§75 オークション

Auctions held in free zones

One of the ways in which machinery is placed on the market is through auctions. Such auctions may be held in a free zone. The main purpose of holding auctions in a free zone is to sell new and used machinery from outside the EU for use in countries outside the EU. Machinery sold for that purpose is not considered to be placed on the market in the EU.

On the other hand, the machinery offered for sale at such an auction is considered to be placed on the market or put into service in the EU if and when it leaves the free zone in order to be distributed or used in the EU. If the machinery concerned is new or is used machinery that is placed on the market or put into service in the EU market for the first time, and if the manufacturer of the machinery concerned or his authorised representative has not fulfilled his obligations according to the Machinery Directive, the person who purchases the machinery at the auction and brings it from the free zone into the EU with a view to its distribution or use is to be considered as the person placing the machinery on the market or putting it into service in the EU and must fulfil all the obligations set out in Article 5.

Auctions held outside free zones

If an auction is held in the EU outside a free zone, it can be assumed that the machinery is being offered for sale with a view to its distribution or use in the EU and it is therefore to be considered as placed on the market in the EU.

If machinery offered for sale at an auction held in the EU outside a free zone is new, whether manufactured in or outside the EU, it must comply with the relevant provisions of the Machinery Directive. The same goes for used machinery offered for sale at such an auction if it is placed on the market in the EU for the first time – see §72: comments on Article 2 (h).

If the manufacturer of the machinery concerned or his authorised representative has not fulfilled his obligations according to the Machinery Directive, the person offering the machinery for sale at such an auction (the consignor) is to be considered as the exported from the customs territory of the EU or brought into another part of the customs territory of the EU – see Articles 155 to 161 of Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code). OJ L 145, 4.6.2008, p. 1. Zone are subject to customs supervision and do not benefit from the free circulation in the internal market. Before benefiting from the free circulation in the internal market, these goods must be declared for release for free circulation. That entails application of commercial policy measures, completion of the other formalities laid down in respect of the importation of goods and the charging of any duties legally due.

person placing the machinery on the market in the EU and must therefore fulfil all the obligations of the manufacturer set out in Article 5. These obligations include ensuring that the machinery satisfies the relevant essential health and safety requirements, ensuring that the technical file is available, providing the instructions, carrying out the appropriate conformity assessment procedure, drawing up and signing the EC Declaration of Conformity of the machinery and affixing the CE- marking – see §81: comments on Article 2 (i).

The auctioneer who organises the sale by auction of such machinery offered for sale by consignors is be considered as a distributor and must therefore ensure that the machinery bears the CE marking, is accompanied by the EC Declaration of Conformity drawn up and signed by the manufacturer or his authorised representative and is accompanied by instructions – see §83: comments on Article 2 (i).