§140 労働者の健康及び安全に関する国内規則

Particular mention must be made of the national regulations implementing the provisions of the EU Directives relating to health and safety at work. These Directives are based on Article 137 of the EC Treaty (now Article 153 of the TFEU) relating to the protection of workers' health and safety. They set out minimum requirements, which means that Member States remain free to maintain or adopt more stringent requirements if they see fit. Consequently, it is necessary to consult the national regulations in force in each Member State in order to identify the relevant obligations. The most important Directives relating to the use of machinery are:

Directive 89/391/EEC on the safety and health of workers at work. This is known as the "Framework" Directive, since it sets out the basic obligations of employers and workers relating to health and safety at work and provides the framework for a series of individual Directives dealing with specific aspects of health and safety or specific hazards;

Directive 2009/104/EC on the use of work equipment by workers at work.

This is the second individual Directive adopted under the "Framework" Directive.

Although the concept of work equipment is broader than that of machinery, machinery for professional use constitutes an important category of work equipment. The national regulations implementing the provisions of Directive 2009/104/EC always apply to the use of machinery at work. In this respect, Directive 2009/104/EC can be considered as a measure complementary to the Machinery Directive.

According to Directive 2009/104/EC, employers are required to make available to workers work equipment that is suitable for the work to be carried out and which complies with the provisions of any relevant EU Directive which is applicable to it. Consequently, all new machinery made available to workers must comply with the Machinery Directive and any other EU Directives that may be applicable – see §89 to §92: comments on Article 3.

The provisions of Directive 2009/104/EC are applicable to machinery in service in workplaces. During the lifetime of the machinery, the employer must take the measures necessary to ensure that machinery in service is kept, by means of adequate maintenance, at a level such that it complies with the provisions that were applicable when it was first made available in the undertaking or establishment.

improvements in the safety and health of workers at work. OJ L 183, 29.6.1989.

concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC). OJ L 260, 3.10.2009, p. 5. Directive 2009/104/EC is a codified version of Directive 89/655/EEC and amending Directives 95/63/EEC, 2001/45/EC and 2007/30/EC.

This does not mean that the machinery must be maintained in an “as new” condition, since it is subject to wear. But the necessary maintenance must be carried out to ensure that it continues to comply with the applicable health and safety requirements. To do so, the employer must follow the manufacturer’s instructions – see § 272: comments on section 1.7.4.2 (r) of Annex I.

Thus machinery that was subject to the provisions of the Machinery Directive when it was first made available must be maintained in a state of conformity with the essential health and safety requirements of the Machinery Directive that were applied when it was first placed on the market or put into service.

This also applies whenever machinery is modified by the user during the course of its lifetime, unless the modifications are so substantial that the modified machinery must be considered as new machinery and be subject to a new conformity assessment according to the Machinery Directive – see §72: comments on Article 2 (h).

Annex I of Directive 2009/104/EC sets out minimum technical requirements applicable to work equipment in service. These minimum requirements are applicable to machinery put into service before the Machinery Directive became applicable.They are not applicable to machinery placed on the market or put into service according to the Machinery Directive.

Directive 2009/104/EC also includes provisions relating to:

the initial inspection of work equipment the safety of which depends on installation conditions, after installation and before being put into service;

the inspection of such work equipment after assembly at a new site or in a new location, for example when tower cranes are moved to a new site;

periodic and special inspections and, where appropriate, testing of work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations.

In the case of lifting machinery, the initial inspections, for which the employer is responsible, must be distinguished from the measures to check the fitness for purpose of the machinery, which are the responsibility of the machinery manufacturer – see §350 to §352: comments on section 4.1.3 of Annex I.

Other provisions of Directive 2009/104/EC deal with:

the restriction of the use and/or the maintenance of work equipment involving a specific risk to designated workers;

taking account of ergonomic principles;

information, instructions and training for workers on the use of work equipment;

consultation of workers and workers' participation.

In addition, Annex II of Directive 2009/104/EC sets out specific rules for the use of certain categories of work equipment, including mobile work equipment, work equipment for lifting goods and work equipment for lifting persons – see §10: comments on Recital 7.

The instructions supplied by the manufacturer with machinery constitute an essential tool to enable employers to apply the provisions implementing Directive 2009/104/EC – see §254: comments on section 1.7.4 of Annex I.