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

Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/ECIntroductionAfter more than 15 years, the EuropeanUnion has decided on a comprehensiveamendment of the European MachineryDirective. As of 29.12.2009, the newMachinery Directive 2006/42/EC 2 wasimplemented in binding German nationallaw. Corresponding nationalimplementations were enacted at thesame time also in all other member statesof the EEA as well as in Switzerland andTurkey. 3While earlier demarcation problemsbetween the Machinery Directive and theLow Voltage Directive were reduced andmore legal security was gained by theinclusion of "partly completed machinery"in the list of products covered by the scopeof the Machinery Directive, a lack of clarityand points of uncertainty can still beobserved in practice even one year afterthe new Machinery Directive came intoforce when it comes to the implementationof the demands of the Machinery Directivein the procurement process betweensellers of machinery on the one hand andthe buyers of machinery on the other, asthe following examples from a quotationfrom a machine manufacturer show:contract parties tips for the drafting ofcontracts with respect to the handling ofthe subjects governed by and thedemands of the Machinery Directive.Demands on the manufacturerAccording to Article 5 of the MachineryDirective, the manufacturer of machinery /partly completed machinery must satisfythe following demands: The machine must satisfy therequirements of Annex I of theMachinery Directive "A CE mark on the machines suppliedby us is not generally covered by thecontract. Should you wish for such amark, this shall require our expresswritten confirmation." "A precondition for the supply inexceptional cases of a product notconforming to the EC directives is thesigning of an "indemnificationdeclaration" with the followingcontent ..."With this paper the authors aim to trackdown public law loopholes in the scope ofthe Machinery Directive and to give the2 DIRECTIVE 2006/42/EC OF THE EUROPEANPARLIAMENT AND OF THE COUNCIL of 17 May2006 on machinery. The Machinery Directive thathas been amended several times in the meantime isavailable in a consolidated version at"www.maschinenrichtlinie.de" (German text only)3 See www.maschinenrichtlinie.de under"Geltungsbereich" The drawing up of a risk assessment ismandatory The technical file on the machinerymust be available The operating instructions (or assemblyinstructions in the case of partlycompleted machinery) must accompanythe machinery The corresponding conformity assessmentprocedure (or special procedures3