raisonnables. Le propriétaire remet ces éléments à la disposition de
l’entreprise d’entretien de son choix ;
« 3o Les dispositions de remise en service, les notices d’utilisation des outils, la
documentation technique doivent être suffisamment explicites pour permettre au prestataire
d’entretien de modifier les paramètres de fonctionnement pour les besoins de l’entretien, du
dépannage et de la remise en service sans diminuer le niveau de sécurité prévalant avant son
intervention.
« Elles devront également contenir toutes les informations nécessaires pour permettre au
prestataire d’entretien d’assurer la formation appropriée de son personnel; […]
The French National legislation on maintenance provided for the aforementioned lack relieving
in CEN standardisation by imposing stringent obligations to installers; this is making the French
National services market more competitive than earlier, but also more competitive than the
average of the other National markets in Europe. But this should not mean that it is not
possible to do anything at the appropriate level which is the European one.
A new frontier of the competition in the lift market: energy saving and environmental
impact
At the moment, lifts are not subject to EPB Directive 2010/31/UE nor to Ecodesign Directive
2009/125/EC. The main reason is that lifts are considered in general not to consume a relevant
percentage of the energy used in a common building, nor to have a relevant impact on the
environmental impact of the building itself. Nevertheless in the near future it is possible to
forecast more attention on these equipments as well. But now a strong pressure is applied by
the multinationals’ lobby on the European institution to include soon the lifts into this picture
as well, because, in parallel, they are introducing in the market their product as more energy
saving and environment friendly than the usual ones. Of course any marketing is legitimate in
itself, but not when the advertising should be misleading or even false.
Our federation has reported to the Italian Competition Authority on November 2013 suspicion
of such actions by Kone and Schindler thanks to their websites, and the Authority opened an
enquiry about it on 23rd May 2014.
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(hydraulic technology) is introduced in the false terms to be even 5 times more energy
consuming than their one, when in the normal residential market this datum is false.
Also in this case of energy issues there is a relationship with the standards level: at the
moment it is difficult to measure and declare the energy consumption of a lift, and even
worse to compare them, because there is no consensus on a EN norm for this scope (an ISO
norm is coming), so in the recent years a private German norm has been used, VDI 4707,
which has not been released after a balanced participation of all the parties involved.
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36
EFESME
DG COMP – October 2014
UPDATE
ON
THE STATUS OF COMPETITION IN THE ELEVATOR
PRODUCT AND SERVICES MARKET
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ITALIAN CASE: investigation of the Competition Authority on Schindler and Kone
At the end of November 2013 EFESME reported to the Italian Competition Authority about the existence of a website
page related to multinational Schindler in which it was affirmed, without any supporting evidence, that the electric elevator
Schindler 6300 would consume in a year approximately 1,000 KWh, while the equivalent hydraulic elevator would use
about 6,000 KWh.
It is well known that SMEs in the Italian elevator market mainly produce hydraulic elevators, and their equipment,
"threatened" by a possible replacement with Schindler electric lifts, is based on hydraulic technology.
The information provided by Schindler was pointed out as misleading, since in reality:
a) where, due to traffic conditions, an electric elevator has a better energy performance than an hydraulic one, in this case
installers already tend to install electric lift;
b) in minor traffic conditions, electric and hydraulic elevators have an energy performance which is more or less
equivalent, and in some cases the hydraulic performance is even more efficient.
Moreover, just a few days later, EFESME also informed the Authority of a website page related to Kone; even though
Kone provided more data regarding the electric lift Monospace, in comparison with a standard hydraulic elevator, the
information was again misleading: here the reference traffic was of 190,000 strokes per year, a frequency that a hydraulic
lift could never reach. Generally, a hydraulic lift serves at maximum 50.000 strokes per year.
It should be noted, as it was the case in the report for the Italian Competition Authority, that at all levels the same two
companies, perhaps in conjunction with other multinationals, have lobbied to make sure that this type of unfair
comparative advertising could succeed. Regulations, laws or procedures able to support inappropriate assumptions were
used to validate the commercial policies of these companies.
For instance, the private German standard VDI 4707, which wrongly de facto became a European standard in the
calculation of the energy consumption and efficiency, falsely assumes that the cabins operate at a full load or nearly full
load. This does not correspond to the reality and therefore penalises the hydraulic elevator.
Moreover, in the drafting process of ISO standards which will replace the VDI 4707 in the market, and which will become
also EN standards in accordance with the Vienna agreement, many proposal still under discussion, suggested by big
enterprises, contained inaccuracies and are designed to magnify the performance of proprietary technologies of
multinationals at the detriment of the universal technologies of the SMEs.
Within the framework of a future subjection of lifts to energy and environmental Directives - for instance, in the so-called
PCR rules designate to draft the so-called EPDs (environmental product declarations) - it has been proposed to adopt the
VDI 4707 energy consumption calculations as if it was equivalent to ISO. In those calculation a minimum of 100.000
strokes per year are foreseen, but this is suitable to evaluate electric elevators, and not the hydraulic ones.
In February 2014 the Italian Authority contacted EFESME, calling for integration of documentation, a proof that the alert
didn’t fall on deaf ears.
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In May 2014, following investigations on the two companies carried out by the Guardia di Finanza italiana on behalf of the
Competition Authority, Schindler and Kone produced counter-arguments, which in part were made available also for
EFESME.
In these documents the two companies proposed corrective actions ("commitments") to modify what stated in their websites;
however, this were really slight changes and for this reason EFESME considered the action insufficient; with some
differences between the two companies, the message sought to be given the public did not change in its substance.
Finally, in September EFESME could in its turn counter-argument the affirmation of the two multinationals. After a final
remark that is supposed to be presented within these days, the Authority should rule definitively on the issue by December.
FRENCH CASE: ILEX vs. SCHINDLER
As explained in detail in our position paper of July 2014 “The status of competition in the elevator product and services
market”, some clients of the French company ILEX - affiliate of our French member association ANPA - decided to switch
the maintenance contract from Schindler to Ilex.
After the maintenance passed to Ilex, some spare parts needed to be replaced and Schindler outrageously delayed their
delivery, forcing the Ilex maintenance company to leave the elevators broken down for weeks.
Moreover, when safety and functional parameters were asked, Schindler denied the access to the parameters, again
preventing the Ilex maintenance company from duly operating on the elevators made by Schindler.
Last but not least, Schindler tried to convince the owners of the buildings that “no one can better maintain a Schindler
elevator than Schindler itself”.
This behaviour became a cause of litigation between our member Ilex and Schindler, a case that is still under process now.
On 26th September the ruling was foreseen, but the Commercial Court of Versailles, where the case was initially brought,
recognised that a real hindrance to free competition of the market is at stake and for this reason the case was brought to a
higher Court, i.e. the Commercial Court of Paris.
One hundred and thirty written proof have been collected by Ilex, and also the deposition of other ten French companies
which faced the same problems.
This evolution requires at least a delay of 6 months for a next trial session to take place, but there is an incontrovertible
evidence that the Court recognised the seriousness of this dossier.
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40
Meeting with DG Competition
With Peter Van Loon
1 July 2014
Giuseppe Iotti
Francesca Fazio
Meeting with: Peter Van Loon, Case handler – Directorate General for Competition, Unit:
“Markets and cases IV: Basic industries, Manufacturing and Agriculture” – “Antitrust:
Consumer goods, Basic industries, Agriculture and Manufacturing”
As A result of a meeting held in December 2013, and after some exchange of documents with
officials of the competition, EFESME met Mr. Van Loon again for an update on our case.
In support of our discussion, Van Loon had received a summary letter of our previous encounter and
an updated position paper, as well as the complete material of the French Ilex case against
Schindler and a summary in English of the CNC report on maintenance of elevators market in Spain.
The meeting opened with the analysis and especially the answers to the letter that we sent to the
official of the DG COMP: Van Loon said he discussed the case within his Unit, and that the aftersales market appears as a very important market but also a problematic one.
Despite the undoubted interest of our case, Van Loon pointed out that this is a delicate period of
transition for the Commission, given that this Institution will undergo a renew in November of
this year. For this reason, the Unit's priority is to close the dossiers that are still open, so as to
prevent a possible different agenda setting by the new Commissioner. Van Loon however assured
that the after sales market is of great interest to DG Competition, and he specified that the
debriefing that they prepared for the new Commissioner includes as main focuses online sales,
consumer goods and after-sales market, where elevators were mentioned as one of the
possible areas to work on.
The success will depend on the guidelines of the new Commissioner.
With regard to the creation of a roundtable of stakeholders, Van Loon discussed internally this
issue, but he showed us the limits of action of DG Competition in this field; it should be the DG
Enterprise and Industry to lead this project, as it is the DG ENTR the one who manage contacts with
industry, the one who has an appropriate structure and mainly more resources, while the DG COMP
only deal with the investigation on cases of infringement.
Regarding the management of our case ex officio, by the time the DG Competition has still not
started an in-depth analysis on our market, but Van Loon advised us to try to introduce our case
again when the new Commissioner will be appointed.
The Secretary-General Iotti therefore asked Van Loon to try to be more incisive in the discussion
with DG ENTR. He then explained the existence of the Lifts Working Group, an internal working
group of the DG ENTR, which meets about once a year and EFESME has is among the invited
participants. However, a kind of refusal on the discussion of the topic "after sale" has been detected
over the years. The Directive does not expressly cover this aspect and discussions within the LWG
were mainly focused on new products. The problem stems from an ambiguity at the basis of the
Lifts Directive, which states that the instructions and special tools have to be sold together with
the product; hence the Directive also includes the after-sales sector.
Van Loon said he is now aware of the problem, but he explained us that a more pragmatic approach
by DG COMP should be put on place: if he will merely forward the problem to DG ENTR, this latter
would not start rechecking the Directive but would make sure that the problem is managed by DG
COMP, which does not have the instruments.
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Van Loon asked us if we believe there is a problem of implementation in the Member States. The
Secretary-General Iotti replied that the Machinery Directive includes the requirement to provide the
tools, but that the standard we use for the sector does not meet this requirement. From here, the
Secretary-General Iotti developed the discussion starting from Ortún letter sent to CEN in 2008,
which did not have effects, since the new standard, which will be probably published this year, will
have a transition period of 3 years and therefore an overall making process of 10 years since 2008.
This lack of a standard in force gives place to many companies to find the excuse not to give the
special tools. France worked out a specific national Decree which tries to solve the problem, and we
all wonder why the European level does not follow this approach.
From our position paper we then took the example of what happened with the case of Spain, where
the Spanish Competition Authority CNC fined some large firms for anti-competitive behaviour.
Being a specialist in the subject, Van Loon explained that "unfair competition" is an ambiguous term
that has different meanings within itself: the creation of cartels, dominant position of certain
companies. In his perspective is not obvious to say that four companies that hold 50% of the
market are in a dominant position from a legal point of view.
The SG Iotti then showed how the French case that Ilex is bringing to trial against Schindler
may have very similar traits to the Spanish case which was analysed by CNC, as it is made clear
that some large companies, primarily Schindler, in fact create obstacles to the proper maintenance
of its elevators by independent maintainers, but above all that they try to convince owners that an
independent maintenance will not be at the same qualified level as the one provided by Schindler
itself. To analyse the legal bases of the Spanish decision, Van Loon asked us to send his a copy
of the decision.
The Secretary-General Iotti then proceeded to briefly illustrate the Italian and Dutch cases.
Van Loon then asked for some clarification on the existence of a market for spare parts and if there
are price lists. The SG Iotti explained that major companies offer on-line price lists which are used
as a benchmark for market prices of spare parts.
Van Loon admitted that there is an obvious problem in the Directive but nevertheless this is not
easy to resolve. As regards to the effectiveness of the standard, the SG Iotti claimed to have
participated in all preparatory work; nevertheless, the draft of the new standard is very weak and it
will not be able to solve the problem effectively.
Given a good example of what happened in France with French Decree, Van Loon asked whether in
other Member States EFESME is lobbying at national level to get similar national laws, approaching
the problem from the demand side, i.e. involving the customers.
In response, Iotti replied that in some countries, as for example in Italy, we are trying, but that the
effects are still not concrete. However, he stressed the security issue that this ambiguity of the
Directive is able to create, a concern also shared by Van Loon.
Finally, on the sidelines of the meeting, the Secretary-General Iotti also briefly showed the
Portuguese case, which concerns the installation of new equipment.
At the end of our meeting, Van Loon concluded that:
- he will contact the officials of the LWG of DG ENTR to discuss our case and this ambiguity in the
Lifts Directive;
- he invited us to continue to put pressure on the DG Competition, especially when the new
Commissioner will be appointed, in the hope that our case will be considered a priority by the new
Cabinet;
- with regard to the example of car repairers, who managed to get a Regulation specific to their
sector on the after sales market and spare parts, Van Loon told us that it will be very difficult for the
Commission to decide to launch an initiative like that one, because the lift sector, although it has
good market share, is not comparable to the impact that cars have on individual consumers;
- he concluded that temporarily for the time being our hope would be a new standard.
42
COMPLAINT
TO THE COMMISSION OF THE EUROPEAN COMMUNITIES
CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW
1.
Surname and forename of complainant:
EFESME aisbl
European Federation for Elevator Small and Medium-sized Enterprises
2.
Where appropriate, represented by:
Mr. Giuseppe IOTTI, EFESME Secretary General
3.
Nationality:
Italian
4.
Address or Registered Office:
Rue Joseph II, 36-38 – B-1000 Brussels - BELGIUM
5.
Telephone/fax/e-mail address:
Tel. 0032 2 2307414
Email. [email protected]; [email protected]
6.
Field and place(s) of activity:
Representation of European small and medium enterprises operating in the elevator sector
7.
8.
Member State or public body alleged by the complainant not to have complied with Community law:
“Ministérios Do Ambiente, Ordenamento Do Território E Energia E Da Solidariedade, Emprego E Segurança Social” of
Portugal
Fullest possible account of facts giving rise to complaint:
Thanks to the support of our Portuguese member, represented by the enterprise Grupnor, we were informed of the
existence in Portugal of the Portaria 349-D/2013, a Decree whose goal is to establish technical requirements concerning
the thermal quality of the building envelope the energy efficiency of the technical equipment integrated. In Annex I of
the “Portaria” elevators are dealt under article 11. Article 11.2 refers to International standards, but in case these have
still not been put in place, the article comes to the German VDI 4707. In our opinion, this reference is unfair, as we
already know very well that the International standard ISO 25745-2 is not finalized yet. This influence towards VDI
4707 is enforced by the Portuguese legislator considering chart I.31, where only VDI 4707 classification is considered;
moreover, even when ISO 25745-2 will be finally released, the decree with its chart I.31 could be kept unchanged. VDI
4707 is a private German guideline, which was drafted by only one part of the industry, and for this reason a
questionable one, as it has not been shared by all the parties involved.
The provisions of Portaria 349-D2013 are mandatory for commercial and service buildings in the Portuguese territory,
and any lift installer has to comply with them, in addition to the Lifts Directive 95/16/EC. Furthermore, point 11.3
establishes that starting from 31/12/2015, the provision of an energy label for the elevators will be required, which is
43
, which is still not applicable to elevators.
Moreover, VDI 4707 creates in our opinion discrimination between electric and hydraulic elevators, at the detriment of
these last ones, which are the stronghold of SMEs in Europe. We believe there is an undervaluation of the hydraulic
energy efficiency of about 20%, and an overvaluation of the electric one of the same value. For this reason, we consider
the Portuguese Decree n. 349-D/2013 to be probably discriminatory against some products without any real technical
reason, and without the support of any technical standards, released by the competent European Standardisation Body,
i.e. the CEN.
9.
As far as possible, specify the provisions of Community law (treaties, regulations, directives, decisions, etc.) which the
complainant considers to have been infringed by the Member State concerned:
Directive 95/16/EC on the approximation of the laws of the Member States relating to lifts
Directive 2010/30/EU on the indication by labelling and standard product information of the consumption of energy and
other resources by energy-related products
Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products.
10.
Where appropriate, mention the involvement of a Community funding scheme (with references if possible) from which
the Member State concerned benefits or stands to benefit, in relation to the facts giving rise to the complaint:
None.
11.
Details of any approaches already made to the Commission's services (if possible, attach copies of correspondence):
Our Federation already alerted the DG ENTR of the European Commission both by email and with an official letter,
addressed to the Responsible for the Lifts Directive in the EC, Ms. Raimoinda SNEIGIENE. The email dates 16 th May
2014, while the official letter dates 19th May 2014.
12.
Details of any approaches already made to other Community bodies or authorities (e.g. European Parliament
Committee on Petitions, European Ombudsman). If possible, give the reference assigned to the complainant's approach
by the body concerned:
None.
13.
Approaches already made to national authorities, whether central, regional or local (if possible, attach copies of
correspondence):
None.
13.1
Administrative approaches (e.g. complaint to the relevant national administrative authorities, whether central,
regional or local, and/or to a national or regional ombudsman):
//
13.2
Recourse to national courts or other procedures (e.g. arbitration or conciliation). (State whether there has already
been a decision or award and attach a copy if appropriate):
//
44
14.
Specify any documents or evidence which may be submitted in support of the complaint, including the national
measures concerned (attach copies):
“Portaria n.° 349-D/2013 de 2 de dezembro 2013”, released by the “Ministérios Do Ambiente, Ordenamento Do
Território E Energia E Da Solidariedade, Emprego E Segurança Social” of Portugal and published in the Portuguese
Official Journal (Diário da República, 1.ª série — N.º 233 — 2 de dezembro de 2013).
15.
Confidentiality (tick one box):
x
"I authorise the Commission to disclose my identity in its contacts with the authorities of the Member State against
which the complaint is made."
"I request the Commission not to disclose my identity in its contacts with the authorities of the Member State against
which the complaint is made."
16.
Place, date and signature of complainant/representative:
Brussels, 4th August 2014
Giuseppe Iotti
EFESME Secretary General
45
(Explanatory note to appear on back of complaint form)
Each Member State is responsible for the implementation of Community law (adoption of implementing measures before a
specified deadline, conformity and correct application) within its own legal system. Under the Treaties, the Commission of the
European Communities is responsible for ensuring that Community law is correctly applied. Consequently, where a Member
State fails to comply with Community law, the Commission has powers of its own (action for non-compliance) to try to bring
the infringement to an end and, if necessary, may refer the case to the Court of Justice of the European Communities. The
Commission takes whatever action it deems appropriate in response to either a complaint or indications of infringements
which it detects itself.
Non-compliance means failure by a Member State to fulfil its obligations under Community law, whether by action or by
omission. The term State is taken to mean the Member State which infringes Community law, irrespective of the authority central, regional or local - to which the non-compliance is attributable.
Anyone may lodge a complaint with the Commission against a Member State about any measure (law, regulation or
administrative action) or practice which they consider incompatible with a provision or a principle of Community law.
Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are
principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an
infringement of Community law by a Member State. It should be borne in mind that the Commission’s services may decide
whether or not further action should be taken on a complaint in the light of the rules and priorities laid down by the
Commission for opening and pursuing infringement procedures.
Anyone who considers a measure (law, regulation or administrative action) or administrative practice to be incompatible with
Community law is invited, before or at the same time as lodging a complaint with the Commission, to seek redress from the
national administrative or judicial authorities (including the national or regional ombudsman and/or arbitration and
conciliation procedures available). The Commission advises the prior use of such national means of redress, whether
administrative, judicial or other, before lodging a complaint with the Commission, because of the advantages they may offer
for complainants.
By using the means of redress available at national level, complainants should, as a rule, be able to assert their rights more
directly and more personally (e.g. a court order to an administrative body, repeal of a national decision and/or damages) than
they would following an infringement procedure successfully brought by the Commission which may take some time. Indeed,
before referring a case to the Court of Justice, the Commission is obliged to hold a series of contacts with the Member State
concerned to try to terminate the infringement.
Furthermore, any finding of an infringement by the Court of Justice has no impact on the rights of the complainant, since it
does not serve to resolve individual cases. It merely obliges the Member State to comply with Community law. More
specifically, any individual claims for damages would have to be brought by complainants before the national courts.
The following administrative guarantees exist for the benefit of the complainant:
(a)
Once it has been registered with the Commission's Secretariat-General, any complaint found admissible will be
assigned an official reference number. An acknowledgment bearing the reference number, which should be quoted in
any correspondence, will immediately be sent to the complainant. However, the assignment of an official reference
number to a complaint does not necessarily mean that an infringement procedure will be opened against the Member
State in question.
(b)
Where the Commission's services make representations to the authorities of the Member State against which the
complaint has been made, they will abide by the choice made by the complainant in Section 15 of this form.
(c)
The Commission will endeavour to take a decision on the substance (either to open infringement proceedings or to
close the case) within twelve months of registration of the complaint with its Secretariat-General.
(d)
The complainant will be notified in advance by the relevant department if it plans to propose that the Commission close
the case. The Commission's services will keep the complainant informed of the course of any infringement procedure.
***
46
Brussels, December 2014
POSITION PAPER
Linguistic accessibility of standards in the lift sector
BACKGROUND INFORMATION
SMEs and craft enterprises are faced with increasing competitive pressure stemming from globalisation, enlargement and the
opening up of markets spurred by new technologies and innovation. SMEs need to tackle these challenges. The European
legislation has considerably enhanced SME position; to ensure the best possible framework for the European SMEs enabling
them to live and grow under rapidly changing market conditions. Moreover, the Single Market has also expanded by 10 new
Member States, which is increasing the pressure for market integration and competition. For the internal market to function
efficiently, previously closed markets are being opened up to fair competition. Standards are necessary in such process and on
the whole beneficial. However, the availability of standards may not be commercially advantageous for all companies at all
times.
It is absolutely a necessity that Standards, which are a tool for competitiveness, do not become an economic burden due to
indirect cost of accessing them.
Enhancing the competitiveness of SMEs is one of the four targets for economic growth and job creation, according to “The EU
cohesion policy 2014-2020 – Targeting Investments on Key Growth Priorities”, drawn up by the European Commission.
The Regulation on European Standardisation, entered into force in January 2013, also shares this aim and encourages a
broader and effective participation in the standard setting process to relevant stakeholders and SMEs. Moreover, the EU
Regulation calls the National Standardisation Bodies to facilitate access of SMEs to standards and standards development
process.
GENERAL REMARKS
This position paper aims at reporting some issues that still hinder a correct access to standards with a clear reference to the
case of SMEs operating in the elevator sector.
European standards are published in English, French and German; it is then up to the National Standardisation Organisation to
translate the standard. However, this linguistic choice is not in line with the figures of the sector market: Italy, for example, is
the country with the highest number of elevator installed in Europe, with about 950.000, followed by Spain (850.000), while
Germany and France have 660.000 and 530.000 respectively.
An SME, of these countries, which does not necessarily has the tools to understand one of the three official languages, must
then wait for the standard to be eventually translated by its National Standardisation Body. As the evidence shows, this
process can take a serious lapse of time and, in several cases - mainly in Greece and Romania, where the concentration of
elevator SMEs is remarkable and therefore a full comprehension of the standard would be recommended - no translation is
even made available.
It is worrying to notice that these lacks affect very sensitive issues such as safety and accessibility. Revealing examples are EN
81-77:2013 on lifts subject to seismic condition or EN 81-80:2003, related to the improvement of safety of existing passengers
and good passenger lifts.
In addition, translated versions, when provided, may be of approx. 10% more costly than untranslated standards – as it
happens in Hungary.
47
Assessment of current standards in place in the elevator sector in 7 countries namely Greece, Italy, Hungary, the Netherlands,
Portugal, Romania and Spain, provides an overview of the disequilibrium between countries, in terms of accessibility to the
Standards (see annex). This statement means that in particular member states, SMEs face two options: either they have
financial resources available to proceed with translation of relevant standards to their activities, which represent an additional
indirect costs of accessibility, or to wait for the national translation, which for some cases, may take many years. Notifiable
examples are EN 81-28:2003 on remote alarm on passenger and goods passenger lifts, and EN 81-70:2003 +A1:2005 on
accessibility
to
lifts
for
persons
including
persons
with
disability.
Finally, it should also be pointed out that the frequency of the standards’ revision and the numerous further amendments
worsen the scenario, making the translation process even less viable.
CONCLUSIONS
SBS is convinced that access to standards for SME must be as easy as it is for large enterprises. For this reason, it is necessary
that the Think Small First principle will be applied in all established practices within the European Standardization
Organizations. Linguistic access to standards should not become a competitive instrument for companies within the sector.
SBS supports implementation of Dec. N°1673/2006 of the European Commission, on the financing of the European
Standardization and particularly its recital 6 and article 3 point e, which emphasizes the importance and opportunity of
Community financing the translation for European standards or any other European standardization product, used in support
of Community policies and legislation into official Community languages other than the working languages of the European
standardization bodies.
SBS backs the exchange of best practices among the National Standardisation Organisations, designed to guarantee the access
to standards to all enterprises.
48
EFESME aisbl
Author: Francesca Fazio
January 2015
49
EFESME - EUROPEAN FEDERATION FOR ELEVATOR SMALL AND MEDIUMMEDIUM-SIZED ENTERPRISES aisbl
3636-38, Rue Joseph II BB-1000 Bruxelles Tel: +32 2 2307414 - Fax: +32 2 2307219
E-mail: [email protected] - www.efesme.org
50