Machinery Directive 2006/42/EC Closing of "loopholes" through ...
Machinery Directive 2006/42/EC Closing of "loopholes" through ... 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
Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/EC The plant design engineer The plant construction engineer The person who attaches his name / histrademark to the plant The "in-house manufacturer" whomanufactures the plant for his own useHow can this "dilemma" be resolved?For the question as to who themanufacturer is, the definition of the"manufacturer" in the Machinery Directiveessentially focuses on the question as towho bears the "overall responsibility" forthe safety of the machine plant:"[The person who] is responsible for theconformity of the machinery … with thisdirective with a view to its being placedon the market …."This is also made clear in the Blue Guide 6in section 3.1.1:6http://www.maschinenrichtlinie.de/fileadmin/dokumente/Binnenmarktleitfaden%20Blueguide.pdf„A manufacturer, in the meaning of NewApproach, is the person who isresponsible for designing andmanufacturing a product"At first sight there is a great deal here tosuggest that the "main supplier" (= thesupplier of the main components of theplant) is the plant manufacturer. This is notnecessarily the case, however. It can justas easily be e.g. the engineering officeresponsible for the plant conformity,particularly if it carries out the detailengineering or safety engineering.Also conceivable, however, is the erectioncompany that assembles all the plantcomponents "safely" or the control systeminstaller who integrates the plantcomponents into his control system. Inmany cases the plant operator has alsoappointed a project manager who "keepshold of the reins" so that the plant owneras an "in-house manufacturer" can also beconsidered for the declaration ofconformity of the plant as a whole, as heholds the "project or planning sovereignty"with respect to the plant.5
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Dannecker / Ostermann: Loopholes in the <strong>Machinery</strong> <strong>Directive</strong> <strong>2006</strong>/<strong>42</strong>/<strong>EC</strong> The plant design engineer The plant construction engineer The person who attaches his name / histrademark to the plant The "in-house manufacturer" whomanufactures the plant for his own useHow can this "dilemma" be resolved?For the question as to who themanufacturer is, the definition <strong>of</strong> the"manufacturer" in the <strong>Machinery</strong> <strong>Directive</strong>essentially focuses on the question as towho bears the "overall responsibility" forthe safety <strong>of</strong> the machine plant:"[The person who] is responsible for theconformity <strong>of</strong> the machinery … with thisdirective with a view to its being placedon the market …."This is also made clear in the Blue Guide 6in section 3.1.1:6http://www.maschinenrichtlinie.de/fileadmin/dokumente/Binnenmarktleitfaden%20Blueguide.pdf„A manufacturer, in the meaning <strong>of</strong> NewApproach, is the person who isresponsible for designing andmanufacturing a product"At first sight there is a great deal here tosuggest that the "main supplier" (= thesupplier <strong>of</strong> the main components <strong>of</strong> theplant) is the plant manufacturer. This is notnecessarily the case, however. It can justas easily be e.g. the engineering <strong>of</strong>ficeresponsible for the plant conformity,particularly if it carries out the detailengineering or safety engineering.Also conceivable, however, is the erectioncompany that assembles all the plantcomponents "safely" or the control systeminstaller who integrates the plantcomponents into his control system. Inmany cases the plant operator has alsoappointed a project manager who "keepshold <strong>of</strong> the reins" so that the plant owneras an "in-house manufacturer" can also beconsidered for the declaration <strong>of</strong>conformity <strong>of</strong> the plant as a whole, as heholds the "project or planning sovereignty"with respect to the plant.5
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