S.I. No. 518/2001 - European Communities (Machinery) Regulations, 2001

Regulation

1.	Citation and Commencement
2.	Interpretation
3.	Prohibition on Placing on the Market of certain Machinery and Safety Components
4.	Exhibiting or Demonstrating of Machinery or Safety Components
5.	Presumption of Compliance with these Regulations
6.	Directions given by the Minister or the Authority
7.	Conformity Assessment
8.	Notified Body in the State
9.	EC Type-examination
10.	Fees charged by Notified Body in the State
11.	Appeal from Decision of Notified Body in the State
12.	CE Marking
13.	Authorised Officers
14.	Application of Section 34 of the Safety, Health and Welfare at Work Act, 1989
15.	Obtaining of Information by the Minister or the Authority
16.	Service of documents under these Regulations
17.	Offences
18.	Treatment of these Regulations for purposes of the Act of 1989
19.	Revocations

I, Mary Harney, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 98/37/EC of the European Parliament and of the Council of 22 June 1998⁽¹⁾ on the approximation of the laws of the Member States relating to machinery, hereby make the following regulations:

Citation and Commencement

1. (1) These Regulations may be cited as the European Communities (Machinery) Regulations, 2001.

(2) These Regulations shall come into operation on the 21^st day of November, 2001.

Interpretation

2. (1) In these Regulations, unless the context otherwise requires -

“Act of 1989” means the Safety, Health and Welfare at Work Act, 1989 (No. 7 of 1989);

“notified body in the State” shall be construed in accordance with Regulation 8(1);

“authorised officer” means a person appointed by the Minister under Regulation 13 to be an authorised officer for the purposes of these Regulations;

“the Authority” means the National Authority for Occupational Safety and Health;

“CE marking” means the CE marking specified in Article 10(1) of the Directive;

“the Directive” means European Parliament and Council Directive 98/37/EC of 22 June 1998 on the approximation of the laws of the Member States relating to machinery;

“functions” includes powers and duties and references to the performance of functions include references to the exercise of powers and the carrying out of duties;

“hire-purchase agreement” has the same meaning as it has in section 2 (1) of the Consumer Credit Act, 1995 (No. 24 of 1995);

“machinery” means machinery to which the Directive applies;

“Member State” means a member state of the European Communities;

“the Minister” means the Minister for Enterprise, Trade and Employment;

“place on the market” means, in relation to machinery or safety components -

(a) import,

(b) sell,

(d) invite the making by a person of an offer to purchase,

(e) distribute free of charge,

(f) in the case of a manufacturer supply for any of those purposes,

(g) supply under a hire-purchase agreement,

(h) let other than under a hire-purchase agreement,

and cognate words shall be construed accordingly;

“safety component” means a safety component to which the Directive applies.

(2) A word or expression that is used in these Regulations and that is also used in the Directive, has unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

(3) In these Regulations -

(a) a reference to a Regulation is to a Regulation of these Regulations, and

(b) a reference to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs.

Prohibition on Placing on the Market of certain Machinery and Safety Components

3. A person who places on the market or puts into service machinery or safety components that -

(a) if properly installed, and maintained and used for their intended purpose are liable to -

(i) endanger the health or safety of persons or domestic animals, or

(ii) cause damage to property, or

(b) fail to comply with the essential health and safety requirements set out in Annex I of the Directive,

shall be guilty of an offence.

Exhibiting or Demonstrating of Machinery or Safety Components

4. (1) A person may exhibit or demonstrate the operation of machinery or a safety component in respect of which there is a failure to comply with these Regulations or the Directive:

Provided that -

(a) he or she displays (in a prominent position) a sign that is clearly legible and visible, at the place where the machinery or safety component is being exhibited, or its operation is being demonstrated, stating that -

(i) the machinery or safety component, as the case may be, does not comply with these Regulations or the Directive, and

(ii) the machinery or safety component, as the case may be, will not be for sale until such modifications or works as will ensure its compliance with these Regulations and the Directive are carried out, and

(b) he or she takes such measures as will ensure the safety of persons present while the machinery or safety component is being exhibited or its operation is being demonstrated.

(2) A person who contravenes this Regulation shall be guilty of an offence.

Presumption of Compliance with these Regulations

5. (1) Machinery or a safety component constructed in accordance with a national standard that transposes a harmonised standard (the reference for which has been published in the Official Journal of the European Communities) relating to one or more of the essential health and safety requirements shall be presumed to comply with the essential health and safety requirements concerned.

(2) Machinery bearing the CE marking that is accompanied by the EC declaration of conformity referred to in point A of Annex II of the Directive shall be deemed to comply with these Regulations.

(3) A safety component that is accompanied by the EC declaration of conformity referred to in point C of the said Annex II shall be deemed to comply with these Regulations.

(4) A person who places on the market or puts into service machinery, in respect of which there is a contravention of the second sentence of Article 8.6(b), shall be guilty of an offence.

Directions given by the Minister or the Authority

6. (1) Where the Minister or the Authority is of the opinion that a person -

(a) is placing or has placed on the market,

(b) intends to use or cause to be used or is using or causing to be used, or

machinery bearing the CE marking that, when used in accordance with its intended purpose, is likely to endanger the safety of persons or domestic animals or cause damage to property, the Minister or the Authority, as the case may be, may, by direction in writing, given to that person, or any other person that the Minister or Authority considers appropriate, prohibit him or her from placing or continuing to place on the market, putting into service, or using or causing to be used, the machinery concerned, or require him or her to take all practicable steps to withdraw the machinery from the market.

(2) Where a person

(a) is placing or has placed on the market,

(b) intends to use or cause to be used, or is using or causing to be used, or

safety components, in respect of which there exists an EC declaration of conformity, and the Minister or the Authority is of the opinion that, when used in accordance with their intended purpose they are likely to endanger the safety of persons or domestic animals, or cause damage to property, the Minister or the Authority, as the case may be, may, by direction in writing given to that person, or any other person that the Minister or Authority considers appropriate, prohibit him or her from placing or continuing to place on the market, putting into service, or using or causing to be used, the safety components concerned, or require him or her to take all practicable steps to withdraw the safety components from the market.

(3) A direction under this Regulation shall be accompanied by a notice informing the person to whom it is addressed -

(a) of the reasons for the giving of the direction,

(b) that he or she may apply to the High Court to have the direction set aside by way of judicial review in accordance with Order 84 of the Rules of the Superior Courts, and

(4) Where a direction is given under paragraph (1) or (2) the Minister or the Authority, as the case may be, shall immediately inform the Commission of having given such direction indicating the reasons for having done so and stating, in particular, whether such direction was given for a reason set out in Article 7(1) of the Directive.

(5) The Minister may, as he or she thinks fit, withdraw a direction given by him or her under paragraph (1) or (2).

(6) The Authority may, as it thinks fit, withdraw a direction given by it under paragraph (1) or (2).

(7) A person who contravenes a direction for the time being in force under this Regulation shall be guilty of an offence.

(8) A person who affixes the CE marking to machinery -

(a) that, when used in accordance with its intended purpose, is likely to endanger the safety of persons or domestic animals, or cause damage to property, or

(b) in respect of which there is a failure to comply with the essential health and safety requirements set out in Annex I of the Directive,

shall be guilty of an offence.

(9) A person who draws up an EC declaration of conformity in respect of a safety component -

(a) that, when used in accordance with its intended purpose, is likely to endanger the safety of persons or domestic animals, or cause damage to property, or

(b) in respect of which there is a failure to comply with the essential health and safety requirements set out in Annex I of the Directive,

shall be guilty of an offence.

Conformity Assessment

7. (1) A manufacturer of machinery or a safety component, his or her authorised representative in the Community or other person, who places on the market machinery or a safety component, in respect of which there is a contravention of paragraph 1 of Article 8 of the Directive, shall be guilty of an offence.

(2) A person who places on the market machinery or a safety component (other than machinery or a safety component to which Annex IV of the Directive applies) in respect of which there is a contravention of paragraph 2(a) of Article 8 of the Directive shall be guilty of an offence.

(3) A person who places on the market machinery or a safety component to which paragraph 2(b) of Article 8 of the Directive applies in respect of which there is a contravention of that paragraph shall be guilty of an offence.

(4) A person who places on the market machinery or a safety component to which paragraph 2(c) of Article 8 of the Directive applies in respect of which there is a contravention of that paragraph shall be guilty of an offence.

(5) It shall be an offence for a person to place on the market machinery or a safety component to which paragraph 2(c) of Article 8 of the Directive applies in respect of which -

(a) there has been compliance with the first indent of that paragraph, and

(b) there is a contravention of -

(i) the first sentence of paragraph 5, or

(ii) paragraph 7,

of Annex VI of the Directive.

(6) It shall be an offence for a person to place on the market machinery or a safety component to which paragraph 2(c) of Article 8 applies, in respect of which -

(a) there has been compliance with the second indent of that paragraph, and

(b) there is a contravention of paragraph 5, 6 or 7 of Annex VI of the Directive.

(7) It shall be an offence for a person to place on the market machinery or a safety component to which paragraph 2(a) of Article 8 of the Directive applies in respect of which -

(a) there has been compliance with that paragraph, and

(b) there is a contravention of the first sentence of paragraph 4 of that Article.

(8) It shall be an offence for a person to place on the market machinery or a safety component to which paragraph 2(c) of Article 8 of the Directive applies in respect of which -

(a) there has been compliance with the first indent or second indent of that paragraph, and

(b) there is a contravention of the first sentence of paragraph 4 of that Article.

(9) It shall be an offence for a person to place on the market machinery or a safety component to which paragraph 2(b) of Article 8 of the Directive applies in respect of which -

(a) there has been compliance with that paragraph, and

(b) there is a contravention of the second sentence of paragraph 4 of that Article.

(10) It shall be an offence for a person to place on the market machinery or a safety component to which the third indent of paragraph 2(c) of Article 8 of the Directive applies in respect of which -

(a) there has been compliance with that paragraph, and

(b) there is a contravention of the second sentence of paragraph 4 of that Article.

(11) Subject to paragraph 8 of Article 8 of the Directive, a person who -

(a) assembles machinery or parts thereof or safety components of various origins, or

(b) constructs machinery or safety components for his or her own use,

in respect of which there is a contravention referred to in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9) or (10) shall be guilty of an offence.

Notified Body in the State

8. (1) The Minister may appoint such one or more persons as satisfy the minimum criteria set out in Annex VII of the Directive to perform in the State (whether individually or, where more than one person is so appointed, together with one or more of such other persons so appointed as the Minister directs) the functions of a notified body specified in the Directive and a person so appointed in respect of whom a notification to the Commission in accordance with Article 9 of the Directive, is in force, may perform those functions accordingly, and is in these Regulations referred to as a “notified body in the State”.

(2) The Minister may, for the efficient and proper functioning of a notified body in the State, attach such conditions to an appointment under paragraph (1) of this Regulation as he or she thinks fit.

(3) An appointment under paragraph (1) of this Regulation -

(a) may be of fixed or indefinite duration,

(b) may be revoked by the Minister if he or she has reason to believe that the notified body in the State concerned does not comply with, or has ceased to comply with, the conditions attached to such appointment, or

(c) shall be revoked by the Minister if he or she has reason to believe that the notified body in the State concerned does not satisfy, or has ceased to satisfy, the minimum criteria set out in Annex VII of the Directive.

EC Type-examination

9. (1) An application to a notified body in the State for the carrying out of an EC type-examination shall -

(a) be in writing, and

(b) comply with section 2 of Annex VI of the Directive.

(2) An application under this Regulation shall be accompanied by the appropriate fee.

(3) A notified body in the State shall, if so requested, provide the Commission, a person authorised to make a request for the purposes of section 4 of Annex VI of the Directive on behalf of a Member State, or a notified body, with a copy of the EC type-examination certificate issued by it in respect of the machinery concerned and, on receipt of a reasoned request from any of those persons, a copy of the technical construction file included in the application for an EC type-examination and copies of the reports on the examinations and tests carried out for the purpose of that EC type-examination.

(4) Where it comes to the notice of a notified body in the State that machinery in respect of which an EC type-examination certificate has been issued fails to comply with the provisions of the Directive applicable to machinery, it shall withdraw such EC type-examination certificate.

(5) On making a decision to refuse to issue, or a decision to withdraw, an EC type-examination certificate, a notified body in the State shall, as soon as practicable thereafter, send to the applicant concerned a notice in writing of that decision stating in detail the grounds upon which the decision is based and informing him or her of his or her right under Regulation 11 to appeal against the decision and of the time limit for bringing such an appeal.

(6) Where a notified body in the State refuses to issue an EC type-examination certificate it shall, by notice in writing, inform all other notified bodies whether inside or outside the State.

(7) Where a notified body in the State withdraws an EC type-examination certificate issued by another notified body it shall, by notice in writing, inform that body, the Minister and the Authority of the withdrawal and such notice shall set out the reasons therefor.

(8) Where a manufacturer proposes to manufacture machinery, an example of which is the subject of an EC type-examination certificate, with modifications that were not present in the example examined for the purposes of the EC type-examination concerned, he or she shall, by notice in writing, inform the notified body concerned of those modifications.

Fees charged by Notified Body in the State

10. (1) A notified body in the State may charge a fee (in this Regulation referred to as “the appropriate fee”) which shall be equal to the amount which the body estimates it will incur in, or in connection with, the carrying out or causing to be carried out of its functions under these Regulations or the Directive in respect of an application referred to in Regulation 9.

(2) Where the costs incurred by a notified body in the State are greater than the appropriate fee, the difference between those costs and that fee shall be paid by the manufacturer of the machinery concerned or his or her authorised representative in the Community, as may be appropriate, to the notified body in the State.

(3) Where the costs incurred by a notified body in the State are less than the appropriate fee, the difference between those costs and that fee shall be paid by the notified body in the State to the manufacturer of the machinery concerned or his or her authorised representative in the Community, as may be appropriate.

Appeal from Decision of Notified Body in the State

11. (1) Any person aggrieved by a decision of a notified body in the State under Regulation 9 may, be notice in writing given to the Minister not later than 14 days after the receipt by that person of notice of that decision, appeal to the Minister against the decision and the Minister, having considered any submissions made to him or her by the person, the notified body in the State or any other interested party, and the report of any inquiry held under paragraph (2) in relation to the appeal or of any assessor appointed under paragraph (3) in relation thereto, may affirm, vary or reverse the decision of the body.

(2) The Minister may appoint an officer of the Minister to hold an inquiry in connection with an appeal under this Regulation and to make a report to the Minister on the findings and result of such inquiry.

(3) The Minister may appoint an assessor to assist him or her, and to make a report to him or her, in relation to an appeal under this Regulation, or to assist an officer of the Minister in relation to an inquiry being held by him or her under paragraph (2).

CE Marking

12. (1) A person shall not affix a marking to machinery, or label attached thereto, that is likely to deceive other persons as to the meaning and form of the CE marking.

(2) A person shall not affix a marking to machinery, or label attached thereto, if it is likely to reduce the visibility or legibility of the CE marking.

(3) A person who affixes a CE marking to machinery other than in accordance with the Directive or these Regulations shall be guilty of an offence.

(4) Where it comes to the notice of the Minister, the Authority or a notified body in the State that the CE marking has been affixed to machinery otherwise than in accordance with the Directive, the Minister, the Authority or the notified body in the State, as the case may be, shall by direction in writing require the manufacturer thereof or his or her authorised representative in the Community, as may be appropriate, to comply, in relation to the machinery concerned, with the provisions of the Directive relating to the CE marking.

(5) A person who fails to comply with a direction under paragraph (4) shall be guilty of an offence.

(6) Where a person fails to comply with a direction under paragraph (4) an authorised officer may, subject to paragraph (6) of Regulation 13, enter (if necessary by using reasonable force) any premises on which he or she has reasonable grounds for believing is to be found machinery to which the CE marking has been affixed otherwise than in accordance with the Directive, and therein seize any such machinery.

(7) If a person is convicted of an offence under this Regulation the court may order machinery in respect of which the offence has been committed to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

Authorised Officers

13. (1) The Minister may appoint such and so many persons or classes of persons, as the Minister thinks fit, to be authorised officers for the purposes of these Regulations.

(2) A person appointed under paragraph (1) shall, on his or her appointment, be furnished by the Minister, with a warrant of his or her appointment, and when exercising a power conferred by this Regulation shall, if requested by any person thereby affected, produce such warrant to that person for inspection.

(3) An authorised officer may, for the purposes of these Regulations and of the Directive -

(a) at all reasonable times enter, subject to paragraph (5), any premises at which he or she has reasonable grounds for believing that machinery or safety components are being manufactured, used or stored, or any premises that are part of an undertaking engaged in the manufacture of machinery or safety components,

(b) at all reasonable times enter (if necessary by using reasonable force) subject to paragraph (5), any premises at which he or she has reasonable grounds for believing that machinery or safety components in respect of which an offence is or has been committed under these Regulations are being manufactured, used or stored,

(c) at such premises inspect and take copies of, or extracts from, any books, records or other documents which he or she finds in the course of his or her inspection,

(d) carry out or have carried out such examinations, tests, inspections and checks of the premises, of any machinery or safety components being manufactured, in use or stored at the premises, or of any equipment, machinery (including machinery to which these Regulations do not apply) or plant at the premises as he or she reasonably considers to be necessary for the purposes of his or her functions under these Regulations or the Directive,

(e) require any person at the premises or the owner or person in charge of the premises and any person employed in connection therewith to give to him or her such information and to produce to him or her such books, documents and other records in that person's power or procurement as he or she may reasonably require for the purposes of his or her functions under these Regulations or the Directive,

(f) direct that such machinery of safety components as he or she, upon reasonable grounds, believes contravenes a provision of these Regulations or the Directive, not be placed on the market, put into service or removed from the premises without his or her consent, or

(g) take possession of and remove from the premises for examination and checking by the Minister or an approved body in the State, machinery or a safety component or any part thereof, and retain such machinery or safety component or part thereof for such time as he or she considers reasonable for the purposes of his or her functions under these Regulations or the Directive.

(4) An authorised officer in the performance of his or her functions under these Regulations may be accompanied by such members of the Garda Síochána as he or she considers appropriate.

(5) An authorised officer shall not enter a dwelling, other than -

(a) with the consent of the occupier, or

(b) in accordance with a warrant issued under paragraph (6).

(6) On the application of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that -

(a) machinery or safety components are being manufactured, assembled, used or stored in any dwelling,

(b) a dwelling is occupied in whole or in part by an undertaking engaged in the manufacture or assembly of machinery or safety components, or

(c) machinery to which the CE marking has been affixed other than in accordance with the Directive or these Regulations is to be found in any dwelling,

issue a warrant authorising a named authorised officer accompanied by such other authorised officers as are necessary, at any time or times, within one month of the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under subparagraphs (c), (d), (e), (f) and (g) of paragraph (3).

(7) A person who obstructs or interferes with an authorised officer in the exercise of a power conferred on him or her by these Regulations or impedes the exercise by the officer of such power or fails or refuses to comply with a requirement of an authorised officer pursuant to these Regulations or in purported compliance with such requirement gives information to an authorised officer that he or she knows to be false or misleading in a material respect shall be guilty of an offence.

(8) In this Regulation “premises” means any place, ship or other vessel, aircraft, railway wagon or other vehicle, and includes a container used to transport machinery or safety components.

Application of Section 34 of the Safety, Health and Welfare at Work Act, 1989

14. Section 34 of the Act of 1989 shall apply subject to any necessary modifications, and accordingly an inspector under that Act may, for the purposes of these Regulations and the Directive, perform any or all of the functions conferred on him or her by that section.

Obtaining of Information by the Minister or the Authority

15. (1) The Minister may, by notice in writing, require a person to provide him or her, within such period and in such form as may be specified in the notice, such information as he or she may reasonably require for the purposes of the performance by him or her of his or her functions under these Regulations.

(2) The Authority may, by notice in writing, require a person to provide it, within such period and in such form as may be specified in the notice, such information as it may reasonably require for the purposes of the performance by it of its functions under these Regulations.

(3) A person on whom a notice under this Regulation is served may, not later than 7 days from receiving the notice, appeal to the District Court sitting in the District Court District in which the notice concerned is served for an order revoking a requirement specified in the notice concerned.

(4) A judge of the District Court may, upon the hearing of an appeal under paragraph (3) -

(a) dismiss the appeal and order the person on whom the notice was served to comply, subject to paragraph (5)(b), with the terms of the notice, or

(b) allow the appeal and revoke any or all of the requirements specified in the notice.

(5) A person to whom a notice under this Regulation is addressed shall comply with a requirement in the notice -

(a) (i) upon the expiration of the period allowed for the bringing of an appeal under this Regulation, or

(ii) upon the expiration of the period specified in the notice,

whichever is the later, or

(b) where an appeal is brought under this Regulation, upon the expiration of such other period as is specified by the judge of the District Court who heard the appeal.

(6) A person who contravenes paragraph (5) shall be guilty of an offence.

Service of documents under these Regulations

16. (1) A notice or other document under these Regulations shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

(a) by delivering it to the person,

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address, or

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(2) For the purposes of this Regulation, a company within the meaning of the Companies Acts, 1963 to 1999, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business in the State.

Offences

17. (1) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of, or to be attributable to, any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Proceedings for an offence under these Regulations may be brought and prosecuted by the Minister or the Authority.

(3) A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.

(4) A person guilty of an offence consisting of a contravention of these Regulations shall on each day, after having been convicted of such offence, on which the contravention is continued by him or her, be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

Treatment of these Regulations for purposes of the Act of 1989

18. These Regulations shall be an existing enactment for the purposes of the Act of 1989.

Revocations

19. The following regulations are hereby revoked, that is to say:

(a) the European Communities (Machinery) Regulations, 1994 ( S.I. No. 406 of 1994 ), and

(b) the European Communities (Machinery) (Amendment) Regulations, 1995 ( S.I. No. 372 of 1995 ).

/images/seal.jpg

GIVEN under my Official Seal,

16^th November, 2001

Mary Harney

____________________________

Minister for Enterprise, Trade and Employment.

Explanatory Note

(This note is not part of the Regulations and does not purport to be a legal interpretation).

These Regulations give affect in Irish law to Directive 98/37/EC, which was a consolidation Directive, replacing a member of earlier Directives relating to machinery.

⁽¹⁾ O J No. L207, 23.7.98, p.1