Marin: Barring non compliant products from entry soon makes its point rather than trying to untangle the legal liability in such rare cases.
Ralph Cameron Independant Consulting and EMC suppression in consumer electronics (after sale) ----- Original Message ----- From: Martin Green <martin.gr...@iti.co.uk> To: 'Allan G. Carr' <al...@acarr.demon.co.uk> Cc: 'Price, Ed' <ed.pr...@cubic.com>; <emc-p...@ieee.org> Sent: Thursday, November 25, 1999 6:05 AM Subject: RE: Copy of: D of C - Who Signs? > > Alan, > > As far as the quotation is concerned, I would refer you to the words in Reg. > 40(2)(c), Erg 57(2)(c), Erg 70(2)(c) for clauses detailing who signs the > DoC. Under the UK regulations it will, as I said in my email, "be signed by > or on behalf of the manufacturer or his authorised representative and > identify that signatory" > > As far as going to court is concerned, I too thought that action would be > taken against the responsible person, but when I discussed this with both > the DTI and some lawyers they said that as the offence would be "placing on > the market a product that did not meet the protection requirements" - or > similar words, and it would be a charge raised in a UK court, then it is the > person selling it that is charged. Apparently, there is no cross border > joint jurisdiction in the EU for CE marking offences. I understand that the > UK authorities would inform the EU commission and they in turn would inform > the authorities in Belgium. The Belgium authorities may then choose to > investigate the offence to see if an offence had been committed in Belgium, > under Belgium law. However, there is no doubt that the UK courts could not > take action against a citizen in Belgium for this type of offence. > > Whether the Belgium authorities would be able to charge a Belgium citizen > with an offence committed in the UK is open the question. It is like being > charged for speeding in Germany and having a UK court hear the case. It does > not work. As many will know to their cost (including me!), if you commit a > motoring offence in Germany then you can pay a fine either on the spot or in > court. Usually it on the spot - even if you are British! The UK courts do > not hear motoring offences committed in Germany. > > Regards > > Martin > > -----Original Message----- > > From: Allan G. Carr [SMTP:e...@acarr.demon.co.uk] > > Sent: 25 November 1999 13:43 > > To: Martin Green > > Cc: 'Price, Ed'; 'emc-p...@ieee.org' > > Subject: Re: Copy of: D of C - Who Signs? > > > > Martin > > > > Thanks for the comprehensive reply to my post. > > > > I have the following comments:- > > > > >The UK EMC regulations do not say > > >the DoC is signed by the responsible person. They say the DoC must be > > >"signed by or on behalf of the manufacturer or his authorised > > representative > > >and identify that signatory". > > > > Sorry to be pedantic but the UK Statutory Instrument 1992 No.2372 does > > not contain the above quote. This quote is from EC EMC Guidelines > > which therefore clarify the issue. > > > > > > >The question always arises as to who ends up in court. As an example, if > > >the DoC is signed in the USA, for a product made in Mexico, being sold by > > >distributors in 10 of the member states in the EU, with the authorised > > rep > > >in Belgium acting as the responsible person and there is a court case for > > >infringement of the UK EMC regulations, who ends up in court? The action > > is > > >taken in UK by the Trading Standards Officers against the person placing > > the > > >product on the market in the UK. The answer is the distributor. The UK > > has > > >no jurisdiction over the authorised rep in Belgium or the manufacturer > > >outside the EU. > > > > UK Trading Standards tell me that in the above example the prosecution > > would be handed over to the EC country of residence of "the responsible > > person" who keeps the documentation - in this case Belgium. > > > > However the UK distributor could be in the firing line if UK Trading > > Standards were not happy with the result. > > > > > > > > Thanks again for your excellent response > > Allan > > ________________________________________ > > > > In message <E17783957970D21193D40080AD1CA3E20526C5@SERVER>, Martin Green > > <martin.gr...@iti.co.uk> writes > > >It is always interesting to read the "legal" interpretation of these > > >documents. I now understand why lawyers make so much money. > > > > > >If you have the staying power you might find this or interest/value, > > >otherwise hit the delete button! > > > > > >The interpretation below is incorrect. The UK EMC regulations do not say > > >the DoC is signed by the responsible person. They say the DoC must be > > >"signed by or on behalf of the manufacturer or his authorised > > representative > > >and identify that signatory". > > > > > >They also say the that DoC must give the name and address of the > > responsible > > >person and where that person is not the manufacturer, of the > > manufacturer. > > > > > >For those who read this stuff and are not used to the arcane legal words > > >inside UK Statutory Instruments this is often difficult to understand. > > The > > >problem is no one else in the EU gives guidance to the manufacturers who > > are > > >trying to CE mark their equipment correctly. The guidance documents from > > >the EU commission are often confusing as well. So I have tried to > > explain > > >the "legal" interpretation as understood by some very senior lawyers in > > UK > > >with whom we have dealings. > > > > > >The way the EU tends to consider this is that the "responsible person" is > > >the person (living body) who issues the DoC and holds the certification > > >documentation, or evidence of conformity, in the EU (test reports/TCF/EC > > >Type examination certificate etc.) > > > > > >This is not necessarily the person who signs the DoC. The person signing > > >the DoC is the person who legally "binds" the manufacturer to the claims > > in > > >the DoC - as with a contract signatory. > > > > > >As the only authorities who may want to see the documentation are in the > > EU, > > >the responsible person must be in the EU as well. If the manufacturer is > > in > > >the EU he does not need an authorised rep (although he may appoint one) > > and > > >by default he would be the responsible person. > > > > > >Therefore you can think of it rather in the same way as signing a > > contract > > >for buying a house. The person who is legally purchasing the house signs > > >the contract. The contract can then be given to a third party such as a > > >lawyer for safe keeping and making available to anyone who legally needs > > to > > >see it. Of course if the house, new owner and lawyer all reside in the > > same > > >town, why give the contract to the lawyer to keep? > > > > > >So the basic rules are: > > > > > >1. If the manufacturer is located outside the EU, (including > > Switzerland) > > >then he must appoint an authorised representative to act on his behalf. > > > > > >2. The manufacturer or his authorised representative in the EU holds the > > >documentation and issues the DoC and is therefore the responsible person. > > >If the manufacturer does not appoint an authorised representative, or the > > >authorised representative is located outside the EU (why have one!) the > > >default is that the responsible person becomes the person who supplies > > >(places the product on the market) the apparatus. > > > > > >3. The person who signs the DoC can be anyone who is authorised by the > > >manufacturer to do so. Usually it is a manager or officer, but that > > person > > >is legally binding the manufacturer to the claims in the DoC, so it must > > be > > >some one authorised to do so. > > > > > >Naturally the EU messes things up a bit because the machinery directive > > >allows the responsible person to be outside the EU. But there are very > > >special provisions associated with that. The medical devices directive > > >requires the appointment of an authorised rep in the EU to register Class > > I > > >products and some other directives do not mention the need for either an > > >authorised rep or a responsible person. It is all very confusing, but > > the > > >general recommendations are: > > > > > >1. If the manufacturer is outside the EU then appoint an authorised rep > > to > > >act on your behalf. (This person must be inside the EU to hold the > > >documentation). > > >2. Formally appoint the authorised rep to be your responsible person and > > >hold the technical documentation, hold a copy of the DoC, and issue the > > DoC > > >to anyone who needs it. > > >3. You can, if you want, have your authorised rep (legally appointed) > > sign > > >the DoC. He is then empowered to bind your company to the claims in the > > >DoC. Alternatively you can sign the DoC yourself. As the DoC is a legal > > >document then it must be signed by someone who is authorised to do so - > > as > > >said before. If that person is no longer alive or with the company, > > >contract law does not negate the historical validity of contracts because > > a > > >person is no longer living, or doing something whereby he is no longer > > >authorised to sign documents. Therefore the DoC remains valid for as > > long > > >as the claims are valid. The signatory signed it on behalf of the > > company, > > >not as an individual. If a new DoC is required, because the equipment > > has > > >been modified you cannot get the original person to sign it again because > > >his signed the first version. Besides digging up the dead is illegal in > > the > > >EU! Therefore the new DoC is signed to bind the manufacturer and that > > then > > >does not require resigning - unless it is reissued. > > > > > >The question always arises as to who ends up in court. As an example, if > > >the DoC is signed in the USA, for a product made in Mexico, being sold by > > >distributors in 10 of the member states in the EU, with the authorised > > rep > > >in Belgium acting as the responsible person and there is a court case for > > >infringement of the UK EMC regulations, who ends up in court? The action > > is > > >taken in UK by the Trading Standards Officers against the person placing > > the > > >product on the market in the UK. The answer is the distributor. The UK > > has > > >no jurisdiction over the authorised rep in Belgium or the manufacturer > > >outside the EU. Even the user does not go to court unless he/she is > > causing > > >an interference problem. There is therefore a significant benefit to > > >distributors and reps to ensure that they are selling correctly certified > > >equipment. Ignorance is no defence in law! > > > > > >For those who managed to read to the end of this I hope it answers some > > of > > >the questions you may have. There are always silly exceptions to the > > rules, > > >as with the machinery directive - but there you go, no one is perfect. > > > > > >Martin Green > > >Technology International (Europe) Ltd. > > >Tel: (44) 1793 783137 > > >Fax: (44) 1793 782310 > > > > > > > > >> -----Original Message----- > > >> From: Price, Ed [SMTP:ed.pr...@cubic.com] > > >> Sent: 22 November 1999 19:46 > > >> To: 'emc-p...@ieee.org' > > >> Cc: 'al...@acarr.demon.co.uk' > > >> Subject: FW: Copy of: D of C - Who Signs? > > >> > > >> > > >> Posted for: al...@acarr.demon.co.uk > > >> > > >> > > >> > > >> > > >> > > >> > > >> > > >> > > >> > -----Original Message----- > > >> > From: Allan G. Carr [SMTP:al...@acarr.demon.co.uk] > > >> > Sent: Monday, November 22, 1999 7:14 AM > > >> > To: emc-p...@ieee.org > > >> > Subject: Re: Copy of: D of C - Who Signs? > > >> > > > >> > Chris > > >> > > > >> > I do not think the UK S.I. No. 2372 1992 on EMC implies that the > > >> > "Responsible Person" is a company. > > >> > > > >> > ---------------- Quote from UK S.I. No. 2372 1992 on EMC > > --------------- > > >> > "Responsible Person" in relation to relevant apparatus means- > > >> > (a) the manufacturer thereof; > > >> > (b) the manufacturer's authorised representative; or > > >> > (c) where the manufacturer is not established in the Community and HE > > >> > HAS not appointed an authorised representative, the PERSON who > > supplies > > >> > the relevant apparatus. > > >> > > > ------------------------------------------------------------------------ > > >> > > > >> > N.B. My capitalisation for emphasis. > > >> > > > >> > If these rules were indicating a company I think the "HE HAS" in (c) > > >> > above should have said "THEY HAVE". > > >> > > > >> > > > >> > > > >> > Allan > > >> > _____________________ > > >> > > > >> > In article <199911111901_mc2-8cb5-1...@compuserve.com>, Chris Duprs > > >> > <chris_dup...@compuserve.com> writes > > >> > > > > >> > > > > >> > >---------- Forwarded Message ---------- > > >> > > > > >> > >From: Chris Duprs, 100014,3703 > > >> > >TO: "Tony Reynolds", INTERNET:reyno...@pb.com > > >> > >DATE: 11/11/99 20:31 > > >> > > > > >> > >RE: Copy of: D of C - Who Signs? > > >> > > > > >> > >Hi Tony. > > >> > > > > >> > >You asked... > > >> > >< In other words is it acceptable to issue D of C's to > > >> > > suppliers/customers which have been signed by someone who has > > left > > >> > the > > >> > > > > >> > > company.> > > >> > > > > >> > >In the case of EMC in the UK, the Electromagnetic Compatibility > > >> > >Regulations, statutory instrument SI 1992/2372, state that the > > >> > declaration > > >> > >be signed by a 'esponsible person',. But in the 'Definition of > > Terms > > >> in > > >> > >the front, the term 'responsible person' is defined as a company! > > >> > > > > >> > >If the person who signs the documents retires, moves, dies, or > > >> whatever, > > >> > >resposibility for the declaration simply moves upwards to the next > > >> > >responsible person or a Director. Basically, Directors still get > > the > > >> > blame > > >> > >if the original signer goes, after all, it is their company. > > >> > > > > >> > >Chris Dupres > > >> > >Surrey, UK. > > >> > > > > >> > >--------- > > >> > >This message is coming from the emc-pstc discussion list. > > >> > >To cancel your subscription, send mail to majord...@ieee.org > > >> > >with the single line: "unsubscribe emc-pstc" (without the > > >> > >quotes). For help, send mail to ed.pr...@cubic.com, > > >> > >jim_bac...@monarch.com, ri...@sdd.hp.com, or > > >> > >roger.volgst...@compaq.com (the list administrators). > > >> > > > > >> > > > > >> > > > >> > -- > > >> > Allan G.Carr B.Sc.(Elec.Eng) AMIEE | AGC-Tel Consultants Ltd > > >> > Telecommunications Consultant | Tel: +44(0)141-956-2506 > > >> > European Approvals Specialist | Fax: +44(0)141-956-5347 > > >> > 62 Crawford Road, Milngavie | Voice Mail: > > +44(0)1252-30-3062 > > >> > Glasgow, G62 7LF, Scotland | http://www.acarr.demon.co.uk > > >> > > >> --------- > > >> This message is coming from the emc-pstc discussion list. > > >> To cancel your subscription, send mail to majord...@ieee.org > > >> with the single line: "unsubscribe emc-pstc" (without the > > >> quotes). For help, send mail to ed.pr...@cubic.com, > > >> jim_bac...@monarch.com, ri...@sdd.hp.com, or > > >> roger.volgst...@compaq.com (the list administrators). > > >> > > >> > > > > -- > > Allan G.Carr B.Sc.(Elec.Eng) AMIEE | AGC-Tel Consultants Ltd > > Telecommunications Consultant | Tel: +44(0)141-956-2506 > > European Approvals Specialist | Fax: +44(0)141-956-5347 > > 62 Crawford Road, Milngavie | Voice Mail: +44(0)1252-30-3062 > > Glasgow, G62 7LF, Scotland | http://www.acarr.demon.co.uk > > --------- > This message is coming from the emc-pstc discussion list. > To cancel your subscription, send mail to majord...@ieee.org > with the single line: "unsubscribe emc-pstc" (without the > quotes). For help, send mail to ed.pr...@cubic.com, > jim_bac...@monarch.com, ri...@sdd.hp.com, or > roger.volgst...@compaq.com (the list administrators). > > > --------- This message is coming from the emc-pstc discussion list. To cancel your subscription, send mail to majord...@ieee.org with the single line: "unsubscribe emc-pstc" (without the quotes). For help, send mail to ed.pr...@cubic.com, jim_bac...@monarch.com, ri...@sdd.hp.com, or roger.volgst...@compaq.com (the list administrators).
