This is going to look a bit like I'm picking an argument, which is
not my intention. I am genuinely interested to get some more
information on this if I can.
I'm interested to know where this idea that equipment which is not in
'free circulation' is excluded from the directives comes from, or
more specifically, what official documentation exists to support it.
I know for a fact that the UK HSE take the view that equipment
manufactured for the maker's own use does have to be CE marked (I
have correspondence from them to this effect) and given that the new
draft of the machinery directive appears to explicitly say this, it
would appear that the Commission agree with them.
The phrase 'free circulation' occurs in the LVD, but only in the
considerations, and in the context of describing what the directive
is for. It is certainly not used as part of a clause which provides
for an exclusion for equipment not 'placed on the market'. The phrase
does not appear in the EMC directive at all.
The Blue Guide (1) contains the following:
"Thus, imports for own use are also considered as being placed on the
market at the moment they enter the Community."
and
"A product is placed on the Community market when it is made
available for the first time."
However, the margin notes also say:
"Products built for own use are, generally, not considered as being
placed on the market."
The new draft machinery directive (2) has a section of definitions which says:
"placing on the market" means making available for the first time in
the Community machinery intended for an end user, whether for reward
or free of charge;"
and taken together, these could be taken to mean that equipment
manufactured for the makers own use are outside the scope of the
directive (and, by extension, directives). However, later in the
proposal, the following statement appears:
"This proposal for a Directive covers all engineering sectors. This
means that all enterprises manufacturing machinery for their own use
or for placing on the market are covered by the Directive."
which is consistent with the HSE approach. To my mind, this is also
the consistent approach to take from the point of view of creating a
'level playing field (the ultimate aim of the Article 100a
directives) and it makes sense also in terms of the applicable
workplace health and safety law.
Clearly the ultimate interpretation is a matter for a court, but I'd
be interested to know if anyone has heard of any case law in this
area from any EU member state, or if there is any correspondence from
an official body (the Commission, or an enforcement authority) to
support or deny the HSE position.
Ultimately, for equipment used in the workplace, it may not make a
great deal of difference since the Work Equipment Directives require
that the essential requirements of the CE mark directives be applied
anyway. However, if one is making a piece of equipment for one's own
use which is an annex IV machine, or subject to notified body
assessment in some other way, the financial implications could be
significant since simply complying with the essential requirements
may be done as a self-certification exercise, whereas full
attestation to the directives will require a notified body, with the
concomitant extra hassle and expense.
Comments and further information (especially from elsewhere in the
EU) would be welcome.
Regards
Nick.
Refs.:
(1) Guide to the implementation of directives based on the New
Approach and the Global Approach, European Commission, 2000
(2) Proposal for a directive of the European Council and of the
Parliament on machinery and amending Directive 95/16/EC, COM(2000)
899 final
At 07:39 +0100 2/4/2001, John Woodgate wrote:
<v04220802b6ed37956001@[192.168.1.13]>, Nick Williams <nick.williams@con
formance.co.uk> inimitably wrote:
John,
Can you give us an example of these 'special provisions'?
Obviously not in any detail, because they are not publicised and are
decided on a case-by-case basis.
I have often wondered how the formula 1 people go about complying
with the CE marking requirements.
They don't have to. Their kit is not 'in free circulation'. It goes to a
specific location and is used there. Then it is all taken away to the
next venue. It couldn't, for example, be put on sale instead of being
taken away. Checks are made that none of it will interfere with other
services. I suspect that there is no check on immunity, but the F1
people may do their own checks on what emissions are present in the
area.
--
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