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When considering secondhand equipment under the Directives, there is firstly a need to examine the original date of supply and the source of the equipment in question.

Supplier obligations

All machinery supplied in the European market after 1 January 1995 should have been CE marked. This includes machines manufactured for the makers own use (i.e. 'in-house specials'). Equipment first used in the EU prior to this date does not need to be CE marked, but equipment which was made before this date but not imported into the EU until later will need to be CE marked since the act of crossing the EU border is considered to be the first supply into the Community.

It's important to understand that this rule applies to individual items of machinery. It it not possible for a manufacturer to exempt the machine from the application of the CE mark because an identical piece of equipment was supplied in the EU prior to 1 January 1995. Nor is it possible for one importer to rely on the CE marking of the same piece of equipment by another independent importer since each importer will need to be able to provide a technical file if challenged. In other words, one importer cannot simply say 'my CE mark is valid because someone else is selling an identical piece of equipment and they have already put a CE mark on it'.

Conversely to the above, any piece of equipment which was first supplied in the European Community prior to 1 January 1995 is not required to carry the CE mark. This is true even if it is subsequently repaired or refurbished to its original specification, but if the specification is enhanced or changed then it may be considered to be a new machine and all of the CE marking rules will apply.

Employer obligations

The above rules are the responsibility only of suppliers of machinery. An additional complication comes into play so far as an end user of machinery is concerned, since if the machine is provided for the use of their employees, they will have obligations under the Work Equipment directives (implemented in the UK as the Provision and Use of Work Equipment Regulations 1998 (PUWER)). These state that equipment supplied for employees' use must comply with any applicable Essential Requirements of the CE marking directives.

Note that this wording carefully avoids saying that all equipment must be CE marked before it can be provided for use by employees, since this would force equipment which pre-dates the Directives to be assessed and CE marked. However, under PUWER and other regulations, employers have an obligation to perform a risk assessment for work tasks involving machinery and in order to properly fulfill their obligations, this assessment should be done to the full set of requirements of annex 1 of the Machinery Directive. If the machine has been CE marked by the manufacturer, the employer is unlikely to have to do much work in this regard, but if the machinery has not been CE marked, either because it was made before 1995 or because it was made outside the EU, then there is potentially quite a lot of work for the employer to do in order to comply with the essential requirements.

Basically, therefore, even though the Supply of Machinery Regulations do not require pre-1995 machines to be CE marked even if they are re-sold, PUWER requires that they meet the same basic requirements as new machines. An employer is therefore prevented from avoiding their obligation to provide safe machinery simply by avoiding purchasing new machines.

One example of where this becomes a significant issue concerns the use of light guards on equipment such as power presses. Clause 1.4.3 of annex 1 of the machinery directive states that “Protection devices must be designed and incorporated into the control system so that… the absence or failure of one of their components prevents starting or stops the moving parts.” What this means is that machines fitted with light guards and where there is a risk of significant injury must have a redundant and monitored control system so that failure of the controls is detected and the machine is stopped from working until they are fixed. Much machinery made before the Directive came into force fails to meet this requirement (and, as an aside, quite a lot still does even now the directive is in force). When such a machine is taken into service by an employer, they should perform the risk assessment to Annex 1 of the Machinery Directive, and this should highlight the deficiencies in the control system. In order to comply with PUWER, the machine must then be modified to meet the requirements of (inter alia) clause 1.4.3.

Modified machines

One interpretation of the requirement to CE mark older machines which are significantly modified would conclude that any such modifications will mean that the machine has to be subjected to the full CE marking process even though it actually predates the 1 January 1995 deadline, and this is strictly correct. However, in most cases it is important to take a pragmatic approach to this, and remember that the officers who enforce these regulations (HSE in the UK) are mainly interested in ensuring that the equipment is in fact safe for people to use rather than getting too tied up in the paperwork surrounding the CE marking requirement. If in doubt, employers are recommended to seek advice from HSE themselves or to contact us at Conformance for further advice.

Useful links

The Provision and Use of Work Equipment Regulations 1998

The Electrical Equipment (Safety) Regulations 2016

The Supply of Machinery (Safety) Regulations 1992

The Health and Safety Executive

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