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

Dannecker / Ostermann: Loopholes in the Machinery Directive 2006/42/ECWhat does this mean with respect to therisk assessment?Under public law the buyer of machinery(including machine plants) / partlycompleted machinery has no right todemand the handover of the seller's riskassessment. It is intended as part of thetechnical file only for examination by theauthorities.In individual cases, e.g. with complexplants where the plant owner as "in-housemanufacturer" has to evaluate theCE conformity of given interfaces or insituations where existing plants aremodified, however, it is quiteunderstandable that the buyer demandsthe handover of the risk assessment ofmachinery / partly completed machinery.This can only be agreed upon by privatelaw within the scope of the supplycontract. In view of the private autonomy,the contract parties have the possibility todefine the subject of supplies andservices.Example of a contract clause:"The documents to be handed over by theSeller shall also include the riskassessment in accordance with theGeneral Principles of Annex I of theMachinery Directive 2006/42/EC for themachinery / partly completed machinery tobe supplied."Without such an "agreement on condition",however, the buyer has no entitlement toclaim the handover of the risk assessment.Alternatively it can be agreed, for example,that the machinery owner / buyer canexamine the manufacturer's / seller's riskassessment at his company premisesinstead of the handover. In both casesagreement on an obligation to confidentialhandling of the manufacturer's technicalsolutions is justified, as it isunquestionable that this constitutes knowhowof the manufacturer / seller that is notyet in the public domain and is thereforeworthy of protection.When does the conformity documentationhave to be handed over?The Machinery Directive prescribes inArticle 5 (1) that the EC declaration ofconformity must be handed over to theowner / user together with the machinerywhen it is placed on the market or put intoservice. While the time of placement ontothe market or putting into service ofindividual machines generally raises noquestions, this is often seen as a complexprocess of long duration in the case ofmachine plants, as the "trial operation" bythe plant manufacturer is regularly carriedout after the end of the erection work, i.e.the machine plant is adjusted, run in, etc.The trial operation by the plantmanufacturer is, however, regularlycharacterised in that the machine plantdoes not yet satisfy the demands of theMachinery Directive in all respects, inparticular Annex I, as e.g. guards have notyet been fitted, covers have to be removedagain, etc. An issue of the EC declarationof conformity and the attachment of theCE marking is not yet admissible at thispoint, so that this does not represent a"placement on the market". This trialoperation consequently takes place on amachine plant that is still in themanufacturing phase. The trial operationat this time is therefore subject to theoccupational safety provisions under theresponsibility of the plant manufacturer.The machine plant must satisfy theprotection goals of Annex I MachineryDirective only at the time of placement onthe market or of putting into service. Likewith a single machine this is a "point intime" and not a "period of time.There is therefore a need for clarificationof the "safety-related", i.e. the point atwhich the plant manufacturer's trialoperation has been concluded, themachine plant satisfies the public lawrequirements such as the MachineryDirective and the machine plant can beplaced on the market or put into service.Private law measures can be taken here,e.g. in the form of a commissioningprotocol to be signed by both contractparties in which the owner / buyer not onlyconfirms that e.g. the mechanical function8