Machinery Directive 2006/42/EC Closing of "loopholes" through ...

Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/ECBut the manufacturer of the partlycompleted machinery exposes himself toproduct liability law risks if he limits thedocumentation to be supplied with thepartly completed machinery to therequirements of Annex VI MachineryDirective. Both the manufacturer liabilityunder tort law in accordance with § 823 (1)German Civil Code (BGB), and the liabilityof the manufacturer under the GermanProduct Liability Act (§ 3 (1) lit. a) ProdHGwhich is based on the Council Directive85/374/EEC) sanction faulty or the lack ofoperating instructions or instructions foruse and / or a lack of warnings againstpotentially hazardous properties of aproduct (keyword: "faulty instruction") 10 .The contract parties to the purchase ofpartly completed machinery are thereforewell advised to also include the point"operating instructions" in their contractdocuments. See also the "extendeddeclaration of incorporation" mentionedabove.The assessment of the contractconformity of the supplyWe should expressly point out once againhere:The CE marking on machinery / plantsmakes no statement about the (agreed)quality of a product. The CE marking hasto fulfil a different function, namely that ofassuring the freedom of the movement ofgoods within the European single market.Thus it is like an “European-single-marketpassport”for goods and not a qualitysymbol with respect to safety.The assessment of the agreed condition /quality of a product, and hence thecontract conformity of the supply, isperformed purely under private law. If thepurchase is e.g. a commercial transactionfor both parties, the buyer must ensure inaccordance with § 377 GermanCommercial Code (HGB) that the goodsare examined for visible defectsimmediately on arrival in his "domain", and10 See www.maschinenrichtlinie.de under theheading "Produkthaftung” (Product liability)that notice of any defects discovered isgiven immediately.Failure to meet this obligation regularlyresults in the loss of the rights with respectto material defects, at least as far as thedefects not discovered or not reported areconcerned (the question as to what extentthe buyer can assign this obligation to theseller is not the subject of this paper).In the case of contracts for work (which isregularly the case for contracts for theconstruction of a complex machinery planttailored individually to the needs of theowner / buyer), the ordering party has toaccept the work manufactured by thecontractor:(§ 640 BGB)"Acceptance" means here the receipt ofthe manufactured work and itsrecognition as being in conformity withthe contract.In the case of contracts for the purchase of(individual) machine or partly completedmachinery, however, it is recommendedthat tests for the proof of the agreedquality are also agreed. This can beachieved contractually through the termsfor the acceptance of the goods / services.In the case of long-term supplyrelationships it is recommended – also inthe light of minimising the product liabilityrisks – that "quality assuranceagreements" are concluded.A quality assurance agreement is to beunderstood as quality assurancemeasures contractually agreed with asupplier in which i.a. the following pointscan be defined in concrete terms: Quality goals for the individual parts /components Proof of quality by the supplier, such ase.g. quality control measures to beperformed, presentation of testcertificates, etc. Quality assurance Exchange of quality data Demands on the supplier's qualitymanagement systems11