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

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Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/ECOf relevance to the decision, and hence aquestion also to be clarified, is who caninfluence the safety engineering propertiesduring design and construction of the plantup to its placement on the market orputting into service.In order to avoid discussions and highcosts later, the parties involved in a plantproject are therefore well advised to giveconsideration to the question of the overallIf it is not clear who the plant manufactureris, then it is also not clear who isresponsible for drawing up the riskassessment for the plant so that inpractice this is – legally inadmissibly –frequently not carried out. Added to that isthe fact that safety engineering correctionsdue to a delay in drawing up the riskassessment generally entail high costs.With the right approach, these costs- caused by a wrong engineeringresponsibility at the time of conclusion ofthe contract. A later clarification after thestart of the planning or engineeringinvolves great expense and is furthermorelegally inadmissible (cf. Annex I MachineryDirective: „The machinery must then bedesigned and constructed taking intoaccount the results of the riskassessment").approach - can be avoided.Agreement on the person of the plantmanufacturer in the contracts between theparticipating parties is therefore urgentlyrecommended. Agreement could bereached, for example, on the followingcontract clause in the relationshipbetween main supplier and plant owner:6
Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/ECThe contract parties are agreed that[name of the company] is manufacturer ofthe complete plant in the sense of Article2 lit. i of the Machinery Directive2006/42/EC and assumes the duties ofthe manufacturer defined in Article 5clause 1 of this Directive for the completeplant to be placed onto the market." 7Where necessary, contractual cooperationobligations of the other contract partyshould also be defined. If, for example, themain supplier is the manufacturer of theplant and the plant owner purchases partsof the plant himself, the relationshipbetween manufacturer and plant owner'ssub-supplier must also be clarified. Themain supplier must, for example, be giventhe possibility by the plant owner in hiscontracts with his suppliers to consultthese suppliers and, where necessary, toexamine the conformity documentation asthe main supplier has no contractualrelationship with the plant owner'ssuppliers.What has actually to be supplied?The machinery manufacturer's public lawscope of supply is described in Article 5 ofthe Machinery Directive.It states that together with the machinery,the following must be handed over to thebuyer:The EC Declaration of Conformity inaccordance with Annex II part 1Section A The necessary information (Annex I,No. 1.7 Machinery Directive), such asthe operating instructions (Annex I, No.1.7.4 Machinery Directive)In addition, the technical file must beavailable for examination / inspection bythe responsible market supervisoryauthorities (Article 5(1) b in conjunctionwith Annex VII part A No. 2 MachineryDirective).7 See www.maschinenrichtlinie.de on the subject"Responsible persons / plant manufacturer"7
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Machinery Directive 2006/42/EC Closing of "loopholes" through ...

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