§81 製造者とみなされうるその他の者

The provision set out in the second sentence of the definition of ‘manufacturer’ is intended to deal with the situation that arises for certain machinery imported into the EU. If a machinery manufacturer established outside the EU takes the decision to place his products on the market in the EU, he is able to fulfil his obligations under the Machinery Directive himself or mandate an authorised representative to perform all or part of these obligations on his behalf – see §84 and §85: comments on Article 2 (j). In this case a person purchasing such CE marked machinery from outside the EU does not take on “the manufacturers” duties. On the other hand, the decision to import non-CE marked machinery into the EU may be taken by an importer, distributor or user. In some cases, the machinery may be ordered from an intermediary such as an export company. In other cases, a person may purchase the machinery outside the EU and bring it into the EU himself, order machinery via the Internet, or purchase machinery in a free zone (such as an auction site) with a view to its distribution or use in the EU.

The person placing such machinery on the market in the EU may be able to arrange for the “original manufacturer” to fulfil the obligations according to the Directive, and have the item CE marked. However, if that is not the case, the person placing the machinery on the market in the EU must fulfil these obligations himself. The same goes for a person importing machinery into the EU for his own use. In these cases, the person placing the machinery or partly completed machinery on the EU market or putting machinery into service in the EU is considered as the manufacturer and must therefore fulfil all of the obligations of manufacturer set out in Article 5.

This entails that the person placing the machinery on the market must have the means to satisfy these obligations, which 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 §103 to §105: comments on Article 5.

It should be noted that the provision set out in the second sentence of the definition given in Article 2 (i) cannot be invoked by a manufacturer in the EU or by a manufacturer outside the EU who takes the initiative to place machinery on the EU market, in order to avoid their obligations under the Machinery Directive.

Another case where the duties of a manufacturer rest with a person/company other than who actually designed and made the machine, is where it is marketed and supplied under the distributors name or “brand”. This is a common situation with power tools and appliances sold in a number of chain stores and outlets marketed under a “brand” name owned by the store.

The flow chart below illustrates the various economic operators who can take on the duties of the manufacturer of machinery.