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

Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/ECin the case of partly completedmachinery) must have been performed The EC Declaration of Conformity ordeclaration of incorporation must becompleted and must accompany themachinery The CE mark expressing the conformityof the machinery with all the relevantEC Directives demanding such amarking must be attached to themachineNote:Partly completed machinery, bycontrast, does not bear a CE markunless another EC single marketdirective applicable to the partlycompleted machinery demands such amark The manufacturer of machinery musthave the necessary means tomanufacture the machinery "safely"Note:"Machinery" in the above sense is used forthe sake of simplicity as a generic term forall products in the sense of Article 2 a) to f)of the Machinery Directive, while the term"partly completed machinery" in the senseof Article 2 g) of the Machinery Directive isused separately, see also the correspondingprovisions in Article 2 of theMachinery Directive.Compliance with these requirements is amandatory precondition for the placing ofmachinery (or partly completed machinery)on the market. Failure to comply with thepreconditions can result in stringent measuresbeing taken by the responsibleauthorities in accordance with § 8 (4)GPSG; these cannot, however, becovered in more detail in this paper.In practical application it has beenobserved, however, that the MachineryDirective leaves considerable scope forinterpretation in some area and has loopholesthat lead to legal uncertainty in thedrafting of contracts. This paper aims togive examples as to how these loopholescan be expediently closed within thecontext of the contract drafting.Who is actually the "manufacturer"?The manufacturer or his authorisedrepresentative is responsible for thecompliance with the fundamental healthyand safety requirements of Annex I of theMachinery Directive and for the performanceof the above measures forestablishment / declaration of the "ECconformity" of the machinery. The manufactureror his authorised representative isalso the primary addressee of measurestaken by the responsible authorities.Against this background, the question ofwho the manufacturer of the machinery isin individual cases is of great relevance.While "single source" machinery (in thesense of the design and manufacture ofthe machinery) generally does not pose aproblem (even in the light of the fact thatthe property of "manufacturer" is not lostby the sub-contracting of work) 4 , a lack ofclarity as to the person of the manufacturercan quite conceivably arise in certaincases with "machine plants" (assembliesof machinery in the sense of Article 2 a)4th indent of the Machinery Directive).If we look at the definition of the manufactureras defined in Article 2 i) of theMachinery Directive more closely"... any natural or legal person whodesigns and/or manufactures machineryor partly completed machinery coveredby this Directive and is responsible forthe conformity of the machinery or thepartly completed machinery with thisDirective with a view to its being placedon the market, under his own name ortrademark or for his own use,"then a broad scope for interpretationbecomes obvious, particularly forengineering “assemblies of machinery” 5(machinery plants). The manufacturer canthen be:4 cf. clause 3.1.1 of the European Commission's"Guide to the Implementation of Directives Basedon the New Approach" - Blue Guidehttp://www.maschinenrichtlinie.de/fileadmin/dokumente/Binnenmarktleitfaden%20Blueguide.pdf5 See Machinery Directive, Article 2, paragraph a,fourth indent4